Testimony of The Legal Aid Society
before the
Committee on Fire & Criminal Justice Services
& Committee on Finance
March 13, 2001
Criminal Defense Services
CRIMINAL DEFENSE DIVISION
SUMMARY
The Society’s Criminal Defense Division (“CDD”) continues its herculean effort to cope with the dual problems of severe budget restrictions and a seemingly endless influx of arrests from Operation Condor and the “Quality of Life” campaign.
Seven months into FY01, the situation is dire. We no longer have enough attorneys in CDD to staff all the arraignment shifts we are required to handle each month, leaving us no choice but to notify the courts that we must develop a plan for reducing CDD’s arraignment staffing as it experiences further attrition during the rest of FY01.
Without a significant funding increase, we can only hire 10 attorneys to replace the 64 attorneys CDD has lost since the beginning of FY00. The cases assigned to our attorneys on an annual basis far exceed the maximums permitted by the Appellate Division. We are facing increased costs for such necessities as transcripts, experts’ fees, and heat. Despite all this, the Society’s criminal budget has once again been flat-funded at $54.7 million in the Executive budget.
We come to the Council, as we have in past years, seeking a restoration of part of the $25 million the Mayor cut from our budget in FY95. We have already been forced to eliminate some of the vital services we render to the City’s criminal justice system. Without a restoration of $15.7 million above the Executive budget in FY02, these service cuts will continue to escalate.
WORKLOAD
City-Wide Intake for FY 2001
During FY00, the workload of the Society’s Criminal Defense Division (“CDD”) was dominated by Operation Condor, an NYPD arrest initiative which placed thousands of low-level misdemeanor arrests into the City’s criminal justice system. By June 30, 2000, CDD had been assigned 201,373 cases. See Addendum B, “Monthly Assignments by Type: FY99 -- FY01.” Before FY00 started, the Mayor’s Office of the Criminal Justice Coordinator had projected that the Division would be assigned only 153,025 cases.
Despite this experience, at the start of the FY01, the Criminal Justice Coordinator’s Office predicted that the Division would be assigned a maximum of 173,886 cases.[1] However, as Operation Condor has progressed throughout the current year, the Division is once again being assigned significantly more cases than the City projected. CDD is handling, on average, 74% of the indigent arrestees in the arraignment shifts we staff. As of January 31, 2001, it had been assigned 118,707 cases.[2] If it continues to intake cases at the current rate, CDD will end the fiscal year with 203,498 assignments.
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CASE ASSIGNMENTSYear / Felonies / Misdemeanors / TOTAL
FY2000 / 34,438 / 166,935 / 201,373
FY2001[3] / 34,135 / 169,363 / 203,498
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Attrition
The Criminal Defense Division has lost 64 attorneys since the start of FY00. Because the Society experienced a $2 million deficit that year, largely as a result of uncompensated costs in covering the extra cases generated by Operation Condor, it was forced to withdraw job offers it had extended to 10 recent law graduates, who had been hired to start work in CDD last September. To further reduce costs, we transferred 8 CDD attorneys to positions in the Society’s civil, federal and juvenile divisions, placed an additional 10 CDD attorneys on unpaid furloughs, and made comparable reductions in support staff. On top of these losses, CDD has experienced normal attrition. As of today, it has only 340 attorneys on staff. We anticipate that CDD will lose 10 more attorneys over the remainder of the current fiscal year.
Although the Society resolved the deficit without layoffs, our staffing prospects for FY02 remain bleak. Unless CDD’s funding is increased for FY02, it will only be able to hire 10 new attorneys in FY02. This doesn’t begin to replace the staff CDD has already lost, much less offset the attrition we anticipate next year. Without additional funding, we anticipate that CDD will have only 291 staff attorneys by June, 2002.
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ATTORNEY ATTRITIONSept. 1999 — June, 2002
Sept., 1999 / 404
Jan., 2000 / 396
June, 2000 / 380
Sept., 2000 / 374
Jan., 2001 / 340
June, 2001 / 330
Sept., 2001[4] / 340
Jan., 2002 / 316
June, 2002 / 291
TOTAL ATTRITION / 113
% LOSS / 28%
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Case Assignments
As we reported last year, the Division’s workload has grown exponentially since the NYPD began its “Operation Condor” initiative in February, 2000. In FY00, CDD attorneys throughout the City were assigned, on average, 534 cases -- an amount which greatly exceeds the maximum caseload standards the Appellate Division, First Department.[5] In light of the attrition CDD has experienced and the continuation of Operation Condor, the average number of case assignments per attorney during FY01 will inevitably be even higher. We anticipate that, unless measures are taken to increase staffing or reduce the total number of assignments, the average number of assignments during FY02 will reach 600 cases per attorney.
