New York Misses Opportunity To Lead The Nation On Public Defense Reform

By Barry J. Pollack, 2016-17 President of the National Association of Criminal Defense Lawyers (NACDL). Pollack is a Member at Miller & Chevalier in Washington, DC, where he serves as chair of the firm’s White Collar & Internal Investigations practice. He represents individuals and corporations in criminal investigations, trials, and other government enforcement proceedings. He is also a former Assistant Federal Public Defender and is best known as a skilled trial lawyer.

On December 31, 2016, New York Governor Andrew Cuomo missed an extraordinary opportunity. He could have signed a bill that would have ensured that anywhere in the state of New York, when a citizen is accused of a crime but cannot afford an attorney, the court would appoint a lawyer who could provide effective representation. You would think this is already happening throughout New York. Sadly, you would be mistaken. New York’s Commission on the Future of Indigent Defense Services has rightly called New York's system of providing court-appointed counsel “severely dysfunctional and structurally incapable of providing each poor defendant with the effective legal representation that he or she is guaranteed…” The legislature, recognizing the obvious need to change the system, passed the bill unanimously in both houses back in June. Given the rare opportunity to fix a long festering problem with bipartisan support, you would think Governor Cuomo would have enthusiastically signed the bill into law. Instead, he vetoed it, opting for dysfunction over bipartisan solution.

How did New York get to this point? For more than half a century New York’s public defense system has relied almost exclusively on funding at the county level, not at the state level. County funding, in turn, derives primarily from property taxes and local revenue sources, which vary widely from county to county. Accordingly, the level of funding for public defense, and therefore the quality of the representation available, varies tremendously across the state. Poorer counties – where the need for indigent defense services is greatest – are the counties least able to afford to provide these services.

Inadequate funding, massive workloads, and other systemic deficiencies are problems of constitutional magnitude. In fact, these problems led the New York Civil Liberties Union in 2007 to file a class-action lawsuit against the State and five counties in a case called Hurrell-Harring v. New York. The five counties were chosen as a representative sample. The counties were geographically dispersed, demographically diverse, and had differing systems for providing public defense services. In each county, however, public defense was constitutionally deficient, representative of the flaws in public defense across all 62 counties in the State. The case was ultimately settled, requiring New York State to take significant steps to improve public defense in the counties that had been sued. While the settlement went a long way toward correcting deficiencies in those five counties, it left the rest of New York’s counties without state aid or oversight, meaning the quality of the representation that you or a loved one will receive, will continue to depend on the fortuity of which New York county is the one where the charges have been filed.

In addition to providing monetary support for public defense services, the bill Governor Cuomo vetoed on New Year's Eve would have expanded the authority of the New York Office of Indigent Legal Services to allow it to enact rules and regulations to ensure counsel is provided at a person's first appearance in court, attorney workloads are not so excessive that an attorney cannot provide adequate representation to each of his or her clients, and the quality of representation is improved in all jurisdictions.

Perhaps the most troubling part of Governor Cuomo’s veto of this important legislation is its timing. The bill was passed unanimously by both houses of New York’s state legislature back in June 2016. However, Governor Cuomo waited six months, until literally the last moments of the year, to act on the bill. By waiting until year-end, he knew the legislature would no longer be in session and would not be able to pass legislation to override his veto. Rather than making New York a shining example to the nation of bipartisan cooperation protecting important constitutional rights for its citizens, the Governor took a pass, hoping few would notice. Governor Cuomo squandered a golden opportunity.