The Interdependence and Parallel Growth of Assigned Counsel and Institutional Defender Systems in New York City


Indigent criminal defendants in state criminal cases in New York City (“City”) receive ineffective assistance from lawyers who, for largely systemic reasons, fail to provide competent adversarial representation. These lawyers cannot fulfill their responsibility to their clients because those in control of indigent defense want low-cost, efficient processing of criminal defendants through guilty pleas and other non-trial dispositions. To achieve efficient processing of defendants (and to legitimate a system that fails constitutional and statutory mandates to provide effective assistance of counsel), defense providers ally themselves with courts, prosecutors, local government, and the organized bar rather than with indigent defendants.

This Article explains this.crisis in New York City’s indigent criminal defense system as a product of the interdependence and parallel growth of assigned counsel (court-assigned private attorneys) and institutional defenders (staff attorneys with public and private defender agencies). Though this Article focuses on the growth of assigned counsel and institutional defenders in New York City, it also explains how the interaction of these defense entitiestypifies indigent defense systems in large cities throughout the United States.’The indigent defense system in present day New York City is a microcosm of the national criminal defense system.

For most of the first half of the twentieth century, assigned counsel and institutional defenders served separate interests. Originally established as the sole means of providing representation to the poor in the United States, assigned counsel eventually fell into disfavor because of its adversarial defense techniques, which were linked to the solicitation of fees from indigent defendants and were thought to cause social unrest. Those who feared social unrest created the institutional defender to end adversarial advocacy for poor people with attorneys dedicated to a cost-efficient method of representation. After the enactment of legislation requiring cities and counties to provide compensation for appointed lawyers in criminal cases, both assigned counsel and institutional defenders began to serve the state’s interest in maintaining public order through the mass processing of indigent defendants.

The cost-efficient system of institutional defense in New York City evolved from a private charitable agency, the Voluntary Defenders’ Committee (“Defenders’ Committee”) of the Legal Aid Society (“Society”). In 1965 New York City confronted a state constitutional and statutory mandate to provide counsel to all defendants charged with an imprisonable offense; the cost-efficiency of the Legal Aid Society moved New York City to select the Society as its answer to this mandate. New York City’s assigned counsel, the 18-B Panel (“Panel”) of private attorneys, originally designed to take only conflict of interest cases, later became a co-equal provider of legal assistance in serious felony cases and a major provider in misdemeanor and other petty cases. The advent of mandatory compensation transformed the Panel into a more cost-efficient defense entity than the Society itself.

These findings derive from historical research using both primary and┬ásecondary sources and from field research conducted in New York City’s courts. The following overview of New York City’s criminal justice system introduces the setting for our field research.

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