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AVERAGE INTAKE PER ATTORNEYFY00 (377 att’ys) / FY01 (340 att’ys)[6]
Total Felonies / 34,438 / 34,135
Total Misd./Other / 166,935 / 169,363
TOTAL / 201,373 / 203,498
Avg. Intake/Attorney / 534 / 598
Felony/misd. average / 91/442 / 100/498
App. Div. Standard / 91/153 / 100/130
Intake over standard / 289 / 368
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To deal with the surge in misdemeanor arrests that has resulted from Operation Condor, from February through September, 2000, the City’s Criminal Courts opened extra arraignment parts, assigned more lawyers to standing arraignment parts, and kept arraignment courts open hours past their scheduled closing time. During that period, CDD provided an average of 21 additional attorneys for evening and weekend arraignment shifts each week. Because of its staffing losses and the City’s continuing refusal to reimburse it for the overtime costs it incurred in staffing these extra shifts, CDD withdrew from staffing these extra shifts after Labor Day. However, the slight relief CDD received by withdrawing from these arraignment shifts has not prevented a dangerous increase in attorneys’ case assignments.
In last year’s testimony, we were able to report that, thanks to staffing additions that were made possible through the Council’s partial restoration of $5.5 million to the Society’s criminal defense services budget, pending caseloads for individual Legal Aid trial attorneys in CDD had decreased to a city-wide average of 56 cases. Not surprisingly, in light of the continuing surge in arrests and the attrition CDD has experienced since then, that average has increased significantly. As of January 31, 2001, the average pending caseload in CDD was 68 cases per attorney. Without significant increases in attorney staffing, we project that it will rise to an average of 75 cases per attorney by January, 2002.
Arraignment Staffing
Given the drop in attorney staffing, it is becoming increasingly difficult for the Criminal Defense Division to fully staff all arraignment parts. As previously mentioned, in September, the Division withdrew from staffing the extra arraignment parts necessitated by Operation Condor. Even with this reduction, CDD is required to staff 1,114 arraignment shifts per month in New York, Kings, Bronx and Queens counties. Since October, the Division has been able to meet its arraignment staffing responsibilities only by placing all supervisory staff on the arraignment schedules. However, even that step has provided only temporary relief. With additional attrition, CDD is finding it increasingly difficult to staff all 1,114 shifts, without scheduling attorneys in more than 3 arraignment shifts per month.[7] Accordingly, last week, we notified the Supervising Judge for Arraignments and the Mayor’s Office of the Criminal Justice Coordinator that CDD must develop a plan to further reduce staffing in City arraignment parts during the rest of the current fiscal year, and to phase in further reductions throughout FY002.
PERFORMANCE
For FY01, the Society received $60,359,000 from the City for criminal defense representation, including a $5.6 million appropriation from the City Council. The Society also received $12.2 million in state and federal funds.[8] Of this total, $59.9 million was allocated to the Criminal Defense Division. Based upon a projected end-of-year intake of 203,498 assignments, the Division’s cost-per-case will be $294.
Solely as a matter of finances, this figure is highly competitive on a cost-per-case basis, particularly when contrasted with the costs of 18-b representation, which are at least twice that amount. However, this figure is even more impressive when viewed in light of the many services beyond case handling that the Division provides to the City and to the larger criminal defense community. See Addendum D, “Additional Criminal Defense Services Provided by The Legal Aid Society.” For example, training materials developed by the Division are used by defense lawyers throughout the State. Additionally, the Division has 13 paralegals assigned to the City’s jails on Rikers Island. They help prisoners with such issues as arranging the posting of bail, resolving problems in medical care, getting advice on immigration issues, and securing jail time credit for all time spent in custody.[9]
Despite the hardships the Division is operating under, its Special Litigation Unit has continued to address a variety of issues of importance to our clients this year. While the Unit litigated several cases in the federal courts and the New York State Court of Appeals, much of its work focused on problems of particular concern here in New York City. For instance, as a result of the Unit’s persistence in raising the issue of due process for impoverished car owners whose vehicles are seized as part of the NYPD’s forfeiture campaign, the court system has finally created streamlined procedures for hearing these cases. For the first time since the forfeiture policy was implemented, the NYPD this year has been forced to return substantial numbers of cars to their owners because the police lacked an adequate basis to retain them.
In the wake of the NYPD’s unauthorized disclosures of Patrick Dorismond’s court records last year, the Unit turned its attention to violations of the sealing laws, and recently negotiated the settlement of a lawsuit against the Brooklyn District Attorney’s office, in which the office agreed to stop what had been a routine practice of consulting and using records of cases that had been dismissed and sealed.
The Unit continues to be very actively involved in monitoring and enforcing the rights, won through its earlier litigation, to arraignment within 24 hours of arrest and to medication and other basic necessities for pre-arraignment detainees in New York City. Members of the Unit, together with lawyers from CDD’s Manhattan Juvenile Offender Team and the Society’s Juvenile Rights Division, have testified before the Council’s Committees on Women’s Issues and Youth Services and Subcommittee on Juvenile Justice about issues adolescent girls face in the criminal justice system, and continue to work with the Council’s Task Force on Girls in the Juvenile Justice System and Councilwoman Ronnie Eldridge to address those problems.
Report by 1st Department Oversight Committee
Late last summer, the Indigent Defense Organization Oversight Committee of the Appellate Division, First Department (“IDOC”), released its report on the performance of indigent defense organizations located in Bronx and New York counties during FY99.
