Testimony: New York State Commission on the Future of Indigent Defense Services

I am Donna Lieberman. I am the Executive Director of the New York Civil Liberties Union (NYCLU). The NYCLU is the New York State affiliate of the American Civil Liberties Union and has approximately 35,000 members across the state. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the United States Constitution and the Constitution of the State of New York. Central to this mission is our advocacy regarding the right to free counsel for poor criminal defendants, as required under the Sixth and Fourteenth Amendments of the Federal Constitution and Article 1, section 6 of the New York State Constitution.

The NYCLU commends Chief Judge Judith Kaye for creating the Commission on the Future of Indigent Defense Services to perform a top-to-bottom examination of New York’s criminal indigent defense system and develop a blueprint for reform; and we commend the Commission Chairs Judge Burton Roberts and Professor William Hellerstein and the members of the Commission who have committed themselves to rising to this challenge.

For a year-and-a-half, the NYCLU has been conducting investigations into complaints about public defense systems around the state. Our investigations have revealed that indigent criminal defendants are systematically being deprived of adequate, effective representation. Our concern is that without a commitment on the part of the governor and the legislature to remedy the shameful state of legal representation in matters involving indigent defendants, Chief Judge Kaye’s initiative will remain merely aspirational.

We welcome the Commission’s work, but we are deeply concerned about the serious and longstanding problems in the provision of indigent defense services in New York. Unless the state takes swift, concerted action to provide the minimum constitutional protections to indigent persons charged with a crime, the NYCLU is prepared to bring litigation to assure that indigent defendants receive the services mandated by the federal and state constitutions.

The Indigent Defense System is Fraught with Serious Deficiencies

Since the fall of 2003, the NYCLU has been examining and monitoring public defense systems in various New York counties based on complaints and reports of serious deficiencies in the provision of legal services to indigent criminal defendants throughout the state. Through our work, including ongoing investigations of public defense systems in Albany, Onondaga, and Schenectady counties as well as communications with defense attorneys and indigent defendants in other counties, we have learned that the consequences of the state’s failure to properly fund and administer public defense systems are far-reaching. Most importantly, our investigations have revealed that defendants who cannot afford to pay for an attorney are not receiving quality, and constitutionally adequate representation.

We have found that public defense providers are underfunded, understaffed, and underresourced—problems that prevent even the most diligent indigent defense counsel from adequately representing all of their clients. For example, indigent defense programs in various counties:

• Do not have the resources to hire a sufficient number of qualified attorneys and support staff to handle the workloads, and they cannot adequately compensate those they do hire;
• Cannot provide sufficient, or sometimes any, training, supervision, or technical assistance to ensure that attorneys are equipped with the skills and knowledge to adequately represent their clients; and
• Cannot provide sufficient resources for lawyers to engage independent expert and investigatory services when needed. NYCLU staff has seen county court judges heavily resist authorizing experts in serious felony cases because it would take additional time and prevent the case from proceeding swiftly through the system. We have also heard from public defenders and legal aid attorneys who have been told that there is just not enough money to pay for experts.

As a result of these deficiencies indigent defendants suffer substantial harm to their constitutional rights. For example,

• They are assigned attorneys who do not act as adversarial checks upon the prosecution;
• They endure unnecessarily lengthy periods of pretrial incarceration because, for example, their public defense attorneys are ill-prepared to advocate against pretrial incarceration and the imposition or reduction of bail, and their counsel seek repeated continuances;
• Their public defense attorneys fail to visit them in jail for weeks or even months at a time, fail to accept or return their phone calls, fail to meet with them prior to court appearances, fail to adequately communicate with them if they are limited English speakers, and fail to otherwise engage in meaningful communication with them about their case prior to critical stages of criminal proceedings;
• They forego meritorious defenses because their attorneys fail to conduct proper investigations or submit crucial pretrial motions;
• They waive their rights to trial and other due process protections without sufficient understanding of the rights they are waiving, and innocent clients and clients with meritorious defenses endure undue pressure to plead guilty;
• They inadvertently waive post-conviction rights because their attorneys fail to inform them of these rights and discourage appeals;
• They are subjected to lengthier sentences than the evidence may warrant because their attorneys fail to present mitigating evidence and are unaware of or fail to take advantage of sentencing alternatives;
• Their right to a direct appeal of conviction is not exercised for months or even years; and when that right is finally invoked, the appeal is handled by a law student intern with little oversight by a supervising attorney, or is outsourced to an attorney with no criminal appellate experience.
• Individual stories of such harm abound. And each one breaks your heart. But here I present a few of them because real people endure real harm every day in this state.

