Breakthrough Legislation Establishes Criminal Defense Caseload Standards
MONDAY, APRIL 06, 2009

As part of the State budget agreement, the State Legislature and the Governor adopted landmark legislation to address caseloads for attorneys representing individuals charged with crimes in New York City. The new law authorizes the New York State court system to establish caseload standards for lawyers assigned to represent indigent criminal defendants in New York City. Enactment of the law follows landmark discussions between the Unified Court System and The Legal Aid Society on ensuring appropriate caseloads for indigent defense attorneys.

The new caps represent "an historic breakthrough to make sure that New Yorkers who are charged with crimes are represented by lawyers who have appropriate caseloads and can therefore provide the constitutionally mandated representation to which indigent New Yorkers are entitled," Steven Banks, Attorney-in-Chief, said in interviews with The New York Law Journal and The New York Times . “We extend our sincere thanks to Chief Judge Jonathan Lippman for his leadership and dedication in helping to devise a solution to this critical problem.”

Chief Judge Lippman said, “This agreement is a major step toward ensuring quality of legal representation for those who cannot afford lawyers. Guaranteeing equal access to justice is the highest of priorities for the New York State court system, both for litigants in criminal cases and in civil cases. This historic legislation lays the groundwork for achieving that vitally important goal throughout the State.”

The legislation builds on The Legal Aid Society’s recent efforts to achieve legislation mandating promulgation of caseload standards for the legal representation of children in Family Court.

In a statement, Alan Levine, Chairman of The Legal Aid Society, said that “by this legislative requirement, there is now a recognition of the constitutional authority to mandate, and ultimately to fund, a sufficient number of lawyers for indigent defendants that will fulfill the constitutional obligation to provide for a defense for all indigent defendants. The Legal Aid Society expresses its appreciation to Chief Judge Lippman and to Assembly Speaker Sheldon Silver; Assembly Committee Chairs Helene Weinstein, Joseph Lentol, and Jeffrion Aubry; Senate Majority Leader Malcolm Smith; Senate Committee Chairs John Sampson, Eric Schneiderman, and Ruth Hassell-Thompson; and Governor David Paterson for recognizing the importance of providing the constitutionally mandated defense for indigent clients. This major achievement is the culmination of months of coordinated work at the State and City levels involving the senior management of the Society, led by Steven Banks, our Attorney-in-Chief; our Board of Directors; the leadership of the Association of Legal Aid Attorneys; and the leadership of 1199.”

Deborah Wright, the President of the Association of Legal Aid Attorneys, a local of the UAW, said in a statement that “Building upon the great success that both our union and The Legal Aid Society achieved in setting caseload standards for attorneys for children in our Juvenile Rights Practice, New York has finally taken the first step in ensuring that all New Yorkers charged with a crime receive the quality representation that they are entitled to under the Constitution. The passage of this bill is also a first step in lessening the gap between the rich and the poor that exists in our criminal justice system. This great achievement would not have been possible without the assistance of New York’s Chief Judge Jonathon Lipmann and we look forward to working with him during this process."

The annual caseload for the Legal Aid Society’s 435 criminal defense staff attorneys has increased from 210,000 new cases three years ago to nearly 227,000 last year. Banks said that 81 percent of the criminal defense attorneys at The Legal Aid Society have caseloads exceeding the First Department’s caseload standards. He said the average annual caseload is 592 felonies and misdemeanors, with an average of 103 pending cases. The new legislation authorizes the State’s Chief Administrative Judge to issue criminal defense caseload standards to take effect April 1, 2010 and be phased-in over a four-year period. Funding to support the new standards will be included in the Judiciary’s 2010-2011 fiscal year budget proposal.

For the Society’s fiscal year beginning on July 1, 2009, however, there is still an urgent need for interim funding to address actual and proposed budget cuts.




New York Law Journal
Budget Allows for Caps On Criminal Caseloads
By Joel Stashenko
April 06, 2009

ALBANY - A provision in the 2009-10 state budget directs the chief administrative judge to develop caseload limits for attorneys providing representation to indigent criminal defendants in New York City.

Such a cap was called for in 2006 by the Indigent Defense Commission appointed by former chief judge Judith S. Kaye and would be similar to the caseload cap established by Chief Administrative Judge Ann Pfau (See Profile) in 2008 for attorneys for children, formerly known as law guardians.

Chief Judge Jonathan Lippman said Friday he helped broker an agreement over setting the caseload cap in discussions among the Legislature, Governor David A. Paterson's office and the Legal Aid Society of New York City.

"This is a breakthrough agreement that ensures, certainly, for the foreseeable future, meaningful, quality representation for criminal indigent defendants in New York City," the chief judge said in an interview. "This was very important to us and something that was important to the judges in the courtroom each and every day."

