Testimony of The Legal Aid Societybefore 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.

1 This projection was 20,861 cases above the caseload of 153,025 that the Criminal Justice Coordinator’s Office projected when it capped the Society’s criminal defense funding at $54.7 million.

2 This total includes 98,795 misdemeanors and 19,912 felonies. See Addendum B. This is an increase of 14,061 cases over the same period last year. Id.

On average, 69% of CDD’s misdemeanor cases are resolved at arraignments. Id. CDD conducted an in-depth study of arraignment dispositions for October 15-31, 2000, at the request of the Indigent Defense Organization Oversight Committee of the Appellate Division, 1st Department. It study found that 37% of the misdemeanor cases arraigned by CDD attorneys in Bronx and New York counties were dismissed or resulted in a non-criminal disposition, such as an adjournment in contemplation of dismissal (“ACD”). 36% of the CDD’s cases were adjourned for trials. 27% of the clients pled “guilty” to misdemeanor offenses. However, only 7% received a jail sentence.

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CASE ASSIGNMENTS

Year Felonies Misdemeanors TOTAL

FY2000 34,438 166,935 201,373

FY20013 34,135 169,363 203,498

3 This projection is based on an average of intake over the first seven months of FY01.

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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., 20014 340

Jan., 2002 316

June, 2002 291

TOTAL ATTRITION 113

% LOSS 28%

4 Based on hiring of 10 law graduates.

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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.

5 The standards provide that an attorney should be assigned a maximum of 150 felonies or 400 misdemeanors annually. For attorneys who carry a mixed caseload, like the majority of the Society’s staff, the standards provide that the maximum number of misdemeanors that an attorney may be assigned must be adjusted downwards, in light of the number of felonies that the attorney has been assigned. For example, an attorney who carried 75 felonies should be assigned no more than 195 misdemeanors. See App. Div., 1st Dept., General Requirements for All Organized Providers of Defense Services to Indigent Defendants, Specific Guideline §V(B)(2)(a).

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AVERAGE INTAKE PER ATTORNEY

FY00 (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

6 This projection is based on present case assignment trends.

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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.

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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

7 Ideally, CDD attorneys are assigned, on average, to a maximum of 2.5 arraignment shifts per month. Staff attorneys are now being assigned to an average of 3.33 shifts per month. Given anticipated attrition, attorneys would be working an average of 3.9 shifts per month by the end of FY02, if the Society receives neither sufficient funding to fully staff its offices, nor a reduction in the total number of arraignment shifts it must staff.

8 The state and federal funding were derived from New York State’s Aid to Defense program, and the Byrne Grant federal pass-through program. The state funds must be spent on felony representation, including appellate representation and representation of parolees charged with violating the terms of their parole. The federal funding must be spent on staff for the Red Hook community court in Brooklyn, a compassionate release program for parolees, and the Brooklyn “Blue Zone” project, a joint effort with the District Attorney’s Office to increase the community’s participation in addressing crimes in certain neighborhoods. Although we have experienced significant increased costs in operating these state programs as a result of changes in state policy and criminal law, the Governor’s Executive Budget for FY 2002 proposes no increases in state funding. It also proposes to eliminate all funding for parole representation, a cut of $880,000 in state and Byrne Grant funding.

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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,

9 These paralegals assist 18-b clients and clients of the alternate defense service providers, as well as prisoners represented by the Criminal Defense Division. In FY00, they assisted 12,000 prisoners. 56% of the prisoners who sought their assistance were represented by 18(b) attorneys.

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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

10 Report of the Indigent Defense Organization Oversight Committee to the Appellate Division, First Department for 1999, p. 17.

11 Id., pp.17-18.

12 Id., p. 18.

13 Id., p. 20. The standard appears in App. Div., 1st Dept., General Requirements for Organized Providers of Defense Services, Specific Guideline §V(B)(2)(a).

