Legal advocates, clergy and representatives from the NAACP and New York Bar Association are urging legislators to pass the Justice Equality Act, which would provide state funding of public defense offices and expenses.
The bill (A.1903), sponsored by Assemblywoman Patricia Fahy, D- Albany, passed both the assembly and senate last session, but was vetoed by the governor in December.
The Justice Equality Act, introduced last session by Fahy and Senator John DeFrancisco, R-Syracuse, would have mandated that the state fully fund public defense office expenses, allow oversight by an independent body, and cover funding for quality improvements to the process.
The state would reimburse expenses of the counties, which are currently are required to financially support legal defense services on their own.
Advocates argue that this state statute, in conjunction with the Supreme Court ruling in Gideon v. Wainwright, places too heavy a burden on counties with limited resources.
According to the governor’s veto message from Dec. 31, 2016, the Justice Equality Act would have required more funding from the state than is necessary.
“This bill would do little more than transfer to the taxpayers of this state an entirely new obligation to pay for any and all existing expenses related to general defense legal work,” Cuomo said in a statement. “I cannot increase the taxes of every taxpayer in the state to fund existing and future legal defense work in counties with no accountability measures.”
The system of county-funded public defense came under fire in 2007, when the first lawsuit was filed against the state of New York, claiming that the system created dysfunctional, understaffed and overworked public defense offices.
After seven years of litigation, the parties settled in the case Hurrell-Harring v. State of New York and the state was required to make major reforms in funding public defense, focusing on five diverse counties: Onondaga, Ontario, Schuyler, Suffolk and Washington.
The settlement laid out provisions to ensure every defendant have a lawyer at arraignment, that lawyer be competent, have sufficient staff and not take on more cases than they can handle. It also required New York to invest $4 million to improve communications between lawyers and defendants, and strengthened the office of indigent legal services as an independent oversight committee on the programs across the state.
According to Albany County Executive Daniel McCoy, the inconsistency in state-funded legal defense creates “two tiers of justice: one for the rich and one for the poor.”
Despite the veto, Gov. Cuomo has proposed public defense relief in this year’s Executive Budget to expand the provisions of the Hurrell-Harring case across the state. Advocates call the proposal a “band-aid solution” that doesn’t fully fund indigent defense and lacks nonpartisan oversight.
A bad legal defense can be life altering for impoverished defendants, often with inadequate representation forced into misleading plea bargains to conserve county courts scarce resources.
“Currently, in many areas of New York, low-income defendants can get short shrift, because of the crushing caseloads their lawyers are forced to handle, due to inadequate funding,” said John Wallenstein, president of the state Association of Criminal Defense Lawyers. “That means the lawyers don’t have the time or resources to meet meaningfully with their clients, investigate charges, and develop an adequate defense.”
In addition to inadequate funding, advocates from the American bar association and national association for public defense say that the Governor’s plan in his executive budget doesn’t meet national standards for independent oversight. According to the Executive Budget and the governor’s veto message, public defense would face “appropriate fiscal oversight through the Division of Budget.”
The inconsistency in state-funded legal defense creates “two tiers of justice: one for the rich and one for the poor.”
— Albany County Executive Daniel McCoy
However, this provision is “unacceptable,” according to Tina Luongo of the New York City Legal Aid Society.
“It is misguided to have a fiscally-motivated division of budget oversee public defense programs. New York state already has the highly-commended Indigent Legal Services office and board,” she said. “Independence of the public defense function is a long standing, nationally-recognized legal and ethical principle.”
The new bill proposed for this session, (A.1903) has been referred to the Codes Committee. Fahy says the bill contains some changes in language, but is in essence, the same as the bill that last year passed both the assembly and the senate. If approved, the provisions would take effect next April.
Video produced by Daniel Wells