Court Reform: Why Simple Solutions Might Not
Fail? A Case Study of Implementation of Counsel at
Alissa Pollitz Worden
Andrew L. B. Davies
Reveka V. Shteynberg
Kirstin A. Morgan
In this article we investigate the implementation of programs intended to
ensure that defendants in criminal courts receive legal counsel at their
first appearances before judges. Efforts to reform court practices are
often stymied by courts’ fragmented and adversarial structures and by
reformers’ misconceptions about how they operate. We find that the
public defense administrators who voluntarily launched these programs
largely overcame these difficulties by adopting incremental approaches
to expanding defense services, designing programs that were adapted to
local conditions, and by persevering in the face of political resistance.
Reforming criminal courts is not for the faint of heart. A long line of social
science research studies has demonstrated that few attempts to change court
processes live up to expectations.
Some reforms fall short because they are based
† We gratefully acknowledge the support of the National Institute of Justice, under Grant
2014-IJ-CX-0027, comments on prior drafts from Jon Gould and Janet Moore, and the valued
assistance of University interns Alyssa Clark, Victoria Farrell, and Katherine Rhee. The observations
and conclusions expressed in this article are those of the authors alone and do not reflect the official
policy or position of the New York State Office of Indigent Legal Services.
Associate Professor, School of Criminal Justice, University at Albany, State University of
Director of Research, New York State Office of Indigent Legal Services.
Doctoral student, School of Criminal Justice, University at Albany, State University of
Doctoral student, School of Criminal Justice, University at Albany, State University of
See Courts, NAT’L INST. OF JUSTICE, http://www.crimesolutions.gov/TopicDetails.aspx?
ID=3 (last visited Feb. 26, 2017) (reviewing 66 programs where 13 are rated “effective,” 10 are rated
522 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
on overly optimistic assumptions about how court decisions will affect defendants
or victims. But other efforts fail because they are not implemented as their authors
had envisioned. These “failures” seldom make headlines, but they represent
missed opportunities to improve legal systems.
This article reports on the implementation of five upstate New York county
programs designed to ensure that indigent criminal defendants were provided
counsel at the first court appearance.
This phase of adjudication is extremely
important. At first appearance, defendants should learn of the charges against
them and of their right to counsel; they may be subjected to pretrial incarceration if
they are not offered or are unable to post bail;
and if the first appearance includes
arraignment, they may even plead guilty before investigation or advocacy occurs.
When first appearances include plea entries, the process is a “critical stage” of
the prosecution and defendants have a right to counsel’s presence and effective
Some courts, including New York’s highest court, extend the same
right to first appearances that include decisions on bail and pretrial release.
Unfortunately, requirements for counsel at first appearance (CAFA) are
inconsistently realized in practice.
New York responded to these problems with
the three-year grant CAFA improvement projects discussed in this article.
In examining these programs’ development and implementation, we frame
our inquiry around Malcolm Feeley’s thesis that court reforms are more likely to
fail than to succeed,
and draw conclusions about the conditions under which such
reforms are likely to be successful. At first glance, it might appear that these
initiatives’ chances for success were uncertain. They faced skepticism and
opposition at state as well as local levels, and they deployed tax dollars for an
unpopular constituency, people accused of committing crimes. Yet we found that
all five programs overcame obstacles to implementation and launched largely as
“ineffective,” and the remainder are only rated “promising,” which typically reflects limited evidence
of successful outcomes). See also Markus B. Zimmer, The Challenge of Judicial Reform in Post-
Conflict States, 37 OHIO N.U. L. REV. 645 (2011).
The study investigated six programs, but reports on five because the sixth county had not
completed program implementation at the time of this writing.
See Rothgery v. Gillespie Cty., 554 U.S. 191, 202–03 (2008).
See Hamilton v. Alabama, 368 U.S. 52, 53 (1961).
See NAT’L RIGHT TO COUNSEL COMM., THE CONSTITUTION PROJECT, DON’T I NEED A
LAWYER?: PRETRIAL JUSTICE AND THE RIGHT TO COUNSEL AT FIRST JUDICIAL BAIL HEARING 16 n.70
(2015), www.constitutionproject.org/wp-content/uploads/2015/03/RTC-DINAL_3.18.15.pdf [https://
perma.cc/Q4S6-F8A4] (citing Hurrell-Harring v. State, 15 N.Y.3d 8 (2010)).
Id. at 24–30; see also SIXTH AMENDMENT CTR. & PRETRIAL JUSTICE INST., EARLY
APPOINTMENT OF COUNSEL: THE LAW, IMPLEMENTATION, AND BENEFITS (2014); ALISA SMITH & SEAN
MADDAN, THREE-MINUTE JUSTICE: HASTE AND WASTE IN FLORIDA’S MISDEMEANOR COURTS (2011)
(showing a significant relationship between waiver of counsel and probability of guilty plea).
MALCOLM M. FEELEY, COURT REFORM ON TRIAL: WHY SIMPLE SOLUTIONS FAIL (2013).
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 523
We report our research in five sections. First, we review the emergence of
CAFA as a law and policy problem. Second, beginning with Feeley’s seminal
court reform research, we inventory the challenges that attend court reform.
Third, we describe the five programs that counties designed to provide CAFA.
Fourth, we document the implementation processes in each county. Fifth, we
consider the implications of our findings for not only CAFA, but also the broader
issue of court reform.
II. THE EMERGENCE OF CAFA AS A LEGAL AND POLICY PROBLEM
In 2012, Attorney General Eric Holder directed attention to the importance of
early access to counsel, and to the plight of “too many defendants [who] are left to
languish in jail for weeks, or even months, before counsel is appointed.”
same year, Lafler v. Cooper
and Missouri v. Frye
focused on ineffective
representation during plea negotiations, highlighting the need for lawyering at the
earliest stage in criminal proceedings.
The outcomes of first appearances can include pretrial release rulings and plea
entries, decisions that carry heightened risks for uncounseled defendants.
Unfortunately, only 14 states guarantee CAFA.
A recent survey of New York
magistrates (judges who preside over village and town courts) revealed that almost
half reported that CAFA was “seldom” available during regular court hours, and
89% reported the same for off-hours arraignments.
In 2010, New York Court of Appeals highlighted this deficit in Hurrell-
Harring et al. v. State of New York, holding that plaintiffs had been
unconstitutionally denied CAFA.
In 2011, the state legislature created the New
York Office of Indigent Legal Services (ILS) “to monitor, study and make efforts
to improve the quality” of public defense.
As is true of almost half the states,
Eric Holder, U.S. Att’y Gen., U.S. Dep’t of Justice, Address at the American Bar
Association’s National Summit on Indigent Defense (Feb. 4, 2012), https://www.justice.gov/opa/
132 S. Ct. 1376 (2012).
132 S. Ct. 1399 (2012).
See NAT’L RIGHT TO COUNSEL COMM., supra note 6.
N.Y. STATE OFFICE OF INDIGENT LEGAL SERVS., SUMMARY REPORT OF THE 2014 SURVEY OF
TOWN AND VILLAGE MAGISTRATES: COUNSEL AT FIRST APPEARANCE 22–23 figs. 8 & 9 (2014).
See Hurrell-Harring v. New York, 930 N.E.2d 217, 223–24 (2010) (citing Gideon v.
Wainwright, 372 U.S. 335 (1963)).
N.Y. EXEC. LAW § 832 (1) (2011), https://www.ils.ny.gov/files/Executive%20Law%20832-
524 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
New York requires county governments to fund and organize indigent defense.
ILS is authorized to grant partial funding for defense services, and it focuses
primarily on the 57 counties outside of New York City.
In 2012, ILS dedicated
$12 million in state funds for competitive three-year grants to counties to improve
Thus by 2012 upstate New York was primed for an overhaul of existing
CAFA practices. But this overhaul required more than a statehouse commitment
to a valued principle—it required significant changes in the everyday work of
hundreds of courts. As we explain below, optimism and principle, even when
accompanied by funding, often fall short of changing routines and practices.
III. THE CHALLENGES OF COURT REFORM
In his classic study Court Reform on Trial: Why Simple Solutions Fail,
Malcolm Feeley argued that “[i]t is rare to find an innovation that is carefully
initiated and even rarer to see one successfully implemented. But it is rarer still to
find a workable new idea well institutionalized.”
Feeley’s pessimistic outlook
was informed by his familiarity with historical, legal, practical, and political
perspectives on court behavior.
This section discusses Feeley’s five-stage
framework, which inventories characteristics of courts that often compromise
To summarize briefly, in the first stage a problem must be
defined. Second, reformers must initiate a solution, typically a new policy or
program. Third, someone must accept (or be given) responsibility for
implementing the solution. Fourth, the new policy or program must be routinized
and adjusted so that it is compatible with other organizational processes and
objectives. Finally, the reform should be evaluated to assess whether its objectives
NAT’L RIGHT TO COUNSEL COMM., THE CONSTITUTION PROJECT, JUSTICE DENIED:
AMERICA’S CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL 54 (2009),
9LCE]; see also COMM’N ON THE FUTURE OF INDIGENT DEF. SERVS., FINAL REPORT TO THE CHIEF
JUDGE OF THE STATE OF NEW YORK 15 (2006), http://nycourts.gov/ip/indigentdefense-commission/
IndigentDefenseCommission_report06.pdf [https://perma.cc/7RLF-5EJY] (urging replacement of
patch-worked local programs with statewide funding and organization).