A mother of an eight-year-old child was arraigned without an attorney, without bail, and remanded to custody. Subsequently assigned an attorney, she sat in county jail for two months, but her public defense attorney never visited her or discussed her case with her despite numerous attempts she and her father made to contact him. The only time she saw her attorney was during one court appearance, but her attorney failed to discuss the case with her, and instead read a magazine in court. Because she had been in jail for more than 45 days without being indicted on the felony charge, she asked her assigned attorney to submit a motion to get her released from jail. He responded that he needed to be brought bond paper to write the writ. When the assigned counsel administrator was informed about the situation he responded that he was “just an administrator and doesn’t monitor the attorneys.” With the assistance of another inmate, the woman filed a pro se motion for a 45-day writ. She was forced to sell her home to get the money to hire a private attorney to handle her case and win her release from jail. Now she is homeless, but out of jail. And now the assigned counsel administrator has been replaced by the deputy county attorney, which creates a clear conflict of interest.

In another case, a man was pressured by his public defense attorney and by the judge and prosecutor to accept a plea bargain even though he insisted on his innocence. The plea deal provided that charges pending against the man in another matter would be dropped if he accepted the plea. He was urged to accept the deal requiring one year incarceration to eliminate the risk of a seven-year sentence. After sitting in jail for six weeks, a jail deputy discovered that the charges involved in the other matter had been adjourned in contemplation of dismissal (ACD) and that the man should have been released weeks prior. Had the man known those charges had been adjourned he never would have accepted the plea deal, but would have requested a trial because he knew he was innocent. The judge refused to let him out of the plea deal even after this additional information was revealed. The man’s attorney insisted that it was a good deal.

In one upstate county, dozens of sixteen to eighteen year olds regularly sit in jail at any particular time. More than 85% of them are youth of color, even though the surrounding population is predominantly white. Staff employed by an incarcerated youth program that provides services to teens in the jail report that they often receive complaints from the teens about inadequate public defense representation. The incarcerated youth have no idea what is happening in their case. Their lawyers never visit them in jail and do not accept phone calls, which can only be made collect from the jail. Many of these young people languish in jail on misdemeanor charges.

Defendants who do not speak English are entitled to an interpreter provided by the court in order to understand the proceedings. Defendants are entitled to a fair trial; they are entitled to consult with counsel, and to assist in the preparation of a defense. These constitutional rights, however, are routinely denied. The NYCLU’s investigations, as well as a report by the New York State Defenders Association, reveal that many county public defense systems fail to ensure that attorneys adequately communicate with defendants who are not fluent in English. NYCLU staff has watched court sessions where criminal cases proceeded despite an interpreter’s unavailability. And in mid-summer 2003, farm workers and their advocates testified at a fact-finding hearing in Albion, New York, about inadequate defense services provided to immigrant farm workers in western New York, particularly in Orleans County. Testimony revealed that Spanish-speaking migrant farm workers fail to receive interpreters to communicate with public defense counsel, judges, and local law enforcement.1

State Failure to Fund and Administer Constitutionally Mandated Representation for Indigent Criminal Defendants

It is no wonder that systemic deficiencies in indigent defense representation exist and persist. Although New York has federal and state constitutional obligations to provide adequate counsel to indigent defendants, the state has deferred to its sixty-two counties (including New York City) its responsibility to fund and provide effective representation. The failure of the state’s indigent defense system is directly attributable to two underlying causes.