14 Id., p.21. Under the Appellate Division’s guidelines, an attorney who was assigned 128 felonies should handle no more than 57 misdemeanors. App. Div., 1st Dept., General Requirements for Organized Providers of Defense Services, Specific Guideline §V(B)(2)(a).

15 Id., p.19.

16 Id., p.5.

17 Id., p.6.

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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.

18 Id.

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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 City-funded 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.

In addition, CAB handles a full range of appellate matters, from the relatively minor to some of the most serious and complicated matters that come through the criminal justice system. It presently has numerous cases that, due to their complexity, length of the record and severity of the sentence, require a vast commitment of resources. Indeed, in the last few years, with the institution of capital punishment in New York, increases in mandatory sentences and restrictions on early parole, CAB is taking in ever more difficult and complicated cases, as a natural consequence of the rising stakes. For example, it has one appeal, tried as a capital murder and resulting in a sentence of life without parole, in which the trial transcript alone exceeds 20,000 pages, and the remainder of the record materials fill two dozen archive boxes. This appeal will take one of CAB’s most experienced attorneys a very long time to handle.

As this example illustrates, the introduction of capital punishment has altered the landscape of appeals in New York. CAB has separately contracted to provide appellate representation in cases with a sentence of death, a funding mandate which is not a City obligation. Those matters are handled solely with state funds. The state contract is a recognition, on the State’s part, of CAB’s ability to handle the most difficult cases.

CAB also has cases in which federal constitutional claims have not, in its judgment, been adequately addressed in the state court system. United States’ law provides for review of such claims by federal writs of habeas corpus. While CAB regularly obtains relief on habeas corpus in the carefully selected cases it brings, this litigation has been rendered more complicated and

19 This total excludes attorneys in the Prisoners’ Right Project and attorneys who work exclusively on state and federally-funded projects, including the attorneys who handle parole revocation proceedings.

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time-consuming by enactment of the federal Anti-Terrorism and Effective Death Penalty Act of 1996, which placed time and subject matter restrictions on appeals of state conviction in the federal courts.

These are not the only changes in the law that have increased the quantity of services that must be delivered. The abolition of parole and substitution of supervised release as an alternative have spawned the need for increased advocacy in that area. As of January, 2000, CAB also began handling, for the first time, the quasi-civil appeals taken by defendants who have been classified for community notification under the Sexual Offender Registration Act. These appeals, for which CAB has received no additional funding20 and which often involve defendants whose criminal appeals have been completed, present new challenges and add to CAB’s workload.

Wrongful Conviction Project

As previously mentioned, the Society is finding, on a recurring basis, cases in which it appears that a fundamental mistake has been made, and the convicted person is actually innocent. To correct such injustices, CAB and CDD lawyers in collaboration have established a “Wrongful Conviction Project,” which is devoted entirely to securing the freedom of such clients. To date, they have secured the release of four innocent men who were serving prison terms for crimes they had not committed.

Such work is particularly difficult; once the criminal justice system has made an error of this magnitude, it is frequently reluctant to admit it. Attorneys must carefully analyze claims of possible innocence and the prosecutorial mistakes or judicial errors that led to a wrongful conviction. This often requires lengthy investigation and the retention of expensive expert services, such as DNA testing.

But this effort is more than worth the trouble and expense. For instance, in one recent case, widely reported in local media, the defendant had consistently professed innocence despite his conviction at trial for rape. The CAB attorney was able to discover the existence of physical evidence that neither his trial attorney (not a Legal Aid lawyer) nor the prosecutor had subjected to DNA testing. Testing of this evidence, at Legal Aid’s expense, exonerated our client and resulted in his release from prison.

Such cases involve time-consuming advocacy, both in court and in negotiation with prosecutorial authorities. Where a fundamental factual mistake has been made, CAB, in collaboration with lawyers from CDD, may find it necessary to collaterally attack the conviction by filing a motion to vacate the conviction in the trial court. In our experience, such motion are frequently opposed fiercely by the prosecution, making our work extremely difficult. However,

20 CDD, which handles the SORA classification hearings at the trial level, has also received no funding for this additional workload.

