Almost 50 years after the U.S. Supreme Court articulated a constitutional right to counsel in criminal cases in Gideon v. Wainwright, New York is poised to more fully actualize that profound declaration. A series of seemingly unconnected events has created a historic opportunity. First, a remarkable paragraph was tucked away in last year’s state budget bill. Inspired by the longstanding crisis in indigent defense, §56-b directed the chief administrator of the courts to “promulgate rules relating to caseloads for attorneys representing indigent clients in criminal matters in cities of one million or more.” The legislation further mandated a five-year phase-in for the court’s solution to the caseload problem. Phase one is to begin on April 1, 2010.
As indigent defense made its way into the state budget, the New York City committee on fire and criminal justice services planned hearings to discuss capping the number of cases an attorney can handle when representing indigent defendants. More recently, the governor’s executive budget for 2010-11 called for the creation of an entity to oversee indigent defense services statewide. In New York City, the office of the criminal justice coordinator issued a new round of requests for proposals for offices to handle indigent defense work.
Coinciding with this legislative and executive interest in indigent criminal defense is a rare opportunity for the Judiciary to intervene. In 2007, the New York Civil Liberties Union sued New York State alleging systemic and flagrant violations of the constitutional right to counsel. In a rare kind of legal perfect storm, the case was heard yesterday by the Court of Appeals. (See the Law Journal’s coverage of the arguments in “Cost of Suit to Improve Defense of the Indigent Raises Concerns.”)
The legislation and the lawsuit come on the heels of reports that highlight the dismal state of indigent defense across the country. The Constitution Project’s “Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,” and the National Association of Criminal Defense Lawyers’ “Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts,” catalogue the problems of underfunded and underresourced public defenders, and the ongoing failure to realize the lofty ideals captured in the language and reasoning of Gideon. New York figures prominently in both reports.
Given this historic convergence of attention and opportunity regarding indigent defense, any attempt to create standards for ensuring effective indigent representation must be carefully scrutinized. The seeming numerical gold standard for indigent defense caseloads was established 37 years ago by the National Advisory Council (NAC) of the Federal Law Enforcement Assistance Administration. The council’s Standard 13.12 provides that, “[T]he caseload of a public defender attorney should not exceed the following: felonies per attorney per year: not more than 150; misdemeanors (excluding traffic) per attorney per year: not more than 400.”
Those numbers have been referenced, cited and adopted in many states and by many organizations. New York City adopted the the council’s standards in 1996, and now the original council numbers are back—New York State’s Chief Administrative Judge Ann Pfau responded to the legislative call for action by repromulgating the National Advisory Council caseload standards. While the action taken by the court to limit caseloads should be applauded, it is best understood as a critical first step on a long path.
The National Advisory Council numbers must be placed in context. It was 1973. Gideon was still new and public defender offices were a relatively recent development. The American Bar Association Standards on Criminal Justice were in their infancy. The knowledge and understanding of what it took to effectively represent someone charged with a crime was evolving. And yet one familiar scenario was quickly taking shape across the country—public defenders were representing too many people.
The National Advisory Council standards were borne out of an effort to address a serious and burgeoning problem, but no doubt those who divined the numerical standards recognized the limitations inherent in their suggested solution. While it was important, obviously, to place limits on how many people any one public defender represented, the numerical standard was meant merely to be the start of a serious, constitutionally and ethically mandated discussion of what it takes to provide effective assistance of counsel. The oft-cited standards were, after all, an attempt to quantify the unquantifiable. All too often, however, crises in indigent defense follow the same formula: a call for a commission to examine a problem that is already apparent on its face, and then a recommendation by that commission for the imposition of the National Advisory Council standards. As a result, the overall state of indigent defense remains in perpetual crisis.
Numbers should not be the only, nor primary, way to assess defense attorney effectiveness. Imposing numerical standards is not a magic elixir that will suddenly transform the state of indigent defense practice. The problems run deep and can only be addressed through searching inquiry into the nature of indigent defense practice.
What are the component parts of quality defense lawyering? What are the institutional norms and loyalties that impact public defenders? What are the prevailing attitudes of public defenders toward their clients, their work and what is means to be a zealous advocate? What do the accused, the consumers of indigent defense services, have to say about their lawyers? What is it that should make us confident that public defenders will provide dramatically better representation simply by virtue of having 10, 20 or 50 fewer cases in a year?
While the legislative recognition of the indigent defense crisis is cause for optimism, and the lawsuit has the capacity to reshape the delivery of indigent defense, any benefits to be realized hinge ultimately on a fundamental shift in the way the problem is conceptualized. We must do more than zero in on caseloads. Creating mathematical-like formulas that weigh various types of charges in an effort to empirically fix the amount of attorney time needed to handle a particular case is an inadequate solution. The crisis is not about caseloads, it is about people. People with constitutional issues regarding why they were stopped and frisked. People presumed to be innocent. People in fear of being deported, evicted, incarcerated and separated from their loved ones. People with hopes and dreams. How are public defenders addressing those concerns? What is it that public defenders actually do on behalf of the clients they represent? Those questions are more important than asking how many cases they handle in a year.
In this rare moment when the eyes of so many are fixed on the rights of the accused and the state of indigent defense, the possibility of substantive and enduring reform is within reach. Caseload caps are the start. The ball is now in the Court of Appeals.
Steven Zeidman is director of CUNY School of Law’s criminal defense clinic. He is a former Legal Aid Society attorney and serves on the Indigent Defense Organization Oversight Committee.