The Sixth Amendment to the U.S. Constitution guarantees, “In all criminal prosecutions, the accused shall … have the assistance of counsel for his defense.” What is the state of this right in Monroe County today?
Imagine you’re a single parent, stopped by police on your way home from your minimum-wage job and arrested on a felony charge. You’re innocent. If convicted, you’ll face 15 or more years in jail. You can’t make bail. You can either plead guilty to a crime you didn’t commit or take your chances with a trial that will be months away. Without an attorney to defend you, your chances of acquittal are slim. But you can’t afford to hire an attorney; sometimes you can’t afford your rent, groceries, bus fare, or school clothes for the kids.
For nearly 200 years, the Sixth Amendment guarantee of counsel was interpreted to mean only that if you could afford an attorney you were entitled to use one. It wasn’t until 1963, in the case of Gideon v. Wainwright, that the U.S. Supreme Court ruled that “any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” It held that the guarantee of counsel means that each state is required to provide an attorney, at state expense, for any criminal defendant who is “unable to afford counsel.”
In 1967, the court extended this reasoning for the first time, in the case of In re Gault, to children facing criminal detention or involuntary psychiatric commitment, or those who were facing potential extrafamilial placement due to alleged parental abuse or neglect.
The Gideon ruling prompted the creation of public defenders offices and legal aid societies to represent criminal defendants who could not afford to hire private counsel. It took another five years for Monroe County to create a public defender’s office dedicated to providing attorneys to criminal defendants unable to afford counsel.
In 1972, I became an attorney with the Juvenile Defender’s Office of Detroit Legal Aid, one of the first programs in the nation to provide counsel to children. Then, as now, the work was assigned a lower value than other legal work; my salary was less than half what my colleagues at private law firms were making.
Who is “unable to afford counsel?”
For nearly 50 years after Gideon, few states, including New York, had any objective, standardized criteria for determining who qualified for assigned counsel. Eligibility, and the provision of assigned counsel, tended to depend on the whim of individual judges who made the determinations, and their mindfulness of county budget objectives. The criteria varied from county to county, and even from court to court.
Some judges routinely turned down requests for a court-appointed attorney if a defendant owned a house, or a car, or could post minimal bond. Some denied counsel if a defendant had relatives with assets, even though those relatives are under no legal obligation and can’t be compelled to pay for an attorney for the defendant. As Ed Nowak, former Monroe County chief public defender, noted, “it was common for parents to refuse to pay legal expenses for their minor children or even to return phone calls!”
Some judges considered only a defendant’s income, not their debts or dependents. Karen Needleman, the chief administrator, Assigned Counsel Plan, Legal Aid Society of Westchester County, recounts a case where the judge asked a defendant, “What do you do for a living?” The defendant answered, “I work at McDonald’s.” The judge said, “You can afford counsel.” No other information, no other questions, and no assigned counsel.
Few judges considered the complexity of a case or the real costs of mounting an adequate defense. Some judges did not even know which criminal charges triggered a guarantee of counsel and routinely denied requests by defendants who were entitled to an attorney.
In addition, determinations of eligibility were often made weeks or more after a defendant had to appear at arraignment and bond hearings without benefit of counsel. This resulted in defendants being jailed for weeks or more, at great expense to the county and the individual, when representation by counsel at the earliest appearance might well have resulted in pretrial release.
Assignment of counsel controlled by New York counties
As Needleman observed: “County funding is driving the bus. If the county doesn’t have the money budgeted, you’re probably not going to qualify for assigned counsel. Under New York’s county-based systems, there currently is no entity involved in screening for assigned-counsel eligibility that does not have a conflict of interest. … All are funded by the counties and have an inherent incentive to control costs by diminishing the number of applicants deemed eligible.”
In 2007, the New York Civil Liberties Union sued the state of New York (Hurrell-Harring et al. v. The State of New York) alleging “incoherent or excessively restrictive eligibility standards” resulting in “wrongful denial of representation.” The plaintiff alleged the provision of counsel was arbitrary and capricious. The previous year, the Kaye Report (chaired by Judith Kaye, former chief judge of the New York Court of Appeals) had concluded “the indigent defense system in New York State is severely dysfunctional and structurally incapable of providing poor defendants with effective legal representation.”
Standards for eligibility established in 2014
New York agreed to a settlement in the Hurrell-Harring case in 2014, seven years after its filing. The state laid out a series of more objective standards and procedures for determining eligibility for court-appointed counsel, though significant latitude and room for subjective judgment remains.
Under the settlement, finally implemented in 2016, eligibility is now presumed if a defendant’s and his or her dependents’ net income is at or below 250 percent of the federal poverty guidelines. Owning a house or a car or being able to post bond is no longer an automatic disqualifier.
