As the debate continues on whether Norm Pattis’ radical idea for a Universal Public Defender system that would cover those who are neither indigent nor financially capable of a meaningful defense, an email came in from the New York Criminal Bar Association. This is the New York City, primarily Manhattan, flavor of the criminal bar, and they will be holding a war council this Wednesday to decide whether, and how, to challenge the City’s RFP that would likely spell the death of 18B in the City. For those outside, 18B is the system of private lawyers being assigned indigent defense.
In response to my concerns about a UPD system, Norm argues that my fears are overblown.
In response to my concerns about a UPD system, Norm argues that my fears are overblown.
Having a universal public defender service does not mean conscripting all members of the bar and making them government employees. It means that all members of the bar can apply to be appointed off a list of qualified defenders. It also means that making your way onto that list, and remaining there, requires demonstrating minimal competence in the difficult work of defending the accused.
Not all lawyers will seek such appointment. Those who don’t want strings attached to what they do can compete for the private dollars swirling in the wake of the arrests of the affluent. But the middle class, those folks not indigent but without the means to hire a full defense team, won’t be facing the resources of the state armed only with the wits of the lawyer they could afford.
I see this statement as marginally accurate but quite naive. Gideon has a better take, noting that the vast number of case are already covered by public defense, leaving only a slice between the rich and everyone else to be addressed:
Which brings us to the one category that would really benefit from some modification of the public defender system: the poor-by-everyone-else’s-standards-but-not-poor-enough-to-get-a-pd.While moving the bar of indigency upward would alter the calculus somewhat, and rid us of the assumption that poor means dirt poor, and anyone who isn’t dirt poor is wealthy enough to afford to pay for a criminal defense, it reduces the number of people who fall into the no-man’s-land of criminal defense but does not eliminate the problem. People who are solidly middle class, maybe even upper middle class, really aren’t equipped to handle a serious criminal defense.
This is the class of defendants who make a little too much to fall below the artificially low income threshold and don’t make nearly enough to realistically hire a lawyer and fund the tools of an adequate defense. It is these people that we need to be worried about. Several times have I expressed disgust at the indigency cutoff and the arbitrary enforcement of these “guidelines”. What might get you counsel in one court, county or state may not get you counsel in another. There needs to be an honest and serious rethinking of the guidelines.
I think Gid might be surprised to learn how many people appear to be doing fine but, when pressed to come up with a substantial amount of money quickly, find themselves wholly unable to do so. As a public defender, Gid probably doesn’t have to deal with this often. As a private criminal defense lawyer, I probably see this more regularly. I suspect this is what Norm is talking about, rather than the guy with a 3 year old car and nothing else.
Norm’s dismissal of my concerns, however, may be a bit premature. Witness the NYCBA war council. While 18B only covers indigent defendants under the current system, meaning that we’re talking about the really indigent rather than the mere house-poor indigent, and lawyers are preparing to go to war. They know. Without the income derived from 18B assignments, it’s unlikely that they will survive. This is the bread and butter of many a law practice. This is how they pay the bills and feed the family. Without it, they’re toast.
There will be a handful of lawyers who have no need to participate in a UPD system, and will opt out. The vast majority will have no choice but to take whatever the government gives. Without this work, their practice cannot survive. They cannot survive. Sure, some may switch to real estate closings and wills, and dabble in criminal defense when the odd retained case comes their way, but most will never see a criminal case again. Not every lawyer has a practice base in the filthy rich, and, frankly, the rich don’t get arrested all that often. That’s why it makes the papers whenever they do.
My best guess is that such a system will virtually eliminate the existence of a private criminal defense bar. For the vast majority of private criminal defense lawyers, who aren’t the short list for the prosecuted rich, the choice will be sign up or find some other way to earn a living. There simply won’t be enough regular retained criminal cases for them to maintain a practice. At that point, the government will control the purse strings of, say, 98% of the criminal defense bar.
