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It's good news that an increase in the 18b hourly rate is under consideration. An increase is long overdue. But another aspect of the rate structure also requires attention. Under present law, presumptively, lawyers may be paid no more than $4,400 per case—that equates to 59 hours of work. The case caps make unjust convictions even more unjust by deterring lawyers from spending the time needed to investigate and prepare and thus represent their clients competently in plea negotiations and at trial.

For this reason, several states have held case caps unconstitutional. In fact, New York did too, in 2003. But that ruling, although never vacated, appears to have been abrogated by the subsequent stipulation that increased the rates but left the caps intact.

The caps also prevent unjust convictions from being overturned. Though defendants have no right to counsel post-conviction, Indigent Legal Services standards mandate that, in all cases in which a post-conviction motion is warranted, appellate counsel ask to be assigned for purposes of bringing the motion. And case law compels courts to grant assignment when a post-conviction claim has possible merit.

But bringing a post-conviction motion entails painstaking efforts, often requiring obtaining and examining a client's old records, finding and speaking with witnesses, and consulting with experts. Given the caps, therefore, taking on a post-conviction case under 18b often means working for less than minimum wage. Thus, notwithstanding the ILS standards' mandate, 18b appellate counsel cannot afford to ask to be assigned. Nor can other lawyers. As a result, prisoners with significant claims write endless letters, futilely seeking representation.

New York has one of the highest rates of wrongful convictions in the country.* If we are seriously to address this problem, we must recognize the role that the 18b rate structure—rates and caps—plays in bringing about unjust convictions and in preventing them from being undone.

* See “New York Leads Most States in Number of Wrongful Convictions, Must Enact Reforms to Prevent Them, Innocence Project Report Finds,” 6/8/09, https://www. innocenceproject.org/new-york-leads-most-states-in-number-of-wrongful-convictions-must-enact-reforms-to-prevent-them-innocence-project-report-finds/; The National Registry of Exonerations, Exonerations by State, updated as of 3/22/19, https://www. law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx.

Andrea Hirsch is a criminal appeals and post-conviction lawyer.

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