cuffs

ALBANY — Low-income New Yorkers who find themselves in handcuffs too often go without representation at arraignments or end up with undertrained, overloaded lawyers who have little time to advocate for their clients, legal experts say.

It’s a situation that officials with the State Office of Indigent Legal Services hope to begin to rectify in the coming year, with cooperation from county governments. 

The counties have been asked to submit their plans for addressing the demand for legal services by Dec. 1.

STATE REIMBURSEMENT

Starting next April — if the next state budget is hammered out on time — the counties will be eligible for state reimbursements for the costs of expanding access to public defenders and other assigned lawyers who handle misdemeanor and felony criminal cases.

The overhaul and expansion of indigent defense services provided by the counties is projected to cost the state $250 million annually by 2023. 

The effort is accompanied by a set of basic standards for caseloads, designed to ensure that lawyers who take the cases are equipped to file motions on behalf of their clients and available to consult with them to prepare defenses.

“We’re in the early stages, but we always like to say you build the foundation secure and then you build an appropriate structure on top of it,” William Leahy, director of the Indigent Legal Services agency, said in an interview.

PROMPTED BY LAWSUIT

The impetus for the legislation authorizing state support to the counties for indigent legal services was a lawsuit brought by the New York Civil Liberties Union against the Cuomo administration and five counties, who were alleged to have neglected their obligation to provide effective counsel to indigent defendants.

When that case was settled, state officials agreed to extend the remedies to the rest of the state.

The other counties were deeply concerned that the settlement would greatly boost their costs for legal aid.

But legislation adopted in April requires that the state pony up, though county leaders continue to voice concerns that they could yet face financial impacts.

“There is a money-flow issue that should concern all counties,” said Patrick Cummings, counsel to the New York State Association of Counties, noting counties are going to have to spend money before collecting reimbursements from the state.

He added there is concern the state could withhold the funding if it determined counties were not complying with the expectations in their assigned-counsel and public-defender programs.

LONGTIME INEQUITIES

While Leahy is viewed as a a forceful architect for a robust indigent-defense system, one unknown going into the coming budget season in Albany is whether his office can score the level of needed funding when it makes its pitch to the Cuomo administration, said Jonathan Gradess, the recently retired director of the New York State Defenders Association.

Gradess argued the state has been stingy for decades when it comes to meeting the constitutional requirement that poor people get effective counsel in the courts.

He likened the pace of New York’s efforts to address the issue to “putting a saddle on a glacier,” thus prolonging the inequities in the criminal-justice system and resulting in people being held in jails longer than they need to be — if they even do.

The counties, he said, “don’t have enough money, and the tax cap restricts them, from a fiscal point of view,” from affording such a major expense.

“But it’s got to be addressed,” Gradess said. “A sign of a healthy government will be whether they do it sooner or later. They need to do it sooner.”

Some public defenders voiced concern at a recent workshop hosted by NYSAC in Syracuse that it may be challenging to recruit experienced criminal-defense lawyers to regularly take such cases in rural counties.

MORE ELIGIBLE

Contacted in Plattsburgh, attorney Justin Meyer, who administers Clinton County’s assigned-counsel program, said several local judges, beginning last April, began balking at presiding over arraignments held after hours or on weekends unless a defense lawyer was representing the person accused of an offense.

“We had to scramble, and there were a couple of attorneys who graciously volunteered to be available after hours,” Meyer said.

Meanwhile, he noted, the state has expanded access to assigned counsel by boosting the income-eligibility threshold to 250 percent of the federal poverty level, with assets such as real estate or vehicles not included in the those calculations.

“The new plan is really generous to defendants,” Meyer said.

FIRST APPEARANCE

Counties can realize savings in incarceration costs by supporting the effort to ensure that a lawyer is provided at arraignments of those who cannot afford a private attorney, said Clare Degnan, executive director of the Legal Aid Society of Westchester County. 

She said about 70 percent of the defendants her organization represents are released from custody when brought before a judge.

“That means they’re not being held at the jail,” Degnan said. “Counsel at first appearance is really an extraordinarily good investment.” 

In tandem with the effort to provide greater support for legal help to the poor, the State University School of Criminal Justice is conducting research on the efforts to improve counsel at first appearance.

Leahy said having skillful lawyers go to bat for their clients will help prevent wrongful convictions and lessen harsh sentences for those whose one-time offenses were out of character.

“America is the most incarceration-prone major country in the world,” the Boston native said. “We’ve beaten all our competition in that regard. 

“It’s time to start rolling that back, and there’s pretty widespread agreement on that.

“How do you do it?” he continued. “It starts with good lawyering.” 

Joe Mahoney covers the New York Statehouse for CNHI’s newspapers and websites. Reach him at jmahoney@cnhi.com.