Op-Ed: NY Should Defend the Defenseless (Albany Times Union)

With the state facing a trial this fall over its shameful neglect of poor criminal defendants, New York’s counties, fed up with bearing an impossible burden, are increasing the pressure on Gov. Andrew Cuomo to fix the broken public defense system.

Generations of New York’s poor have been denied their fundamental right to an attorney. In 1963, the U.S. Supreme Court ruled in Gideon vs. Wainwright that it was the responsibility of states to provide competent lawyers to poor people accused of crimes. New York quickly dumped this responsibility onto its counties, creating a jumble of inadequate public defense programs. Never set up to succeed or supported by standards, oversight or meaningful funding, these programs have failed to provide adequate legal representation for a staggering 50 years.

As a result, every day New Yorkers who can’t afford private attorneys stand accused of crimes undefended and alone. As they wait often fruitlessly for counsel, they are funneled into the jail system at a cost to taxpayers, and lose their jobs, homes and children in the process. Those who are eventually assigned an overworked public defender are lucky to spend five minutes reviewing their case. It’s no wonder the newspapers are full of stories about people who spend years in jail for crimes they did not commit.

For decades, government commissions, advocacy organizations and state judges have sounded the alarm. In 2007, the New York Civil Liberties Union and the law firm Schulte Roth & Zabel LLP filed Hurrell-Harring vs. New York, a class-action lawsuit on behalf of poor or indigent defendants in five counties — Onondaga, Ontario, Schuyler, Suffolk and Washington — demanding statewide public defense reform.

Now, desperate counties are taking a stand.

This week, Ontario County announced a settlement in Hurrell-Harring that effectively locks in positive reforms to its public defender office, creates caseload limits for overworked attorneys, and requires monitoring and reporting on public defense.

But the settlement agreement makes clear that state support is necessary for Ontario and other counties to do right by the Constitution. For example, without state funding Ontario County cannot guarantee the right to counsel at arraignment, nor ensure the hiring of investigators and experts to mount a defense. As part of its settlement, the county has agreed to propose a resolution for state provision of public defense.

Earlier this year, Schuyler County, acknowledging that provision for the right to counsel is a state, not a county, obligation, passed a resolution supporting transformation of its public defense program into a state-managed system and asking Cuomo to settle the Hurrell-Harring lawsuit. At least 12 other counties have passed near-identical resolutions.

The travesty must end. New York’s counties have made clear that they are unable to shoulder the state’s constitutional responsibility to provide public defense.

At a minimum, New York must immediately provide enough funding to guarantee that poor defendants have a lawyer from the moment they first stand accused before a judge. The state must enact limits on caseloads, so public defenders can sufficiently defend their clients. And the state oversight agency, the Office of Indigent Legal Services, must have enough funding to enforce state standards.

These are stop-gap measures. Ultimately, a state-managed public defense system is the only way to stop failing vulnerable defendants, overcrowding prisons and violating New Yorkers’ fundamental rights as Americans.

This fall, New York will go to trial over its failed public defense system unless Cuomo responds to counties’ mounting pressure to fulfill his obligation to poor and vulnerable New Yorkers, who have been neglected by their state for more than half a century.

Corey Stoughton is a senior staff attorney at the New York Civil Liberties Union and lead counsel in Hurrell-Harring vs. New York.