Hochul’s Budget Pads Prosecution Funding Without Match for Public Defense

The governor proposed an outsized boost worth tens of millions for prosecutors — drawing comparisons to New York’s history of public defense neglect.

Chris Gelardi   ·   February 27, 2023
Legal Aid Society attorneys picket in Jamaica, Queens on February 8, 2023. | Association of Legal Aid Attorneys

A POLICE OFFICER arrests someone, claiming they saw them commit a crime. The person didn’t do it, and the cop’s body camera footage doesn’t match the narrative in the police report. But the defense doesn’t know that.

Until recently, the defendant’s lawyer wouldn’t have been able to watch the exonerating video while helping their client build a case. Prosecutors didn’t have to share most of their evidence with the defense — a process known as discovery — until right before trial.

“As you’re about to start picking a jury, the [prosecutor] would hand you a stack of papers — hundreds of pages, possibly more — and drop it on the table,” said Bret Taylor, treasurer of the Association of Legal Aid Attorneys, a New York City-based public defender union. “And you would just have to start frantically reading through it before the trial began.”

A reform law that went into effect in 2020 established “automatic” discovery procedures to make prosecutors share evidence in a matter of weeks, giving defendants a clearer picture of the case against them. But taking advantage of the new process requires resources from both sides, since the information — which can add up to gigabytes for a single case — needs to be exchanged and processed.

Prosecutors have been vocal about the work the change demands, even partially blaming the reform for increasing job turnover. The state took their concerns seriously: Governor Kathy Hochul dedicated $40 million in last year’s state budget for prosecutors to implement discovery reform, and she has proposed renewing that funding stream this year — plus $47 million more for district attorneys’ offices to hire “hundreds of new prosecutors.”

But Hochul has never earmarked new state money for criminal defense. She rejected a request from public defender organizations for parity funding, inflaming an already tense relationship between the increasingly tough-on-crime governor and those tasked with representing low-income criminal defendants.

“If we can’t access the discovery and there’s no time to review it, then there’s no point in having these laws,” said Yung-Mi Lee, president of the New York State Association of Criminal Defense Lawyers and staff attorney at Brooklyn Defender Services.

If we can’t access the discovery and there’s no time to review it, then there’s no point in having these laws.

Yung-Mi Lee, New York State Association of Criminal Defense Lawyers

The dispute comes at a watershed moment for public defenders across New York state. The chaotically organized public defense system is at the late stages of a statewide overhaul aimed at reversing a decades-long crisis of underfunding, understaffing, and lack of oversight. But longstanding issues have been left out of that revamp. And public defense offices are still getting hit hard by the economy-wide worker exodus, worsened by high workloads and lower salaries than their prosecutor and private practice counterparts. When over 1,000 members of the Association of Legal Aid Attorneys picketed earlier this month, they aimed complaints at their bosses and government officials alike.

“We don’t really have a seat at the table with the government funders,” said Taylor. “And there’s the macro issue of governmental funding, which has been inadequate for decades.”

Public defenders have now turned to the state legislature, asking for $127 million to “match” the prosecutors’ share of the budget, which is due April 1. The Senate and Assembly majorities didn’t respond to New York Focus’s questions about their plans for discovery reform funding.

In response to questions from New York Focus, Hochul’s office sent a repeatedly used statement: “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.”

Hochul has framed her prosecution-friendly approach to budgeting as an effort to “restore the effectiveness of the continuum of the criminal justice system.” Public defenders assert that she’s ignoring a key part of that system: them.

“It just continues the decades-long imbalance between the prosecution and the defense,” Taylor said.

JAMES ADAMS WAS arrested in July 2007 and charged with three felonies — carrying a maximum sentence of 14 years — for allegedly stealing deodorant sticks from a drug store. For months, his public defender only spoke with him at court hearings, during which the lawyer would ask for extensions because he hadn’t had time to work on the case. A judge expressed concern that Adams was sitting in jail over what should have been a minor misdemeanor, but the defender never asked for reduced charges. Languishing in pretrial detention, Adams — who claimed that he was innocent and that witnesses had misidentified him — tried unsuccessfully to file his own court motion using materials from the jail law library. After three months in the county jail, he had lost his job, and his family was evicted from their home — all over deodorant sticks.

For some 50 years, situations like Adams’s were commonplace across New York state: Public defense systems spread so thin — and attorneys often under-trained and under-supervised — that many defendants had effectively no representation.

The issues traced back to the 1965 founding of New York’s public defense system. After the US Supreme Court ruled in a landmark case that criminal defendants who couldn’t afford a lawyer had the right to a government-appointed one — and made states responsible for providing those attorneys — Albany enacted a law that passed the onus onto counties (plus New York City) to create their own public defense systems.

The law offered localities various options to organize public defense. Some, like Monroe County, home to Rochester, set up public defender offices that operate as arms of county government, just as district attorneys’ offices do. Others, like New York City, opted to contract with legal aid nonprofits. And yet others, like Buffalo’s Erie County, chose to rely solely on “assigned counsel” programs that hire private attorneys to represent low-income defendants.

I have not seen the word ‘crisis’ so often or so uniformly echoed.

former Chief Judge Judith Kaye

In addition to making municipalities organize their own public defense, Albany made them pay for it. It also neglected to enact standards to dictate what effective public defense looks like. The free-for-all model, plus the wave of tough-on-crime policies that took hold as mass incarceration took off in the 1970s, resulted in anemic public defender programs like the one that represented Adams.