Whether it’s someday decided that people no longer deserve a defense, should a conservative Supreme Court issue a 5-4 decision overruling Gideon v. Wainwright as being one of those wacky liberal penumbras, or whether they just choke lawyers by tightening the purse strings should money get tight (it could happen) or the decision be made to allocate scarce resources elsewhere, like bombs, criminal defense will be at the mercy of the State.
It’s not that I disagree with Norm, Gideon, Bennett or Kindley about the problem. It’s a real problem, and like them, I both see it and feel for those who suffer for the inability to be able to afford a meaningful defense. I’m just not ready to hand over the control of the criminal defense bar to the compassion of the government or the American people. With a UPD system, that’s precisely what I see happening. And so do the lawyers who will attend the NYCBA war council, who have good reason to fear that this spells the end of their private criminal defense practice.
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I didn’t want to go too much into detail in my post on the mechanics of this, but…essentially it comes down to cost, right?
Say we expand the eligibility such that it covers 90% of the criminal defendants and really doesn’t leave anyone out in the cold who can’t afford adequate defense (let’s assume that’s quantifiable).
That leaves 10% for the private bar. But the current public defender staffing numbers are incapable of handling that 90% caseload. So we “hire” private attorneys to take up the overflow, like we do now. Except private attorneys will say, sorry, not going it for a pittance. So, perhaps, the fees paid to private attorneys to take “contract” work goes up. Now, this removes your autonomy in choosing cases, but the work is still there.
In the end, however, I think high-end specialized and terrific lawyers such as yourself will only be undercut by those among your numbers who are looking to make a name for themselves.
I don’t think UPD can and should be some sort of communist work force, but an idea that ensures that no matter who is providing representation (pd, spd, private), that the representation is constitutionally sufficient.
And for the most part, the State can and does pick up the tab.
Over the weekend a number of board members and past presidents of the NYSACDL responded to an inquiry by the current pres as to whether it would be OK for the current pres to attend the “war Council” on Wed. (or to send a delegate).
The responses seemed to indicate that it was OK for someone to represent NYSACDL but that person should not take a position and that no position should be taken until the next board meeting.
One of the problems that besets NYSACDL is that it has lost its direction. It started as a bar assoc for private criminal def lawyers.Now, over 25% of the board members are public defenders (although 10% of the members fall into that category).
The abolition of 18b in NYC will kill the private bar. This should not come as a surprise to NYSACDL. Come on people, let’s help the private bar or stop pretending to do so.
I note the NYC crim bar only wants private lawyers at the council. Get the picture NYSACDL?
There was a shortage of 18B lawyers before the rates went up six years ago. After Jan. 2004 there was a surplus of lawyers languishing on the lists or never on them who were willing and able to take cases. It happened both in NYC and the hinterlands, but I read that the surplus was remarkable in NYC where the cost of overhead is high.
So what was the bulk of present-day 18B attorneys in Mnhtn. and the other boroughs doing before six years ago?
There was no shortage of 18B lawyers. There was simply an influx of new lawyers joining the panel when the rates were increased. But the answer to your question, how were these lawyers surviving without being on the panel, is simple: on retained cases and non-criminal work. Take away the retained cases and what’s left?
Not much come to think of it since the market for r/e closings and refinancings tanked.
Possibly the most significant issue to the private criminal defense bar, and George Goltzer, new President of the NYSACDL wants permission to attend the meeting? It’s no surprise that the responses are mixed. The association is paralyzed by lack of purpose or mission, and here is the state association about to sit it out while the local associations prepare go to war. And the fact that George can’t make an executive decision without asking “pretty please” is absolutely unbelievable. Stand for something or you stand for nothing. We know where the NYSACDL stands.
Come down to cost? Not for me. It comes down to autonomy and independence. It comes down to being able to decide what to do without needing anyone’s approval or oversight. It comes down to being able to serve as a professional, without ever having to fear that the government will one day pull the plug.
