Jonathan Gradess, executive director of the NYS Defenders Association
Jonathan Gradess, executive director of the NYS Defenders Association ()

After nearly 40 years as the executive director of the New York State Defenders Association, Jonathan Gradess will retire in August. During his tenure, he has seen the organization grow to 1,850 members and expand to serve the needs of more than 6,000 public defense attorneys in more than 120 programs in 62 counties.

Gradess graduated from Hofstra University School of Law’s charter class in 1973 and has worked as a criminal defense lawyer, a private investigator and a law school professor. He took the helm at the NYSDA when the organization was just over a decade old. In addition to fielding daily calls from public defenders, the group has been working closely with the state Office of Indigent Legal Services to improve public criminal defense services as required by the state’s 2014 settlement in Hurrell-Harring v. State of New York and by new provisions in the 2017-18 state budget, which sets the stage for state assumption of a larger portion of localities’ indigent defense funding (NYLJ, April 10).

Gradess is also the executive director of the New York State Defenders Justice Fund and manages its campaign for an independent public defense commission. He has received the New York State Association of Criminal Defense Lawyers’ Gideon Award and the New York State Bar Association’s criminal justice section award for outstanding contribution to the delivery of defense services. Outside of work, he serves on the Restorative Justice Commission of the Roman Catholic Diocese of Albany and the board of directors of Equal Justice USA.

NYSDA managing attorney Charles O’Brien will be taking over for Gradess, who shared with the Law Journal his departing thoughts on the association, criminal defense in New York and philosophies of the Trump administration. His comments have been edited for length and clarity.

Q: You’ve been executive director for nearly 40 years. What’s kept you there for that length of time?

A: NYSDA is unique in that its mission has been to improve the manner in which low-income people receive public defense representation. I have been engaged with others here to make that mission a reality. At the turn of the century it became clear to our staff and board that the county-based model for delivering services—locally and inadequately funded—could never bring about the level of uncompromising and zealous representation required under the constitution. Working to achieve a state defender system simply takes time.

Q: What do think have been the association’s greatest achievements during your tenure?

A: We have grown from humble beginnings into a nationally recognized model for protecting the Sixth Amendment function required to be performed by states. We, with others, have been intimately involved in holding back the death penalty and assuring the existence of the Capital Defender Office, and securing legislative reforms to improve public defense services.

We also have created an infrastructure for the state’s public defense system. We developed and now support the case intake system being used by most of the state’s regional immigration assistance centers. We conduct or cosponsor 40 or more training programs statewide per year. We have increased our capacity to assist public defense lawyers representing adults threatened in Family Court with curtailment or loss of their rights to parent their children. In all of these things, we maintain a client-centered approach, working to ensure that public defense lawyers have the resources, skills and dedication to effectively advocate for their clients.

Q: How does the New York State Defenders Association differ from the New York State Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers?

A: NYSDA has received state funding since 1981 to provide services through our Public Defense Backup Center. We assist lawyers who are assigned to represent clients in Criminal and Family Court. We work closely with NYSACDL, and a designated representative from NYSDA serves on its board. Together we have tackled many of the same problems that emerge and impact criminal defense lawyers and their clients. Most of the members of the New York Council of Defense Lawyers focus their practice on defending criminal cases in the federal courts.

Q: How has the practice of criminal defense changed in New York over the past 40 years?

A: Forty years ago, public defense services were very young. Good law favoring the expansion of criminal defendants’ rights was still being made but beginning to wane. Now, a generation of defense lawyers have been hamstrung by mandatory sentencing through the 1973 Rockefeller Drug Laws and second felony offender law. We watched as prosecutors gained, and judges lost, power. The system shifted toward a DA-controlled sentence bargaining environment. Pleas are up, trials down, sentences are too long; a presumption of incarceration affects most if not all decision-making and undermines community justice. In 1969 when I began working, there were 12,452 in state prison. By the time I started with the New York State Defenders Association in 1978, that number had grown to 20,190. Today there are 53,000 people incarcerated.