Financial liabilities (debts) must be taken into account, not just assets. The assets of third parties can no longer be considered, unless they have consented to pay for counsel. Child-support payments received can no longer be considered income for purposes of eligibility. And the complexity of a case and anticipated cost of mounting an adequate defense must now be taken into consideration in determining eligibility.
An overburdened office
Though the authority to make the determination still rests with the court, in Monroe County, the job is delegated to the Public Defender’s Office, speeding up the process and making it possible to provide representation for those eligible at their first appearance. The settlement has enhanced the probability that a person entitled to court-appointed counsel will in fact have counsel granted, rather than denied. However, there is a significant difference between have the right to counsel in law and actually having access to good representation. The ideal of securing a fair balance of power between the accuser and the accused in criminal cases remains unrealized, and it comes down mostly to money.
Both state prosecutors and court-appointed defense attorneys are paid for by the county. A comparison of the resources allocated to each function is illuminating. In 2015, the county budgeted over $15 million for the Monroe County District Attorney’s Office. There were 81 attorneys in the office, and they handled 4,800 felony cases, an average of about 60 cases per attorney. They were paid salaries averaging between $57,000 and $62,000. To assist them with case preparation, there were numerous support personnel and investigative staff, augmented by city and town police and state troopers.
In contrast, the Public Defender’s Office had a budget of roughly half that allotted to the prosecution: only $8 million. The attorneys’ salaries averaged between $38,000 and $41,000 per year, about 65 percent as much as the assistant district attorneys. In 2017, the 71 attorneys in the Public Defender’s Office handled an average 185 felony cases apiece, three times the number handled by each district attorney and greatly in excess of the state’s recommended caseload maximum of 150 felony cases per attorney. In Family Court, the public defenders averaged 320 cases apiece, more than twice the state standard of 150.
Secretarial staff was sparse and there were 13 investigators and investigative assistants, one for every 5½ attorneys, so that each investigator had to cover 925 felony cases per year. And the public defenders’ clients are often the most difficult and complex to represent; they tend to have fewer resources, more limited education, and some are not fluent in English.
A 2013 study by the Brennan Center for Justice calculated that, nationally, vastly underpaid and overworked public defenders spend an average of less than six minutes per case: six minutes to meet and interview their client, review the evidence and identify possible defenses and supporting witnesses, and advise their client that the best bet in the long run is to plead guilty. The report concluded that “the present M.A.S.H.-style operating procedure requires public defenders to divvy up legal assistance to a narrowing group of clients, (forcing them) to choose among clients as to who will receive effective legal assistance.”
Additional services to criminal defendants are provided by the Conflict Defenders Office, composed of private attorneys – not necessarily specializing in criminal defense work – who take an occasional assigned case where the Public Defender’s Office might have a conflict of interest. The county allocates $4.8 million, or about one-third of its total funding for attorneys unable to pay per year, for the Conflict Defender’s Office. In 2017, that office serviced an additional 8,400 cases. That’s $571 per case, compared to the $342 per case allocated to the Public Defender’s Office, an increased cost of over 60 percent per case. This added cost per case is not reflected in better outcomes for defendants.
The budget for hiring attorneys, conducting investigations and obtaining examinations, transcripts, and witnesses – including expert witnesses – is paltry, and shrinking, compared to the magnitude of the need. The county provides $3 million more per year for maintenance of public parks, for example, than it does for legal representation for indigent criminal defendants. And things are getting worse, not better; though Monroe County allocated no increase in financial support for the Public Defender’s Office in 2017, the office handled 1,000 more cases than in 2016.
We can ask whether this is a constitutionally allowable, or whether it is a moral choice. Or we can merely ask, with the transactional focus currently in vogue in some quarters today, whether it is an economically rational choice. The fact is, the county must use its own dollars to pay for attorneys to represent indigent defendants and to house them in the county jail if convicted of a lesser offense. But the cost of incarceration is borne by the state, not the county, when a defendant is convicted of a felony and sent to state prison, the county’s budgetary bottom line looks better at first blush with fewer attorneys paid for and more defendants convicted of more serious crimes.
But this may be shortsighted: each person convicted of a felony has lower lifelong earnings, thus paying less in taxes and providing less support to the local economy. Many defendants leave behind dependent spouses and children who move into poverty and the need for welfare assistance. And studies show that one of the most powerful predictors of whether a child will grow up and become incarcerated is whether that child had a parent incarcerated.
More than half a century after the Supreme Court affirmed the right to have an attorney for your defense, if you are innocent and indigent in Monroe County, the scales of justice are still tipped against you. The time has come to make adequate funding for state-appointed attorneys a priority.
Susan Vinocour is a forensic and clinical psychologist and a former Legal Aid attorney and special assistant district attorney in what became the Special Victims Unit in the Monroe County District Attorney’s Office. Her book, “Nobody’s Child: A Tragedy, a Trial, and a History of the Insanity Defense,” is scheduled for release by W.W. Norton in spring, 2019.