I had a chance to talk to a friend of mine from my New York State Days. Mardi Crawford is an attorney with the New York State Defender’s Association and has her finger on the pulse of the initiatives for Public Defender reform in New York right now. I had a chance to talk to her last night and asked her to do a quick and dirty summary of the happenings in New York. She was kind enough to do a timeline of what’s happened in New York for those not familiar.
Many Public Defender offices are having similar pains. New York is not going to go to a state run system, but I wonder if that might not be the best way – although financing will always be an issue. Here is Mardi’s rundown of happenings in New York
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Will New York State see the recent reinstatement of a Civil Liberties lawsuit as an opportunity to truly reform a public defense system widely acknowledged to be broken?
The constitution – and justice itself — requires that people who cannot afford to hire an attorney must be provided one when the government seeks to take away their liberty. If the right to counsel isn’t honored, many other rights may also be lost for lack of proper legal action to secure them. The high court in New York State just reiterated that principle in allowing a lawsuit by the New York Civil Liberties against the State and five counties to proceed. Advocates for public defense reform are hoping that this development will add to the already-growing momentum for public defense reform in the Empire State. While many states experience public defense problems, often brought on or heightened by the Great Recession, New York’s public defense system (or non-system) has been in ongoing crisis since well before the economic downturn.
A brief timeline for those who haven’t been following New York’s public defense crisis:
1965-2006 – From the time the State implemented a patchwork county-operated and primarily county-funded system for providing public defense, problems were apparent. Entities including the National Legal Aid and Defender Association, the NAACP Legal Defense and Educational Fund, and the New York State Defenders Association studied various counties at different times and consistently found major deficiencies and resulting injustices. Beginning in 2001, bills that would create an independent public defense commission to oversee public defense in the state were introduced in the State Legislature but failed to pass.
2006 – a blue ribbon commission reported to the State’s Chief Judge, Judith Kaye (now retired) that the county-by-county system mandated by the State Legislature in 1965 fails to satisfy constitutional and statutory obligations to protect the rights of public defense clients. This finding followed statewide hearings and a study by the nationally-recognized public defense consultant The Spangenberg Group.
2007 – The New York Civil Liberties Union filed a class-action suit against the State for unconstitutionally deficient public defense services in five counties.
2008 – The NYCLU suit survived a motion to dismiss. The five named counties were added as defendants in the case.
2009 – Momentum for public defense reform grew, with many legislators and others calling for creation of an independent public defense commission. Late in the year, an intermediate appellate court dismissed the NYCLU suit as presenting an “nonjusticiable” issue that must be resolved by the other branches of government. Many state and national organizations filed briefs as amici curiae, urging that the suit be allowed to go forward.
2010 – Recognizing that even in a difficult budget year, the State must begin to address its public defense crisis, the Governor included a modest reform in the Executive Budget. Famed former Manhattan District Attorney Robert Morgenthau, who with 61 other former prosecutors had joined a brief authored by the Brennan Center for Justice urging the state’s high court to reinstate the NYCLU claim for better defense services, published an op-ed. The State Senate and Assembly each agreed that, with at least some modifications, the Governor’s proposal for public defense reform should be instituted. Now, action on that reform, like many other important measures, is subject to the negotiations that continue on the overdue 2010-2011 New York State Budget. And the recent Court of Appeals decision in Hurrell-Harring v the State of New York, which reinstated the NYCLU lawsuit, looms above those negotiations.
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I’ve been having chats with former PD’s turned private counsel to discuss their take on the difference between how they reprsented clients as PD’s versus how they do it now. Some of them are very forthright about the change in how they can practice as private lawyers, while others seem to believe they treated PD clients the same way they would treat a privae one. I doubt this is true – if someone is paying you a few thousand dollars, you aren’t going to tell them you’ll meet them in the hallway of the courthouse on the day of trial and you’ll talk about the case, witnesses, and possible outcomes with them then. To say otherwise is just not true.
However, public defenders across the country are having a harder and harder time keeping up with their caseloads. I don’t make excuses for PD’s who just don’t do their job, but we need more lawsuits like the ones in New York State to keep all of us honest.