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the Society’s unique ability to draw on the expertise of highly-skilled trial and appellate attorneys in such proceedings has served our clients — and the cause of justice -- well.

PERFORMANCE

Like Legal Aid generally, CAB has an extensive relationship with New York’s private bar. The Society is a certified provider of continuing legal education, and makes many of its programs available to attorneys outside Legal Aid. This can result in a commitment of private resources to the criminal justice system, since members of the private bar whom we have trained -- many attorneys in some of the City’s finest firms -- then volunteer to handle appeals pro bono, under CAB’s supervision and direction.

Internally, CAB continues to innovate and reform its procedures to provide more effective and efficient representation. This past year, it updated its conflict-of-interest procedures to reduce motions to be relieved to the minimum number necessary to safeguard clients’ interests, while continuing to comply with the ethical rules governing attorney conduct. This will allow CAB to retain a higher percentage of the total cases it intakes and avoid the delay attendant in a change of counsel.

Currently, CAB is installing a new, office-wide computerized case management system which will greatly assist our assembling of the appellate record and the litigation of appeals, particularly in complicated cases where many time-consuming administrative tasks must be performed initially before the briefing can be begin. Because our current funding level did not permit this innovation, CAB sought and secured a grant from the Justice Department for this improvement in services. Once installed, this system will also allow CAB to more fully and quickly assess its total caseload, output, and distribution of cases to lawyers.

Last, but not least, CAB’s Prisoners’ Rights Project (“PRP”) protects the legal rights of the roughly 85,000 persons in the City jails and State prisons through both civil rights litigation and administrative advocacy. Their recent legal work has mitigated obstructions and delays in attorney client visits in jails, provided for fair procedures in determining the use of painful and sometimes injurious restraint procedures, and corrected physical conditions found unconstitutionally lacking in sanitation, air and heat. PRP’s work has also ensured that young prisoners may attend school and receive special education. A much publicized suit over excessive force in the Central Punitive Segregation Unit on Rikers Island has reduced violence.

In its work, PRP seeks to avoid litigation, where possible. It has been successful in intervening on particular prisoners’ behalf, often referred by the Society’s trial and appeals lawyers, to ensure adequate medical treatment for prisoners suffering from hepatitis, cancer, paraplegia and AIDS.

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BUDGET NEEDS FOR ALL DEFENSE SERVICES

As the Council has recognized by restoring $5 to $5.6 million of the $25 million cut by the Administration from the Society’s budget in FY95 to recent budgets, the $54.7 million that is budgeted annually by the Executive branch has been completely inadequate to fund the Society’s criminal defense services at the level and quality the City and courts expect.

In the first place, the reduction to $54.7 million was predicated on an assumption that, once alternate defense services organizations were in operation, the Society’s annual trial level intake would drop to 153,025. This assumption has proved to be unfounded, since it failed to take into account the advent of annual NYPD initiatives, such as the “Quality of Life” campaign and Operation Condor, which in combination have flooded the City’s criminal justice system with hundreds of thousands of misdemeanor arrests.

The Executive branch’s flat-line approach to the Society’s budget has also failed to account for the indisputable fact that operating costs have risen. For example, last year the court reporters received their first raise in 13 years. This has resulted in a large increase in the rates we pay for transcripts. The experts we hire as consultants and witnesses on our most serious cases have also increased their fees, and the availability of new technologies has increased the number of cases in which we must seek expensive scientific testing.

Salaries also must rise, or we will lose what remains of our veteran staff. Our lawyers no longer have salary parity with their counterparts in the City’s district attorney offices. In the last year, assistant district attorneys have received raises which increased their salaries $8,000 to $14,000 above those paid to attorneys at the same experience level who work for The Legal Aid Society. The Appellate Division’s standards require that the City compensate attorneys who work for indigent defense organizations at salaries which are “comparable” to assistant district attorneys “who are of equal seniority, experience and level of responsibility.”21

Finally, it is critically important the Society have sufficient funding to reduce the excessive caseloads our criminal defense staff is presently handling.