See N.Y. STATE FIN. LAW § 98-b (2003).
Joel Stashenko, 25 Counties Get Grants to Provide Counsel at Arraignments, N.Y. LAW J.
(Aug. 8, 2013), https://www.ils.ny.gov/files/NYLJ%20Counsel%20At%20First%20Appearance%20
FEELEY, supra note 8, at 126.
Professor Feeley’s scholarship spans almost five decades and addresses appellate court
decision making, state and local crime and justice policy making, impact litigation, court reform, and
studies of comparative and federalist government. See MALCOLM M. FEELEY, CURRICULUM VITAE
(Sept. 4, 2013), https://www.law.berkeley.edu/php-programs/faculty/facultyCVPDF.php?facID=37
FEELEY, supra note 8, at 25–26.
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 525
were achieved, and if so, at what cost and with what unanticipated consequences.
Under the most benign circumstances this sequence presents many pitfalls,
but Feeley suggests that the criminal courts, more than most government
organizations, are designed and operate in ways that leave little room for optimism.
We focus here on what Feeley refers to as fragmentation, adversarialism, and the
fallacy of formalism as potential barriers to effective reform.
We then review the
conditions that Feeley identifies as critical to overcoming these challenges, and, in
this context, evaluate the CAFA reforms in the five counties.
Criminal courts and related agencies have competing interests.
asserts that the resulting interactions “are more akin to Adam Smith’s notion of
unplanned, unconscious coordination in the pursuit of self-interest than to any
theory of rational organization”
insofar as decisions are made and results are
produced without central planning, goal-setting, or assessment. He places criminal
justice actors’ decisions in the context of game-playing, each actor seeking to
maximize advantage. But he also notes that not everyone is playing the same
game: judges seek expeditious verdicts, prosecutors pursue public order and safety,
and defense lawyers strategize to advantage their clients’ outcomes. The result is
fragmentation: multiple actors pursuing different agendas from the same sets of
charges, evidence, and rules.
Criminal justice organizations, particularly those engaged in adjudication, are
accountable to different authorities. In most states trial judges
are accountable to voters. Defense lawyers are ethically accountable
for protecting their clients’ rights and interests, but lawyers in private practice must
also look after the interests of their firms. Lawyers who practice in indigent
defense agencies work in a variety of office settings, and those who administer
such programs are also, as managers, accountable to local and state authorities.
Additional tensions arise from a scaffolding principle of American
Id. at 6–8, 123, 125.
Id. at 6–7.
Id. at 7.
See AM. BAR ASS’N, FACT SHEET ON JUDICIAL SELECTION METHODS IN THE STATES,
See STEVEN W. PERRY, U.S. DEP’T OF JUSTICE, PROSECUTORS IN STATE COURTS, 2005, at 2
(2006), http://www.bjs.gov/content/pub/pdf/psc05.pdf [https://perma.cc/CRD9-2PKN]; see also, e.g.,
SPECIAL COMM’N ON THE FUTURE OF N.Y. STATE COURTS, JUSTICE MOST LOCAL: THE FUTURE OF
TOWN AND VILLAGE COURTS IN NEW YORK STATE 7 (2008) (discussing different constituencies to
whom judges and prosecutors are accountable), http://www.nycourtreform.org/Justice_Most_Local
526 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
government, the separation of powers between the legislative, executive, and
judicial branches. That principle ensures that the lines of accountability in
organizations at the courts’ periphery, such as law enforcement and corrections
agencies, are independent of those of court actors. Most law enforcement
authorities answer to executives, such as mayors and governors; jails and probation
are typically regulated by state agencies. Funding for these functions may be the
province of local or state legislatures. Judicial authorities may write the rules for
court administration. And the essential functions and missions of these
organizations are not necessarily compatible. While in theory these actors might
work together with the courts to provide satisfactory criminal justice process
outcomes, in practice they operate along independent trajectories.
A second scaffolding principle of U.S. government is federalism: the
stipulation of powers and authority that exist at each level of government. A
federalist regime that grants some degree of autonomy to each level of government
ensures that there are limits to what states can command local governments to do
and guarantees that service delivery will reflect local resources, needs, and
In New York, indigent defense is provided by a mix of institutional
programs, assigned counsel panels, non-profit legal aid bureaus, and public
Since court reforms rely on the voluntary cooperation of different
criminal justice agencies, and typically do not clearly identify any central authority
that can oversee and enforce changes, the responsibility for implementation cannot
be traced back to all potentially responsible parties or organizations.
In the United States, criminal adjudication is formally structured as a zero-
sum adversarial process in which each party pursues a win at his opponent’s
In this process, neither prosecutor nor defense has an incentive to
contribute to objectives beyond his or her own case or career. Professor Gary
Goodpaster described the logic behind the adversarial trial as the “truth theory:”
the implied assumption that through lightly regulated verbal combat, an attentive
but passive audience will discern the truth about contested facts.
perspective is grounded at the level of the individual case. But the concept of
adversarialism goes beyond individual cases: the dualism between “crime control”
FEELEY, supra note 8, at 6–12.
For an extended discussion and critique of federalism in the U.S. context, see MALCOLM M.
FEELEY & EDWARD RUBIN, FEDERALISM: POLITICAL IDENTITY & TRAGIC COMPROMISE (2011).
N.Y. COUNTY LAW § 722.
JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 80–101
Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J. CRIM. L. &
CRIMINOLOGY 118 (1987).
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 527
and “due process” concerns
may be expressed at the local level as policy and
C. The Fallacy of Formalism
Understanding how trial courts work is a challenge for most newcomers, and
understanding how to change them requires experience and expertise. Even for
experts, it is difficult to explain to the public how fragmentation and
adversarialism might confound new policies, and it is also difficult to present
practical solutions to skeptical practitioners. Hence, many policies are crafted
under the fallacy of formalism: “[r]eliance on formal description of the criminal
justice process as a basis for diagnosing problems and constructing remedies . . . .”
Idealistic reforms have noble goals—for example, mandatory sentencing laws
ought to reduce recidivism,
and mental health courts ought to reduce
incarceration and recidivism by linking defendants who have mental illnesses to
mental health services.
But such reforms are often based on textbook models of
adjudication that include orderly progression of hearings and decisions, clear roles
for all actors, formal trials, adherence to the law on the books and access to appeal.
Overlooked in this model are the day-to-day disorderly realities of plea
negotiations, tight schedules, resource deficits, and discretionary decisions.
Simple solutions can appeal to simplified values, while conveniently sidestepping
the real conditions that caused the problems in the first place.
D. Obstacles and Opportunities
Feeley offers some optimism about court reform, even in the context of the
structural and political complications noted above. He argues that a practical and
problem-oriented approach, though not commonly observed in court reform
efforts, holds some promise.
This approach embraces a concept of responsive law and fosters a consumer
perspective on the courts and in so doing identifies problems as perceived and
actually experienced by those who daily use and work in the courts. It insists upon
a realism and a sensitivity to the details of administration. As such, it can focus
attention on solutions to concrete problems.
Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1, 9–23 (1964).
FEELEY, supra note 8, at 123.
Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation,
58 U. CHI. L. REV. 901 (1991).
See Robert Bernstein & Tammy Seltzer, Criminalization of People with Mental Illnesses:
The Role of Mental Health Courts in System Reform, 7 UDC/DCSL L. REV. 143 (2003).
FEELEY, supra note 8, at 12–13, 123.
Id. at 132.
528 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
1. Problem Definition
Defining policy problems is inherently political: the process involves disputes
about whether the problem is weighty enough to require attention, who should be
involved in addressing it, and how to frame it for public debate. Criminal justice
problems are often defined in urgent terms that are chosen to generate strong
emotions such as solicitude for victims, outrage against offenders, or dismay about
violations of defendants’ rights. Often the people doing this sort of framing—
legislators, appellate court judges, and advocates—are quite removed from the
people who work in the courts.
It is not easy to match possible solutions to problems, because implicit in
solutions are hypotheses about the causes of the problem. Solutions (policy
proposals) may take the form of practical suggestions or symbolic expressions
about values. Feeley suggests that the more remote the policy maker is from the
reform site, the less likely the reform is to be effectively and successfully adopted.
Feeley also suggests, however, that “problem-oriented” reforms, which address
practical barriers and opportunities, rather than emphasize behavioral and moral
imperatives, are more likely to succeed.
3. Implementation and Routinization
Addressing the difficulties of transforming a general idea into practical policy
changes, Feeley observed,
Given the lack of incentives for system wide changes within the courts, it
is not surprising that innovation should often come from outsiders. Thus,
another dilemma: those who are in the best position to assess the needs
of the courts have the least incentive to innovate, while those who have
the incentive do not have the detailed knowledge.