Also, today’s defenders must focus on enmeshed or collateral consequences of conviction. In addition to immigration consequences highlighted by the U.S. Supreme Court’s decision in Padilla v. Kentucky, housing, education, employment and licensure consequences all come into play to a much greater degree. And defenders must be conscious of Family Court proceedings related to a criminal prosecution that could have even greater consequences for a client than the criminal case.

Q: Are judges more willing to listen to defense arguments?

A: There are terrific members of the judiciary whose courage is unalterable and commitment to constitutional principle is immovable. These men and women, acting with integrity, are more than willing to listen to and rule wisely on defense motions and with regard to defense arguments. However, there also has been an observable parallel erosion in independence. The attacks on the judiciary by the Trump administration are exacerbating this problem. Many judges view themselves as law enforcement partners encouraging executive branch overreach by weakly-reasoned and poorly thought-out decisions. In upstate New York, there are some clear examples of local magistrates and “three-hatter” judges (single judges sitting as County Court, Surrogate’s Court and Family Court simultaneously) who have grown uniquely imperious and make life miserable for both lawyers and clients.

Q: What’s the biggest challenge criminal defense lawyers face today?

A: The criminal justice system over time has lurched to the right following the pattern generally established in the culture. Massive amounts of resources are committed to law enforcement but withheld from the defense. Only a small proportion of the criminal caseload is handled by lawyers retained and paid for by people of means; most cases are handled by public defense counsel where the disparity in prosecution and defense resources is stark.

Meanwhile, technology has been unleashed in favor of one-sided detection, apprehension, data mining, surveillance and identification unimagined but a few years ago. Algorithms and risk assessment designs have begun to replace discretionary decision-making. Defenders must be trained and prepared to contend with complicated matters such as DNA evidence and to challenge a host of other forensic evidence that have no scientific basis. Military tactics and surplus military equipment have legitimized a mindset in police work that raises the stakes in simple cases, at a time when misdemeanors are on the rise and felony offenses are declining. The continued and unconscionable absence of discovery in New York, the flagrant suppression of exculpatory evidence, prosecutorial overcharging and strong resistance to providing public defense lawyers with access to the state’s criminal history repository all create uncompromising challenges to the defense.

Q: How are public defense lawyers different today than they were decades ago?

A: They possess more clinical training, are better equipped and more client-centered. More new lawyers have been through one or more law school clinics, and the clinics themselves have become robust incubators of better informed students. More women have entered the profession, and they bring a superior level of compassion and insight to the underlying needs of the client population. More people of color—although by no means enough—have taken on the challenge of public defense work, and helped to close the experiential gap that public defense lawyers 30 years ago brought to issues of race. More than anything, the new generation seems to me to be kinder and more civil, more deeply committed to holistic lawyering, and somewhat less ego-driven than those who came before them.

Q: Are public defenders more capable today than when you started out?

A: Public defense work requires much more than individual capacity. Resources and defense teams composed of attorneys, investigators, social workers, parent advocates, and others available to handle any particular case are equally important. Measured from that point of view, and given the broadened scope of public defense work, we are less capable. The scope of criminal law has increased dramatically. Surveillance methods have multiplied. There is an escalating need for greater forensic expertise. The expanded domains of the criminal law covering forfeiture proceedings, immigrants, sex offenders and gangs, combined with the explosion of specialty courts, specialized offenses, and the funded coordination of a multiplicity of adversaries have simply made the work much more difficult. All of this is quite independent of the individual capacity of the dedicated and capable defense lawyer. Training has been improving; greater support is still very much needed. NYSDA works on these issues on a daily basis.

Q: The Legislature has passed several reforms in recent years, such as caseload caps for legal services attorneys. Do you think the system has become fairer? What more needs to be done?

A: The system has not yet become fairer. The struggle to improve public defense services is an ongoing effort to make an even playing field where one does not exist.

