Poloncarz’s $40 Million Lie: The Numbers He Never Corrected

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Erie County Executive Mark Poloncarz wants to replace the Assigned Counsel Program — a 60-year-old system that meets the state-mandated obligation to provide lawyers to people who cannot afford one, those charged with crimes, and indigent parents in Family Court proceedings.

He says taxpayers will save money.

At his April 2024 State of the County address, Poloncarz told Erie County residents: “Due to new state mandates, Erie County will spend nearly $40 million on indigent defense this year.”

He pointed to Monroe County’s public defender’s office as the solution, citing its $9 million cost.

The new state mandate he was referring to was an increase in the hourly rate paid to ACP attorneys, from $60 to $75 per hour depending on case type, to a uniform $158 per hour for all cases. It was the first rate increase in 20 years.

Poloncarz said that the increase would cost Erie County $40 million a year.

Poloncarz proposed either creating a new public defender’s office or expanding Legal Aid of Buffalo and saving millions in the process.

Before accepting his argument, it would be wise to look at the actual numbers.

Here Are the Actual Numbers

Erie County funds two indigent defense providers — the Assigned Counsel Program, which handles most of the caseload, and the Legal Aid Bureau of Buffalo, which handles primarily misdemeanors in Buffalo City Court and recently some felonies.

Together, their 2024 cost was $25.8 million — $20.3 million for the ACP and $5.5 million for Legal Aid.

Not the $40 million Poloncarz claimed.

Poloncarz’s $9 million figure was not an outright lie but rather a truth so incomplete it deceives.

Monroe’s public defender’s office costs $9 million, true. But Poloncarz did not mention that Monroe County also funds a Conflict Defender’s office, plus its own Assigned Counsel Program. Monroe’s total indigent defense cost: $20.7 million. When you factor in that Monroe County is 27 percent smaller than Erie County, Monroe actually costs slightly more per capita.

His Plan

He started with wildly inaccurate numbers to introduce his cost-savings plan of switching from a pay-as-you-go independent contractor system to a state-regulated, unionized system.

Under the ACP, taxpayer costs rise when caseloads rise and fall when they fall. ACP lawyers are independent contractors who bill only for hours worked on concluded cases.

Under a unionized, salaried indigent defense program, such as a public defender’s office or Legal Aid, when caseloads drop, the same salaried staff is paid, resulting in no cost savings, just fewer cases for lawyers to work on.

When caseloads rise, they hit a court-ordered limit on the number of cases per attorney. At that point, the office, to be legally compliant, must either hire more lawyers or send the overflow to the ACP, which by law can be reduced but not entirely eliminated.

The ACP cannot be eliminated because conflicts of interest — co-defendants, prior clients, related parties — make it impossible for any single office to handle every case, and state law requires every county to maintain an assigned counsel program for that reason.

What Would a Replacement Cost?

How many attorneys would the county have to hire and/or pay for if Erie County switches to a public defender’s office or expands Legal Aid?

New York State sets mandatory caseload standards for staff attorneys in public defender offices and Legal Aid organizations. Those standards do not apply to assigned counsel attorneys, who manage their own caseloads as independent practitioners.

The ACP handled approximately 24,000 cases in 2024. Under New York State’s weighted caseload standards, a legally compliant office handling that caseload would require an estimated 100 full-time attorneys.

Legal Aid’s IRS filings show attorney compensation averaging $150,000 annually, including benefits. Applied to 100 full-time attorneys, attorney salary costs would be $15 million in year one.

New York State’s Office of Indigent Legal Services recommends 0.5 support staff per attorney — meaning 50 administrative staff for an office of 100 attorneys. At $87,000 each, a number drawn from Legal Aid’s IRS filings, support staff add another $4.35 million.

Total payroll: $19.35 million.

On top of payroll, 100 new lawyers and 50 administrative support employees will require office space, phones, computers, legal research subscriptions, malpractice coverage, and technology infrastructure — costs that the ACP’s independent contractors currently absorb at no cost to the county.

