Gotham Gazette

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As Prosecutors Get Budget Boost, Public Defenders Seek More Funding Too

Mayor Adams and Governor Hochul (photo: Ed Reed/Mayoral Photography Office)

As Governor Kathy Hochul and Mayor Eric Adams, both first-term Democrats, double down this year on their focus on public safety and crime in New York, both have emphasized the need to give prosecutors and defense attorneys more resources to do their jobs. Both leaders have said the funding is necessary to abide by recent state criminal justice reforms and reduce court backlogs. But, while prosecutors across the state may soon be bolstered with more funding, public defenders say they aren’t aren’t receiving commensurate financial support from the two top Democrats.

New York State in recent years approved a series of criminal justice reforms to bail, discovery, and speedy trial statutes. As those reforms went into effect, the covid pandemic struck, impacting all aspects of the criminal justice system. Prosecutors and public defenders were already calling for additional resources to comply with the reforms, particularly the new discovery rules, while some officials – Hochul and Adams included – were faulting the changes for slowing down court cases at a time when crime was spiking in New York and nationally.

According to the latest data from the state’s Office of Court Administration, there is a backlog of 106,811 pending criminal cases across the state, up from 70,803 in 2022. Delays in the court system are one of the major factors in the increasing jail population, including in New York City. Data from the state Division of Criminal Justice Services shows that between January 2022 and January 2023, the average daily jail population statewide increased from 15,136 to 15,911, or about 5.1%; in New York City jails, the population increased from 5,344 to 5,821, about 8.9%.

Case delays also means that detainees spend longer in jail – in New York City, for instance, the average length of stay in a city jail has increased from 60 days in January 2021 to 108 days in December 2022. It is not easy to directly attribute the causes of the delays, but most experts and stakeholders agree that staffing at district attorney and public defender offices are a major factor.

In her executive budget released early this month, Hochul bemoaned the fact that the state’s criminal justice system was “absolutely paralyzed” by the pandemic. “And today, it's still clogged with backlogs denying justice to far too many,” she said, as she announced that the state would give court-appointed attorneys or public defenders their first raises in 20 years while also increasing funding for district attorneys (she’s also proposing more funding for reentry and alternative to incarceration programs, and further changes to the bail law).

Mayor Adams, in his 2023 State of the City speech, similarly said that ensuring speedy trials for defendants and justice for crime victims “means making sure our district attorneys and defenders have the resources they need to clear the backlog of cases and finding ways to expedite the discovery process.”

“Our legal system must ensure that dangerous people are kept off the streets, innocent people are not consumed by bureaucracy and victims can obtain resolutions,” he said. “This is something we can all agree on. Let's get it done in 2023.”

At a joint legislative hearing on the governor’s budget on Wednesday, Adams reiterated his point, saying, “our city’s district attorneys and public defenders are overwhelmed and need our help immediately. The state must make a major investment in them now or risk depriving defendants of their constitutional right to a speedy trial, delaying justice for victims and continuing the unprecedented level of attrition within each of these offices.”

District attorneys are funded largely by their respective counties, with supplemental state and federal grants. Public defenders, however, receive a much larger portion of their funding from the state and from localities. In New York City, the Mayor’s Office of Criminal Justice awards hundreds of millions in contracts for indigent defense funding.

Hochul’s and Adams’ budget plans show more focus on boosting prosecutors than public defenders, who play their own crucial role in the justice system, defending mostly low-income Black and Latino New Yorkers who cannot afford to hire private attorneys.

Funding for Prosecutors
The governor’s budget would increase “aid to prosecution” funding to $52 million in the next fiscal year starting April 1, up from $12.5 million in the budget that was adopted in April 2022. The funding would help all 62 counties across the state hire additional prosecutors and otherwise boost resources for district attorney offices. The budget, subject to negotiation with the Legislature, also maintains a $40 million pot of funding for prosecutors in the 57 counties outside of New York City to meet the requirements of the state’s discovery reform law, which took effect in 2020 and puts significant new responsibilities and tighter timelines on prosecutors.

A spokesperson for the state’s Division of Budget also said that an additional $7 million will be awarded to district attorney offices that create specialized units to shut down fentanyl supply chains and prosecute in cases of overdose deaths. “Distribution of these funds is pursuant to a plan submitted by the Commissioner of the Division of Criminal Justice Services and approved by the Director of the Budget,” the spokesperson said.

