In his February 15, 2011 State of the Judicary speech, New York's Chief Judge Jonathan Lippman quoted a Commission finding that "New York's indigent defense system is severely dysfunctional and structurally incapable of providing poor defendants with effective legal representation." "Fortunately," he continued, "there is finally cause for optimism thanks to the Legislature's historic creation last June of an Indigent Legal Services Board and a State Office of Indigent Legal Services, the ILS Office." This week, a budget deal was struck slashing in half the budget for that new office, as reported in a March 28, 2011 press release from the Justice Fund and on March 29 by the North Country Gazette. The budget compromise was reached after a Senate proposal to eliminate the newly formed office altogether. (The Senate proposal was an earlier iteration -- S2807-B -- of the bill that is now S2807-C.)
The ILS was created by the New York Assembly in the summer of 2010 on a bill sent by then Governor Paterson and with the great appreciation of the judiciary. It hired its first director just a month ago. The primary purpose of the ILS is to collect information about the quality of representation provided by the State's county indigent defense systems and then establish criteria for those services, as well as to administer state financial aid to the counties in providing those services -- all as a first step toward making indigent defense services throughout the state more uniform and ensuring quality of representation. The Governor's proposed budget would have provided $3 million for the 2011 annual operations of the ILS. After the Senate attempt to eliminate the office, the deal was struck to budget only $1.5 million for all of 2011. As stated by Edward Nowak, chair of the New York State Defenders Justice Fund board, the "ill advised compromise cut threatens to gut reform before it begins."
For at least a full decade, the state of New York has been strikingly aware that it is failing to live up to its constitutional duties to provide the right to counsel to all. On April 8, 9, and 10, 2011, the New York Times published a three-part series on New York City's problematic indigent defense system. A Times editorial concluded: "There is a real question whether many defendants are getting the legal representation to which they are entitled, or are receiving merely token representation to give their trials a veneer of constitutionality." In 2006, a study by The Spangenberg Group concluded "many defendants are not being provided meaningful and effective assistance of counsel in accordance with the requirements of state and federal law." The Kaye Commission, formed by then Chief Judge Judith Kaye to take a top-to-bottom look at New York's indigent defense system, said in 2006 "the existing system needs overhaul."
Continuing denial of the right to counsel was observed by the National Legal Aid & Defender Association in ten upstate counties during a study undertaken from 2006 to 2008. At the behest of the New York State Defenders Association, NLADA evaluated public defense services in Cattaraugus, Franklin, Jefferson, Lewis, Niagara, Ontario, Schuyler, Sullivan, Tioga, and Washington counties. The studies concluded: "The state of New York's denial of its federal obligations has produced a myriad of public defense systems that vary greatly in defining who qualifies for servics and the competency of the services rendered. Though the level of services varies from county to county -- giving credence to the proposition that the level of justice a poor person receives is dependent entirely on which side of a county line one's crime is alleged to have been committed, instead of on the factual merits of the case -- NLADA finds that none of the public defender services in the sample counties are constitutionally adequate. Therefore, unless the state of New York actively steps forward to rectify the situation, it is in violation of its Sixth Amendment obligations."
The need for effective indigent defense services in upstate New York is exacerbated by the unique New York town & village court system (also known as "Justice Courts"). Justice courts are where every criminal case in the state begin. They have jurisdiction over all misdemeanors and lesser violations committed within the town or village, and they also conduct arraignments and preliminary hearings in all felony matters arising out of the jurisdiction. They are not courts of record, making appeals from their decisions functionally impossible (although over the past few years most justice courts have at least implemented a system for tape-recording their proceedings.) The majority -- about 75% -- of justice court judges are not attorneys, and lacking legal training they are ill-equipped to administer the laws and Constitutional rights involved in the cases that come before them.
The sheer number of courts in which public defense services must be provided and the large geography of most of the upstate counties means that public defenders seldom attend justice court hearings and are hardly ever present for the initial arraignment. By example, in Cattaraugus County there are 32 towns, each of which has one and some having two elected town justices, and an additional four village justices. Some of these Cattaraugus town & village courts hold court more than once a month. It is more than a two-hour round trip in driving time through the mountains of upstate New York from the public defender office to attend four of the justice courts, and more than one-and-a-half hours to attend an additional ten of the justice courts. Under national workload standards, Cattaraugus County would need a total of 26 staff attorneys to handle the caseload appropriately, before factoring in staffing all of the Justice Courts. When NLADA visited the public defender office in 2007, they operated with just five attorneys.
On May 6, 2010, New York's highest court ruled that the class action lawsuit brought by the New York Civil Liberties Union (NYCLU) on behalf of indigent persons in five upstate counties is an allegation "for basic denial of the right to counsel under Gideon." The Court found that where "counsel, although appointed, were uncommunicative, made virtually no efforts on their nominal clients' behalf during the very critical period subsequent to arraignment, and, indeed waived important rights without authorization from their clients," this is at heart "non-representation."
Even though the creation of the ILS is a long way from a complete implementation of the American Bar Association's Ten Principles of a Public Defense Delivery System, it is certainly a noticeable step toward that goal. The budget compromise keeps the ILS doors open for the time being, but the ability of the office to advance Gideon's promise on such a small budget will be difficult at best. William Leahy, newly hired director of ILS and former head of the Massachusetts Committee for Public Counsel Services, had this to say on the compromise:
The cutting in half of the Indigent Legal Services office appropriation recommended by Governor Cuomo is deeply disappointing to everyone who is concerned about the right to counsel and equal justice in the State of New York. Nearly five years after the 30-member Kaye Commission concluded unanimously that New York's system for providing legally mandated indigent defense representation was "fractured, inefficient and broken," and nearly one year after the Court of Appeals decision in Hurrell-Harring v. New York presented the question "whether the State has met its foundational obligation under Gideon to provide legal representation[,]" this deprivation of funding for the Office and the Board to fulfill their statutory obligations to "improve the quality of [indigent defense and Family Court] services" raises the fundamental question whether New York is serious about remediating the numerous Constitutional deficiences which have been so tellingly documented, and remain intact. The Office and the Board are already working creatively and cooperatively with county executives and indigent defense leaders to improve the quality of that representation, but to continue that fledgling progress will require more adequate funding than has yet been provided.