Public Defense System?

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Eye from Albany
June 2001

Public Defense System?
by Paul M. Bray

In the multi-tiered system of government that we have, it isn?t unusual to see the buck passed down the food chain to localities with the smallest tax base.

New York State?s public defense services is a case in point.

The U.S. Supreme Court in its 1963 landmark decision, Gideon v. Wainwright, declared the right to counsel and ?meaningful and effective? representation for criminal defendents is a constitutional guarantee. As a result, states are required to provide counsel to all defendents who are unable to afford hiring their own counsel. New York State?s legislature which enacts our criminal laws responded by passing the buck or burden for this responsibility to its 62 counties where it remains.

All signs are that this almost four decade way for the State to meet its U.S. Constitutional responsibility is broken. A blistering and graphic three part series on the legal representation that New York City offers the indigent defendents this April in the New York Times showed that ?almost no part of New York City?s plan for providing lawyers functions as it was intended?. The recent report of the Appellate Division First Department Committee on Representation found there to be a ?crisis in the legal representation of the poor? with the ?outmoded, underfunded, overburdened, and organizationally chaotic system in operation today?.

Everyone seems to know what is wrong with the public defense system. One can begin with the unrealistic assigned counsel fees set in state law at $25 for out-of-court work and $40 for in-court work. As a result of these rates lawyers have declined to accept cases and, as the Times pointed out, many assigned lawyers are not doing basic things like visiting the crime scene or even their incarcerated defendent.

Yet, the rates for assigned counsel are only the tip of the iceburg. Should we be relying as much as we do on individual private attorneys rather than organized providers? Public defense across the state is a hodge podge of providers made up of public defenders, nonprofit providers like the legal aid society and private assigned counsel. They function without state oversight or guiding system providing standards, monitoring and training. The Committee on Representation determinined that, ?the needs of the poor have grown dramatically with no corresponding growth of the system or resources designed to meet those needs?. The resulting disfunction for lack of oversight not only hurts the indigent defendent but is straining the court system in ways that is costing all taxpayers.

This public defense crisis has reached a point where the Governor and state legislature are likely to respond this year. This will not be easy for Albany leaders who much prefer to show themselves as tough on crime rather than spend state money to protect the rights of indigent defendents or getting into the ticket of structuring a workable and effective defense services system affecting a wide cross section of stakeholders and diverse localities from New York City to the north country.

The easiest thing for Albany to do is throw some money at the problem by increasing the assigned counsel rate and backing that up with state assistance to localities who would otherwise have to pay the bill.

Leading the charge for full reform is the New York State Defenders Association whose mantra is that the crisis will take ?not just more money, but money and more?. Their reform agenda includes assurance that the allocation of state funds for assigned counsel does not undermine the provision of public defense services by public defenders and legal aid societies who should also get an appropriate share of state funding. In fact, every effort should be made to encourage and facilitate localities to opt for delivery of public defense services through these organized providers.

Real reform comes from the Association?s call for an independent governing body to provide for creation and enforcement of standards regarding the selection, training, workload and performance of lawyers and eligibility of clients. This entity would also provide defense services where needed. The Association places a premium on insolating this body from ?undue political presures adverse to the interests of public defense clients?.

The Governor and legislative leaders from both houses have formed a committee to address the public defense service issue, but in April when this column is being written no proposals have surfaced. Only time will tell what will result, whether it will be a band aid or statesmanlike, structural reform that raises the way we answer a constitutional protection from an embarrassment to a system we can be proud of.