That is all welcome news to prosecutors, who have complained that discovery reform has been a heavy burden for overworked district attorney offices across the state, many of which have lost personnel in recent years.

“It's a welcome recognition by the governor that the burdens on the criminal justice system have changed dramatically, especially over the last three years or so,” said J. Anthony Jordan, president of the District Attorneys Association of the State of New York, in a phone interview. Last week, Jordan submitted written testimony at a joint budget hearing of the State Legislature on public protection, highlighting the need for more funding to help with staffing, training, new technology, and more as district attorney offices try to comply with the altered laws.

“The cost of compliance has fallen disproportionately on counties and so this is an important recognition by the governor that there is a significant role that the state must play in defraying these costs,” said Jordan, who is the DA of Washington County.

Jordan said that district attorney offices across the state have seen an exodus of experienced prosecutors, largely because of what they see as onerous discovery compliance requirements that have added to their workloads. DA offices have also not been immune to the trend of government employees departing to the private sector during the pandemic, in search of higher pay and more flexible work.

The discovery reform, he said, “relegated many trial attorneys to file clerks, and litigation that was not focused on guilt or innocence, but on paper chase. And that's more akin to practicing on Wall Street.”

A Manhattan Institute report released last month showed that prosecutors have been able to meet the discovery reform obligations within the mandated time frames in only 21% of cases – in local courts across the state, that rate is 16%, and in New York City local courts, that number falls to 13%. The report pointed out that, in New York City courts, dismissals increased from 44% of all disposed cases in 2019 to 69% in 2021; and statewide, dismissals increased by 14% in that period. In that same time, guilty pleas fell in New York City from 45% to 21%, and statewide, from 49% to 33%.

In the second annual judiciary survey on the implementation of the discovery law, released in December, 29% of judges in New York City reported that discovery obligations were met by the prosecution most of the time, compared with 79% of the judges outside New York City.

The numbers on discovery sanctions – including, but not limited to, dismissals, mistrials, and release under the state’s speedy trial statute – paint a complicated story, however. For instance, 62% of New York City judges said that the discovery legislation has greatly or moderately led to an increase in speedy trial release motions being granted, while 68% of judges outside of New York City said that the discovery reform has not caused an increase in these motions being granted. Mistrials were almost never granted.

In New York City, about 71% of judges said that the discovery law has led to slower case processing, compared with 30% of judges outside the city.

While fortifying prosecutors is essential, Jordan also agreed that public defenders should be given equal heft. “The justice system should be balanced,” he said. “The court should be funded properly, the institutional defenders, public defenders, they should be funded properly as should the prosecution. We are all performing state functions, just at the dollar of the county.”

“I would always rather litigate against a quality attorney because you're focused on the issues,” he added.

“Governor Hochul's Executive Budget makes transformative investments to make New York more affordable, more livable and safer, and she looks forward to working with the legislature on a final budget that meets the needs of all New Yorkers,” said Hazel Crampton-Hays, a spokesperson for the governor, in a statement.

In New York City, the mayor’s preliminary budget proposal for the 2024 fiscal year, which starts July 1, funds the city’s five district attorney offices at roughly the same level, or marginally lower, than the budget adopted last year for the current fiscal year.  

Between the budget adopted last year and the preliminary budget proposal, the Manhattan DA’s funding is flat at $147 million, the Bronx DA’s funding is down by about $600,000, the Brooklyn DA’s funding is lower by about $408,000, the Queens DA’s funding is unchanged at $86.4 million, and the Staten Island DA’s funding is down about $639,000. The mayor’s office did not provide an explanation for the decreases. 

Public Defenders Ask for More
Public defender organizations have already been struggling in recent years because of low pay and heavy workloads. In New York City, by June 2022, hundreds of staffers had quit the five public defender agencies that serve the city’s indigent population, according to The New York Times.

The governor’s state budget proposal includes $359 million for the Office of Indigent Legal Services, which assists counties and indigent legal service providers in the provision of services and monitors their implementation. This proposed budget remains unchanged from the enacted budget for the current fiscal year.

The governor’s budget also separately allocates $94 million (a $44 million increase) for the Office of Court Administration’s Attorney for Child Representation Program. That increase is meant to raise hourly wages for ‘18-B’ assigned counsel attorneys (private attorneys assigned by the court under Article 18-B of County Law) to $119 per hour for defenders in upstate counties and $158 per hour in downstate counties including New York City. Finally, Hochul’s budget plan includes $7.6 million for “aid to defense” programs that support defense organizations like the Legal Aid Society. That funding is also flat from this fiscal year.

