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New York Attempting To Revamp Indigent Legal Services

Court of Appeals building
Hunter Harrison
Indigent legal services varies from county to county in New York state. A recent class-action lawsuit settlement with New York has brought legislation to change the current system.

It has been over 50 years since the landmark Gideon v. Wainwright Supreme Court decision, which guaranteed the right to counsel to people who couldn’t afford it. But the decision did not clarify how the services would be paid for. The rules vary from state to state, and in New York it can vary from county to county. 

In 2006, New York issued a report that examined the state of indigent legal services. Known as the Kaye Commission Report, it found a list of issues, including that there were no clear standards about whether a client is indigent and eligible for representation, no standards on performance, and that caseloads were excessive. 

Melanie Trimble, The Capital Region Chapter Director of the New York Civil Liberties Union, says indigent legal services work in a variety of ways.

“Some counties have a public defender office and have employed several attorneys to work with them. Some of them part-time and some of them full-time. Other counties have no office of public defense services,” says Trimble. 

Some counties even rely on volunteer attorneys that will perform the services and be reimbursed.

In 2014, New York state settled a class-action lawsuit, known as Hurrell-Harring. Along with 20 plaintiffs, the NYCLU claimed that “...the State is knowingly and systematically violating the fundamental rights of its poorest citizens….”

The settlement was only subject to five counties: Ontario, Onondaga, Schuyler, Suffolk and Washington. The five counties represented different types of indigent services.

“So we wanted to demonstrate to the state that people were not being provided adequate defense services. And then stipulate through the lawsuit what types of remedies we would look for in settling these services,” says Trimble.

According to court documents, the counties would be required to ensure improved eligibility determinations, provide caseload relief for attorneys, and improve the overall quality of mandated representation.  

But what about the other 57 counties?

“This is a crisis in New York state,” says Jonathan Gradess, the Executive Director of New York State Defenders Association. “Most lawyers in the state have caseloads that are way too high. There are places in the state where those caseloads that are up in the nature of 1,000 to 2,000 cases a year.”

The New York State Defenders Association’s backup center provides direct services to any lawyer who is handling cases in family court or criminal court. The organization handles 2,000 cases a year and provides technical assistance for municipalities.

According to Gradess, just to reach the national standard would require more funding.

“That standard is 40 years old. It’s way, way out of date. It’s not low enough. But just to reach it would cost $90 million.”

Albany-area Assemblywoman Patricia Fahy, a Democrat, recently introduced a bill that would expand the effects of the lawsuit to the rest of the state. Fahy calls the current system of indigent legal services an unfunded state mandate.

“This bill would not only take the relief of that mandate, but it would also raise the standards,” says Fahy.

While the New York City area is mostly funded, 52 out of 62 counties bear the costs of indigent legal services. Public defenders are paid by local taxpayers through property taxes, which vary.

The bill would require New York to take on the costs and put in regulations on caseloads for public defenders. It is estimated the cost to the state would be $300-$400 million over four years.

“We believe it will provide a better quality of representation regardless of what county an individual lives in,” says Fahy.

Fahy also says there could be savings upwards of $4 million a year.

“If you have quality legal representation at the time of arraignment, we might prevent somebody going to jail for a few days while waiting to see a judge,” Fahy added.

Albany County Executive Dan McCoy and former judge Larry Rosen drafted the original bill “and in our first phone call I said that the timing was right,” says Fahy.

Fahy says there is support in the Assembly and that she is working with Senate members to pass the bill.

“50 years is a long time, but we believe it is the right time to fix this once and for all,” she says.

WAMC News Intern Hunter Harrison, a 2011 Siena College graduate and Peace Corps and AmeriCorps veteran, is studying Digital Media at Hudson Valley Community College. 

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