I don’t think I have any of those fears currently. No one has oversight on my representation of my client, other than my immediate supervisor. No one seriously questions an expenditure I wish to incur other than for a pro-forma explanation needed to authorize it.
You think all public defenders operate under the fear that the government will pull the plug?
Your concern that a “universal public defender” system would give the government too much control over the private defense bar and might spell its demise is well-taken. I was recently appointed as a special public defender to defend a guy charged with burglarizing a regular public defender’s house. The guy asked me to also represent him privately in his pending child support case. I checked with the public defender coordinator and he said I couldn’t do it. I had no problem with that particular rule, but it is an indication of the strings that are usually attached to government money.
It seems to me though that a properly designed “universal public defender” system could minimize such governmental interference. What if the defendant could choose his own attorney from the private criminal defense bar rather than have one appointed for him? What if there was a set amount allotted for each kind of charge (with procedures in place to apply for more in extraordinary cases), with the defendant free to agree with the attorney to pay more than the amount allotted by the government? What if the amount advanced by the government was considered a loan, with the loan forgiven if the defendant is acquitted? Seems all of these measures would serve to minimize governmental interference with a particular defense and with the private criminal defense bar in general.
First, remember that your experience is not indicative of the experience of other PDs. You work in wealthy Connecticut. Others do not. Second, this isn’t about PDs now, but if the government controlled the entire criminal defense bar. While some PDs do live in fear of the government pulling the plug, by way of reduced funding, the situation will be entirely different if they are in control of the entire criminal defense function. That’s way more power than they now have.
While I see some good and bad in the possible designs you suggest, it’s not worth a discussion because it’s essentially fantasy. As nice as it would be to dream about the perfect system from the criminal defense perspective, it’s nothing more than a nice dream.
First, this probably makes public defender spending much more attractive politically. The larger the share of people who MIGHT benefit, the more likely the median voter is willing to spend on the system. Social Security and Medicare are politically untouchable. Welfare and Medicaid are not. Medicare reimburses providers much better than Medicaid despite the fact that the payor, provider and services are the same, and that a significant share of beneficiaries were on Medicaid pre-age sixty-five. That is the power of non-means tested programs politically.
Second, the evidence from deemed indigent defendants who can get public defenders is that many borrow from friends and family to get private counsel when they think that they have strong cases. A larger percentage of more affluent defendants with decent cases would do the same.
Third, the incentive to get a public defender when you can afford a private one is diminished if there is a duty to reimburse the state if one is convicted. A large share of defendants are fighting over sentences not being guilty of something.
Fourth, dispensing with indigency hearings saves everyone in the system busy work. It also saves work system wide by reducing the number of involuntary pro se defendants fumbling around through the system.
Fifth, the lack of a need to file an indigency petition reinforces the 5th Amendment right not to self-incriminate, particularly in the kinds of crimes (drug/white collar) that many people on the margins of ability to pay are charged in. It also gives all defense lawyers a stronger bargaining position since fewer clients have to plea for financial reasons. It also reduces the likelihood that your future clients will have overstated prior criminal histories due to ill informed plea bargains. In areas like white collar crime, where specialized experience is called for relative to blue collar crime, and where defendants usually aren’t indigent, the incentive to opt out and hire private counsel would be particularly great.
Sixth, lots of criminal defense attorneys moderate their rates out of a felt need to provide a criminal defense to someone who otherwise would have no representation. It isn’t a specialty most lawyers choose for purely financial reasons. In a universal public defender system, criminal defense attorneys, particularly at the low end of the scale, might feel less guilt about charging more or being firmer in fee negotiations.
You’re right of course. I was thrown off by your devotion of two posts this week to the idea of a universal public defender system. My thought was that if we’re going to contemplate so radical and salutary a change as a universal public defender system we might as well also contemplate logical innovations in the provision of public defender services that might make such a change more workable and less objectionable.
You’re point is well taken. If we’re going radical on a UPD system, why not consider all possibilities.