Gideon Alert: New York Times highlights public defense crisis and the underfunding of legal services

BY David Carroll on Monday, May 17, 2010 at 12:43 PM

A New York Times editorial on May 17, 2010 identifies the nexus between our nation’s deficient right to counsel systems and the failure of policymakers to address the underlying societal issues that increase the need for indigent defense services today.  Adequate funding of civil legal aid would help to reduce crime by providing legal assistance in addressing housing, immigration, domestic violence, employment, discrimination and countless other legal issues that otherwise leave people in a state of despair.  Yet, as with defender services, our states and federal government have made only a limited investment in civil legal aid programs, producing a great void in the ability of low-income people to get help through the courts. 

New York stands as a cautionary note, however, to expending the civil right to counsel without adequate funding and structure.  Unlike many jurisdictions, the state of New York has long accepted the notion that a fundamental part of “liberty” includes the right of parents to raise their children as they see fit.  Though the U.S. Supreme Court has yet to expand Gideon’s promise to those civil actions in which a child can be removed from the home of her parent, the state of New York has established such a right.   Yet, instead of properly funding the right to counsel in family court, many responsibilities were simply added – most especially in upstate New York – to the already excessive workload of public defense attorneys.

For example, NLADA evaluated the right to counsel in Jefferson County in 2007.  At the time, the county employed five full-time staff public defenders.  Each of the five public defenders handles misdemeanor and violation cases.  On average, each would handle 442 such cases per year - already above the national misdemeanor workload standard of 400 per year.  But on top of this, each public defender has additional duties.  Two public defenders handle all of the felony cases, estimated to be 725 cases for 2007, or 363 felony cases per year per attorney.  This alone is more than twice the national standard for felony representation (150 cases per year), so each felony attorney handles a caseload that requires 3.5 attorneys under national standards.  One of these felony attorneys also administers all pre-disposition restitution for all public defender clients, while the other felony attorney handles drug court.  A third public defender handles all cases in one of the city courts (City of Watertown), estimated to be 1765 cases for 2007.  This one lawyer is handling a caseload that national standards suggest should more appropriately be handled by 5.5 attorneys.  So, before any family court cases are added to the workload of these defenders, they are already carrying a workload that far exceeds national standards. 

The two other Jefferson County public defenders handle all of the family court cases, estimated to be 675 cases for 2007, or 338 family court cases per year per attorney.  Though the national caseload standards are silent on the number of family court cases that are allowable, several states have conducted case-weighting studies to set family court caseload standards.  For example, the Washington Defender Association Standards for Public Defense (Standard Three: Juvenile Dependency Cases) states that an attorney should not handle more than 80 such cases per year and nothing else.  Using this standard - and combined with the misdemeanor work each of these attorneys is handling, and accounting for juvenile delinquency cases - the caseload of each attorney should more properly be handled by 4.5 attorneys.  Moreover, one of the family court attorneys is the Chief, who also has administrative responsibility for the entire office and personally handles all murder cases. 

Having public defenders handle the family caseload gives rise to an additional problem.  When the public defender office is appointed in a family court case, the lawyer will typically remain in the case until the child who is the subject of the proceeding reaches eighteen years old.  So, for example, where a public defender attorney is representing the father in a child custody proceeding, the entire public defender office is conflicted out of representing the mother (and perhaps the step-father and grandparents and various witnesses in the custody case) in any criminal case.  And because this conflict may begin when a child is just a few months or years old, any criminal prosecution of the mother (or step-father or grandparents or witnesses) for well over a decade will have to be appointed to assigned counsel, at a cost higher than the cost of a public defender office attorney.  Thus an ever-increasing number of assigned counsel attorneys become necessary, at an ever-increasing cost, to manage the overall caseload of the county public representation system.

NLADA applauds the state of New York for recognizing the critical need for the poor to have access to counsel in cases that affect the parent-child relationship.  Yet New York, and all states addressing the civil right to counsel, must provide adequate funding and an appropriate structure for both the Sixth Amendment right to counsel and the civil right to counsel.