The State of Indigent Defense…in New York

A case can be made that indigent defense is not in acceptable shape in many states. Surely New York would be one of those states where the delivery system has weaknesses. There has been litigation and, more recently, there was, in response to the litigation, a legislative attempt to respond to the litigation. But, The New York Law Journal reports:

Gov. Andrew Cuomo vetoed a bill  that would have provided for an eventual state takeover of indigent criminal legal defense costs now paid by New York City and counties outside the city.

The localities have come to shoulder most of the burden for the indigent representation in New York state since the Supreme Court’s decree in Gideon v. Wainwright, 372 U.S. 335, that having access to an adequate defense against criminal charges is a constitutional guarantee.

The state currently pays about $80 million toward indigent legal defense and New York City and the 57 counties outside the city about $360 million.

The bill before Cuomo (A10706/S8114) provided for a phased-in, seven-year state takeover of the localities’ costs by 2023.

Cuomo said in his veto message that the measure was too expensive. He contended it could obligate the state to pick more than $800 million each year when fully implemented. He contended that the bulk of those costs would come in Family and Surrogate court representation and in other areas unrelated to the defense of indigent criminal defendants.

Cuomo said the potential enormity of the state’s obligation would undermine the financial stability he has tried to bring to the state since becoming governor in 2011.

“We cannot use Gideon as a ploy for financial redistribution of existing local expenses that have nothing to do with Gideon,” he said in his veto message. “Rather, the bill functions as a simple cost shift to [state] taxpayers, proven by the fact that there is absolutely no funding system to pay for it.”

He noted that his administration’s settlement of a case in the fall of 2014, Hurrell-Harring v. State of New York, 8866-07, established a more limited template of state oversight of the criminal defense systems in the five defendant counties of Suffolk, Washington, Onondaga, Ontario and Schuyler (NYLJ, Oct. 22, 2014).

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