Judge Lippman said he sees the case cap as one element in a broader access to justice agenda that also includes reconfiguration of the statewide indigent criminal defense system and improved funding for civil legal services.

Assembly Judiciary Committee Chairwoman Helene Weinstein, D-Brooklyn, said establishment of a cap would be a "very big thing" for busy indigent criminal defense attorneys and could ultimately be a step toward creation of standards for defenders statewide and the establishment of a statewide commission to oversee indigent defense services.

The Assembly approved the caseload cap in the public protection state budget bill (A156/S56) on March 31 and the Senate followed suit on Friday.

The provision requires the chief administrative judge to establish caseload standards by April 1, 2010, and for those limits to be phased in over four years. With the one-year lead time, no money was allocated in the 2009-10 budget for costs associated with caseload limits.

Other features of the 2009-10 budget include:

  • An additional $7.4 million approved by the Legislature for civil and criminal legal service programs for the poor above Governor Paterson's budget proposal. The budget also includes the $1 million in aid proposed by the governor for the Interest on Lawyers' Account Fund.
  • An increase to $3 million from $1.5 million for a law school tuition forgiveness program, and an expansion of eligible beneficiaries from new lawyers working in district attorneys' offices to those employed in publicly funded criminal and civil legal defense programs for the indigent. Eligibility is limited to attorneys who have been enrolled for under 11 years in the bar (A156/S56).
  • No money for creation of a statewide commission to oversee provision of legal services to the indigent, although legislative advocates of a statewide system say they agreed with Mr. Paterson's office to continue to discuss a commission.
  • Creation of a new program to make some terminally ill state prison inmates eligible for immediate parole. Inmates serving time for the most severe offenses, including murder, are not eligible (A156/S56).
  • Introduction of graduated sanctions, such as increased reporting curfews for minor parole violations (A156/S56).
  • A re-appropriation of $20 million for renovation of an Albany landmark building, Centennial Hall, into a residence for Court of Appeals judges when they are in session and the new home of the Law Reporting Bureau (A151/S51).
  • A re-appropriation of $33.7 million for acquisition and improvements to a training academy for court security personnel and an appropriation of $24.2 million to be split between the training academy and the Court of Appeals' Centennial Hall project (A151/S51). Tentatively scheduled to be sited in Saratoga County in previous budgets, the academy will now be located in Brooklyn. The court system already operates training academies in Manhattan and Cohoes, Albany County.

The budget bill contains language allowing the chief administrative judge to request additional funding to pay for an indigent defense caseload cap, as well as a provision saying the Legislature is not obligated to "provide the funding necessary to ensure compliance with the standards" set by the chief administrative judge.

Judge Lippman said he is committed to producing the funding to pay for the caseload cap, once the standards are established.

"This will be phased in, but, yes, we are absolutely committed to seeing this through and providing the resources to get this done," the chief judge said.

He said he had no estimate of how much funding will be needed once the cap is fully phased in.

Ms. Weinstein said the caseload cap was limited to New York City because of the heavy indigent defense needs and the fact that part of the city, at least theoretically, has experience with caseload limits.

The Appellate Division, First Department, has set annual caseload caps for criminal defense attorneys to 400 misdemeanors or 150 felonies, with each felony counted as 2.66 misdemeanors in an attorney's mixed caseload. The Indigent Defense Oversight Committee for the First Department promulgated the caseload limits in 1995.

However, because of budget and personnel constraints, the First Department standards are not written into New York City's contracts with the Legal Aid Society.

Attorney-in-Chief Steven Banks of the Legal Aid Society said 81 percent of the group's criminal defense attorneys have caseloads exceeding the First Department standards. He said the average annual caseload is 592 felonies and misdemeanors, with an average of 100 cases pending.

The new caps represent "an historic breakthrough to make sure that New Yorkers who are charged with crimes are represented by lawyers who have appropriate caseloads and can therefore provide the constitutionally mandated representation to which indigent New Yorkers are entitled," Mr. Banks said in an interview Friday.

Mr. Banks said the caseload limits set by the Appellate Division seem reasonable, but he cautioned that the number of pending cases should also be taken into account when setting a cap.

The Legislature provided $5 million in the 2008-09 state budget to help pay for the attorneys for children caseload limits, which were set by Judge Pfau at 150, though there were exceptions depending on the complexity of cases and whether attorneys were representing siblings from the same families (NYLJ, April 2, 2008).

Judge Pfau developed the attorneys for the child caseloads by studying the system and consulting with judges, attorneys and others.

Mr. Banks said the law guardian cap has resulted in caseloads falling from 250 to 150 for Legal Aid attorneys representing children in Family Court.

The cap has allowed Legal Aid to hire 35 more attorneys for the child and six more supervisors.

