The Cost of Justice

Indigent defense advocates are using recent calls to reform the justice system to push for funding for a statewide public defense system.

In October the state settled the long-running Hurrell-Harring lawsuit, which was filed by the New York Civil Liberties Union. The class action settlement addressed deficiencies in the public defense systems of five counties: Ontario, Onondaga, Schuyler, Suffolk and Washington. Two days after the grand jury decision in the Eric Garner case, a press release from the New York State Defenders Association stated, “Public defense lawyers should have a critical role in ending injustice in those [police fatality]—and in all—cases.”

The release credited Gov. Andrew Cuomo for the settlement in Hurrell, but argued that the issues raised by the case were not confined to New York counties covered by the suit. Thus NYSDA requested “adequate” funding for the state’s entire public defense system in the next executive budget.

The request did not come as a surprise to those who have followed the case.

“The only practical way that you can administer the needs of a robust system is by state administration and state funding,” argued NYSDA Executive Director Jonathan Gradess after the settlement agreement.

The lead attorney for the plaintiffs in Hurrell agrees. “The settlement was about five counties because we sued about five counties,” explained NYCLU’s Corey Stoughton. “But from a public policy perspective, it makes no sense for the state to be investing in necessary improvements in these counties and leaving the rest of them behind. I think everybody realizes that.”

THE TIMELINE

While the settlement in Hurrell is limited in scope, the agreement is complex. It includes a calendar of benchmarks to be fulfilled by the state and the counties with significant help from the New York State Office of Indigent Legal Services.

The calendar will go into effect after a series of fairness hearings during which the judge will hear from members of the class: poor defendants. When the hearings are completed, the judge will initial the settlement.

That day is considered the “effective date”: the date that triggers the calendar. The effective date is expected to be in late January or early February.

From the effective date, the Office of Indigent Legal Services will have six months to develop a plan to put into action the four major elements of the settlement agreement: ensuring counsel at arraignment; tracking attorney caseloads; improving the quality of legal services; and issuing eligibility criteria.

Fourteen months from the effective date, the state must make a good faith effort to start implementing plans for counsel at arraignment. At 15 months, the state must take tangible steps to enable providers to comply with new caseload standards. At 18 months, ILS must issue the first annual report on eligibility requirements—standards for all counties outside of New York City to help determine who is too poor to pay for a private attorney.

There are benchmarks through 48 months. The settlement expires seven and a half years after the effective date.

“This is a challenge that we’re very excited about,” said William Leahy, ILS’ executive director. “We have been and will continue to be very insistent that we must be given the fiscal and staffing tools that will enable us to carry out this great responsibility with maximum effectiveness.”

THE PRICE TAG

ILS does not have the tools now.

With 11 employees at the moment, the office is only working at half-staff. To bring his team up to appropriate staffing levels, Leahy is asking the state for $800,000 dollars, as well as $950,000 to establish a Hurrell- Harring enforcement unit, which would be comprised of eight additional staff members: five attorneys, and three researchers and paralegals.

In addition to money for personnel, Leahy’s state operating funds request includes $800,000 to create an appellate resource center, modeled after the New York Prosecutors Training Institute, a not-for-profit corporation created in 1995 by the District Attorneys Association of the State of New York, as well as $2 million to establish four regional support centers “to provide uniform high-quality representation in every county.”

The portion of Leahy’s request earmarked to provide financial assistance to localities is significantly larger: $31 million. The biggest portion of that sum is $20 million for caseload relief and quality improvement in the upstate public defender and assigned counsel programs for a single year.

According to Leahy, ILS made several in-depth cost estimates of what it would take to bring upstate counties into compliance with national maximum caseload standards. Twenty million dollars over five years will bring counties close to the $105 million a year that is needed.

Even so, Leahy acknowledges that amount is not enough.

“Fifty-two counties are completely left out of any state assistance. They derive no direct benefit from the settlement,” he said.

In order to “replicate what is already the norm in New York City,” Leahy is also requesting $4 million to ensure every defendant has counsel at arraignment. “It’s a drop in the bucket,” he said.

So far, 25 counties have responded to a request for proposals from ILS for grant money to provide counsel at arraignment. All 25 either have received or will receive some money.

“I have to emphasize that in most of those counties there is not enough funding to cover the entire county,” said Leahy. Additionally, Leahy is asking for another $4 million for counsel at arraignment to assist the 32 counties that did not participate in the initial RFP.

Finally, there are other RFPs for which Leahy is requesting $3 million. The money would be allotted to shore-up assigned counsel; create two wrongful conviction prevention centers; and pay for two upstate parent representation offices.

Leahy’s total FY 2015–16 budget request is $35.5 million.

THE CONCERNS

Wesley Roe, Schuyler County’s public defender, is cautiously optimistic about the settlement.

“A lot is going to depend on whether the state delivers—as in money. Everything has to do with money,” said Roe.

NYSDA’s Jonathan Gradess echoed that sentiment. “Everything that drives quality in public defense is money.”

Leanne Lapp, Ontario County’s public defender, sent a reporter a statement saying, “[I]n no event shall the five named counties be obligated to undertake any steps to implement the State’s obligations under said agreement until funds have been appropriated by the State.”

In other words, Show me the money.

Another concern among attorneys working in public defense is that the funding stream for the settlement has not been identified.

“That’s the $64,000 question,” said Gradess. “I think it has to be out of the general fund and the governor’s budget.”

Public defenders in counties not party to the settlement have their own worries.

Jill Paperno, the second assistant public defender in Monroe County, wondered if the settlement might be drawn from money “previously shared by indigent defense counsel in the state’s other 57 counties.”

When asked about Paperno’s concerns, William Leahy replied, “I can reassure her … that no county’s funding from our office is going to diminish. We will maintain the level of funding. We will not siphon funding away.”

Corey Stoughton of the NYCLU sees the funding issue in starker terms. “The right to counsel isn’t a right to a certain amount of money,” she argues. “We are focused on making sure the outcomes happen. And the state’s responsibility is to make sure the dollars are there to get the outcomes.”

Leahy agrees with Stoughton and Gradess that the state must invest in all upstate counties, not just the five named in the settlement. “We are working hard to persuade the executive and legislative branches that all tides must rise,” he said. “It can’t just be an isolated county here or there that benefits from the settlement.”

To what degree the Cuomo administration has been convinced will be seen in the soon-to-be-released executive budget.

Susan Arbetter (@sarbetter on Twitter) is the Emmy award-winning news director for WCNY Syracuse PBS/NPR, and producer/host of the Capitol Pressroom syndicated radio program