It’s odd how we fight for years over incremental change, then all of a sudden there’s change everywhere you look.  Last week, New York finally made some tweaks to the draconian Rockefeller drug laws, providing ridiculously harsh sentences for small as well as large drug offenses that filled prisons beyond capacity but did little to stem drug sale and use.

While falling far short of the “death” of the Rockefeller laws, it was a significant improvement, at least for the lower level offenses, and for the first time took treatment alternatives out of the hands of prosecutors and put them into the hands of judges.  While the top of the range still holds minor league drug dealers and possessors as if they were drug kingpins, and sentences them as if they were murderers, at least it offers some relief where it’s been long known that the laws had failed in their purpose long ago.  Naturally, the opposition to the change was form upstate legislators whose counties were the home to prisons and prisons provided their larger employers.  A great reason for incarceration.

Then, the New York State Bar Association, which provides the straight-laced voice of the legal profession in New York, approved a task force’s recommendation for videotaping identifications and interrogations.

The state bar leaders approved the findings of the task force on wrongful convictions Saturday without opposition in an Albany meeting. Recommendations include videotaping all eyewitnesses as they make identifications, and all defendants’ statements to law enforcement officials, if possible.

The task force recommendations, led by newly minted criminal court judge Barry Kamins, stated that the entire criminal justice system suffers whenever an innocent person is convicted.

“It is difficult to imagine what individuals must endure mentally, physically and emotionally after being incarcerated for months and years for crimes they did not commit,” Judge Kamins said. “In addition, every time an innocent person is arrested, convicted and sent to jail, law enforcement officials and prosecutors are distracted from locating the real perpetrator – who may never be brought to justice.”

While the lege has yet to act on this NYSBA’s recommendation, it carried sufficient legitimacy and clout to make the state take notice, giving New York a very real chance of changing procedures that have proven conducive to mistaken identifications and false confessions.

To top it off, the state legislature enacted a law the provides for the Chief Administrative Judge to cap caseloads for public defenders in New York City.

Under the law, New York State’s chief administrative judge would be required to establish new caseload standards for public defenders by April 1, 2010. The judiciary would then have four years to phase in the limits and ensure proper funding. Despite the state’s grim economic condition, the judiciary’s budget for the current fiscal year remained stable at $2.57 billion.

While it’s unclear where the cap will be, or how the cap will apply to individual lawyers, or why they have given the Chief Administrative Judge a five year window to deal with  a problem that exists today, at least this provides recognition that the least powerful amongst us, the indigent defendants and the lawyers charged with defending them, must be provided with meaningful representation. 

The plan has raised certain concerns, with Brooks Holland, a former Bronx Legal Aid lawyer and current lawprof, raising the specter of external court scrutiny over the caseload management of individual public defenders. 

With this new external enforcement of caseload standards, could greater external scrutiny of individual attorney “productivity” come with it? I’m hard pressed to think that some inquiry into individual attorney work practices wouldn’t be expected and even necessary for the judiciary to determine what caseloads reasonably can be managed by diligent and attentive lawyers. But public defenders understandably should be expected to resist external scrutiny of individual attorney case management, in part because of its potential to interfere with attorneys’ independent professional judgment, see N.Y. Code of Prof. Resp. Canon 5 and EC 5-1, and in part because public defenders already battle against many clients’ impression that we already answer to the government.

While Brooks has a point, given government’s general inability to keep its nose out of things it doesn’t understand, plus the grocery clerk’s tendency to oversee something as variable as legal representation by use of a checklist, it would be hard to imagine the legislature and courts not trying to interfere with the level of services needed. You can’t expect a grocery clerk to understand that felony trials take longer than misdemeanors, right?  But that’s the giveback; The bureaucracy giveth and then makes life miserable.

Will this prove to be a tsunami of real change, a breeze of fresh air or just a quick blow?  Time will tell.  But it’s been a very busy week for criminal law in New York, busier than any week I can think of in the past 25 years. Now it’s time to keep an eye on things and see whether these changes are for real.