In CDD, attorneys’ workloads violate the maximum case assignment standard imposed by the Appellate Division. In order to accomplish this, the Division must return to a staffing level of approximately 400 attorneys, with similar increases in the corollary

21 App. Div., 1st Dept., General Requirements for Organized Providers of Defense Services, Specific Guideline §II(B)(2). Salaries for attorney supervisors at the Society also fall significantly below those paid to their counterparts in the district attorneys’ offices.

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supervisory and support staff. An addition of $7.7 million to the CDD budget would cover increased operating costs and permit it to add 60 attorneys, 2 supervising attorneys, 10 social workers and 10 paralegals.

For CAB, we are asking for an additional $2.5 million. Given CAB’s existing caseload, and assuming a proportionate level of new assignments in the year ahead, we believe that CAB needs to fill 13 vacant attorney positions and 7 vacant support staff lines, most of which are paralegal and investigator positions. This restored staffing level would allow CAB to retire its deficit, handle its existing cases, decrease delay and inventory, and ensure that it has the resources that our clients’ cases and the fair administration of justice require.

In sum, we ask the Council to restore $15.8 million in funding, above the $54.7 million presently allocated to the Society in the executive budget. Funding at this level is necessary to maintain indigent defense services at minimal levels. A proposed budget for FY02 is attached, as Addendum A.

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CIVIL LEGAL SERVICES FUNDING

Legal Aid Society civil legal services offices in all five boroughs of New York City handle some 24,000 closed client cases annually, involving housing, government benefits, HIV/AIDS, disability, health care, homelessness prevention, immigration, elder law, domestic violence, family law, custody, support, guardianship, bankruptcy, mortgage foreclosure, consumer credit, utilities, employment, education, wills, and other general civil problems.

Many of our cases are referred to us by the constituent services staff of elected officials. Lack of adequate funding causes us to turn away at least two prospective clients for every client we can help. Unfortunately, additional New Yorkers do not even seek the legal help they need because our lack of resources is well-known in the community.

Regrettably, the Mayor’s Preliminary Financial Plan for FY02 proposes to eliminate $7.9 million in City civil legal services program funding for the Legal Aid Society and other providers. The Council restored funds for these same civil legal services programs in the FY02 City budget agreement. The proposed programs that are completely eliminated are:

HRA EAF Legal Services

The Preliminary Financial Plan again proposes to cut the City’s $2.65 million share of the $10.6 million Human Resources Administration Emergency Assistance for Families (EAF) Legal Services Program, thereby ending this federal-State-City program and forfeiting $7.95 million in federal and State matching funds. The EAF legal services program is targeted to prevent 10,000 families with children eligible for the federal EAF program from becoming homeless and draws down $3 dollars of federal and State funding for every one dollar of City funding. Seven community-based legal services organizations, including the Legal Aid Society, provide EAF-funded legal services to prevent evictions and homelessness throughout the City. As a result of this cut, the Legal Aid Society will lose as much as $3.5 million in annual EAF funding, and our homelessness prevention services for as many as 3,200 families with children in the Bronx, Brooklyn, Manhattan, Queens, and Staten Island will be eliminated.

HPD Legal Services

The Preliminary Financial Plan again cuts the entire $2.5 million in funding for the Department of Housing Preservation and Development’s anti-eviction and code enforcement legal services program which the Council has annually restored in the City budget to prevent families with children and single adults who are ineligible for HRA’s EAF legal services program from becoming homeless. This HPD program currently funds the Legal Aid Society,

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Legal Services for New York City, the Westside SRO Project, and the Northern Manhattan Improvement Corporation to preserve low-income housing and prevent homelessness, thereby stabilizing communities. As a result of this cut, the Legal Aid Society will lose $875,000 in HPD legal services funding, and we will be unable to continue to operate our HPD programs which provide legal assistance to tenants faced with homelessness in the Bronx, Queens, and Staten Island, to senior citizens in Brooklyn, and to tenant associations in East Harlem, Harlem, Inwood, and Washington Heights.

