Indigent Defense in Jeopardy
Crime and poverty coincide. No matter which is the chicken and which the egg, those accused of crimes are overwhelmingly poor. Yet, as every Law & Order fan well knows, If you cannot afford an attorney one will be provided for you. The City of New York, however, has made a dangerous decision to all but eliminate one of the traditional bulwarks of indigent criminal representation — private attorneys — and along with them something even more important: trial by jury.
In New York City, the poor are represented by the Legal Aid Society as well as by other “public defenders.” Standing historically alongside them in the five boroughs is the Assigned Counsel Program, which is administered by the Mayor’s Office. Under the ACP, qualified private attorneys are assigned by the court to represent indigent defendants in a small percentage of criminal cases.
Now the city has decided to kill the ACP, which has been in service since the U.S. Supreme Court ruled, in the landmark 1963 decision Gideon v. Wainwright, that the Constitution secures the right to criminal counsel. If the city has its way, public defenders would take over virtually all indigent criminal representation in New York City, eliminating the traditional role of private attorneys in our courts except where the accused can pay for his own lawyer. Since most criminal defendants are poor, “private defenders” will all but disappear.
Removing private attorneys from our courtrooms will deprive the city’s criminal bar of its best, most experienced, and dedicated trial attorneys. While Legal Aid and other institutional providers do the heavy lifting in our criminal courts, and do it admirably well, they — like the District Attorney’s Offices — are staffed in the main by fresh law school graduates who simply lack the experience of ACP attorneys, some of whom have many years’ practice and hundreds of trials under their belts. Admission to the thousand member ACP panel is by application and subject to rigorous peer review and recommendation. Recognizing this, city rules currently provide that only ACP panelists may be assigned to represent indigent defendants in the most serious criminal matters — homicides — and this practice evidently will continue.
Public defenders carry daunting caseloads. Astonishingly, Legal Aid attorneys handle several hundred cases per year, leaving them little time to provide individualized attention to their clients, much less to prepare those cases for trial. The city’s plan would require already overworked public defenders to assume the 44,000 cases now handled every year by ACP attorneys, with predictably dire consequences.
Most important, the city’s plan would severely curtail the number of criminal jury trials for indigent defendants. Whether owing to their greater experience or their saner caseloads, ACP panelists now conduct a disproportionately high percentage of jury trials. In 2009, for instance, ACP attorneys were eight times more likely to take a case to trial than their “public” counterparts. Overburdened public defenders often have no choice except to resolve their clients’ cases by plea bargain. For this reason the ACP costs the city more, on a per case basis, than do our public defenders.
And that’s the heart of the matter. The city’s plan is not meant to improve criminal justice, but only to save money. (Earning up to $75 per hour, ACP attorneys are decently compensated but, in comparison to other attorneys of their experience, by no means growing fat at taxpayer expense.) The Mayor’s Office seemingly hopes to economize by paring down the number of costly criminal jury trials and by forcing those who represent indigent criminal defendants to resolve their clients’ cases by plea bargain, as quickly and cheaply as possible. If the city prevails, our criminal courts will become bazaars, with matters of justice resolved not by juries but by haggling and negotiation.
While plea bargaining has its due place, jury trials remain the jewel in the crown of our legal system. None can fault our elected representatives for watching our budgetary waistline, but effective legal representation for the poor is not a mere privilege or entitlement — it is a constitutional right. Hon. James A. Yates of the New York County Supreme Court has noted that, “it seems certain and sadly inevitable that the [city’s] plan will have a significant and unhealthy impact on the quality of representation provided under an already strapped system.”
Choking funding for indigent criminal defense is politically easy, since the beneficiaries are poor, with little clout, and not especially popular. Yet the measure of any society can be taken by observing its treatment of the disenfranchised. Today, New York City’s criminal justice system is rightly the envy of the nation. Yet the city’s plan would in one stroke remove the most experienced criminal attorneys from our courtrooms, heap thousands more indigent clients upon our already indecently overburdened public defenders offices, and make that most familiar part of our criminal justice system — the jury trial — a mere curiosity, fondly remembered.
