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Benchmarks: Journal of the New York State Unified Court System

Summer 2006

Report Calls for Permanent Indigent Defense Entity, Overhaul of Current System

A COMMISSION CHARGED WITH examining New York State’s indigent defense services has recommended a total restructuring of the system based on its finding that the current model — a patchwork of programs — is inadequately funded and dysfunctional.

“Nothing short of major, far-reaching reform can ensure that New York meets its constitutional and statutory obligations to provide quality representation to every indigent person accused of a crime or offense,” the June report states. “There must be a statewide defender system. Only through such a system can constitutional mandates for quality indigent defense representation be realized.”

The time for further study is over. The crisis in indigent representation in this state is a well-documented fact. The time for action is now.
New York is one of only six states without some statewide oversight in this area.

The report isn’t the first to examine the adequacy of indigent legal representation in criminal cases in the state, and it chronicles the history of attempts by various organizations over the past 40 years to call attention to the problem. To assist the commission in its work, the Spangenberg Group, a nationally-recognized research and consulting firm specializing in indigent defense systems, conducted the most comprehensive study of indigent defense representation ever undertaken in the state.

Problems were not confined to particular areas of the state. “[T]he abuses were widespread and across the state in terms of inadequately trained attorneys, overloaded in terms of caseloads of institutional defenders. These defects were widespread throughout the city and state,” said Brooklyn Law School Professor William E. Hellerstein, the commission’s co-chair and former long-time chief of the criminal appeals bureau of the Legal Aid Society of New York. “I’d been involved in criminal defense more than 21 years and it surprised me and it surprised most of my colleagues,” he said. “We were taken aback by the breadth and depth of the problem.”

The report calls for immediate action. “The time for further study is over. The crisis in indigent representation in this state is a well-documented fact. The time for action is now.”

The proposed statewide defender office would be created by a permanent indigent defense commission with overall responsibility for the operation of the system including the appointment of a chief defender and determination of the locations of regional and local defender offices. The proposal also calls for the appointment of regional, deputy and local defenders, as well as a conflict defender. The members of the permanent commission would be appointed by the governor, the chief judge and the legislature.

Funding for indigent defense should be provided by the legislature from the state’s general fund, not from the counties. “New York’s experience since 1965 has demonstrated that a system of minimal state funding with primary financial responsibility at the county level does not work,” the report states. “It results in an inadequate and in many respects, an unconstitutional level of representation and creates significant disparities in the quality of representation based on no factor other than geography.”


• No clear standards for eligibility determination and procedures
• No statewide standard defining “adequate” indigent defense services; no mechanism to enforce any particular standards
• Grossly inadequate allocations for indigent defense (resulting in high caseloads, lack of support services, lack of training, minimal client contact and investigation)
• Significant disparity between prosecutors’ resources and public defenders’ resources
• Inadequate counseling on collateral issues (e.g., immigration status)
• Need to ensure right to counsel in local justice courts

The permanent commission would be charged with pursuing adequate funding for the system’s operations. “I guess it would cost an initial $50 million. But say it costs $100 million — we have a Constitution and people are being denied their constitutional rights. We keep talking about money, but the constitutional rights of individuals don’t come cheap and they must be maintained,” said commission co-chair Burton B. Roberts, former administrative judge of Bronx County and also a former Bronx district attorney.

The Commission on the Future of Indigent Defense Services issued an interim report in December 2005. The work of the commission, including its interim and final reports, and the Spangenberg report may be found on the commission’s Web site: www.courts.state.ny.us/ip/indigentdefense- commission/index.shtml. The reports are also available at www.nycourts.gov/whatsnew/.

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