IDOC noted significant improvements in the Society’s New York County office. Its FY97 and FY98 reports had found that, as a result of increased misdemeanor assignments during NYPD “Quality of Life” campaign, the office was “violating the caseload standards of the General Requirements and, as a result, providing less than ideal representation to clients, especially in the overburdened Criminal Court. The Committee concluded that NY CDD’s difficulties resulted primarily from its role as the default provider without the ability to limit and predict its caseload.”[10] By contrast, for FY99, IDOC found that the office had made “impressive” efforts to address concerns of the judiciary, was “approaching [its] misdemeanor practice seriously . . . and reports a high rate of dismissals in litigated misdemeanor cases.”[11]
Despite these improvements, IDOC found that 17 of the office’s senior attorneys had been assigned felony caseloads that exceeded the standard of 150 felony cases per year.[12] It also noted that the Society lacked sufficient funding to hire additional supervisors to meet the Appellate Division’s required minimum ratio of one supervisor for every 10 attorneys.[13]
The Report noted fewer problems in the Bronx office, but found the caseloads for most attorneys violated the caseload standard. On average, they handled 128 felonies, and 225 to 400 misdemeanors.[14]
Although Operation Condor post-dated the period studied by IDOC, Committee members visited CDD offices after this initiative had begun. Thus, IDOC’s Report noted the impact Condor has had on the Criminal Defense Division. It reported that the misdemeanor caseload in the Bronx Criminal Court was 22% higher than it had been during the same period in 1999, and 82% higher in Brooklyn.[15] IDOC also observed that, because their City contracts included caseload caps, the new defense organizations had been “insulated from the effects of police initiatives such as ‘Operation Condor’.”[16] The Committee recommended that the Society, like the new defense organizations, be awarded a contract that requires it to represent a fixed number of indigent clients annually, and be awarded additional funding when it is required to represent more clients than budgeted.[17] Otherwise, “[n]ew police initiatives that result in numerous arrests may thus deprive those who have been arrested of quality representation because the default provider does not have the flexibility to hire additional attorneys or to re-deploy those on staff to handle a sudden increase in arrests.”[18]
CRIMINAL APPEALS BUREAU
SUMMARY
The Society’s Criminal Appeals Bureau (“CAB”) has a unique role within the criminal justice system, serving as the last line of defense against the criminal justice system’s most egregious error, the tragic conviction of the innocent.
CAB is particularly well suited for this varied and challenging practice. Its collaborative relationship with CDD permits it take multiple approaches to the needs of appellate clients. CAB handles not only the direct appeal, but also pursues collateral relief in both the state and federal courts when needed, and provides other forms of client advocacy, to ensure decent conditions of confinement and appropriate parole determinations.
Unfortunately, like CDD, CAB has also suffered dramatic reductions in funding over the last few years -- in particular, significant losses of senior, experienced staff. The result is increasing delays in the appeal process which harm both its clients and the criminal justice system.
WORKLOAD
During FY01, the lack of adequate funding has not only made it impossible for CAB to hire any new staff, but it has also prevented it from replacing departing staff. The numbers of both attorneys and support staff have dropped approximately 20% in FY01 alone.
As a result of the need to forego hiring due to funding shortfalls (CAB is still running at a deficit), the Appeals Bureau has numerous vacant attorney and support staff positions. Due to a lack of support staff, attorneys often must perform tasks that could be more efficiently accomplished by a paralegal or investigator.
By its very nature, an appellate office needs to carry an inventory of appeal-ready cases to ensure a steady supply of work. This alone is a difficult task, since in some counties, it takes a year on average for CAB just to secure the transcripts that are necessary for the work on an appeal to begin. Since the budget cuts of FY95, CAB’s staffing and workload have not been in equilibrium. Funding was cut just as CAB’s assignments and future workload were spiking upwards, and CAB has been suffering the effects of this under-funding ever since.
CAB works hard to reduce its existing inventory and addresses the oldest matters first. Nonetheless, CAB has a current inventory of about 1300 appeals in varying states of readiness. Its City funding only allows for a staff of about 74 lawyers to work on Cityfunded appeals. This total includes eight supervising attorneys with numerous responsibilities, including the two who run the managing attorney’s office.[19] For a legal staff of this size, CAB’s existing inventory exceeds a year’s work, without taking into account the additional cases it will be assigned in the coming year.
Despite the serious problems caused by insufficient staffing and excessive workload, CAB continues to perform a variety of essential logistical functions for the appellate courts, which include securing and organizing the record on appeal, not only for Legal Aid cases, but also for cases assigned to all the other appellate providers. This is an extremely labor intensive process which requires knowledge of the intricate workings of each of the five counties from which appeals are drawn.
CAB’s managing attorney’s office, which performs these tasks as well as a variety of client communication and service functions, has been placed under tremendous strain as a result of staff reductions, and is often forced to use attorneys to handle tasks that might otherwise have been delegated to non-legal staff.