Feeley suggests that implementation is likely to be stymied when reform plans
demand rigid adherence to protocols, are undertaken in overworked organizations
with high caseloads, and are premised on prioritizing efficiency and costs
Programs are more likely to be fully implemented when those
responsible for participating are in concurrence about the significance of the
Id. at 124.
Id. at 132
Id. at 124.
Id. at 26–27.
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 529
problem as well as the appropriateness of the reform, when organizational
leadership is established and respected, when resources are adequate, and when the
reform allows for local adaptations. Reforms are also more apt to become
implemented in good faith when key actors across court organizations agree to
collaborate, when the target organization has the capacity to acknowledge and
accommodate those actors’ needs, and when—importantly—the organization has
the resources, political capital, and legitimacy to withstand criticisms from within
the court community.
But getting a program off the ground does not ensure its long-term survival.
Routinization—the long-term integration of a new policy or program into existing
practices and protocols—can be compromised by loss of interest, loss of financial
support (or even fear of such loss in the future), active lobbying by practitioners to
return to old practices, and changes in advocacy and leadership. A failure of
routinization can be as simple as quiet abandonment of an innovation, or as
complex as a prolonged public challenge over continued funding.
Ideally programs and policies are assessed, using appropriate methods and
standards, once they have become a routine part of the court’s operations. The
purpose of evaluation, of course, is to determine whether the programs—assuming
they were implemented as planned—in fact have the positive outcomes they
promised. But evaluations also should attend to the costs of such programs, the
balance of measurable benefits to costs, and to any unintended consequences.
This is a critically important part of assessing reforms, and our current research
will provide data on those outcomes within the next year.
IV. THE UPSTATE NEW YORK CAFA PROJECTS
In November 2013 ILS released a request for proposals
that invited upstate
counties to devise programs to improve provisions of CAFA. The solicitation
encouraged counties to identify approaches best suited to local circumstances.
These improvements included shifts in staffing, plans for on-call arraignment
representation, and a variety of accommodations that recognized variability in
local needs. Twenty-five of 57 eligible counties applied, and all were granted
funds at about requested levels. For this implementation study, we selected five
Id. at 26.
Id. at 27.
Id. at 128.
N.Y. STATE OFFICE OF INDIGENT LEGAL SERVS., FUNDING ANNOUNCEMENT: COUNSEL AT
FIRST APPEARANCE DEMONSTRATION GRANT (2012), https://www.ils.ny.gov/files/RFP%20For%20
530 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
counties that represented diverse program innovations, levels of urbanization, and
systems for delivery of public defense services. One county included a large urban
center surrounded by suburban townships, three had smaller cities and sizeable
rural areas, and one was sprawling and sparsely populated. One county employed
private assigned counsel as the primary means of providing representation, and
four had public defender programs as primary counsel. We identify them as Bleek,
Hudson, Lake, Moose, and Polar Counties.
Courts of original jurisdiction in criminal cases in upstate New York—at
which CAFA must be provided—include 61 city courts (presided over by elected
judges who must have practiced law for at least five years)
and over 1,000
township and village courts overseen by lay magistrates (who are required only to
be local residents
and who more often than not never attended law school).
the counties outside New York City, a substantial majority of residents live within
these rural and suburban townships and villages, not in the 61 cities with city
New York law requires arresting officers to transfer any arrestee directly to
the nearest court, or to one in an adjoining jurisdiction, for immediate arraignment,
in both misdemeanor and most felony cases; usually misdemeanor charges remain
in the arraigning court through disposition.
Hence, these town and village courts
play a large role in the implementation of CAFA policies, and the remote character
of the courts means that the logistics of providing CAFA can be enormously
These counties offered a variety of approaches to CAFA. Hudson, Lake and
Polar Counties identified deficiencies in existing practices of ensuring CAFA and
sought to ameliorate them. One county sought funding to provide CAFA in courts
outside the large municipality where the service was already established. Two
counties sought to expand existing programs to days or times when CAFA was not
Program evaluation will not be completed until 2017, and we are committed to maintaining
confidentiality until project completion and unless key participants agree to be identified. Although
all statements are documented in our field notes (on file with the authors), we, therefore, do not
specifically identify names of counties or individuals, nor do we identify documents, news reports, or
observations by site.
Methods of Judicial Selection: Limited Jurisdiction Courts, NAT’L CTR. FOR STATE COURTS
William Glaberson, In Tiny Courts of N.Y, Abuses of Law and Power, N.Y. TIMES (Sept.
25, 2006), http://www.nytimes.com/2006/09/25/nyregion/25courts.html?fta=y [https://perma.cc/
See List of Cities in New York, WIKIPEDIA, https://en.wikipedia.org/wiki/List_of_cities_in_
New_York [https://perma.cc/V22C-5RHU] (last visited Mar. 16, 2017) (compiling 2011 population
See N.Y. CRIM. PROC. § 140.20.
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 531
available—particularly at night and on weekends. In contrast, Bleek and Moose
Counties had to start from scratch in planning programs to guarantee CAFA for the
first time in a central location, at certain times, or for certain kinds of cases. Table
1 summarizes the five different programs.
Table 1. Summary of Five Programs as Designed and Implemented
Design and scope…
Assigned counsel drawn
from small firms; 20%
participated in CAFA.
Arraignments in city court
consolidated into 8–10am
weekday sessions. Overnight
arrestees no longer arraigned
immediately, but held in jail
pending session. Select pool of
attorneys rotate CAFA
On call period
extended to whole
Public defender office
with about 15 attorneys;
conflict defender office;
assigned counsel as
CAFA extended from weekdays
in 1 city court to 24/7 in both
city courts & 8 other courts; 2
attorneys hired for this purpose.
extended to more
Public defender office
with about 12 attorneys;
small conflict defender
office; assigned counsel
for further conflicts.
Existing program consolidated
arraignments from all magistrate
courts & 1 city court in daily,
supplemented with counsel in
other city court and scheduled
arraignments of appearance
ticket cases; funding used to add
2 attorneys, 1 support staff, and
Public defender and
conflict defender offices
with assigned counsel
as backup; fewer than
10 attorneys in all.
appeared in courts during
regular sessions. Funding used
to improve staffing, freeing
attorneys to be on call at off-
CAFA in all
Public defender office;
conflict defender office
for city; assigned
counsel as backup; total
of 60 attorneys.
Arraignment representation in
the large, urban city court
already provided; program
expanded through “on call”
program to all magistrates’
courts weekdays 8am–8pm.
3 attorneys would be hired.
program in all
of other funds.
532 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
We investigated the CAFA reforms using a cross-case methodology,
research design based on intensive investigation and comparison of community
change efforts that all target a common objective. Professor Robert Yin suggests
that “the case study is the method of choice when the phenomenon under study is
not readily distinguishable from its context.”
We are interested in understanding
whether CAFA programs were implemented as planned (and, ultimately, if they
alter decision processes and outcomes), but differences in counties’ political
climates, defense program leadership, resources and challenges form the contexts
in which not only were plans hatched, but also the conditions within which they
were to be carried out. Hence we purposefully chose sites that differed across
these contextual features, in order to describe the impacts of context on
Our primary research questions are these: Did these five programs face the
challenges that Feeley predicted? How did these challenges vary across sites?
Most importantly, how if at all did program administrators address these
challenges, and with what implications for implementation of their CAFA
programs? Our methodological approach distinctly respects the differences in
adaptation across courthouses and also acknowledges the need to understand the
complexity, variability, and unpredictability of communities’ social problems and
resources, and the unavoidable fact that specific innovation models will be adapted
in different and sometimes unpredictable ways by practitioners in varying
This approach also focuses attention on comparisons of local
adaptations of policy ideals to practical constraints and opportunities.
We grounded our observations and conclusions on information gathered
through on-site observations over multiple visits to each site (approximately one
hundred days in total).
Visits typically included at least two authors, and
comprised formal and informal meetings involving policy and practice topics as
well as in-court observation. We also reviewed historical documents about the
indigent defense programs, notes from conversations and meetings among ILS
Kien S. Lee & David M. Chavis, Cross-Case Methodology: Bringing Rigour to Community
and Systems Change Research and Evaluation, 22 J. CMTY. & APPLIED SOC. PSYCHOL. 428 (2012);
ROBERT K. YIN, APPLICATIONS OF CASE STUDY RESEARCH (2d ed. 2003).
YIN, supra note 54, at 4.
Prudence Brown, Evaluating and Learning From Community Change Efforts, in VOICES
FROM THE FIELD III: LESSONS AND CHALLENGES FROM TWO DECADES OF COMMUNITY CHANGE
EFFORTS 95 (Anne C. Kubisch et al. eds., 2010); VOICES FROM THE FIELD II: REFLECTIONS ON
COMPREHENSIVE COMMUNITY CHANGE (Anne C. Kubisch et al. eds., 2002); YIN, supra note 54, at 4.
