Lawyers representing low-income people in state courts are in “crisis,” according to New York’s top judge, who said that could threaten their clients’ chances at a fair trial.
Chief Judge Rowan Wilson’s statements were buried within a flurry of decisions issued by the Court of Appeals in late May. But his message was clear.
“New York’s system of indigent defense is not set up to provide high-quality representation,” he wrote.
Wilson’s opinion comes as public defender organizations and court-assigned attorneys grapple with staffing shortages and high caseloads. The statements also show how the state’s chief judge is using his power to call for reform in the legal system.
“[M]y impression is that the larger criminal defense providers have navigated their constitutional responsibilities through a system of triage, and the smaller or independent providers have simply struggled,” he said.
If someone charged with a crime in New York can’t afford an attorney, the court will appoint one for them. Those lawyers often work for public defender groups, like the Legal Aid Society or the Bronx Defenders. The state also reimburses private lawyers who take on court-appointed cases. Those are called “18-B” attorneys after the law that established the program.
Wilson said the state has improved its system for low-income defense over the years. But it’s still chronically underfunded, he said, adding that lawyers are often operating at the “baseline minimum.”
The average caseload for public defenders in 2022 across most New York counties was 275.41 for criminal cases and 411.62 for family court cases, according to the Office of Indigent Legal Services. Meanwhile, salaries at New York City’s public defender organizations typically start in the mid-$70,000s and $80,000s, according to a Gothamist review of open job postings. For 18-B lawyers, the state increased the pay rate last year for the first time in almost two decades — from $60 an hour for misdemeanors and $75 for felonies to $158 an hour for all cases.
Publicly funded lawyers have said they need more money from the state for things like cost of living raises and technology upgrades to sift through records turned over by prosecutors. They’re also hoping lawmakers will approve a bill that would allow lawyers who represent low-income people to get up to $8,000 of their student loans forgiven per year or service.
In his opinion, Wilson urged the state to boost funding so that lawyers can have more time to investigate cases, meet with their clients, attend training and conduct research.
“Because criminal proceedings often deprive defendants of years of liberty, we can and should expect not only representation that meets the constitutional minimum, but high quality representation — the type of representation we would hope for if the accused were a family member or friend,” he said.
Wilson’s ‘bully pulpit’
Wilson was chosen to lead the state’s highest court last spring after Democratic lawmakers voted down the governor’s first pick, Hector LaSalle, because they said he wasn’t progressive enough.
Wilson, on the other hand, hasn’t hidden his support for criminal justice reform. Under his leadership, the state’s highest court has started to hear more appeals from people raising concerns about their criminal cases, according to a recent Albany Law School data analysis. When Wilson was an associate judge in 2017 and 2018, he also sided with those accused of crimes much more often than most of his colleagues on the bench, the same researcher found.
The chief judge’s fiery warning about the state’s public defense system was embedded in an appeal from a man who said his trial attorney did not adequately represent him. Wilson said the man’s lawyer had satisfied the constitutional minimum. But he took the individual case as an opportunity to explore the issue on a macro scale.
Leanne Lapp, a long-time public defender and former president of the Chief Defenders Association of New York, said she appreciated that Wilson had acknowledged the struggles of attorneys handling large numbers of cases and had pushed for better funding.
“You can be a great attorney and very well meaning and very hardworking, but there are only so many hours in the day,” she said in an interview.
The new chief judge is now using his “bully pulpit” to show that he takes the rights of people charged with crimes “very seriously,” said Steve Zeidman, director of the Criminal Defense Clinic at CUNY School of Law and a former public defender. In the past, Zeidman said, the court has been more sympathetic to prosecutors than defendants.
“For New York's chief judge to say, ‘Okay, I'm going to issue a rather public call for change,’ was long overdue, but incredibly welcomed,” he said.
The Office of Court Administration did not respond to multiple requests for comment. The District Attorney’s Association of the State of New York declined to comment for this story.
Wilson spent most of his career in private practice at the Cravath law firm before joining the Court of Appeals, first as an associate judge and later as the chief. But even when he worked at a white shoe law firm, he oversaw Cravath’s pro bono representation. He also spent more than two decades on the board of the Neighborhood Defender Service of Harlem, one of the city’s public defender organizations.
At a New York State Bar Association ceremony last year, Wilson called pro bono work a “core element of being a lawyer.”
But some Republican lawmakers have accused Wilson of using his judicial position for political means. During a recent speech on the Senate floor, Sen. Anthony Palumbo reminded his fellow lawmakers about the controversial process that led to Wilson’s appointment and criticized his Democratic colleagues for confirming Wilson.
“We now have a Court of Appeals and a chief judge who’s legislating from the bench,” Palumbo said.
