Fixing New York City’s Drive-By Defense Crisis
April 14, 2001
By Michael Letwin, President
Association of Legal Aid Attorneys/UAW 2325
The New York Times exposé of “drive-by” criminal representation for poor defendants (April 8-10) vividly shows that retaliatory Giuliani administration policies have, predict¬ably, fragmented and weakened an already-troubled indigent defense system.
As the Times reports make clear, this train-wreck need never have been.
In early 1994, a previous Times investigatory series illuminated gross deficiencies in the as¬signed counsel system. Soon after, the adminis¬tration agreed to observe the city’s 1965 indi¬gent defense plan by assigning all non-conflict cases to the highly-respected Legal Aid Society, whose unionized attorneys had fought since the 1960s to lift the quality of criminal defense.
But this opportunity for reform was aban¬doned when the Mayor unlawfully blocked an inexpensive labor settlement that the Society had been prepared to self-fund, thereby provoking a two-day strike in October 1994 by Legal Aid attorneys and support staff.
Though this federally-protected strike caused no disruption in the courts, a furious Mayor was determined to make an example of the law¬yers—even if it meant breaking the law to do so.
As alluded to in the recent Times reports, striking attorneys were bludgeoned back to work by abrupt cancellation of the Society’s city contract and the threat of a PATCO-style black¬list.
Immediately afterwards, $9 million was cut from the Society’s $79 million city funding, and it was announced that millions more would be transferred to numerous small providers—some of them for-profit businesses, none of them unionized—to be created specifically for that purpose.
Here was an early example of the trademark vindictiveness later imposed by the Mayor on other perceived dissenters, including school chancellors and school teachers, police commis¬sioners and police protesters, art museums and street artists, homeless people and their advo¬cates, taxi drivers and transit workers.
By Fall 1995, looming issuance of contracts for 20 percent of the Society’s remaining fund¬ing provoked a chorus of concern.
Columbia Law School dean Lance Leibman pointed out that since “The Legal Aid Society suppl[ies] outstanding services and quality at the right price to the taxpayer. . . . it would be a great mistake to change it in this way.”
Forty-seven state court judges signed an unusually blunt public statement predicting that”such fragmentation would adversely affect the effective administration of justice.”
On behalf of communities reliant on Legal Aid representation, City Council Member Adam Clayton Powell IV linked the administration’s policy to “a long line of vicious attacks on the poor, the African-Americans and Hispanics who get caught up in this system.”
El Diario/La Prensa condemned the plan as an assault on “our society’s vulnerable segments,” and the Amsterdam News urged that “[i]t is imperative that [Legal Aid] be supported.”
Highlighting the Mayor’s anti-union motiva¬tion, the Central Labor Council stated that “it is both offensive and illegal for the Mayor to retaliate against Legal Aid Society clients be¬cause their attorneys belong to a union and have exercised their legally-protected right to strike.”
Although scorned by the administration, such prophecies have been fully borne out by the recent Times reports. The cumulative loss of $160 million in city funds since 1994 has whit¬tled the number of Legal Aid’s public defenders from 520 down to 370. Those who remain to handle an undiminished 200,000 clients each year—without surrendering their commitment to quality—are near, at, or well beyond the break¬ing point.
In 1998, a judicial oversight committee warned that the administration had forced Legal Aid to “handl[e] too many cases with too little staff and too little support.”
This Spring, the Mayor blocked City Council efforts to restore additional funds, despite the Society’s announcement that it had “already been forced to eliminate some of the vital ser¬vices we render to the City’s criminal justice system” and that without an immediate $15.7 million infusion “these service cuts will continue to escalate.”
With Legal Aid increasingly hobbled, a growing number of non-conflict cases are han¬dled by unmonitored, poorly-paid private 18-B counsel, whose overflowing number of indigent clients must compete for attention not only with each other, but with those who can afford to pay.
Meanwhile, millions of dollars stripped from Legal Aid subsidizes small-volume, runaway (nonunion) contractors paid more to do less and beholden to the administration for their very existence.
This increasingly dysfunctional defense system competes with fully-funded prosecutors, and with an NYPD responsible not only for the infamous Diallo/Dorismond killings, but for feeding thousands of black and Latino teenagers into the criminal justice assembly line.
It is a picture that, each day, looks a little more like Texas justice. Steps to fix it must include:
●Level Playing Field. The Supreme Court’s landmark decision in Gideon v. Wain¬wright will be meaningful only when the city matches each dollar spent on law enforcement with a dollar for indigent defense. This must include eliminating the huge salary advantage of prosecutors over Legal Aid attorneys and dra¬matically raising pitiful 18-B fees.
●One Non-Conflict Defender. The Times reports make clear that an indigent defense system motivated by union-busting and political revenge is inconsistent with adequate constitutionally-mandated representation. Rational reform begins with the recognition that a re-funded Legal Aid retains the unparalleled institutional independence, economy of scale, ancillary services, experience and dedicated staff to provide high quality, cost-effective represen¬tation in all non-conflict cases.
As in Los Angeles and elsewhere, this pri¬mary defense role should include homicide representation, assumption of which, a June 20, 1994 Times editorial pointed out, “is a . . . necessary step toward asserting Legal Aid’s proper role in the justice system.”
●Unified Conflict Defense. Similarly, New York should finally implement a mid-1980s bar proposal to establish a unified, nonprofit, con¬flict defender agency staffed by full-time attor¬neys. This would yield far better results than current conflict representation, at a fraction of the cost.
Private attorneys should continue to repre¬sent the relatively small number of indigent clients precluded from agency representation.
●Uniform Standards. To halt the race to the bottom, primary and conflict defenders alike must be held to the same high-quality stan¬dards—now codified in most professional guidelines—which generations of unionized Legal Aid attorneys have sacrificed to achieve and defend.
This is an indigent defense system of which New York City could be proud.