The project involves both the study of implementation of programs (as reported here) and
gathering of case-level data from time periods before, immediately after, and one year after the
CAFA programs were implemented, in order to test hypotheses about the effects of attorneys’
presence on interim and final case decisions and outcomes. Hence the research team spent significant
time during these visits in court observation and meetings with defense program staff and others
involved in the CAFA initiatives. We did not conduct formal (structured) interviews with these
individuals; we did engage in conversations that they initiated.
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 533
staff, notes from informal conversations with court staff and defenders that
unfolded while on site, tracking of media accounts related to the courts and
indigent defense, programs’ reports on caseloads and spending, and requests for
funding submitted to ILS.
We present our findings using Feeley’s framework outlined above, focusing
on the stages of policy reform and attending to the conditions that might support,
or compromise, reform efforts. We begin by distinguishing between the problem
definition and solution stages, which were initiated at the state level and were
adapted to local conditions, and then move to a description of the local policy
solutions and their implementation and routinization.
A. Defining the Problem and Initiating Solutions: The ILS CAFA Initiative
We observed above that in New York, ILS defined CAFA as an emergent
problem with the imprimatur of the state’s highest court. ILS also took the first
step in initiating a solution by inviting indigent defense programs to apply for
funding for new CAFA programs. However, ILS leadership adopted an
uncommon strategy for soliciting programmatic responses. The agency’s early
outreach to defense providers included email and in-person contact with defenders
across the state, through which all were asked about major challenges facing their
programs, and particularly in relation to providing CAFA. These communications
quickly revealed the diversity of issues faced around the state. Providers identified
acute staffing and resource shortages as the root cause of a range of systemic
deficiencies including the failure to provide vertical representation, attorneys’
inability to communicate with non-English-speaking clients, and inefficient use of
attorney time on administrative tasks.
Moreover, defenders felt many of those
issues were more pressing than their inability to provide CAFA.
The agency’s Request for Proposals encouraged applicants to adopt new and
innovative approaches tailored to local conditions “in the varied jurisdictions
across the state” including “city courts, as well as . . . town or village courts. . . .”
Recognizing that funding might not be sufficient to ensure comprehensive CAFA,
ILS permitted proposals that offered incremental changes.
Prior to the start date of the NIJ-funded research project (Jan. 1, 2015), the second author
and ILS colleagues interviewed indigent defense providers, and their notes on those interviews
became part of office archives and thence background material for this study. Data collection
protocols for the evaluation project were approved by the University’s Institutional Review Board.
N.Y. STATE OFFICE OF INDIGENT LEGAL SERVS., ‘THREE DEFICIENCIES’ (2012) (internal
agency memorandum analyzing provider responses regarding their programs’ top three challenges).
N.Y. STATE OFFICE OF INDIGENT LEGAL SERVS., supra note 47, at 4.
Id. (stating applicants “need not propose county-wide, all-courts solutions”).
534 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
encouraged to identify target courts based on “volume of arraignments or pretrial
detention of persons arraigned, geographic considerations, or amenability to
collaboration among the criminal justice entities involved in the proposal.”
Most proposals were drafted by local indigent defense programs’ offices, and
they varied much. Feeley, who warns against the imposition of cookie-cutter
solutions, would see this as a strength: “[I]f a single agency unilaterally
implements a new policy that has system-wide impact, then it is likely to be
greeted with resistance and adaptation.”
In opting for an open solicitation, ILS
anticipated more promising prospects of locally imagined initiatives.
We note that for statutory reasons, ILS’s opportunity to address CAFA
ultimately constrained practical plans. ILS funding comes from New York’s
Indigent Legal Services Fund, a special revenue fund restricted to disbursement for
specific purposes—in this case, indigent legal services.
As a result, ILS could
not entertain proposals that directed resources to other local criminal justice
entities, like judges and law enforcement, even if proposed programs had resource
implications for those agencies. This restriction had two implications for those
agencies’ interest in, and capacity for, participating in the new programs.
First, ILS’s enabling legislation limited the agency’s role to initiatives that
would “monitor, study, and make efforts to improve” public defense in New York
but did not create an agency that could provide services to indigent defendant
clients directly. As a consequence, almost all of ILS’s budget, except funds
needed to pay ILS staff, has historically been classified under “aid to localities”—
funding which can only be used to fund local governments, albeit at ILS
Second, ILS imposed a preclusion: grant funds were only available for
programs that provided for “the physical presence of counsel with the client in
In New York, as elsewhere, courts have experimented with arraignments
conducted by video links. ILS excluded such arrangements in the CAFA grant
solicitation, citing concerns about quality of representation, compromises to
confidentiality and quality of pre-arraignment attorney-client communication, and
the compromise of trustful attorney-client relationships.
Id. (further noting that “[n]o one specific basis is required nor do the bases noted here
constitute an exclusive list”).
FEELEY, supra note 8, at 124.
Cf. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It
is one of the happy incidents of the federal system that a single courageous state may, if its citizens
choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest
of the country.”).
N.Y. STATE FIN. LAW § 98-b.
N.Y. EXEC. LAW § 832 (1).
N.Y. STATE OFFICE OF INDIGENT LEGAL SERVS., supra note 47, at 3.
See Eric T. Bellone, Private Attorney-Client Communications and the Effect of
Videoconferencing in the Courtroom, 8 J. INT’L COM. L. & TECH. 24 (2013) (discussing lack of
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 535
B. Adapting the ILS Invitation to Local Needs: County Initiatives
Not surprisingly, given the broad parameters of the solicitation, counties’
proposals included many strategies. Mostly, they aligned with Feeley’s
recommendation of a problem-oriented approach to reform: one that focuses less
on the symbolic, ideological, or political reasons for the reform and more on the
practical needs of the practitioners who have to put it into action.
reforms, program administrators in the five counties defined their task less in
abstract terms regarding due process rights than in concrete problems to be
The problems included geography, infrastructure, and personnel. For
instance, Moose County covers over 1,500 square miles with more than 2,500
miles of mostly secondary roads and one of the lowest population densities in the
state. These facts posed formidable transportation challenges, since lawyers had to
attend arraignments at over 30 widely scattered town and village courts. Bleek
County, which a court clerk described as “a piece of spaghetti,”
stretches over 50
miles from north to south, much of that distance served only by two-lane roads.
Moose County’s administrator addressed the geography problem restricting CAFA
to felony arraignments, which are less frequent than misdemeanors,
County initiated its CAFA program only within the city limits of its county seat.
Infrastructure constrained plans in almost all counties. The practical problem
of where to keep arrestees prior to arraignment (when arraignments could not be
conducted immediately) bedeviled parts of all jurisdictions. Arrests that occurred
during regular courthouse hours could be arraigned right away, but many arrests
took place on weekends, after hours, or—in the cases of many magistrates’
courts—on days when the court was not open at all, requiring ad hoc arraignments.
Where county jails were the only place to hold arrestees, program planners faced a
Catch-22: law enforcement officers are not supposed to book defendants until they
are arraigned, so if arraignments cannot be conducted promptly after arrests (and if
they are delayed pending the arrival of a defense lawyer), police personnel and
resources are tied up in monitoring arrestees, often outside of sanctioned holding
Some counties had certified short-term holding facilities (usually in police
confidentiality in many video-conferencing systems used in client communication); see also Shari
Seidman Diamond et al., Efficiency and Cost: The Impact of Videoconferenced Hearings on Bail
Decisions, 100 J. CRIM. L. & CRIMINOLOGY 869 (2010).
FEELEY, supra note 8, at 132.
Conversation with Bleek County Assigned Counsel Administrator, in Bleek County, N.Y.
See 2011–2015 Dispositions of Adult Arrests, N.Y. STATE DIV. OF CRIMINAL JUSTICE
SERVS., http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/index.htm [https://perma.cc/N8P4-
C55B] (last visited Mar. 16, 2017) (36% of criminal court case dispositions outside New York City
were felonies; 64% were misdemeanors).
536 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
departments) but most did not. The lack of certified holding cells in courts in all
five counties obliged law enforcement to take suspects to arraignments after hours
when many judges and magistrates were hard to reach. Simply getting defendants
to courts for arraignments presented an array of challenges, and the logistics of
notifying a judge, estimating times for transports, and concerns about prosecutors’
participation strained the capacity for ensuring CAFA in all five counties.
These logistical challenges made timely arrival of defense lawyers seem less
daunting, but that problem also proved an enduring challenge. In Bleek County,
where an assigned counsel program provided representation, the program
administrator was candid about his reliance on “young and hungry” lawyers on the
panel to pick up the arraignment calendars, but he also acknowledged that early
plans to extend CAFA beyond daytime city court arraignments had stalled over the
problem of timely dispatch of attorneys to distant town courts.
defender in Lake County asked all attorneys to rotate weekend shifts covering
arraignments, while still allowing them the flexibility to trade shifts as needed. In
Moose County, where only felonies were guaranteed CAFA, the public defender’s
young staff accepted the odd hours and taxing travel times as part of the costs of
breaking into the business. But none of these program administrators took for
granted that the goodwill of their lawyers would last for long; all were mindful that
more stable plans for ensuring CAFA would be needed.
