This is not exactly breaking news, as the NYCLU suit was filed on November 8th and Gideon, appropriately, jumped on it. In a back-handed slap, Gideon then raised the glaring silence from New York lawyers at Sui Generis’ weekly New York blawg round-up. Gid was right about that too.
It wasn’t that I was ignoring this very important piece of news, but that I was so deeply ambivalent about it. On the one hand, a great deal of effort and discussion went into presentations made to a Commission formed by Chief Judge Judy Kaye last year on this subject, addressing the difficult nuanced issues in terms of how to create a statewide indigent defense system that truly provided effective, consistent representation for defendants, and dealing with the inevitable unintended consequences of the various choices that had to be made in the process.
No one, including the Governor and Chief Judge, doubts that the current system does not work very well, and often doesn’t work at all. As the press release states :
The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York.
No question about it, this is all true. But everyone knows this. Everyone. Pointing out the obvious, however, does nothing to solve the problem.
Gary Stein, a lawyer with Schulte Roth & Zabel, pro bono counsel in the suit, added, “No more studies, no more delay. It is time to act.”
Strong words. It is time to act. But act how? We have a chance to get it right this time, but getting it right is a far harder task than repeating long-standing criticism.
On the one hand, this suit may well push the State to put much greater energy and resources into moving the proposals for a statewide indigent defense commission toward becoming a reality. Or, it could stop the efforts dead in their tracks while this suit continues.
But Mr. Gordon [spokesman for Governor Spitzer] said a legislative solution would not be possible until the litigation was resolved, helping to clarify constitutional issues.
There are a lot of people with horses in this race, not the least of which are the many indigent defense providers throughout New York State, operating on a county by county basis. These providers, ranging from New York City’s Legal Aid Society to Bronx Defenders, have no idea what will become of them in a paradigm shift to a statewide defender system. And then there are the 18B attorneys, putative private lawyers who either earn a living, or supplement their practice, by taking on indigent defense work on a case by case basis. This group encompasses a substantial portion of the criminal defense bar, and the wholesale elimination of 18B cases would mean the wholesale elimination of their ability to survive.
Would all indigent defense be covered by lawyers in the state’s employ, or would it be outsourced to groups and individuals. If the former, were would the state get this sudden enormous group of lawyers to fill the work, and how would they do so in the upstate counties where there are currently only a handful of lawyers practicing to begin with.
But if the latter, using the cadre of current 18B lawyers to fill the needs of indigent defense, have we not spun our wheels in a big circle, changing the name at the top but changing nothing else in the system. After all, this is the same system that everyone complains about now, and the quality of indigent defense is back to being in the individual hands of individual lawyers. Oversight and accountability, currently non-existent, will still be impossible since every provider will continue to operate independently.
Yesterday, after feeling pushed by Gideon to speak to this matter, I had a long chat with the head of an indigent defense provide in one of New York City’s five counties. While she hoped that this lawsuit would push the state to move forward, and move faster, on doing something, she had deep concerns that she would have no seat at the table when it came time to talk about the resolution. On a very practical level, this will not only impact the provision of legal services to the poor, but will impact the livelihoods of thousands of lawyers and continued existence of numerous enterprises.
The process of deciding what to do about indigent defense, how to fix a badly broken system, is going to be ugly. It’s going to be far uglier if decided by a judge with only a few voices being heard. While we can all agree that the services provided are inadequate, there is vehement disagreement about who is at fault and why. Every indigent provider swears that they provide fabulous representation, and its the other guys who suck. Every 18B lawyer swears that she serves her clients effectively, and it’s the other 18B lawyers who don’t.
Everyone agrees that the lack of funding is a huge problem. But if you give more money to the same old groups and lawyers who are dropping the ball today, do you fix the problem or end up with better paid lawyers providing the same old ineffective representation. How do we quantify and qualify effective representation when every case is unique?
