Padilla and beyond: the future of the defense function: Cardozo Law School - June 21, 2011.

• Author: Lippman, Jonathan
• Position: Padilla and the Future of the Defense Function

Introduction I. Impact of Padilla II. Caseload Caps III. Indigent Legal Defense Office IV. Wrongful Convictions Conclusion INTRODUCTION

Good morning. I am honored to have the opportunity to address this conference of distinguished criminal defense leaders and to share some thoughts with you on the future of the criminal justice system and the criminal defense role in the wake of the Supreme Court decision in Padilla v. Kentucky. (1) I particularly want to thank Norman Reimer for this invitation, and for facilitating my participation.

I come to speak to you today from my own perspective as the Chief Judge of one of the largest and busiest judicial systems in the country. As we consider the fundamental challenges facing the American justice system today, it is important to remember that ninety-seven percent of the nation's judicial business is conducted in the state courts. More cases are heard in our nation's state courts in a single day than are heard in an entire year by the federal judiciary. I say this not to diminish the work of the federal courts in any way--because their caseloads are immensely challenging, complex, and important--but rather to emphasize that it is in the state courts that the average American interacts with the justice system. It is in the state courts, more so than anywhere else, where the twenty-first century issues affecting the daily lives of our citizens and the quality of life in our communities are being confronted head-on by judges working in the trenches to resolve the most intractable human problems of our time: domestic violence, drug-related crime, and recidivism in our criminal courts; family breakdown, child abuse and neglect in our family courts; and home foreclosures, evictions, and consumer debt defaults in our civil courts, especially during these difficult economic times. Our state courts are the emergency room for society's worst ailments, particularly as reflected in our criminal dockets.

Out of sheer necessity, state court systems have become laboratories for reform and innovation, contributing to--and sometimes even driving--important policy changes in criminal justice and so many other areas. What better example than the drug-treatment, domestic violence, mental health, and other specialized courts that have sprung up in the last two decades and which directly tackle the underlying problems, such as addiction, that fuel so much criminal activity? The goal is to reduce recidivism and incarceration, which is critical during these difficult fiscal times, when states around the country, including New York, are desperately seeking ways to reduce corrections spending, which is growing at a faster rate nationally than every other state expenditure except Medicaid.

The role of the judiciary, and of judges and lawyers, among the most tradition-bound of all professions, is evolving in response to the rapidly changing needs and expectations of our society. As changes in our nation's immigration laws and enforcement practices have dramatically raised the stakes of a noncitizen's criminal conviction, the Supreme Court has rightly responded by elevating our respective responsibilities and the overall standard by which we carry out and measure effective legal representation. In this process of change and evolution, state court systems are taking an increasingly active role on issues affecting the equitable and efficient administration of justice, such as indigent criminal defense and civil legal services, because these are integral to the ability of judges to do their jobs. We tackle these problems not gratuitously or because we have an agenda of one kind or another, but because our very reason for being is to pursue justice for all in each and every courtroom and courthouse.

1. IMPACT OF PADILLA

   It is through this prism of the growing leadership role of the state courts that I share my own thoughts on Padilla and what it means for the future of the criminal defense bar, the courts, and the entire criminal justice system. The immediate import of Padilla is clear from the very large number of cases involving noncitizen defendants, but the longer-term systemic impact of the decision for defendants, lawyers and judges, as well as for the judiciary as an institution, is far more profound given the broad range of serious consequences that can arise from a criminal conviction, including bars to housing, employment, voting, student loans, and other public benefits; sex offender registration; civil commitment and forfeiture; and the loss of professional licenses.

   Despite fiscal limitations and structural obstacles, the criminal defense bar in New York long ago anticipated the...