NY lawmakers: No raises for public defenders a ‘slap in the face’ (Guest Opinion by Kathleen Dougherty)

Kathleen M. Dougherty is the executive director of the Onondaga County Bar Association Assigned Counsel Program.

Open Letter to Sens John Mannion and Rachel May; and Assembly members Will Barclay, John Lemondes, Pam Hunter, Bill Magnarelli and Al Stirpe:

It was with great disappointment that I learned that Gov. Kathy Hochul’s final state budget did not include any amendments to county law article 18-b or the Family Court Act regarding compensation for assigned counsel and attorneys for the child (AFCs). Nor did the budget include any funding for an increase in the hourly rates. Almost as upsetting, there seems to be no clear reason given for the failure to include the increase, especially in light of the fact that it was in both the Senate and Assembly one-house budgets.

As you know, virtually the entire criminal justice system in Onondaga County relies on the Assigned Counsel Program. Our panel attorneys represent 94% of all criminal cases in the county. In addition, the ACP panel handles a large percentage of Family Court cases and appeals.

It seems unconscionable to expect our ACP panel attorneys to provide the level of quality representation required at a discounted rate established 18-plus years ago. I can think of no other group of legal professionals who are expected to continue working for the same flat hourly rate they earned nearly 20 years ago. Certainly, the panel attorneys’ counterparts at the District Attorney’s Office and the County Attorney’s Family Court Unit are earning significantly higher salaries than they were in 2004. They also receive generous, publicly financed benefits (health insurance, office overhead, pension, student loan forgiveness) that our panel attorneys do not enjoy.

Equally striking, the final budget includes an additional $40 million for costs associated with discovery implementation incurred by prosecutors and law enforcement. This funding is over and above the $40 million that has already been appropriated from the Criminal Justice Discovery Compensation Fund. Notably, this funding was given to the prosecution only, disregarding the fact that the defense bar has encountered comparable increased costs due to the changes in the discovery rules.

State and local governments, as well as the judiciary, have been focusing a great amount of effort and attention to the important need for “equal justice” in the New York courts. In 2020, at Court of Appeals Chief Judge DiFiore’s behest, a study led by Secretary Jeh Johnson was conducted regarding the status of diversity and equal justice in the courts. In response to the study, many initiatives have been implemented. Few, if any, of these initiatives would be possible without the assigned counsel attorneys and AFCs performing work above and beyond. Nevertheless, when it comes time to acknowledge their hard work and dedication, these same attorneys are ignored.

In short, the budget bill seems like a figurative slap in the face to the dedicated attorneys who provide constitutionally mandated representation to this State’s impoverished and most vulnerable every single day.

I ask each of you to take every necessary step to rectify this situation. Our panel attorneys and AFCs should be compensated fairly with an hourly rate comparable to the federal assigned counsel and with a built-in cost of living adjustment, so that the hourly rates never again fall behind to such an inexcusable degree.

Thank you.