Op-Ed: Shame on New York: State Continues to Disregard Right to Legal Counsel (Albany Times-Union)

Fifty years ago Monday, the Supreme Court unanimously ruled that states must provide a competent lawyer to a poor person accused of a crime. And for 50 years, New York has abdicated this responsibility. But the state has an opportunity to make things right.

By establishing the right to counsel, the high court ruling — named for Clarence Earl Gideon, a homeless Florida man — sought to ensure fairness and level the playing field for individuals who would otherwise be forced to stand alone against the full force of the law.

But too often across New York, poor defendants are forced to face prosecution without a lawyer by their side. Or worse, they sometimes are consigned to court-appointed lawyers who lack the competence, training or resources to provide a meaningful defense. When lawyers do appear, they are often overwhelmed by hundreds of cases, leaving them unable to investigate charges and advise clients on their rights. They lack access to the investigators, expert witnesses and even translators that the other side has.

That’s not a fair fight, not in a system so badly skewed.

Take the case of Kimberly Hurrell-Harring. She was a 31-year-old nursing assistant and mother of two when she broke the law and tried to bring a small amount of marijuana to her husband in prison. Her crime was a misdemeanor.

Terrified, and having never been in trouble with the law before, she immediately confessed. She was represented by a court-appointed lawyer, who met with her only minutes before her court appearance and never returned her desperate phone calls from jail.

Her lawyer — who has since been disbarred — knew or should have known that her behavior was only a misdemeanor offense that rarely results in a jail sentence, especially for a first-time offender like Ms. Hurrell-Harring. Yet he had her plead guilty to a felony. She spent four months in jail and lost her job and her home.
Tragically, what happened to Ms. Hurrell-Harring is repeated daily in courtrooms across the state.

New York’s system for delivering legal representation to those accused of crimes but who are too poor to afford an attorney dates back to 1965. That year, the state answered the Gideon mandate by passing the buck and requiring each of New York’s 62 counties to come up with its own plan and individually deal with the problem of indigent criminal defense.

The result has been an antiquated, patchwork system that fails to deliver justice. There are no statewide standards for the lawyers who are appointed to represent poor people, and there’s no mandatory training or oversight. Low pay drives many high-quality attorneys into private practice or forces lawyers to carry unmanageable case loads that make it impossible to provide adequate representation to every client. There is no mandate for investigating cases, meeting with defendants who stand accused, or even providing translators for those who don’t speak English.

No one benefits when an innocent person goes to jail because the state failed to provide a competent lawyer to defend them. And it sure doesn’t protect public safety. Taxpayers should not have to pay the costs of excessive incarceration when we send innocent people to jail or lock up minor offenders for too long because they don’t have the capable counsel to which they are entitled.

Five years ago, the New York Civil Liberties Union and the law firm Schulte, Roth & Zabel filed a class-action lawsuit challenging the state’s failure to provide a functioning public defense system. Kimberly Hurrell-Harring is our named plaintiff and the case is slated to go to trial later this year.

That trial shouldn’t be necessary. Over several decades, dozens of reports by legal advocacy organizations, professional associations and government commissions have documented the inadequacy of the county-driven public defense system.

Both the state’s top judge, Jonathan Lippman, and his predecessor, Judge Judith Kaye, have called for reform. And in agreeing to hear the Hurell-Harring case, the state’s top court made it clear that reform is overdue, saying “wrongful conviction, the ultimate sign of a criminal justice system’s breakdown and failure, has been documented in too many cases.”

Yet, year after year our lawmakers in Albany have failed to act.

Gov. Andrew Cuomo has demonstrated that he is passionate about pursuing progressive reform and good government. He has been a leader for lesbian and gay rights and women’s equality. The time is now for him to ensure that all New Yorkers get the representation they deserve.

Fifty years is too long to wait.

Donna Lieberman is the executive director of the New York Civil Liberties Union.