To The Readers Of The Metropolitan Corporate Counsel:
Indigent Defense: A Constitutional Right, Not Just a Budget Item
The City of New York is attempting to make major changes in its indigent defense system that should be of concern to every New Yorker. NYCLA has been an active participant in the current indigent defense system since its inception 45 years ago, and believes that any change must be carefully studied, that the City should consult with all stakeholders in the system before implementing any change, and that no change should be made unless there is a strong rationale for the change, and the change will improve the quality and nature of indigent defense. It is particularly ironic that the City has taken these steps while the New York State Court of Appeals is poised to consider the viability of a claim that challenges the adequacy and effectiveness of indigent defense systems in New York State.1
The Sixth Amendment to the United States Constitution guarantees the right to the assistance of counsel to all criminal defendants. To fulfill that constitutional mandate, in 1966, the Judicial Conference of the State of New York adopted an Indigent Defense Plan - a plan to which NYCLA, the county bar associations of the other four boroughs and the Association of the Bar of the City of New York were signatories. The plan had two primary components - institutional providers and a panel of private attorneys designated by the bar associations.2 The majority of cases are assigned in the first instance to institutional providers such as The Legal Aid Society. When the institutional providers cannot handle a case, due to a conflict or other reasons, the case is assigned to a private attorney chosen from a panel of experienced lawyers who have been screened and certified. These lawyers are often referred to as "18-B lawyers" after the section of the County Law that provides defense counsel for the indigent.
In the First Department, NYCLA and its members have, among other things, assisted with screening the 18-B lawyers, housed the meetings of the Central Screening Committee, and provided continuing legal education for assigned counsel. In addition, NYCLA helped organize the Indigent Defense Organization Oversight Committee ("IDOOC") in the First Department. Since 1996, IDOOC has compiled data and reports annually on the degree to which the institutional providers have complied with the standards promulgated by the First Department, Appellate Division. IDOOC has consistently reported that the institutional providers are woefully underfunded for the volume of cases they handle annually.
In June 2008, without any notice to or consultation with the signatory bar associations or, we believe, the Judicial Conference, the Mayor issued an Executive Order that purported to repeal the original plan, eliminate the role of the bar associations in indigent defense and dramatically reduce the role of the private bar in providing services to the indigent accused. The Criminal Justice Coordinator adopted a rule change in 2008 that followed the new Executive Order. On February 3, 2010, the Criminal Justice Coordinator issued a Request for Proposals ("RFP") seeking institutional providers to handle conflict representation in most cases, which was previously provided by the panel of private attorneys. On March 2, 2010, Mayor Bloomberg issued another Executive Order, which restated the 2008 Executive Order with some additions.
Nowhere in any of these documents does the City of New York provide a rationale for why the new Plan is necessary or how this new Plan will improve-or even preserve - the quality of defense for poor people. Nowhere does the Criminal Justice Coordinator, who assumes near complete control of the Indigent Defense Plan, describe a system that provides adequate resources for the institutional providers, which are chronically underfunded while their caseloads increase.
Most notably, the RFP does not address homicide cases. In 2009 in the First Department, the vast majority of homicide cases involving indigent defendants were referred to the assigned counsel plan, not to institutional providers. Virtually all of the homicide cases that were disposed of at trial, rather than by plea agreement, were handled by assigned counsel. How does the Criminal Justice Coordinator plan to satisfy the Sixth Amendment right to counsel of indigent persons accused of homicide? The RFP appears to assume that homicide cases will continue to be handled by assigned counsel. However, if most non-homicide cases that are now referred to assigned counsel are diverted to institutional providers, the supply of assigned counsel capable of handling homicides could be severely diminished. In fact, the new Plan could have unintended effects on the viability of an effective criminal defense bar to represent non-indigent defendants as well. These are just two simple examples of foreseeable, negative and potentially long-term impacts the City's proposed change to the 45-year-old plan may have on the quality of defense services in New York.
We urge the New York City Council to look closely and collaboratively into a number of questions before reaching a decision concerning the Indigent Defense Plan:
• The rationale for and the effect of the City's attempt to change its Indigent Defense Plan;
• Whether the Executive Orders, change in Rules, and RFP comported with all applicable legal requirements;
• Whether the new Plan provides sufficient oversight of both institutional providers and assigned counsel; and
• Whether the new Plan meets constitutional and statutory mandates in theory and in practice, particularly given the requested level of funding.
We appreciate that the City is faced with serious fiscal challenges, but that does not excuse the City's obligation to honor the constitutional rights of its people. Before any decision is made to change the Indigent Defense Plan, there must be appropriate consultation with all stakeholders in the indigent defense system, study, and hearings to examine the impact that such a measure will have not only on the City's budget, but on the quality of defense services available to all citizens of the City of New York and, most importantly, the impact on the constitutional obligation to provide effective assistance of counsel to the indigent.
Ann B. Lesk
1 NYCLA filed an amicus brief in the case, along with three other bar Associations and 40 law professors from every law school in the State of New York, on behalf of the plaintiff indigent defendants urging the Court to permit the suit to proceed , Hurrell-Harring et al v. New York, http://www.nycla.org/siteFiles/Publications/Publications1325_0.pdf.
2I n 1965, New York City, by Executive Order, also adopted a "hybrid" plan that combined institutional providers and private attorneys.