“I have not seen the word ‘crisis’ so often or so uniformly echoed,” New York’s then-top judge, Judith Kaye, said in 2006 after reviewing the findings of a commission she formed to study the state of public defense. Outlining decades of pleas from defense associations, the commission’s final report detailed how the 1965 law had resulted in a “disparate, inequitable, and ineffective system.” Minimally trained lawyers had to represent too many defendants, the commision found, and got scant help from investigators, social workers, translators, or other support staff.

“The only solution to the crisis,” Kaye’s commission concluded, was replacing New York’s patchwork public defense model with a “fully state-funded statewide public defender system.”

Albany ignored that recommendation. Instead, in 2007, the New York Civil Liberties Union filed a class action lawsuit on behalf of 20 people — including Adams — from five counties, arguing that their embattled public defense systems left low-income defendants with unconstitutionally poor representation.

It took seven years for the NYCLU and the state to reach a settlement agreement on the class action case, which required that the state provide financial and bureaucratic assistance to — and set standards for — the five targeted counties’ public defense systems.

That limited victory spurred state action: After a back-and-forth with the state legislature, then-Governor Andrew Cuomo agreed to a plan to expand the terms of the settlement statewide, which he signed into law in 2017.

SINCE 2017, public defenders have received hundreds of millions of dollars in state support. According to New York’s Office of Indigent Legal Services, which is in charge of implementing the statewide plan, the added state resources have led to the hiring of 624 new attorneys and 362 new support staffers. Five counties have opened new public defense offices, and public defenders have had substantially more access to subject matter experts and investigators.

But public defenders assert that there is more work to do. For one, they say, they need more funding to implement discovery reform, as pre-reform IT systems are often insufficient for tasks as simple as uploading and storing discovery materials.

When the reforms went into effect, Brooklyn Defender Services was giving each of its lawyers two terabytes of cloud data storage, according to Lee. The organization quickly found that that wasn’t enough for the volume of data prosecutors were sending. Brooklyn Defender Services had to scramble to find a new, stronger cloud system — something many smaller public defense offices and private attorneys contracted for public defense work lack the capacity to do.

“Getting all of that discovery is really worth it,” Lee said. “The discovery laws are really guarding against potential wrongful convictions.”

According to Tina Luongo, chief attorney for New York City’s Legal Aid Society’s criminal defense practice, new crime trends and police technology add to heavier discovery workloads. “We’ve seen an uptick in gun arrests, and those tend to have DNA and other complications,” they said. “There’s also a lot of body-worn camera footage that has to be stored and analyzed.”

There are also the aspects of public defense that got left out of the post-NYCLU settlement revamp. State legislators wanted to expand the settlement terms to include family court — where, like criminal defendants, low-income parents fighting to retain custody of their children had experienced decades of shoddy representation. The idea had widespread support: In 2016, a bill that included family court as part of a settlement expansion passed both legislative chambers unanimously. Cuomo vetoed it.

As New York Focus has reported, family court representation, especially in rural areas, is in crisis. In at least four upstate counties, the number of lawyers representing children dropped by more than half between 2012 and 2022. In 12 percent of instances where a child was taken away from a parent at an initial court appearance between 2015 and 2018, the family had no lawyer.

Adding to both family and criminal court crises, there’s also a longstanding issue of paying private “assigned counsel” attorneys. All New York jurisdictions rely on these contract public defenders — most for overflow or when the usual public defense office has a conflict of interest, but some for all of the county’s public defense needs. But outside of New York City, those attorneys make less than half of their federal peers: between $60 and $75 an hour, while federal assigned counsel attorneys make $158 hourly. New York’s assigned counsel attorneys haven’t seen a statewide rate hike since 2004.

It just continues the decades-long imbalance between the prosecution and the defense.

Bret Taylor, Association of Legal Aid Attorneys

As with discovery reform, Hochul has shown little interest in ameliorating these issues — sparking concern that the state is on its way back to providing the most vulnerable New Yorkers with under-resourced, semi-absent attorneys.

The governor has proposed boosting funding for a state court system program that provides attorneys for children in family court, but denied a request from the Office of Indigent Legal Services to sextuple its annual allotment for parent representation. Hochul did propose legislation to increase assigned counsel rates, but she didn’t offer any state funding for criminal lawyers. Instead, she again proposed placing the burden on local governments.

In written testimony for a legislative hearing earlier this month, the Office of Indigent Legal Services recounted that the state didn’t fund the last assigned counsel rate increase in 2004, either. To make up the difference, municipalities cut other areas of public defense spending. According to the testimony, “this diminished quality representation led directly to the 2006 Kaye Commission report and its conclusion that improved quality representation cannot be achieved and sustained unless the State funds public defense.”

“You can’t discuss addressing public safety by funding law enforcement and prosecution,” said Luongo of the Legal Aid Society, “without equally upholding justice and due process by funding those of us who represent people who are accused.”

Chris Gelardi is a reporter for New York Focus investigating the state’s criminal-legal system. His work has appeared in more than a dozen other outlets, most frequently The Nation, The Intercept, and The Appeal. He is a past recipient of awards from Columbia… more
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