In the current century, NYSDA and others have litigated and convinced the Legislature to increase assigned counsel fees. The courts and the Legislature have held reduced service delivery models illegal. New York established a dedicated Indigent Legal Services Fund. The Court of Appeals mandated counsel at arraignment in the thousands of courts where this did not exist, despite laws requiring such representation. We have seen three chief judges tackle reform, one of whom established case caps beginning in 2009 for New York City and another of whom established the Commission on The Future of Indigent Defense Services, which called for the state takeover and administration of public defense. The Legislature, in the wake of that commission, called for an independent public defense commission; the political compromise the following year established the Indigent Legal Services Office in 2010.

Hurrell-Harring has been an off-stage presence demanding reform since 2007; its settlement required reforms in five counties but also set the political stage for reform in all 62. This year’s budget extended that settlement to the rest of the state calling for plans to implement and assure counsel at arraignment, caseload standards and wide-ranging quality improvements—all to be reimbursed by the state.

Each of these reforms helped to move toward a fairer, more just system, but the real work is only now beginning. New York still needs a robust independent public defense commission heading a statewide, fully and adequately state-funded public defense system.

Q: Are wrongful convictions a big problem? Are they less likely to occur?

A: As long as New York impedes discovery reform, there will be more and more wrongful convictions, and they will become harder and harder to uncover. A lack of defense resources available to uncover them and reveal their causes will mask their reality. From 1989 to March 2016, there had been 208 nonfederal exonerations in New York state. Additionally, there were eight exonerations originating from the state’s federal courts. While each case is unique, these exonerations have a shared history of official misconduct, mistaken witness identification and perjury. Twenty-three percent of these wrongful convictions have arisen from identifiably inadequate legal defense; it is impossible to know how many wrongful convictions could have been prevented by properly resourced defense representation.

Q: Do indigent defendants receive a fair shake in criminal court? Is Gideon v. Wainwright alive and well in New York?

A: Gideon is at best on life support. Clients unable to afford counsel do not yet receive a fair shake in criminal courts, nor in Family Court. Recent changes in this year’s state budget paint a path forward and hold out the promise that the state is finally alert to the needs of the client community. If the Indigent Legal Services Offices can develop appropriate plans for each county and the governor can come to understand the needs of parental defense—a state obligation just like Gideon—things will get better over time.

The six-year timetable for improvements now envisioned under both budget legislation and the Hurrell-Harring settlement can, if monitored and enforced, prove to be the turning point that changes and improves New York’s public defense system, allowing low-income clients a “fair shake.” NYSDA’s Backup Center will continue advocating for Gideon, civil Gideon, and justice for low-income people; I am proud of what we have done to date, and am confident that I leave the work in good hands.

Q: What about the tough line adopted by the Trump administration on sentencing?

A: [U.S. Attorney General] Jeff Sessions and [President Donald] Trump simply wish to undue all things [Barack] Obama. A policy to “charge and pursue the most serious provable drug crimes”—thereby reversing [U.S.] Attorney General [Eric] Holder’s policy—marches promptly backwards toward the drug war. It will not be compassionate, effective nor fair and could have devastating consequences for those who suffer from a substance use disorder, including those addicted to opioids. The Trump policy on this issue, as on others, was developed in an obsolete echo chamber.

From the dog whistle campaign rhetoric borrowed from [former Alabama Gov.] George Wallace to the choice of arch conservative Sessions as U.S. attorney general, the Trump administration’s criminal justice policy has been almost universally one long anachronistic misstatement. It flies in the face of what Congress was moving toward and what states on their own are implementing with support from both right and left. Getting tough on drugs feeds mass incarceration and does so with policies that propel black and brown people and low-income whites to prison, thus continuing the United States as the world’s largest purveyor of counterproductive incarcerative misery.

Q: What advice do you have for law students thinking of becoming defense attorneys?

A: Come to the work with your eyes and heart open. People charged with crime and parents faced with losing their children need caring advocates who are not afraid in the public arena to challenge governmental power and not afraid in the private arena to be humble and kind with clients. Most of the work in this field is representing low-income people who have lived through vast inequity with lives propelled toward the margins of our culture. Criminal and parental defense are civil and human rights, and client-centered caring representation is a noble and unique calling. The field needs imaginative, committed, long-distance runners filled with compassion, skill and commitment. If you possess these qualities, the work and the client community both need you.