The high costs of low pay for public defenders

What you’ll read today

• Spotlight: The high costs of low pay for public defenders

• A Trump favorite for his anti-immigration stance, Maryland sheriff now faces re-election

• In Allegheny County, people arrested with cell phones can be charged with ‘possessing instruments of crime’

• Community supervision is the largest part of the correctional system

• NYC voter guide ignores executive order, says people with felony convictions can’t vote

• Prosecutors call for safe consumption sites, not incarceration

In the Spotlight

The high costs of low pay for public defenders

Of course, no one becomes a public defender for the money. But unless you come from family wealth you still need a salary that, at a minimum, covers the cost of housing; payments on law school and other student debt; and childcare and/or support for parents or other family members who may count on you. You should also be paid enough that you can afford therapy and other forms of support while doing work that entails compassion fatigue and secondary trauma. And you should be able to, one day, put something aside in savings.

It is a given that pay for social justice lawyers is a slim fraction of the pay that lawyers in the private sector will earn. But what was illuminated at a New York City Council hearing last week was how large the gap is even between public defenders and prosecutors, whose salaries are city-funded, and lawyers who are directly employed by the city. What was made clear was that the underpayment of people who work in public defender offices, including those who are not attorneys, is a choice by the city and one that has dire consequences for the diversity and quality of those who become public defenders and the longevity of public defense careers.

The City Council Committee on Justice system, chaired by Rory Lancman who is running for Queens district attorney, held a hearing (the full video of which is online) on pay parity for public defenders and prosecutors with city government lawyers. Two charts prepared before the hearing show first, the pay disparities even between public defenders and prosecutors (who were also making the argument for their pay parity with city lawyers) and second, how pay disparities widen over the course of careers, leading to roughly $20,000 pay disparities (or 20 percent).

Representatives from all the major public defense providers testified. They explained why pay parity is so urgently needed:

Public defender salaries exclude lawyers who are from the communities most affected by the criminal legal system: Shannon Cumberbatch, director of hiring, diversity and community engagement at the Bronx Defenders, described how low salaries put public defender careers out of reach for people who do not come from generational wealth and whose backgrounds and life experiences are most likely to reflect those of the clients served by public defense offices.“Pay disparity in public defense disproportionately affects aspiring defenders from the communities that we serve,” Cumberbatch said. “It affects those from immigrant backgrounds, from racially and socioeconomically marginalized backgrounds. Individuals from these backgrounds are overrepresented in the court system and underrepresented in the court system as defenders. This is not because of lack of interest.” [Harry DiPrinzio / City Limits]

And the same concerns appear repeatedly: “Every aspect of my role from mentoring and fostering interest in public defense careers in students early on to extending offers … to saying goodbye to my colleagues who no longer found this career to be sustainable for them … I am hearing the same question over and over: While I am incredibly committed to supporting my clients and their community how am I supposed to support myself while on this salary?” Cumberbatch said. [City Council hearing, testimony of Shannon Cumberbatch]

The situation is as bad, if not worse, for non-attorney staff at public defender offices. Tina Luongo, chief defender of the Legal Aid Society said: “If you think the problems are tough for public defenders who are attorneys so is it for social workers, paralegals … the rate of turnover is incredible … I can’t find people to fill those positions because we can’t pay enough.”  [City Council hearing, testimony of Tina Luongo]

Meeting family obligations can be inconsistent with remaining a public defender: Brooklyn Defender Services (BDS) conducted interviews and focus groups with attorneys on staff. These revealed that, “‘[a] common topic of concern” was being able to afford having children. All of the defenders interviewed on the subject said they had wondered whether “being a public defender is incompatible with the goals” of financial stability and starting a family and all “expressed a profound sadness at having to confront this question.” One lawyer had recently decided to leave BDS and when interviewed said: “I have been a public defender for eight years and it is more than just a job—being a public defender is my identity. … I had to choose between doing this work and starting a family. I chose starting a family.” [Testimony of Danielle Regis] One woman testified that after eight years as a public defender, in order to make ends meet with two children and a mortgage she needs to have roommates. She called it “a disgrace.” [RJ Vogt / Law 360]

Luongo testified that the city is aware of the costs of living in New York City and the salaries needed—and its awareness is reflected in the salaries it pays its attorneys. “At the 10-year mark corporation counsel pays their lawyers $108,000 a year. That is $18,000 a year more than I am able to pay an attorney at the same level.” Luongo went on to say: “Our inability to pay has everything to do with how we are funded.” She said that defenders have said this “not once, not twice, but a hundred times “ to the Mayor’s Office on Criminal Justice MOCJ. [City Council hearing, testimony of Tina Luongo]