The process by which the juvenile rights case cap was developed "gives me great hope that this will be the beginning of the kind of change that is needed," Mr. Banks said of the criminal defense lawyer cap.

Joel.Stashenko@incisivemedia.com




April 6, 2009
State Law to Cap Public Defenders’ Caseloads, but Only in the City
The New York Times
By John Eligon

The number of criminal cases that court-appointed lawyers in New York City handle will be capped for the first time under a new law tucked in the $131 billion state budget bill passed last week. The measure addresses longstanding pleas from low-paid public defenders, who sometimes juggle more than 100 cases at a time.

Public defenders across the country have complained that large caseloads impede their ability to provide the best advocacy and damage their clients’ chances of getting a fair hearing in court.

Criminal defense lawyers at the Legal Aid Society, which represents most of the city’s indigent defendants, handle an average of 592 cases a year, or about 103 at a time, said Steven Banks, the society’s attorney in chief. Heavy caseloads make it difficult for his lawyers to properly investigate cases and pursue leads, Mr. Banks said.

“The goal all along has been to ensure that if a New Yorker is charged with a crime, that New Yorker will be represented by a lawyer with an appropriate caseload who can provide the highest quality of representation to protect against wrongful convictions,” Mr. Banks said.

While the law applies only to lawyers who represent indigent defendants in New York City, supporters say they hope the guidelines will be expanded.

The move to address the caseloads in New York City comes amid a national uprising of sorts by public defenders. In at least seven states, government-appointed lawyers either have refused to take new cases or have filed lawsuits to limit them.

“People do look to New York to establish different policies,” said David Carroll, research director for the National Legal Aid and Defender Association. “We do hope that this becomes a model both for reform for the rest of the state and, hopefully, a model for other large urban centers.”

Under the law, New York State’s chief administrative judge would be required to establish new caseload standards for public defenders by April 1, 2010. The judiciary would then have four years to phase in the limits and ensure proper funding. Despite the state’s grim economic condition, the judiciary’s budget for the current fiscal year remained stable at $2.57 billion.

Public defenders have been pleading for help since 1963, when the United States Supreme Court, in its decision in Gideon v. Wainwright, mandated the right to counsel for defendants who cannot afford to hire a lawyer. The Legal Aid Society has long fought the city, which provides most of its financing, over money. Tensions peaked during Mayor Rudolph W. Giuliani’s administration when the society’s lawyers went on strike.

Jonathan Lippman, the chief judge of the New York Court of Appeals and the head of the state’s judicial system, said that allowing four years to phase in the caseload limits would give the judiciary time to plan its budget accordingly.

“This is so important to all of us in the justice system,” said Judge Lippman, who was instrumental in ensuring the legislation’s passage. “This affects what judges do in the courtroom every day. We can’t do our jobs unless you have the two key players — the prosecution and the defense — on a level playing field.”

Judge Lippman did not speculate what the caseload limits would be. But in 1995, the Appellate Division in Manhattan adopted caseload guidelines that would amount to public defenders handling roughly 70 cases at a time, Mr. Banks said.But those guidelines were not binding, and Legal Aid has been too understaffed to meet them, Mr. Banks said. Last year, the agency had 435 criminal defense lawyers who were responsible for 227,000 new cases, up from 210,000 in 2005, Mr. Banks said. The society’s criminal defense division is expecting an $11.3 million shortfall for the fiscal year that starts in July, he said.

Although easing the caseload for public defenders is a prudent step, said John Feinblatt, the mayor’s criminal justice coordinator, it is more important to invest in technology and other resources that help lawyers work more efficiently. The city has already invested millions of dollars to modernize methods of data entry and systems for looking up a client’s bail status or the details of a case, Mr. Feinblatt said.

“We need to bring this paperbound system into the 21st century,” he said. “In the long run, those kinds of investments in technology will be far more important than just counting cases.”

Prof. Norman Lefstein of the Indiana University School of Law said blanket case limits could cause problems because they could create expectations that some lawyers might not be able to meet. Any standard should take into account a lawyer’s ability, the resources available to him or her and the complexity of a case, said Professor Lefstein, who studies indigent defense.

“You can’t be bound in kind of a robotic fashion by a set of numbers,” he said.

But Laura Pitter, who worked for Legal Aid in the Bronx from 2003 to 2008, said caseload caps were “great and very necessary.”

When she started at Legal Aid, she said, she handled 70 to 80 cases at a time. Eventually, that number climbed to between 110 and 115 cases, meaning that she sometimes had to make 5 to 10 court appearances a day, she said. Cases were delayed for months or years, she said, while her clients sat in jail or rearranged their lives around court appearances.

She said she left Legal Aid for private practice because she was overburdened and because she needed to make more money to pay off student loans.

“It was becoming impossible to do that job,” she said. “Clients suffered enormously.”