Based on standard Buffalo commercial real estate rates, published legal research subscription costs, and standard government IT and insurance procurement rates, a conservative estimate for these overhead costs is $1.5 million annually. Erie County has not published its own estimate.

Then add pension contributions of approximately 13 percent of payroll — roughly $2.5 million annually.

Total cost to replace the ACP in year one: approximately $23 million.

The ACP handled Erie County’s indigent defense caseload in 2024 for $20.3 million. A government office — or comparable expanded Legal Aid — will cost an estimated $3 million more in the first year.

The Bottom Line

That $3 million is likely the smallest difference taxpayers will ever see.

Both the public defender’s office and Legal Aid are unionized. Salary costs will increase annually due to union contracts, step increases, and pension obligations.

Legal Aid attorneys are unionized and receive annual raises and pension benefits through their union contract. Those pension obligations belong to Legal Aid as an organization — not directly to Erie County. But Erie County funds Legal Aid through its contract. When Legal Aid’s pension and salary costs rise every year, the contract price Erie County pays rises with them. A government public defender’s office is direct. Every employee enters the New York State pension system on day one, creating lifetime obligations for Erie County.

Should Polancarz Choose to Be Accurate

The following estimates are based on Legal Aid’s IRS filings, New York State pension contribution rates, standard union contract provisions, and published Buffalo commercial rates. Erie County has published none of its own. These are conservative estimates. The actual numbers could be higher.

If crime stays constant, replacing the ACP will cost approximately $3 million more in year one. By year five, through union raises and step increases, that gap grows to approximately $8 million annually.

If crime drops by 20 percent, the ACP’s costs drop as well. The government office continues to pay the same salaries. By year five, Erie County could be paying $12 million more annually than under the ACP.

If crime spikes 20 percent, the ACP costs approximately $24.4 million — and falls back when crime does. The government office must either hire 20 more attorneys permanently at approximately $27.7 million total, or send the overflow to the ACP at approximately $27 million total. Both cost more than the ACP alone. Only the ACP returns to lower costs when crime does.

There is one way Poloncarz could save money — by running a public defender’s office that is not legally compliant. It happens across the country. Caseloads exceed the court-ordered limits. Attorneys carry more cases than the law allows. Quality suffers. Defendants get plea deals instead of trials.

It is cheaper. It is also unconstitutional.

The dirty secret of public defender offices nationwide is that most cannot attract experienced attorneys to work at government salaries. Good criminal defense lawyers do not become public defenders. The offices fill with newer attorneys learning on the job, carrying caseloads the law does not permit, moving cases through as fast as possible.

Monroe County — the model Poloncarz held up — has had a job posting open since January 2024. It lowered its hiring standards to accept attorneys who had not yet passed the bar. Its public defenders are the second-lowest paid in New York State. It still has not met state caseload standards after years of trying.

If Poloncarz’s plan works the way public defender offices typically work in practice — understaffed, overloaded, and underpaid — it might cost less than our estimates. But it would not be legal.

If the replacement — whether a public defender’s office or an expanded Legal Aid — works as such programs typically work in practice — understaffed, overloaded, underpaid, and not legally compliant — it will still cost more than the ACP. It will provide worse representation. And with overworked defenders unable to mount serious challenges, prosecutors will have an easier time securing convictions. More people will go to jail. Incarceration costs money for taxpayers too.

So Poloncarz may be on the verge of achieving something remarkable: a plan that costs taxpayers more to run, delivers worse legal representation to defendants, and sends more people to jail at additional taxpayer expense.

Pension Legacy Costs

Had Erie County opened a government public defender’s office in 1965, it would today be paying approximately $7 million annually to retired attorneys. If Erie County opens a government office in 2026, it will pay millions annually in legacy costs for attorneys hired today.

The ACP has operated for 60 years. Its legacy cost to Erie County: zero.

There is a county executive out there using false numbers to replace a system of competent, independent lawyers with something that will cost more, perform worse, saddle taxpayers with pension obligations for decades, and frankly, will offer an inferior service to the clients who can least afford poorer representation.

A proposal this stupid is not normally found even in politics. He must have worked very hard at it.