To The Readers Of The Metropolitan Corporate Counsel:
Indigent Defense:Victim of the Governor's Budget
Last month, I discussed the threat to indigent defense posed by the Request for Proposals issued by the City of New York as part of its budget process.This month, I am addressing the even more severe threat to statewide funding for indigent defense buried in the Governor's proposed budget.
Our story begins in 2003, when the New York County Lawyers' Association settled its landmark litigation against the State challenging the rate of pay for private assigned counsel under Article 18-B of the County Law as so low as to pose an imminent, ongoing and irreparable deprivation of the Sixth Amendment right to counsel.1 The month after an injunction was entered requiring New York City to pay assigned counsel $90 per hour until the New York State Legislature increased the statutory rates, the Legislature modified Section 35 of the Judiciary Law to increase the rate for assigned counsel in felony cases to $75 per hour.In order to assist local governments in paying the increased assigned counsel fees, the Legislature enacted Section 98-B of the State Finance Law, which created the Indigent Legal Services Fund ("ILSF").The Legislature raised biennial attorney registration fees by $50 and imposed new fees for criminal history searches and new vehicle and traffic law surcharges; all of these new revenues were supposed to be dedicated to funding the ILSF.
The ILSF, in turn was to be used, first, to reimburse the state for its cost of assigned counsel and, second, to reimburse New York City and the other counties in the State to assist in paying for the cost of indigent defense.A key provision of Section 98-B was subdivision 4, the "maintenance of effort" provision.This required all localities to use the ILSF funds "to supplement and not supplant any local funds which such county or city would otherwise have had to expend for the provision of counsel . . . [and] to improve the quality of services provided pursuant to article eighteen-B of the county law."Roughly speaking, the local governments were required to spend at least as much on indigent defense as they did before the rate increase became effective, and the state would provide funds from the ILSF to cover the increase in hourly rates.
The Governor's budget would eviscerate this arrangement, notwithstanding the State's promise in the 2003 agreement settling the litigation that it would "implement fully" the provisions described above.
First, the budget would increase dramatically the amount that the Division of the Budget is authorized to "sweep" from dedicated revenue funds, like the ILSF, into the General Fund.In the SFY 2007-08 Enacted Budget, the Division of the Budget was authorized to sweep $100 million from dedicated revenue funds into the General Fund.The proposed blanket sweep authorization has skyrocketed to $500 million in the SFY 2010-11 budget.Since SFY 2007-08, $6.6 million has already been swept from the ILSF into the General Fund; one can only anticipate greater depredations going forward.2
Worse, the Executive Budget Briefing Book would eliminate the maintenance of effort requirement.A new office in a new consolidated Division of Criminal Justice Services would provide oversight of the indigent defense system - although this office would not be independent, since the same Division would be responsible for formulating a new grant program to replace the current maintenance of effort requirement and funding formulas.Thus, indigent defense funding would be stripped of its dedicated revenue stream and the assurance that the State would be responsible for the increased portion of assigned counsel fees.3 In short, the proposal would allow the State to renege on its promises of 2003 and hand on yet another unfunded mandate to the localities.
As noted last month with respect to the City, it is particularly ironic that these assaults on indigent defense as part of the State and City budget processes are taking place at the same time that the New York State Court of Appeals is considering the viability of a claim that seeks to challenge the adequacy of indigent defense systems in the entire State.4 Although the Executive Budget Briefing Book speaks of the nebulous new program as being "driven by performance standards," the basic question is what those standards are.
In 2006, NYCLA endorsed the Kaye Commission Report on the Future of Indigent Defense, saying:
It is essential that New York have an adequately funded indigent defense system that articulates and enforces meaningful standards, ends the balkanization of indigent defense, stops practices that encourage substandard representation and recognizes that defense counsel and ancillary defense services deserve to be funded in parity with comparable prosecution services.5
That statement is just as true today as it was in 2006.Indigent defense deserves careful study and meaningful reform, not undocumented change as part of a last-ditch attempt to pinch pennies at the expense of the constitutional rights of the indigent.
NYCLA, as it has for decades and as demonstrated through its historic litigation settled in 2003, pledges to remain vigilant and the leading voice of the bar to protect the constitutional rights of the poor and to ensure that these sorely needed fundamental rights are not reduced to an aspirational goal subject to the vicissitudes of the economic cycle.
Ann B. Lesk
1 NYCLA filed a lawsuit against the State and City in February 2000, alleging that statutory rates for assigned counsel were unconstitutionally low. In February 2003, New York State Supreme Court Justice Lucindo Suarez issued a judgment in NYCLA's favor,declared the portions of the statutes that fixed the compensation rates unconstitutional as applied in New York City, and issued a permanent injunction ordering the State and City to pay assigned counsel $90 per hour for all work until the Legislature modified the rates. The State and City appealed the Judgment. Oral argument on the appeals was scheduled to be heard on November 13, 2003. In May 2003, the Legislature finally enacted legislation increasing the rates for the first time since 1986. The new rates - $75 per hour for work on felony criminal cases and $60 per hour for work on misdemeanor criminal cases - took effect on January 1, 2004."NYCLA Settles Lawsuit Against N.Y. State and City Challenging Constitutionality of Compensation Rates for Assigned Counsel," http://www.nycla.org/siteFiles/Publications/Publications116_0.pdf .
2 Thomas P. DiNapoli, New York State Comptroller, "New York's Deficit Shuffle," April 2010, http://www.osc.state.ny.us/reports/budget/2010/deficitshuffle.pdf .
4 NYCLA, together with the New York State Bar Association, the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers and two ethics centers and 40 law professors from every law school in the state, filed an amicus brief in the case, Hurrell-Haring et al v. New York, in support of the indigent plaintiff's claim and urging that a claim which challenges the constitutional adequacy of defense service is a justiciable one.http://www.nycla.org/siteFiles/Publications/Publications1325_0.pdf .