The two statewide criminal defense associations, NYSDA and NYSACDL, have been involved in this discussion for a few years now, seeking change through the political process. But now that the NYCLU has brought suit on its own, leaving the criminal bar out of the picture and, essentially, unilaterally dictating the process by pushing ahead on its own.
Is this lawsuit good, bad or indifferent? My gut is that this lawsuit not only jumped the gun, but may ultimately prove to be the most harmful thing that has happened to creating a viable and effective indigent defense system in New York. Sure, the NYCLU knows the problems. But they have no solution.
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I think that’s a cop out. There’s a very easy solution to the problem: funding.
You create a state-wide public defender system, with an office in each courthouse. Staff it with an appropriate number of attorneys, realizing full well that you’re never going to have enough to cover every case. So you have contract attorneys as well (here, they’re called “Special Public Defenders”). They take cases where there are conflicts or if that caseloads are too high.
But it has to be done. Just because there’s no one solution put forth here doesn’t mean there isn’t one.
For the record, the lawsuit in CT didn’t go to judgment. It settled because the legislature increased funding, the public defender commission created training positions and a training regimen. Being centralized has really helped CT’s system, to the point where it is one of the best in the country.
It’s all fun and games to sit around and say: ‘well, will this really help’ or ‘what about this subset or that subset’, when in reality we all go home and sleep at night and there thousands of indigent defendants who get squat for representation and spend significant portions of their lives in jail simply because their lawyer was underpaid, not motivated, overworked and didn’t have the investigative tools he/she should have.
More funding means higher salaries, which means it attracts more applicants and motivates those already there.
More funding also means more investigators, more resources. As I said in my post, it is not a panacea, but it will provide public defenders with the necessary tools to represent their clients effectively. You have to start somewhere.
Sorry for ranting.
I hate to say this, but saying that the answer to all problems is funding is an overly simplistic, and institutional, response. Funding is part of the solution, but it is absolutely not the answer. Raising fees may bring in better quality lawyers, but it doesn’t get rid of all the lesser quality lawyers. It just pays them more money to do the same crappy job.
Consider the words of H.L. Mencken, “For every complex problem, there is a solution that is simple, neat and absolutely wrong.” I’ve lived through too many failed solutions to hang my hat on “it has to be done.” Undoing bad solutions is extraordinarily difficult. What’s wrong with finding a real solution rather than finding a fast solution?
Fast? It’s been over 40 years since Gideon. If you call that fast, then if we take it at your speed, maybe New York will provide adequate representation for indigent defendants by the time we all evolve into masses of energy.
I didn’t say funding was the only answer or the complete answer. I also mention training in my comment. They have to go hand in hand. If there is a centralized structure, there is more control over the system, there are universal standards that can be adopted across the board.
What is this “real solution” that you speak of and how long will it take to come to fruition? Is that solution guaranteed success? What of all the defendants in the meantime that receive shoddy representation (heck, forget shoddy, just handicapped representation)?
You miss your own point. When Gideon was decided, states were forced to rush into indigent defense. It was miserable. It was tweaked. It was miserable. 40 years later, it’s still miserable. So you solution is to repeat the same mistakes.
You have a VERY myopic view of the problem. You are right, there are defendants in the pipeline now who are not receiving effective representation. Then again, this is true of defendants for the past 40 years. You have got to learn from the past, Gid. Blindly rushing into the darkness rarely solves anything. I realize that you think the answers are obvious. They were obvious to your predecessors as well. And yet they were wrong. What do you tell the next 40 years worth of defendants when they are denied effective representation? My solution may be completely wrong, but at least I did it fast?
But you still offer no solution. All you say is that funding now is myopic and counterproductive. Well, what then, is the solution? Wait a while longer? For what? You don’t think better funding at this point is going to help? I don’t know how you can say that.
The problem in the last 40 years has been the lack of funding. Look at the fight Georgia is putting up. They don’t want to pay the money to provide adequate representation!