City-Wide Civil Legal Services22

The Preliminary Financial Plan cuts $2.75 million for the city-wide civil legal services program which the Council has annually restored in the City budget to provide funding to the Legal Aid Society and Legal Services for New York City. The proposed FY02 elimination of this program which enables us to accept referrals from the constituent services staff of elected officials compounds the City’s failure over the past eight months to provide a contract for the FY01 program. This $2.75 million in City Council discretionary funding enables the Legal Aid Society and Legal Services for New York City to continue to provide city-wide civil legal services notwithstanding substantial funding losses from the State IOLA Fund because of declining interest rates for lawyers’ escrow accounts. As a result of the proposed elimination of this city-wide City IOLA replacement funding, the Legal Aid Society will lose a total of $1.375 million in annual City Council discretionary civil legal services funding. If this funding is not restored, we will have to substantially reduce our civil legal services program in the Bronx, Brooklyn, Manhattan, Queens, and Staten Island for domestic violence survivors, senior citizens, immigrants fleeing oppression, chronically ill and disabled children and adults, unemployed workers, and persons with HIV infection.

These three legal services programs provide services which benefit literally every community in all five boroughs and have been longstanding priorities of the Council. The proposed FY02 civil legal services cuts are particularly counterproductive because lack of legal assistance results in increased costs to government. For example, a State study has found that for every dollar spent on homelessness prevention assistance, government saves four dollars in averted shelter costs. We urge the Council to once again restore funding for these civil legal services programs in the amount of $2.65 million for the HRA EAF legal services program, $2.5 million for the HPD legal services program, and $2.75 million to provide city-wide civil legal services.

22 This program is administered by the Mayor’s Office of the Criminal Justice Coordinator.

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ADDENDUM A

ADDENDUM B

ADDENDUM C

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Legal Aid/ADA SALARY COMPARISONFebruary, 2001

ADA CLASS

LASSTEP

BRONX QUEENS BKLYN MANH AVG. LAS DIFF.

2000 1 46,000 46,000 45,000 47,500 46,125 37,500 8,625

1999 2 48,000 48,000 47,000 47,650 39,000 8,650

1998 3 51,500 50,000 50,000 50,500 42,100 8,400

1997 4 55,5001 53,000 55,000 54,350 46,500 7,850

1996 5 61,500 57,000 61,250 59,900 50,200 9,716

1995 6 66,000 63,500 64,750 53,900 10,850

1994 7 70,000 67,000 68,500 56,250 12,250

1993 8 73,000 71,000 72,000 58,350 13,650

1992 9 76,000 72,500 74,250 60,250 14,000

1991 10 79,000 72,500 75,750 64,5000

11,250

1 This and the subsequently-listed Bronx ADA salaries, as well as the salaries for the Brooklyn classes of 1999 and 1996, are averages of salary ranges.

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ADDENDUM D

Additional Criminal Defense Services Provided by The Legal Aid Society

Because of its unique perspective as a full-service law firm for the poor and its role as New York City’s primary defender, The Legal Aid Society has always viewed its job as extending far beyond the contractual services it has agreed to provide. The breadth of services now provided to the City and our clients -- even in the wake of our recent funding problems -- demonstrates the deep commitment the Society’s staff has made to our clients and to improvement of the City’s criminal justice system:

• Systemic Change in Arraignment Processing: The fact that most persons arrested in New York City now see a judge within 24 hours of arrest results primarily from the Society’s efforts over a 16-year period to secure a right in New York to a speedy arraignment. The Society periodically enforces this precedent by filing writs of habeas corpus on behalf of newly-arrested people who have been detained in excess of 24 hours without seeing a judge. The most recent such writ was filed two weeks ago.