But that may not be enough to support the needs of public defenders statewide. There are two separate issues at play – overall funding for public defenders such as Legal Aid Society, Brooklyn Defender Services, and others, and funding for 18-B assigned counsel programs, which involves private attorneys that are appointed by the court to defend indigent clients.

In testimony at the February 7 hearing, Patricia Warth, director of the state Office of Indigent Legal Services, said that the funding in the governor’s budget is inadequate, pointing to the office’s budget request of $382.8 million for indigent legal services for the 2024 fiscal year — about $23 million more than Hochul put in her plan. The largest discrepancy was in funding for family court representation – ILS requested $28 million while the governor proposed only $4.5 million.

“Without a significant state investment, attorneys are working under crushing caseloads without access to resources,” Warth said.

One of the main issues she noted is the need to increase wages across all indigent legal services for 18-B attorneys, who handle representation in roughly a third of cases, she said.

As Warth noted, increasing wages for 18-B attorneys is crucial to the implementation of the 2014 settlement in the Hurrell-Harring et al. v. State of New York case, which required the state to increase funding for mandated indigent defense in five counties – Ontario, Onondaga, Schuyler, Suffolk, and Washington. The state has since expanded the implementation of the settlement statewide through law.

Last year, the state appropriated $250 million for statewide implementation, which was part of the $359 million included in the governor’s new proposal – that increased investment has led to lower caseloads and higher average spending per case, according to Warth.

But, Warth noted, the state is already facing ongoing litigation over assigned counsel pay rates and the governor’s proposal to increase those rates is flawed. She said that it would both fail to resolve those lawsuits and likely lead to additional litigation. The state should fund the increase in rates instead of passing it on to counties and New York City, she said, and the state should not implement “case caps” on what an attorney can be paid for time on a case; hourly rates should be the same statewide; and there should be a mechanism for periodic rate increases.

“They are a vitally important part of the system and they haven't received an increase in rates since 2004,” she said. According to ILS estimates, the cost of raising pay rates would be between $150-180 million, based on pre-pandemic caseloads from 2019.

She also noted in her testimony that the last time 18-B attorney wages were increased in 2004, the state did not fund the increase, leading to counties cutting other public defense services to pay for it. “At the end of the day, funding public defense is a state obligation, and the state needs to pick up the tab for that obligation,” Warth said.

Mayor Adams also echoed that concern at Wednesday’s legislative budget hearing. He said the increase in 18-B attorney wages will cost the city at least $84 million starting in the current fiscal year. “Currently, we split this cost approximately evenly with the state, but, without state action, the city will be forced to cover the full cost of this increase,” he said.

State Senator Jamaal Bailey, a Bronx Democrat and chair of the Senate’s codes committee, has sponsored legislation for three years to increase pay rates for 18-B attorneys. “Equal access to justice is the foundation of our justice system. Underfunded and overburdened public defense systems not only erode quality of representation and public trust in the justice system, it upholds a two-tiered system of justice that can have grave consequences for New Yorkers who can least afford it,” he said in a statement to Gotham Gazette.

“Equitably funding public defense is fundamentally a matter of fairness – the individuals who continue to do this critical work cannot meet the needs of some of the most vulnerable in our society without adequate resources. It’s imperative that we shore up public defense funding to level the playing field and ensure that allocated resources sufficiently reflect changes in the industry and cost of living,” he added. 

The call for more funding and changes to the proposal have been echoed by legal defense groups across the state.

“Gov. Kathy Hochul recognized the need for increased pay for assigned counsel in New York State. But her proposal calling for lower rates upstate relative to downstate is not equitable,” said Sherry Levin Wallach, president of the New York State Bar Association (NYSBA), in a statement. “Creating two separate geographic tiers of justice is unconscionable for the persons seeking access to justice and the lawyers that represent them.”

The NYSBA sued the state to implement a statewide pay rate of $164 an hour, on par with court-appointed attorneys in federal courts. “The current compensation structure is unworkable and results in a shortage of attorneys to take on this important work,” Wallach said. “Access to justice, which is fundamental to our democracy, depends on the ability of individuals to receive legal representation. It’s imperative that this long-standing injustice be fixed in this year’s final budget agreement.” 