In Hudson and Polar Counties, program administrators used their funds to add
new lawyers to their staff. In Hudson, the chief public defender assigned newly
hired attorneys to off-hours arraignments, acknowledging that their patience for
these assignments might wear thin.
In Polar County, the administrator of an
already busy urban defender office used ILS grant funds to hire two additional on-
call staff attorneys to exclusively cover arraignments in all town and village courts,
starting with weekday business hours and then transitioning to 24/7 coverage
through additional ILS funding.
While all of these decisions represent
compromises to full implementation of CAFA, they also reflect realistic
assessments about the limits of resources and personnel.
In short, in designing programs, administrators in all five counties focused
less on the abstract or symbolic values of CAFA and more on the practical
challenges of ensuring representation. Not surprisingly this played out differently
across different contexts. Hence while ILS played a key role in advancing CAFA
onto the reform agenda, and also established the broad parameters around which
Conversation with Bleek County Assigned Counsel Administrator, supra note 70.
Conversations with a Lake County public defender, Lake County Public Defender’s Office,
in Lake County, N.Y. (2014, 2015).
Conversation with a Hudson County public defender, Hudson County Public Defender’s
Office, in Hudson County, N.Y. (2015).
Conversation with a Polar County public defender, in Polar County Public Defender’s
Office, in Polar County, N.Y. (2015).
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 537
programs might be designed, the agency left general strategies and details to local
administrators, and those administrators’ ingenuity and pragmatism in adapting to
local conditions may have been determinative in the successful implementation of
C. Implementation and Routinization of CAFA Programs
Feeley suggested that, once planned, reforms were in jeopardy if they were
linked to rigid protocols, were over-focused on prioritizing efficiency and cost
savings (which might discourage initiative and creativity and risk), and were
attempted in courts with high caseloads and overworked staff.
The five counties’
programs that we studied appeared to have escaped these risks, probably because
programs were designed to fit within the limits of the grant funds the counties
received, and they did not appear to directly compete with other initiatives that
were underway in these counties’ defense programs.
Feeley also suggested that new programs had better prospects if they were
adopted under conditions of agreement (within and across agencies) about the
significance of the targeted problem and the value of the reform plan: specifically,
when organizational leadership was established and respected, when resources
were adequate, when a system-wide culture of collaboration was in play, and when
the initiating organization had the capacity to acknowledge and accommodate
other actors’ needs. Perhaps most important, when the organization responsible
for implementing and routinizing the policy has sufficient political capital,
legitimacy, and resilience to withstand criticism and challenges, its reform idea has
a fighting chance.
We review here the five counties’ experiences with (1)
consensus on the salience of the problem of CAFA, (2) the adequacy of resources
that might backstop defenders’ plans for reform on CAFA (including plans for
extending programs beyond the initial plan), (3) the character of indigent defense
leadership and legitimacy within the broader courthouse and community culture,
and (4) relatedly, the public defense programs’ capacity to respond to challenges to
their CAFA programs, in the context of the broadly defined community
1. Consensus on the Value of CAFA Programs
Indigent defense providers mostly agreed that adoption of CAFA could
improve their work, though for different reasons. In all counties, defenders
believed that when attorneys were present at arraignment or first appearance,
justice was better served as more defendants were released on recognizance, were
granted reasonable bail, or were released under supervision. In most counties,
FEELEY, supra note 8, passim.
538 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
defenders averred that CAFA allowed for (1) more opportunity to put together
convincing bail arguments, (2) better odds of contacting, at an early point, family
members who could assist defendants, and (3) better chances of ensuring that
defendants who avoided pretrial detention might keep their jobs, stay with their
families, and be routed into diversion and treatment programs. These objectives
speak directly to the client-oriented concerns of defense lawyers. They saw CAFA
as a new opportunity to intervene on behalf of clients and obtain benefits that
perhaps had not existed previously. In Bleek and Moose Counties, two defenders
were quite direct in explaining another way their presence helped clients: they
could “get the client to shut up” and not utter incriminating statements in open
In most counties, program personnel noted practical advantages in early
attorney-client contact: CAFA attorneys could advise defendants to complete
indigent defense eligibility paperwork promptly and hence more quickly establish
a relationship with the attorney assigned to the case, and they could pass along
their notes and observations to that attorney as well. None of the programs
attempted to initiate vertical representation at CAFA, for practical and professional
but they recognized the value of having the CAFA lawyer’s notes on the
case as it was handed off. Although programs processed eligibility forms in
different ways, and typically judges took responsibility for asking defendants
whether they needed counsel and provided the applications for indigent defense,
lawyers believed that their opportunity to advise defendants on the importance of
this step resulted in higher rates of application and completion, and shorter periods
from application to assignment. In Bleek, Hudson, Lake and Polar Counties,
attorneys often had defendants complete eligibility forms at arraignment. In Bleek
County we observed attorneys in the courthouse hallway after arraignment,
carefully instruct defendants on the importance of completing the forms and
submitting them within 48 hours. A long term result may be earlier assignment,
which lawyers believed might reduce times to disposition.
Above and beyond these benefits, defenders in Moose and Polar Counties also
emphasized that CAFA created opportunities to conduct more proactive and
adversarial advocacy. For example, arguments for timely dismissals on the
grounds of faulty accusatory instruments might facilitate a disposition on the spot.
In Moose County, the chief public defender believed that law enforcement, facing
the new prospect of coordinating with defense counsel to convene at court in minor
cases, had begun to issue appearance tickets more frequently rather than take
Conversation with Moose County defense attorneys, in Moose County, N.Y. (2015).
For example, in Bleek County the administrator assigned cases to lawyers based on case
seriousness and difficulty, as well as attorney experience. The CAFA attorney might not have the
requisite credentials to handle the case all the way to completion.
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 539
suspects into custody.
In Bleek County, the program administrator and panel
attorneys were confident that CAFA obtained more adjournments in contemplation
of dismissal—a disposition that results in dismissal of charges and sealing of court
files, in most cases, unless the defendant is re-arrested within six to twelve
Defenders in all counties observed that with or without CAFA, most
judges were inclined to seek bail recommendations from prosecutors and
sometimes law enforcement, even if they had to do so over the phone. CAFA
mitigated the inequity inherent in such proceedings by ensuring that defense
counsel could counter those recommendations and develop a case for release or
2. Adequate Resources
Were the resources provided by ILS adequate for the CAFA programs in the
five sites? Or to put it another way, did applicants accurately judge the cost of
putting their programs in place? It appears that CAFA grants from ILS were
adequate for the programs designed. Defenders seldom expressed disappointment
in those funds, nor did they complain that their offices had underestimated the time
and effort needed to implement the CAFA plans. With the exception of Moose
County, where implementation plans were developed later than elsewhere, defense
programs fulfilled their initial commitments to provide CAFA within their original
timelines. In Hudson County, the chief defender observed that staff were spread
thin, but nonetheless managed the caseload efficiently enough that all defendants
brought into court “in handcuffs” were provided with CAFA, prior to any
eligibility screening, and office eligibility standards were significantly more
inclusive than those in many other counties.
With the smallest staff, the Moose
County Public Defender Office was the most vulnerable to short-term shortages,
and the chief defender told us that “there’s not enough of us, and not enough
These defenders acknowledged that although they were living up to their
commitments as funded by the grants, they would face greater challenges in
See MARY T. PHILLIPS, N.Y.C. CRIMINAL JUSTICE AGENCY, THE PAST, PRESENT, AND
POSSIBLE FUTURE OF DESK APPEARANCE TICKETS IN NEW YORK CITY (2014), http://www.pretrial.org/
[https://perma.cc/SP8V-6JDT] (discussing N.Y. CPL § 150.10).
See NASSAU COUNTY LEGAL AID SOC’Y, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL
INFORMATION SHEET (May 13, 2016), http://nassau18b.org/forms/adjournment_in_contemplation_of
_dismissal.pdf [https://perma.cc/S4XC-3GY8] (discussing N.Y. CPL § 170.55).
Conversation with a Hudson County public defender, in Hudson County Public Defender’s
Office, in Hudson County, N.Y. (2015).
Conversation with a Moose County public defender, Moose County Public Defender’s
Office, in Moose County, N.Y. (Aug. 2015).
540 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
expanding CAFA to all arraignments. Particularly in rural Bleek and Moose
Counties, defenders discovered that their providing CAFA in, respectively, city
court only and felony arraignments only, were manageable, but the prospective
costs of expanding those programs loomed large. Facing increasingly clear
expectations from state officials that CAFA might eventually be expected in all
administrators became mindful of data that would inform the costs and
resources attached to county-wide programs. For example, officials in Bleek
County observed that few lawyers lived or worked in the remote sections of the
county, which would make CAFA impractical for night-time and weekend
arraignments regardless of reimbursement options. In Moose County, the small
staff could be stretched across a vast and rugged county to cover felony
arraignments, but the number of misdemeanor arrests is approximately twice that
of felony arrests; tripling the number of arraignments would divert significant time
toward arraignments, and away from other responsibilities.