Similarly, as the result of a lawsuit filed in 1992, the City has now established a system for delivering necessary medication and medical services to newly-arrested persons who are in police custody and awaiting arraignment.

• Shared Expertise and Knowledge: Society attorneys regularly share their expertise with other attorneys and with civic and community groups. The Criminal Defense Division’s Special Litigation Unit disseminates its weekly digests of new case law and Practice Notes on new developments to the 18-b Panels and to other public defenders around the state. Its Trial Book, which provides defense lawyers with quick answers to 39 issues that commonly appear during criminal trials, was updated during the fall. The Trial Book has been reprinted by the New York State Defender Association and distributed to public defenders throughout the state. Members of the Special Litigation Unit and senior attorneys and supervisors from the Society’s trial offices and Appeals Bureau are regularly recruited to provide training to other attorneys by the New York State Defender Association; the City, State and various county bar associations; the National Legal Aid and Defender Association; the Office of Court Administration and numerous law schools. They also participate frequently in training sessions and seminars for lay people, at local high schools and colleges, and at a host of civic organizations.

• Individualized Services for Arrestees: The Legal Aid Society helps City residents locate family members who have just been arrested and are awaiting arraignment, and also advises them about arraignment procedures.

We also assist individual arrestees, without regard to whether they are our clients, when their arraignments are delayed because of hospitalization, fingerprinting problems, or other factors.

• Jail Paralegals: The Legal Aid Society staffs every City jail with a trained paralegal who assists inmates and the City Department of Correction to resolve problems concerning warrants and detainers, jail time, transfers, and clinic visits. The paralegals also act as liaisons between inmates and their attorneys. Last year, we helped over 12,000 inmates, including non-LAS clients.

• Social Services and Alternatives to Incarceration: Through our social work department, which provides approximately one social work staff member for every 11 attorneys, we are able to place many clients in rehabilitation programs, school or jobs to help them avoid not only jail but further criminal conduct. Every client successfully diverted from incarceration saves the City real money in reduced costs of incarceration, and produces additional but unmeasured savings to the client, his or her family and our community, in terms of a reclaimed life.

• Special Purpose Court Parts: The Legal Aid Society has participated with the City and the courts in establishing and staffing numerous special purpose parts. We provide one full-time attorney to the Kings County drug treatment court part, the new drug treatment courts in Manhattan and the Bronx, and the Red Hook Community Court, and provide two full-time attorneys to the Midtown Community Court. We participated in planning domestic violence court parts, and formed a juvenile offender team to work with the Youth Part Court in Manhattan.

• Intake Services: Through intake programs in Legal Aid offices, attorneys are available to New Yorkers who may wish to surrender to the police, who have been asked to come to a police station for questioning, who may have received a subpoena, or who may be placed in a line-up.

• Property Forfeiture: For the last year two years, attorneys in the Division’s Special Litigation Unit have been assisting former CDD clients and innocent car owners to reclaim cars that were improperly seized through the City’s car forfeiture program. They have also provided a training program to lawyers in private practice who are willing to represent indigent people in forfeiture proceedings on a pro bono basis, and are now supervising these volunteers as they handle forfeiture proceedings.

• Appellate Record Compilation: The managing attorney section in Legal Aid’s Appeals Bureau compiles the records for virtually all cases handled by assigned counsel, including those that are eventually given to Office of the Appellate Defender or to an alternate provider. This not only reduces the cost of appellate defense to the City, but also reduces the cost per case of the alternate appellate providers.

• Brooklyn Zone Outreach: The Legal Aid Society has established a pilot Community Defender Model in the “Blue Zone” in Brooklyn that correlates to the prosecution’s catchment area. This pilot project employs a modern team and community outreach approach in order to permit more appropriate community-based sentencing options, and to improve communication and education within the community. Defense attorneys attend community meetings, and visit with school and church groups.