The New York City Bar Association has also included pay raises for 18-B attorneys on its state legislative agenda for this year.

The rates for 18-B attorneys are separate from pay for public defenders at service providers like the Legal Aid Society and Brooklyn Defender Services, which serve New York City and are funded largely by the state Office of Indigent Legal Services. Employees of those organizations are also facing tough times as their caseloads have ballooned and their wages have not kept pace.

“We are extremely disappointed that Governor Hochul failed to include any proposed allocation in her Fiscal Year 2024 budget for public defender and legal services organizations to address staffing and operational demands, instead prioritizing the needs of prosecutors and others in law enforcement,” said Legal Aid Society, in a statement after the governor’s budget was released. “Funding that favors one side of the legal system over all others reinforces bias and erodes efforts to further public safety.”

The mayor’s preliminary budget proposed about $126.6 million in contracts for Legal Aid Society (which cover indigent defense and other purposes as well), down from $192 million in the budget adopted last year for the current fiscal year. Overall, the budget proposes a $356 million allocation for indigent defense services. Both those numbers are expected to increase once the state budget is settled and the city has an idea of the amount of funding it will receive for indigent defense. For instance, last year, the city’s preliminary budget proposed $407 million for indigent defense, and later adopted a budget in June that allocated $434 million.

That nonetheless seems to suggest that the city’s contribution will be significantly lower than it was last year. Despite multiple requests from Gotham Gazette, which the mayor’s office acknowledged, City Hall did not provide any comment or clarity about the level of funding or why the budget proposes such a lower budget allocation despite the mayor’s own emphasis on funding prosecutors and public defenders.

Lisa Schreibersdorf, executive director of Brooklyn Defender Services, pointed to several other budget demands for the governor, above and beyond the budget requests made by ILS. Among those are cost-of-living-adjustments to the Office of Indigent Legal Services’ budget, increasing the funding by $10.6 million from $382.8 million to $393.4 million, which would help Brooklyn Defender Services increase pay for staff; an additional $4.9 million in “aid to defense” for a total of $12.5 million; and, chiefly, $127 million in funding to abide by the discovery reforms.

“The prosecutors and the defenders need the money, they all need the technology and they all need the staff,” Schreibersdorf said in a phone interview. “Because the amount of work that you're doing is roughly the same.”

She also noted that the churn of public defenders leaving their jobs because of increasing workloads only serves to delay court cases. “The mayor knows this story. The governor knows this story. This story is coming from the DAs and the defenders equally, and the cases cannot move to trial unless everybody is ready for trial,” she said.

Brooklyn Defender Services also called for $5 million for an indigent parole program, an additional $2.5 million for the New York State Defenders Association for a total of $3.58 million, and $1 million for a military veterans defense program.

Though Schreibersdorf said that indigent defense funding is a state obligation, she insisted that if the governor does not come through, the city should step in. “Somebody's gonna have to make it right,” she said.

“The City and State budgets are more than a list of numbers. They are a reflection of our values as New Yorkers,” said Justine Olderman, executive Director of the Bronx Defenders, in a statement to Gotham Gazette. “The draft budgets put forth by the Governor and Mayor, calling for rollbacks of bail reform and more money for police and prosecutors while massively underfunding public defenders and legal service providers, make a mockery of our standing as a national leader in social and racial justice. The Council and state Legislature must push back hard to ensure that these budgets help meet the needs and protect the rights of low-income Black and brown New Yorkers facing incarceration, deportation, family separation, and eviction.”

As Legal Aid Society calls for more state funding, it is under fire from its own members. Last week, more than 1,000 attorneys from the Association of Legal Aid Attorneys (ALAA), a union of public defenders, undertook a work stoppage amid contract negotiations with Legal Aid Society, a week after the union rejected an offer for a 2% salary increase.

The union noted that Legal Aid Society has sufficient funds to increase attorney salaries because attrition has created significant savings for the organization, and that it has increased compensation for managers while refusing a better contract for staff attorneys.

“Despite high caseloads and inadequate resources, members fight every day for justice for poor and low-income New Yorkers,” said Lisa Ohta, President of ALAA, in a statement last week. “Management tells us they appreciate our work, but appreciation doesn’t pay the bills. All staff deserve raises that address high inflation and attrition. We call on the Legal Aid Society to bargain fairly with ALAA so that staff can continue its vital work representing the most vulnerable New Yorkers.”

by Samar Khurshid, senior reporter, Gotham Gazette

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