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The glaring disparity between compensation rates for assigned counsel in the state and federal courts in New York is about to become even greater. Under an appropriation bill approved last December, the rate of pay for counsel assigned by federal judges to represent indigent criminal defendants in the Southern and Eastern Districts of New York and the 2nd U.S. Circuit Court of Appeals — as well as much of the rest of the nation — will jump from $75 an hour to $90 an hour on May 1. Meanwhile, a proposal put forward more than two years ago by Chief Judge Judith S. Kaye to increase New York’s rates to $75 an hour for felonies and $60 an hour for misdemeanors is languishing in the State Legislature, a victim of the state’s fiscal woes stemming from the Sept. 11 attack on the World Trade Center and the economic slump. Lawyers in New York assigned to represent the poor in family and criminal cases continue to receive the same pay they have since 1986: $40 an hour for courtroom work and $25 an hour for any other work. Since January 1990, the rates paid to assigned counsel in the Southern and Eastern Districts of New York have been $75 an hour for all types of work, which is higher than the proposal made by Kaye in her State of the Judiciary Address in January 2000. The fact that the federal government has increased its compensation rates significantly above those urged by Kaye two years ago only accentuates the need for action in New York, several of the principal proponents for an increase in New York urged Tuesday. The federal increase “graphically demonstrates how woefully inadequate New York’s rates have become over the past 16 years,” Chief Administrative Judge Jonathan Lippman said. Compared to the new federal rates, New York’s failure to increase its rates “speaks volumes” about the level of concern among the state’s political leaders about the functioning of the criminal justice system, added Russell M. Gioella, the immediate past president of the New York State Association of Criminal Defense Lawyers. And Craig Landy, the president of the New York County Lawyers’ Association, pointed to the irony of the federal government finding “inadequate” a $75 an hour rate that is “nearly double” New York’s rate for time in court. STATE RATE NEAR BOTTOM New York’s rate remains among the lowest in the nation. Of states with a statewide compensation structure, only four pay less than New York for time spent in court, according to a survey conducted in 1999 by The Spangenberg Group, based in Boston. Those states are Maryland, $35 an hour for all courtroom work; Massachusetts, $30 an hour for misdemeanors; New Jersey, $30 an hour for any type of courtroom work; and Rhode Island, $35 for lower level felonies. Meanwhile, the top statewide pay rate found in the Spangenberg survey was $75 an hour for all types of work in Nevada. In Arkansas and North Dakota, where rates are set locally, some locales authorize payment as high as $85 an hour, the survey reported. The federal increase, which was adopted in an appropriation bill for the judiciary signed by President Bush on Nov. 8, authorizes a pay rate for assigned counsel of as much as $90 an hour. Though individual judges and district courts retain discretion to authorize lower rates, most of the nation’s federal courts are expected to move to the new $90 level effective May 1, said Karen Redmond, a spokeswoman for the Administrative Office of the Courts. Robert C. Heinemann, the clerk of the Eastern District of New York, said his court had approved the $90 rate effective May 1, while a spokesman for the Southern District said it was anticipated that all approvals will be in place to implement the $90 rate on May 1. The 2nd Circuit has also approved the new rate to take effect May 1, according to its clerk, Roseann B. MacKechnie. The last increase in the federal rates came in April of last year, when they were hiked to a maximum of $75 an hour for courtroom work and $55 an hour for preparatory work and legal research. The Eastern and Southern District, however, were among 16 districts that had the higher rate of $75 an hour for work, wherever performed, pursuant to a 1988 statute that permitted the across-the-board rate if the need for it could be demonstrated. Both districts were approved to start paying the $75 rate on Jan. 1, 1990, Redmond said. For the federal fiscal year that ended Sept. 30, 2001 (FY 2001), the government paid $97.7 million to compensate counsel for the indigent in non-capital cases. The Administrative Office of the Courts estimates that with the new rates going into effect nationwide on May 1, payout for the current year will increase by $15 million, or 15.4 percent. Next year, when the new rates are in effect for the full year, the tab for assigned counsel will be about $45 million higher than it was in FY 2001. The Office of Court Administration has estimated that the cost of a raise in New York to the $75/$60 an hour levels proposed by Kaye would cost between $50 million and $60 million.

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