Since 2011, Davis Polk has been working with The Legal Aid Society on efforts to analyze whether indigent defense providers in New York City have funding for a sufficient number of investigators and social workers. Following years of analysis and advocacy by Legal Aid and Davis Polk, New York City will be allocating funding to indigent defense providers (including Legal Aid) that will allow them to nearly double their numbers of investigators and social workers.
Under Gideon v. Wainwright, 372 U.S. 335 (1963), every state is obliged to ensure that each indigent defendant who is charged with a crime is represented by counsel who can provide an “effective defense,” but public defenders’ limited funding and high caseloads can make this very challenging. Earlier efforts by Legal Aid and Davis Polk led to legislation adopted in 2009, which limits the number of cases a public defense attorney can handle in a year and led to significantly increased funding for Legal Aid’s criminal defense practice (and for other indigent defense providers in New York City).
Although the 2009 legislation has considerably improved the quality of Legal Aid’s representation of its indigent clients, attorneys are often still limited in their ability to provide an “effective defense” by a severe shortage of investigators and social workers. In many cases, there cannot be an “effective defense” without an investigation of the relevant facts or without an understanding of the client’s background or environment. During 2012 to 2013, Legal Aid had sufficient funding to employ approximately 1 investigator and 1 social worker for each 10 attorneys on staff. With these staffing levels, only 12% of cases that survived arraignment were assigned to an investigator, and only 5.6% of felony cases (and a mere 1.8 % of misdemeanor cases) benefited from social worker services.
To study and address the acute shortage of investigators and social workers, in early 2011, Legal Aid and the firm convened an Investigator Task Force and a Social Worker Task Force, together consisting of Legal Aid attorneys, supervisors, investigators and social workers from all five boroughs. The Task Forces were tasked with estimating the number of investigators and social workers required to allow Legal Aid to meet its constitutional mandate of providing its clients with an “effective defense.” These Task Forces focused on the key services provided by investigators and social workers, including crucial efforts such as interviewing eye witnesses and alibi witnesses, visiting the scene of the alleged crime, obtaining surveillance footage and assessing whether an alternative to incarceration (such as a drug treatment program) would be appropriate for the client. Between February 2011 and October 2013, the two Task Forces met 36 times, for a total of more than 100 hours. These meetings were supplemented by robust data collection efforts, frequent group calls, and meetings of smaller social worker/attorney teams.
Davis Polk prepared a report summarizing the Task Forces’ findings. The report concluded that to perform all the work that the Task Forces determined is required for an “effective defense,” Legal Aid would have to increase its support-staff levels to 1 investigator for every 2.9 attorneys and 1 social worker for every 2.6 attorneys. In July 2014, Legal Aid and Davis Polk jointly presented the report to the Indigent Defense Organization Oversight Committee (“IDOOC”) –the committee appointed by the NY Appellate Division, First Department to oversee Legal Aid and other institutional providers of public defense services.
In December 2015, the IDOOC issued a report to the NY Appellate Division, First Department, in which it recommended that the Department set a standard of 1 investigator and 1 social worker for every 3 attorneys, which would triple the current staffing levels of these professionals. It did so on the basis of Legal Aid and Davis Polk’s Task Force study, and attached Davis Polk’s report as an appendix to its recommendations.
Since early 2017, Legal Aid has been negotiating a periodic renewal of its contract with the City. Last week, we learned that, in reliance on the IDOOC’s recommendations, the City has agreed to approve a staffing ratio of 1 investigator and 1 social worker for every 5 attorneys for homicide cases, and 1 investigator and 1 social worker for every 6 attorneys for non-homicide cases. While we believe that these new staffing levels still fall short of the levels required to provide an effective defense to all of Legal Aid’s indigent defendants, the result is that Legal Aid will nearly double its investigator and social worker staff (and all other institutional providers of indigent defense in New York City will similarly be able to expand their staff) and thousands of defendants will benefit from their services. In addition, funding for attorneys has been further enhanced as a result of a lawsuit in upstate New York, with the state to be contributing $250 million per year to bring indigent-defense providers statewide in compliance with the case-cap legislation.
With this additional funding, New York City will continue to serve as a model for how local and state governments can improve indigent defense services.
The Davis Polk team included senior counsel Daniel Kolb, partner Lara Samet Buchwald, and associates Edith Beerdsen, Kahlil Williams, Jane McCooey and Andrew Walker.
For information about another ongoing effort by Davis Polk to challenge constitutionally inadequate indigent defense services, follow this link for coverage of a lawsuit commenced by Davis Polk and its co-counsel in Louisiana.