In short, “resources” means more than funding, particularly in counties where
the logistical challenges of delivering services would require more than marginal
increases in existing activities and effort. In fact, some of the most valuable
resources were precisely those that ILS grant money could not buy: the willingness
and capacity of other criminal justice agencies to coordinate in providing CAFA.
Those resources include information sharing, cooperation in notification and
scheduling arrestee transport, and flexibility in timing. The CAFA grant program
provided funds to be spent in defender programs, but no parallel resources were
available to law enforcement, jails, city and magistrate courts, and district
attorneys. Hence, the resource challenges that emerged in most counties revolved
around capacity to leverage these agencies’ participation in the absence of
incentives. Overcoming these challenges depended on the defense programs’
leadership and legitimacy with criminal justice agents, courthouses and county
governments, and program leaders’ resilience and responsiveness in countering
skepticism, resistance and threats to program continuity.
3. Leadership and Legitimacy with Criminal Justice Communities
Pushing through a change in process requires energy and commitment. It also
requires cooperation from practitioners in other agencies whose work would be
affected by the new program. We observed diverse administrative styles and
See N.Y. STATE UNIFIED COURT SYSTEM, REPORT OF THE ADVISORY COMMITTEE ON
CRIMINAL LAW AND PROCEDURE TO THE CHIEF ADMINISTRATIVE JUDGE OF THE COURTS OF THE STATE
OF NEW YORK 2–5 (2016), http://www.nycourts.gov/ip/judiciaryslegislative/pdfs/2016-CriminalLaw
&Procedure-ADV-Report.pdf [https://perma.cc/B758-C9TU] (reporting support for legislation to
create centralized arraignments).
In a ratio fairly typical of New York’s rural counties, in 2015 Moose County had
approximately 500 felony arrests and over 1,000 misdemeanor arrests disposed in court. See 2011–
2015 Dispositions of Adult Arrests, supra note 71.
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 541
office cultures, which existed in the varying contexts of communities and cultures.
Defenders’ long-term organizational relationships with law enforcement,
prosecutors, courts, and county governments appear to have influenced those
actors’ receptivity to CAFA.
The chief public defender of Hudson County has been with the office since
the 1980s and has been chief for over five years. Office staff includes other
lawyers with long tenure. The chief is a progressive manager as well as an
advocate for the office and its clients. He is an active member of a local council of
criminal justice agencies whose collaboration and endorsement he secured in
developing the grant proposal; he maintains detailed records of case flow and
outcomes; and he works in close consultation with the county’s information
technology chief. He is one of three public defenders in our sample who makes
extensive use of a case management system for recording case notes and tracking
case patterns. He has also taken the initiative in seeking outside funding to
improve jail conditions, and has instituted a risk assessment system for making bail
recommendations at arraignment. He is realistic about the limits of CAFA’s
promise—he opined that at present, in his county, a prosecutor’s bail
recommendation will almost always be accepted by a judge—yet his county was
one of the first offices to implement its CAFA initiative. A fellow county
administrator summed up their opinion of the chief defender as “such a visionary
. . . [who] is also very persistent and patient.”
In this county, according to the public defender, most judges agreed that
CAFA is important, particularly for incarcerated defendants. As was the case in
many counties, the sticking point for implementing CAFA was the practical
problem of getting arrestees, judges, and attorneys in one place, particularly
outside of regular court hours. The public defender had initially lobbied for a
program that would centralize arraignments in “hub courts”—several courts
located strategically that would hear all arraignments from surrounding towns and
villages. He reasoned that this would allow law enforcement to establish regular
procedures for transporting arrestees between the county jail and these courts. But
he expressed willingness to compromise when it became clear that judges
preferred to retain their authority over their local courts, and the county jail was
too crowded to accept more responsibility. Among the five counties, Hudson
appears to have integrated CAFA most seamlessly into its day-to-day operations.
But the chief defender was also frank about the process that brought key actors on
board, “because it was the least common denominator option.”
Like the Hudson chief defender, Bleek County’s Assigned Counsel
Administrator is a long-time county employee who took over managing the
program more than two decades ago. At that time, he inherited no more than “a
Conversation with Hudson County administrator, in Hudson County, N.Y. (June 2015).
Conversation with a Hudson County chief public defender, Hudson County Public
Defender’s Office, in Hudson County, N.Y. (Apr. 2014).
542 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
shoebox full of papers” and has since developed a detailed record-keeping system
that appears to be widely admired by the lawyers who work for the panel.
Bleek County administrator is not an attorney, but he prioritizes the
professionalism and reputation of his panel: he stratifies the panel by expertise and
abilities (saving the most challenging cases for the most experienced lawyers), and
he removes from the panel lawyers whose work falls short of expectations. His
open-door policy ensures that his lawyers stop by often to see him and catch up on
courthouse gossip; he organizes CLE classes; and he visits all the courts in the
county throughout the year to observe proceedings. His involvement in county
politics, charitable organizations, the local community college, and the
magistrates’ and county bar associations have allowed him to build both political
capital and personal regard. The authors discovered quickly that it was nearly
impossible to accompany the administrator to lunch without pausing to be greeted
by business owners, county officials, and neighbors. At an early planning meeting
about CAFA, this administrator secured the crucial endorsement of a key city court
judge, lending additional legitimacy to his proposal to ILS.
Polar County’s chief public defender moved to the public defender office after
establishing a reputation in private civil and criminal practice. After several years
as a public defender, he was appointed to administer the office by the county
legislature, an appointment that has been renewed multiple times by members of
both parties. This would seem to affirm his reputation, both locally and statewide,
as an effective administrator who is also a well-liked boss and a professional
He was characterized by an administrator in a nearby county as “the
lawyer I’d want to have if I found myself in trouble.”
A lawyer in the same
county characterized his leadership style (and office culture) as “system guys,”
oriented toward advocating for client rights in opposition to an unbalanced legal
This office was also an early adopter of CAFA, and the chief defender
believes that his was one of the first counties to be able to provide CAFA in all
arraignments in all courts.
Lake County’s chief defender advanced to that administrative role not long
after the public defender office was created and, like colleagues in Hudson and
Polar, had initiated a CAFA program before the ILS grant opportunity arose.
Conversation with Bleek County Assigned Counsel Administrator, in Bleek County, N.Y.
The Polar County office occupies a large floor in an aging downtown office building. As is
typical of such spaces, the offices and cubicles are tightly spaced and often shared, and file cabinets
line the hallways. As is atypical, however, every office is individually decorated with personal
mementos, political posters, and strings of holiday lights. The chief public defender has also
organized a regional association of defenders that meets regularly to discuss upcoming legislation,
relevant court decisions, and best practices.
Conversation with program administrator (Mar. 2016).
Conversation with a defense attorney on the Assigned Counsel Panel, in Bleek County,
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 543
Despite a relatively brief tenure, the chief has established a strong reputation
among colleagues as an innovator, and has successfully advocated for best
practices for the office (such as caseload limits) and for innovations in the local
courts (including participation in specialty courts). Like the Polar County public
defender, the Lake County chief defender has built a state-wide reputation as a
respected professional, and participates at that level in policy and practice
Establishing CAFA in Lake county required winning over the magistrates and
city court judges, but a common challenge, winning over the sheriff responsible for
transporting arrestees, was serendipitously already in play. In Lake, the sheriff had
already organized consolidated weekend arraignments in conjunction with a city
judge, which simplified the public defender’s task to place counsel into the
process. The chief public defender described the sheriff as “common sense”—
willing to make accommodations to advance the CAFA program because they also
advanced his agenda of managing jail and transit costs.
This may be, in part, the
result of the chief defender’s strategic presentation of the program as not only an
investment in due process, but also an opportunity to reduce county jail costs by
diverting deserving defendants, at arraignment, from pretrial detention.
Lastly, the Moose County public defender, an able administrator in a small
office, nonetheless seems to enjoy his reputation of an adversarial advocate and
agitator at least as much as he is appreciated for his management skills. He
candidly volunteered, in a conversation about the district attorney that he “just
couldn’t turn down a good fight.”
During site visits, this chief defender was far
more likely to initiate a conversation about a specific case, judge, or court than
about a budget or staffing challenge, and he described with satisfaction his
successful attempt to unionize his office staff. The youthful lawyers in the office
appear to follow his example. Their banter often involves celebrating a
disappointment suffered by the district attorney, and a chalkboard on the wall
identifies each lawyer as an actor in action and adventure movies. The combative
culture in this office plays out against a history of animosity between the district
attorney and the public defender; the former, facing multiple challenges to the
office’s legitimacy and integrity, has over the past three years adopted
controversial strategies and issued public pronouncements that overtly criticize not
only the public defender but the CAFA project specifically.
4. Political Capital and Resilience to Challenges
To summarize, in Hudson, Lake, and Polar Counties, a confluence of
circumstances allowed for relatively collaborative implementation of CAFA
Conversation with chief public defender, Lake County Public Defender’s Office, in Lake
County, N.Y. (2013).
