The Legal Aid Society Can Provide High-Quality, Cost-Effective Representation To Additional New Yorkers Accused of Crimes With Additional Resources, Says Legal Aid's Chief Attorney
THURSDAY, JUNE 13, 2013

Steven Banks, the Attorney-in-Chief of The Legal Aid Society, said that with additional resources Legal Aid can and will provide high-quality and cost-effective representation to additional New Yorkers accused of crimes as the City proceeds with its indigent defense plan that will reduce the number of conflict cases assigned to 18-B attorneys.

"We feel that The Legal Aid Society is in a position to provide both high-quality and cost-effective representation to additional New Yorkers accused of crimes if we receive additional resources," Banks told the New York Law Journal. In the City's proposed 2013-2014 budget that begins on July 1, the Bloomberg Administration allocated $14 million for the assignment of 26,000 conflict cases to institutional providers rather than 18-B attorneys. The City is currently evaluating responses to its request for proposals.

In October 2012, the New York State Court of Appeals upheld the City's plan to assign both non-conflict and conflict criminal cases to The Legal Aid Society. The Legal Aid Society had intervened in this case in 2010 because the litigation by various 18-B groups and bar associations to block the City's plan prevented the City from allocating to the Society its full criminal defense caseload and the funding associated with it.

Banks was asked by the Law Journal whether City Council members would oppose the program in the City budget process. "Historically, the City Council has supported the service The Legal Aid Society provides," Banks said, "so I would be surprised if the City Council concluded that the City could not provide additional resources to the Legal Aid Society consistent with the Court of Appeals ruling in order to handle both non-conflict and conflict cases."




The New York Law Journal
Budget Plan Contains Funds to Reassign 26,000 18-B Cases
By Andrew Keshner
June 12, 2013

After beating back a court challenge from several bar groups, the Bloomberg administration expects to have in place this summer a plan that will significantly limit the number of cases handled by individual 18-B attorneys appointed to represent the indigent in criminal cases.

New York City has taken the first steps to contract with institutional providers to represent defendants where a conflict exists with its primary defense organizations.

In a proposal for a 2013-2014 budget that is set to begin July 1, the mayor has allocated $14 million for the assignment of 26,000 "conflict" cases to institutional providers rather than 18-B attorneys. Meanwhile, city officials are evaluating responses from providers to a Request for Proposals first released in 2010.

"The city sought providers for indigent criminal defense services through an open and competitive process to ensure that all defendants in need receive high-quality representation from qualified attorneys, whether they are charged in 'primary' or 'conflict' cases," Bloomberg spokesman John McCarthy said in a statement.

Criminal Justice Coordinator John Feinblatt told City Council members during his May 14 budget testimony that he hoped the program would be "operational sometime over the summer."

See Indigent Defense Budget Overview and Feinblatt's Written Statement (page 8).

McCarthy said that the city earlier this year requested updated proposals and "best and final offers" from institutions interested in taking conflict cases. The city now is beginning negotiations with those institutions.

Feinblatt testified that cases handled by 18-B attorneys "took about 47 percent longer to reach disposition than those handled by institutional providers." He also noted that for felony cases resulting in convictions, "institutional providers secured pleas to non-felony charges 80 percent of the time compared to 61 percent" for 18-B attorneys.

The state Court of Appeals ruled 4-3 last October in Matter of the New York County Lawyers' Association v. Bloomberg, 155, that the city had established a legally valid indigent defense plan that uses both institutional providers and private counsel under Article 18-B of the County Law (NYLJ, Oct. 31, 2012).

But some attorneys still object to the city plans and are calling for the City Council to intervene.

"What happens now is we try to convince the powers that be that it's a bad plan. We go to the court of public opinion, we go to our elected representatives," said Michael Marinaccio, president of the Bronx County Bar Association, which was one of the groups to unsuccessfully sue the city over its plans. Marinaccio said "our greatest concern" is the replacement of "experienced trial lawyers" with "institutional providers that, by the very nature of the budget, have to go out and hire less-experienced attorneys."

The proposal has drawn concern from at least one council member. The RFP requires either "at least 50 [percent] of contractor's attorney staff would be felony or appeals certified, as appropriate, for 18-B work in the jurisdiction in which the work will be done or have sufficient criminal defense experience to qualify for such certification."

Queens Councilwoman Elizabeth Crowley, chair of the Committee on Fire and Criminal Justice Services, said any contracts with institutional providers should ensure all attorneys would be fully qualified for the work.

"I want to make sure that if we do award contracts to institutional providers, they could assure 100 percent of attorneys working on cases will meet what the Appellate Division deems fit," she said, adding that defendants' constitutional protections are at stake.

During the May 14 budget testimony, Crowley had pointed questions for Feinblatt on the qualifications of lawyers at institutional providers. Feinblatt responded that if "you were told you could have a choice between having an 80 percent chance that your felony would be disposed of through a misdemeanor or a 61 percent chance that your felony would be disposed of by a misdemeanor, which would you choose? …Outcomes are what matter to people who have been accused of crimes."

He added the 50 percent felony certification was "a floor."

As the two continued to spar, Feinblatt told Crowley she "clearly [had] a bias here, and we have given you metric after metric showing you that in fact 18-B has poorer outcomes and takes longer. You somehow don't think that is a legitimate evaluation of the 18-B. I do."

Crowley said at the hearing she was not biased and instead concerned with constitutional fair trial protections.

"I don't believe that your RFP guarantees that 100 percent of the time," she said.

Corey Sokoler of the Bronx, a 25-year member of the 18-B felony and misdemeanor panel, said in an interview, "Statistics should not drive the decision on indigent defense funding."

In any event, the city's statistical analysis was "flawed," he said. For example, Sokoler said primary providers pick through the cases they want at arraignment and hand off the harder cases to assigned counsel. Likewise, 18-B attorneys do not staff desk appearance ticket parts, but primary providers do and the "quick and easy disposition" of the low-level offenses "skew" the statistical review of a providers' work, he said.

"Criminal defense is not a road-paving contract where you can hold the contractor responsible for deadlines and cost overruns. Criminal defense is a constitutional mandate that guarantees the rights and freedoms of human beings. …Reducing this vital function of government to mere statistics will render the Constitutional mandate meaningless," he said.

In the litigation over the city's proposal, the Legal Aid Society intervened in support of Mayor Michael Bloomberg. Steven Banks, the society's attorney-in-chief, said in an interview that the group had submitted a bid on the RFP.

"We feel that the Legal Aid Society is in a position to provide both high-quality and cost-effective representation to additional New Yorkers accused of crimes if we receive additional resources," he said.

Asked what the likelihood would be that City Council members opposed the program, Banks said, "Historically, the City Council has supported the service the Legal Aid Society provides, so I would be surprised if the City Council concluded that the city could not provide additional resources to the Legal Aid Society consistent with the Court of Appeals ruling in order to handle both non-conflict and conflict cases."