Inadequate State Funding

Grossly inadequate funding by the state is a primary cause of the state’s failure to meet its constitutional obligations to indigent defendants. For decades, the vast majority of counties have received none or almost no funding at all from the state for indigent defense representation. In 2002, over twenty counties received no funding at all from the state for indigent defense legal services. Strikingly, most of these counties are among the poorest in the state. In 2003, more than forty counties received less than 5% of their total expenditures from the state to offset expenditures for providing legal representation to individuals who were financially unable to afford counsel. Many of these counties received no state aid at all. As a result, many counties budget their indigent defense programs in a manner designed to minimize their financial exposure, with little regard for the amounts needed to administer constitutionally adequate programs.

The state legislature established the Indigent Legal Services Fund to improve the quality of public defense services. This was a small, but important, move in the right direction. However, the amount of money potentially available for local governments through the Fund is not nearly enough to remedy the grossly underfunded public defense systems across the state.

No State Oversight or Standards

Financing, alone, is not enough to redress the failures of the state’s indigent defense system. The state has failed to promulgate practice standards, attorney qualification standards, or other guidelines for indigent defense representation. Rather, the state has delegated to each county the responsibility to develop and implement a plan for providing public defense. Without appropriate guidance and oversight from the state, counties have not developed adequate policies to assess or ensure the quality or adequacy of indigent defense services. As a result, as previously illustrated, indigent criminal defendants suffer irreparable harm to their constitutional right to meaningful and effective counsel.

The Work of the Commission on the Future of Indigent Defense Services

In Chief Judge Kaye’s State of the Judiciary Speech earlier this week she stated that, on behalf of the Commission on the Future of Indigent Defense Services, The Spangenberg Group will be conducting a statewide evaluation of indigent defense programs; the Commission will be holding public hearings throughout the state; and the Commission will issue a report later this year. But we are wary about what work the Commission will actually perform and how long it will take to complete it.

First, what Chief Judge Kaye did not mention is that the Commission has been given no money to pay The Spangenberg Group to conduct on-site work. Second, the Commission is first setting out now, nine months after its creation in May 2004, to conduct the preliminary task of holding public hearings. Third, if the Commission intends to examine current public defense systems to effect real systemic reform, the Commission must rapidly modify its means of operation. For example, thus far, the Commission has failed to reach out to community organizations, religious groups, and local activists working on the ground with and comprised of indigent defendants and their families. To our knowledge, the Commission has failed to make any real attempt to notify the client community about the public hearings around the state. In the future, the Commission must partner with community groups in order to fully understand the gravity and extent of the work that needs to be done. Fourth, the Commission must consider working with the NYCLU and other civil rights organizations committed to real reform of statewide indigent defense. That means there must be transparency of the Commission’s examination, including, among other things, sharing drafts of the Commission’s report long before its ultimate release.

Conclusion

The state must assure its constitutional and statutory responsibility for providing adequate indigent defense services to criminal defendants by providing sufficient financial and administrative support. This requires that the state adequately fund indigent defense services; and that the state set and monitor compliance with standards governing the provision of quality defense services to poor people accused of crime.

The NYCLU will continue to actively monitor the delivery of indigent defense legal services provided throughout the state. Our staff would welcome the opportunity to work with the Commission in the interest of ensuring that indigent criminal defendants receive meaningful and effective representation that provides them with fundamental fairness.

Absent a demonstrated commitment to these objectives, it is inevitable that systemic deficiencies will persist. It will then be incumbent upon our organization, and other advocates of constitutional rights, to ensure that New York’s legal system is true to the promise of fairness and justice articulated in our constitutional charter. If the state fails to act, the NYCLU is prepared to seek judicial relief, invoking those constitutional guarantees in order to vindicate the rights of indigent defendants.