Conversation with Moose County Chief public defender, in Moose County (Aug. 2015).
544 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
programs. Program administrators faced initial skepticism, but key actors in the
criminal justice environment were cooperative at best, and disengaged at worst.
Successful implementation hinged more on indigent defense programs’ capacity to
accurately gauge their resource needs, mobilize and motivate their staff, and
faithfully adhere to their programs’ plans and objectives. That is not to say that
these projects were easy to put (and keep) into place; rather, competent and
attentive administrators with sufficient resources managed to respond to questions,
doubts, and challenges as they built their CAFA programs.
However, all programs faced five potential critical logistical and political
quandaries that CAFA grant funds could not directly address, and where these
problems loomed largest, programs faced the biggest implementation challenges.
The first challenge was judges’ reluctance to engage in the program lest they
commit to more time-consuming proceedings than they thought necessary when
they were called to arraign arrestees outside normal court hours. Many arrests
occurred outside scheduled court sessions, and as we noted previously, in
magistrates’ courts, those sessions can be as seldom as bi-monthly. Hence
arraignments might be held, in an ad hoc fashion, immediately after arrest, and
wherever was convenient, and getting a defense lawyer to these events presented
practical challenges. Judges repeatedly expressed concerns about long waits
between the arrival of the arresting officer and his or her arrestee, and the defense
The public defenders who successfully deflected this concern were those
who minimized judges’ responsibility for off-hours arraignments, as was the case
in Lake County, or who arranged to have counsel show up quickly in all
jurisdictions, as was the case in Polar County. In that county, the chief defender
enlisted the support of the county’s supervising judge to invoke the Judicial
Conduct Committee’s power to sanction magistrates who did not contact lawyers
And in Moose County, where driving distances and waiting
times were always long, the defender proactively began tracking the average of
fifty minutes that it took for lawyers to reach court in an attempt to dispel stories of
indefinite wait times and inconvenience to judges.
The second challenge was judges’ skepticism about the need for, and value of,
CAFA. While few argued against its constitutional status, many nonetheless
maintained that arraignment was a formality, that a lawyer’s presence would not
change decisions on pretrial release, bail, and disposition, and that the costs would
In most counties the district attorney did not provide for staff to be present at these off-
hours arraignments, but commonly magistrates or clerks phoned the district attorney for a bail
recommendation, a practice we heard described often, and witnessed multiple times.
Conversation with the chief public defender, Polar County Chief Public Defender’s Office,
in Polar County, N.Y. (May 2015).
Conversation with the chief public defender, Moose County Public Defender’s Office, in
Moose County, N.Y. (Aug. 2015).
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 545
outweigh the theoretical benefits.
On this point, there was frank disagreement in
all counties between at least some judges (particularly magistrates) and defense
lawyers, and the latter’s frustration was evident in the Polar County’s chief
defender’s assessment: “Sometimes I feel like they forget about the
The third challenge was judges’ concerns about maintaining autonomy in
arraignments in their jurisdictions. While New York permits arraignments in city
or magistrate courts adjacent to those in which offenses allegedly occurred, and
also permits city court judges, under some conditions, to arraign arrestees from
anywhere in their counties, many magistrates felt that delegating their authority
would be irresponsible, arguing that they were best suited to make judgements
about local residents. Hence proposals that would remove that authority were not
well received even if they promised efficiency.
The fourth challenge, therefore, was getting arrestees to courts, a problem for
law enforcement as well as for judges. In Bleek County, on some nights only one
sheriff’s car was on road patrol, so diverting it for any period of time to oversee
transport raised public safety concerns.
Particularly where no local holding cells
were available other than the county jail, off-hours arrests taxed law enforcement
The fifth potential challenge was resistance from the district attorney’s office,
a challenge more political than pragmatic. In Bleek County, the district attorney
was running for re-election during the project’s term, and was vocal in local news,
county budget meetings, and hallway conversations regarding his disdain for the
CAFA program. His primary complaint was that the program was not matched by
a parallel funding opportunity for his office.
In Moose County, the district
attorney likewise criticized the CAFA program, maintaining that the grant
permitting defenders to appear at arraignments was not matched by any grant
permitting prosecutors to appear alongside them.
The Lake County district
We observed this sentiment most clearly at a meeting of the Magistrates’ Association in
Bleek County, in 2015, when the question and answer session provided opportunities for attendees to
pose questions about the CAFA program. A dominant theme in these questions was the questionable
need for CAFA, as weighed against the perceived costs to magistrates (and law enforcement) in
expeditious processing of arraignments.
Conversation with the chief public defender, Polar County Public Defender’s Office, in
Polar County, N.Y. (May 2015).
Conversation with a Bleek County magistrate, in Bleek County, N.Y. (2015).
This district attorney’s views were documented in the city newspaper, press releases, and
election campaign materials throughout 2014 and 2015 (documented in authors’ field notes and
This district attorney further implied in local media reports that the inequities in staffing
and resources between that office and the public defender forced a reduction in prosecutorial
appearances across local courts (documented in local media coverage, 2014 and 2015, and recorded
in authors’ field notes).
546 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
attorney complained that with the new staffing provided by ILS grant money, the
parity of attorney staffing with the public defender’s office would be too close to
VI. DISCUSSION AND CONCLUSIONS
This article describes the activities and the challenges that indigent defense
program staff experienced as they attempted to implement CAFA programs in five
upstate New York counties. All of these programs are works in progress.
Nevertheless, we can draw some conclusions about the conditions that made these
reforms—some of them quite radical changes to existing local practices—viable, at
least in the short periods of time that we have had to observe their implementation.
When the National Institute of Justice awarded funding to study these CAFA
reforms, the primary objective was to evaluate CAFA’s effects on case outcomes
and the widely held (but seldom tested) arguments that CAFA would result in
better pretrial decision making, quicker dispositions, and more effective
But we were mindful of the well-known cautions in evaluation
research literature, and of Malcolm Feeley’s assessments of the particular risks in
attempting to reform criminal courts: if new initiatives are not adopted, and
adapted, in practical terms—if implementation of good ideas fails—then there is
no reason to expect to find that the program produced the desired results. Hence,
we took advantage of the rare opportunity to investigate real-time implementation
in these diverse counties even as we undertook systematic outcome evaluations.
Here we address the limitations of the study, summarize the findings, and address
the contributions of this study, and of this type of research, to practitioners, policy
makers, and court researchers.
A. Limitations of the Study
There is an inherent tension between methodologies for understanding social
and organizational behavior.
Standardized analysis of systematically sampled,
Conversation with a Lake County public defender, Lake County Public Defender’s Office,
in Lake County, N.Y. (July 2013).
See Douglas L. Colbert et al., Do Attorneys Really Matter? The Empirical and Legal Case
for the Right of Counsel at Bail, 23 CARDOZO L. REV. 1719 (2002). Social science research would
seek a quantified estimate of the average or aggregated differences in outcomes associated with, and
without CAFA, and draw policy conclusions at least in part from those results. Under this
methodology, if it “works,” it is a worthy policy. We allow for a more nuanced perspective: that as a
Constitutional right, CAFA should be provided regardless of empirical evidence, and that it, on
average, improves the administration of justice in measurable ways.
See GARY GOERTZ & JAMES MAHONEY, A TALE OF TWO CULTURES: QUALITATIVE AND
QUANTITATIVE RESEARCH IN THE SOCIAL SCIENCES (2012) (describing tension between these
epistemologies and research methodologies in the social sciences as so pervasive and profound as to
constitute a difference in cultures and paradigms).
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 547
quantified data are reassuring to social scientists trained in statistical analysis. The
rigor offered by such methods can sometimes be had, however, only with the
sacrifice of careful inquiry into the complexity of personal and organizational
relationships, sequencing of events, and understanding of social and political
contexts. While we learned a great deal about the dynamics of reform in five
counties, this study of implementation cannot be generalized to all reform efforts,
or even to all upstate New York CAFA reform efforts. Further, even though our
observations and conclusions are based on extensive time on-site, and on ample
observation and access to relevant information and documentation, we allow that
with more information we might have drawn somewhat different conclusions. We
have incorporated the insights of many defense lawyers and administrators, a
number of judges and magistrates, and those of law enforcement as often as
possible, but we have included the perspectives of prosecutors only through their
public pronouncements and media interviews, not through direct conversation.
And of course, the conditions we observed and monitored over two years might
change in the near future.
B. Reprising Feeley: Fragmentation, Adversariness, and the Fallacy of Formalism
The findings from this study offer some insights into an important question: if
many reform attempts fail to launch, why did these five counties seemingly
succeed? Feeley’s theory gave us little reason to expect any success, yet we
observed five instances of faithful adherence to plans. We suggest that it was not
because these programs faced no challenges but rather, because the process
unfolded at the state, and then local, levels in a way that permitted them to bypass
or overcome the roadblocks that Feeley described.