Council member Lancman discussed the disparities between public defender or prosecutor salaries and those paid to city Law Department employees and how it “comes as no surprise that city agencies have better retention rates than our district attorney offices and indigent service providers.” [RJ Vogt / Law 360]

There are easy answers: Lancman has proposed a task force that would study pay parity, an idea many defenders dismissed. Instead they called for using the city Law Department’s pay scale and called on the City Council to create a loan forgiveness program for public interest advocates. After the hearing, Lancman told Law 360 that the task force could be considered down the road if necessary but “all of our attention and focus really needs to be on getting the money out of the administration in the next six months or so.”

Ultimately, the failure to adequately fund public defense is, as one defender made clear, a reflection of the value the city places on the right to a lawyer. Akin Akinjiola said: “Why do you think our work as attorneys deserves less? I’ve been racking my brain to figure out how you would justify the disparity, and the only conclusion I can come to is that you don’t value our clients and their constitutional rights to a defense.”  [RJ Vogt / Law 360]

Stories From The Appeal

A Trump Favorite for His Anti-Immigration Stance, Maryland Sheriff Now Faces Re-Election. Frederick County Sheriff Chuck Jenkins seeks a fourth term as critics blast him for a record that includes poor jail conditions, in-custody suicides, and the deaths of two young people at the hands of his deputies. [Raven Rakia]

In Allegheny County, People Arrested With Cell Phones Can Be Charged With ‘Possessing Instruments of Crime.’ Advocates say these charges endanger sex workers and urge the police to stop using them. [Melissa Gira Grant]

Stories From Around the Country

Community supervision is the largest part of the correctional system: In 2016, there were twice as many people under community supervision as there were in local, state, and federal correctional facilities combined. From 1980 to 2016, the number of people on probation or parole in the U.S. increased 239 percent (peaking in 2007), leaving 1 in 55 adults (2 percent of the entire population) under community supervision. In Georgia, the rate is 1 in 18 while in New Hampshire it is 1 in 186, reflecting huge differences between states. These are the findings of a new analysis by Pew Charitable Trusts. Nearly 350,000 people under supervision are sent each year to jail or prison for, often technical, parole or probation violations. Crime rates and the number of people under community supervision dropped in 37 states between 2007 and 2016, but more needs to be done to “prioritize supervision and treatment resources for higher-risk individuals while removing lower-risk people from supervision caseloads.” [Jake Horowitz / Pew Charitable Trusts]

NYC voter guide ignores executive order, says people with felony convictions can’t vote: Governor Andrew Cuomo signed an executive order in April 2018 that created a mechanism for restoring voting rights to people on parole through the granting of conditional pardons. Yet the New York City Campaign Finance Board’s 2018 Voter Guide wrongly states that people convicted of a felony can vote only after completing parole. After people on Twitter called out the error, the board responded, acknowledging its mistake. But advocates believe the damage has been done and criticized the city for not taking re-enfranchisement of people on parole seriously. The board has still not updated its website (since 2016) regarding voting rules for people who have been convicted of crimes. [Kadia Goba / Bklyner]

Prosecutors call for safe consumption sites, not incarceration: Roughly 200 people in the U.S. die each day from a drug overdose. Advocating harm reduction, Miriam Krinsky of Fair and Just Prosecution and Dan Satterberg, chief prosecuting attorney in Seattle, argue for prosecutors to pursue treatment rather than charges for drug users, police to change enforcement approaches, and the development of safe consumption sites, which have been proven to save lives as well as money at more than 100 sites in Canada, Europe, and elsewhere. They describe a visit that a delegation of U.S. prosecutors made to Vancouver in October and how “overdose prevention sites offered a glimmer of hope.” While a number of prosecutors around the country have started changing their practices and have supported overdose prevention sites, U.S. Deputy Attorney General Rod Rosenstein has argued that such sites violate federal law and that the Department of Justice would “meet the opening of any injection site with swift and aggressive action”—a stance reminiscent of the arguments once made against needle exchange programs. [Miriam Krinsky and Dan Satterberg / USA Today] See also In Vermont, a prosecutor up for re-election is calling for the establishment of safe consumption sites. [Molly Walsh / Seven Days]

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