Feeley’s cautions, in the main, are well founded. He described courts as
fragmented and adversarial. He further described many attempted court reforms as
fallacious, insofar as they were built on unrealistically formal notions of how court
actors do their work. He concludes that, as a result, the politicians and high-level
administrators who identify problems and advocate for solutions are often out of
touch with people who must implement them. Furthermore, local administrators
are frustrated by lack of consensus on the problem and doubts about the solution,
as well as by the frequent unwelcome discovery that available resources fall short
of actual needs.
Because few reforms can be implemented solely within a single
organization, leadership may also lack legitimacy in courthouses and communities
to sell key actors and organizations on the new program; indeed, some of those
parties may actively oppose or even undermine the reform.
Did the CAFA reforms in upstate New York match this unpromising
scenario? The answers are incomplete, but offer room for some optimism about
court reform. First, having achieved a critical mass of state-level support for
FEELEY, supra note 8, passim.
548 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
CAFA, ILS adopted a strategy for promoting reform that avoided the fallacy of
formalism. The call for CAFA proposals explicitly acknowledged the
heterogeneity of local conditions and challenges, the need to suit programs to
existing practices, and the potential value of diverse models. Moreover,
undertaking a CAFA program with ILS funding was optional, and very few
constraints were placed on program plans. In essence, ILS invited program
administrators to experiment.
And experiment they did. The open-ended model enabled administrators to
tailor programs to the specific problems and opportunities in their jurisdictions—
what Feeley calls a problem-solving perspective. As a result, in most counties we
studied there was consultation, both inside and outside the defender offices, about
what was and was not possible. Most programs centered on manageable changes,
taking into account geographic, infrastructural, and personnel limitations.
Administrators were candid about the need to consider their attorneys’ incentives
and constraints, and to distribute both the rewards and burdens of CAFA programs
equitably; perhaps as a result, none reported that staff members resisted the new
programs. Most counties’ plans also were incremental, recognizing the virtues of a
gradual process of change. Indeed, the first county to achieve CAFA in all courts,
on all days, and at all hours, was Polar County, where the indigent defense
program had initiated CAFA in its largest court well before the ILS program
Second, it is true that the criminal courts in upstate New York are
the organizations and officials who work within them have
independent and sometimes conflicting professional values, responsibilities,
objectives, and lines of accountability. Because most CAFA programs relied on
the collaboration of other criminal justice actors, and because no new resources
were available to those actors, administrators relied on their leadership skills as
well as their legitimacy and standing in their communities to get their programs off
the ground. In Bleek, Polar, Lake and Hudson Counties in particular, defense
program administrators already had institutionalized relationships with judges, law
enforcement, and county officials, and they capitalized on this to get CAFA out of
the gate. In counties where magistrates presided over many arraignments, they did
not hide their loyalty to their own towns and villages and their skepticism about
reforms. But two years after program adoption, administrators reported fewer
This announcement was made at a regional meeting of indigent defense providers in
See SPECIAL COMM’N ON THE FUTURE OF N.Y. STATE COURTS, A COURT SYSTEM FOR THE
FUTURE: THE PROMISE OF COURT RESTRUCTURING IN NEW YORK STATE 7 (2007), http://nycourts.gov/
reports/courtsys-4future_2007.pdf [https://perma.cc/6CQK-AWGT] (“New York State has the most
archaic and bizarrely convoluted court structure in the country. Antiquated provisions in our state
Constitution create a confusing amalgam of trial courts: an inefficient and wasteful system that
causes harm and heartache to all manner of litigants, and costs businesses, municipalities and
taxpayers in excess of half a billion dollars per year.”).
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 549
hold-outs and even some advocacy from magistrates for universal CAFA in their
Third, adversarial adjudication systems are premised on conflict, formally
expressed and practiced at the case level. We found evidence in all sites that some
defense lawyers indeed defined their role in these terms. In Moose and Polar
Counties, in particular, lawyers took some pride in leveraging opportunities
presented by defective accusatory instruments, the discovery of arcane but useful
precedents, and lapses of prosecutorial attentiveness. This working style played
out at the level of individual case decisions, but also reflected an office culture that
supported an aggressive style of lawyering. But at the policy level, the more
relevant adversarialism was at the organizational and leadership levels and often
appeared to have roots not in professional identities but rather in politics. Hence in
Bleek and Moose Counties, the district attorneys’ open challenges to the CAFA
programs were seen by defenders as just another in a long series of public
criticisms and complaints. In most counties, and especially in Bleek County, this
sort of resistance from the prosecutors’ offices was mitigated by the mutually
supportive relationships that leadership had developed with other actors in county
and local government. In Moose County, the public defender, who had the key
support of his predecessor (a vocal advocate for CAFA at the state level), remained
unperturbed by the district attorney’s resistance.
C. Implications for Research, Practice and Policy
Much social scientific research on criminal court reforms focuses on finding
correlations between court characteristics (such as caseloads and political
environment) and outcomes such as case processing delays and average sentences,
drawing inferences about how the former affect the latter. This study offered an
opportunity to document, in real time, the implementation of a reform. By
comparing sites that accepted invitations to create local interpretations of CAFA
programs, we uncovered features of court environments that are sometimes
overlooked by researchers, but that merit closer scrutiny in future scholarship.
First, we observed that rural and suburban magistrates’ courts play an
outsized role in reform implementation—yet these small local courts are seldom
included in studies. Second, we recognized the importance of political
relationships between public defenders and district attorneys. In our study we saw
hints of successful political strategies by defenders, and also of collegial and
respectful relations among court professionals seeking to implement reform, while
maintaining their courtroom identities as adversaries. Third, particularly in Bleek
and Moose Counties, we had the opportunity to observe the distinctive cultures of
indigent defense programs.
We suspect that the office culture—the degree of
See LISA J. MCINTYRE, THE PUBLIC DEFENDER: THE PRACTICE OF LAW IN THE SHADOWS OF
REPUTE (1987); JAMES EISENSTEIN & HERBERT JACOB, FELONY JUSTICE: AN ORGANIZATIONAL
550 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:521
social solidarity and support, consensus on values, and dominant work ethic—
shapes the potential for initiating reforms, and the chances for their successful
implementation. In short, this research highlighted characteristics of courts and the
professionals who work within them that are difficult to quantify, but important to
The findings presented here are not conclusive, but they may have
implications for practice and policy, particularly for court professionals who are
contemplating or embarking upon similar reform efforts. It is worth noting that the
sites we studied were not obliged to participate in the NIJ evaluation as a condition
for receiving the ILS CAFA grant money, yet all have proven to be enthusiastic
participants; throughout the process they have been accessible and generous with
their time, knowledge and resources. We speculate that they are exemplars: offices
that are particularly open to innovation, willing to experiment, and resilient to the
sorts of challenges that Feeley described.
One might learn from their
experiences not only about pitfalls, but also about problem-solving strategies. The
ILS grant program expressly solicited plans that might serve as models for other
counties, and perhaps ILS attracted those kinds of applicants: indigent defense
programs whose leadership and experience promised enough traction to design and
implement programs that might work.
In terms of policy, we observe that CAFA advanced from being a low-
visibility concern in criminal proceedings to a centerpiece of reform advocacy in a
relatively short time. Even more quickly, in New York, it progressed from an ILS
agency priority to a statewide experiment and, during the writing of this article,
was established as a key part a successful legislative proposal to reform upstate
As we noted previously, there is scant information on how
often CAFA is provided, but what exists suggests that it is not a regular protocol in
ANALYSIS OF CRIMINAL COURTS (1977); Johnathan A. Rapping, Directing the Winds of Change:
Using Organizational Culture to Reform Indigent Defense, 9 LOYOLA J. PUB. INT. L. 177 (2008).
The study of exemplars—organizations that are successful in providing good products or
services, or that consistently overcome challenges that are common in their fields—requires attention
to organizational history, culture, and leadership. To our knowledge, this methodology has seldom
been applied to criminal justice organizations, but has been used by evaluators in other service
provision settings. See, e.g., Karen Somerville, Strategies to Improve Client Service: Exemplars in
the Canadian Federal Government, 16 INNOVATION J.: PUB. SECTOR INNOVATION J. 1 (2011); Greta
Tubbesing & Frederick M. Chen, Insights from Exemplar Practices on Achieving Organizational
Structures in Primary Care, 28 J. AM. BOARD FAM. MED. 190 (2015); Karen M. Emmons,
Kasisomayajula Viswanath & Graham A. Colditz, The Role of Transdisciplinary Collaboration in
Translating and Disseminating Health Research: Lesson Learned and Exemplars of Success, 35 AM.
J. PREVENTIVE MED. S204 (2008).
See An Act to Amend the County Law, the Executive Law and the State Finance Law, in
Relation to Indigent Defense Services, N.Y. Assembly Bill A06202C (June 2016), http://assembly.
9U8K] (requiring provision of counsel at all criminal arraignments).
2017] COURT REFORM: WHY SIMPLE SOLUTIONS MIGHT NOT FAIL? 551
many or most courts. But as it emerges as a national issue, states will need models
for exporting this right, in useable form, out of the statehouse and into local