S07481 Summary:

BILL NOS07481
 
SAME ASSAME AS A10374
 
SPONSORHASSELL-THOMPSON
 
COSPNSRCOMRIE, HAMILTON, MONTGOMERY, PANEPINTO, PARKER, PERKINS, PERSAUD
 
MLTSPNSR
 
Add 722-g, County L; amd 832, Exec L; amd 98-b, St Fin L
 
Relates to requiring limits on the number of cases a public defender may be assigned in any given year.
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S07481 Actions:

BILL NOS07481
 
05/04/2016REFERRED TO LOCAL GOVERNMENT
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S07481 Memo:

Memo not available
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S07481 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7481
 
                    IN SENATE
 
                                       May 4, 2016
                                       ___________
 
        Introduced  by  Sen. HASSELL-THOMPSON -- read twice and ordered printed,
          and when printed to be committed to the Committee on Local Government
 
        AN ACT to amend the county law, the executive law and the state  finance
          law,  in  relation to requiring limits on the number of cases a public
          defender may be assigned in any given year

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Legislative findings and declaration.  In Gideon v. Wain-
     2  wright, 372 U.S. 335 (1963) the United States Supreme  Court  held  that
     3  the  6th  amendment  right  to counsel required states to assign defense
     4  attorneys to defendants charged with serious offenses and who could  not
     5  afford  counsel.  This  constitutional rule was subsequently extended to
     6  require states to provide counsel to cases where a  criminal  conviction
     7  could  lead  to imprisonment. In Gideon, the court held that the assign-
     8  ment of counsel was essential to having a fair trial and was a constitu-
     9  tional right of the accused which states could not violate.
    10    In 2005, Judith Kaye, Chief Judge of  the  New  York  State  Court  of
    11  Appeals,  was  appointed  to  head a state commission to review indigent
    12  criminal defense in the state of New York. In 2006, The New  York  State
    13  Commission  on  the  Future of Indigent Defense Representation concluded
    14  that "{t}he indigent defense system in New York State is  both  severely
    15  dysfunctional  and structurally incapable of providing each poor defend-
    16  ant with the effective legal representation that he or she is guaranteed
    17  by the Constitution of the United States and the Constitution  and  laws
    18  of  the State of New York." The commission also affirmed that the exces-
    19  sive number of cases assigned to  public  defenders  caused  irreparable
    20  harm to representation.
    21    In  2009,  the New York state legislature passed and Governor Paterson
    22  signed into law "case caps" for  public  defenders  in  New  York  City.
    23  Through the Office of Court Administration, the legislature supplemented
    24  NYC's  indigent  defense  budget  to  effectuate  a judiciary rule which
    25  limited annual criminal defense attorney caseloads to  400  misdemeanors
    26  or  150  felonies,  with  felonies counted as 2.66 misdemeanors in mixed
    27  caseloads.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14846-05-6

        S. 7481                             2
 
     1    In October 2014, Judge Kaye's warning of an on-going  crisis  came  to
     2  fruition  as  the  New  York  Civil  Liberties Union and the law firm of
     3  Schulte Roth & Zabel LLP announced a historic settlement that overhauled
     4  public defense in five New York counties and paved the way for statewide
     5  reform  of New York's broken public defense system. By entering into the
     6  agreement, New York state took responsibility  for  providing  extensive
     7  responsibility for managing and funding indigent legal services.
     8    In  Hurrell-Harring  v. New York, the plaintiffs charged that New York
     9  state's decision to abdicate responsibility for public  defense  to  its
    10  counties resulted in a patchwork of often understaffed, poorly resourced
    11  and  largely  dysfunctional public defense systems where defendants were
    12  routinely arraigned without  attorneys,  urged  to  take  plea  bargains
    13  regardless  of  the  facts  of their cases, burdened by excessively high
    14  bail, and incarcerated for shockingly long periods for misdemeanors  and
    15  petty crimes. The suit contended that by failing to provide poor defend-
    16  ants with adequate representation, New York state was violating the U.S.
    17  Constitution, the state constitution and the laws of New York.
    18    New  York  state settled on the eve of trial. Under the agreement, the
    19  state adopted major reforms focusing on five New York counties -  Ontar-
    20  io,  Onondaga  (Syracuse),  Schuyler, Suffolk and Washington - that were
    21  chosen because their public defense systems are all different and  cover
    22  communities  large  and  small, but are all emblems of New York's flawed
    23  approach. The agreement, which will last seven and one-half years and is
    24  subject to court approval, contains the following major provisions:
    25    * Ensures that every poor criminal defendant will have a lawyer at the
    26  first court appearance, where bail often is set and pleas taken;
    27    * Requires New York to  hire  sufficient  lawyers,  investigators  and
    28  support  staff  to ensure that all poor criminal defendants have lawyers
    29  with the time and support necessary to vigorously represent the  defend-
    30  ant;
    31    *  Provides  for  the setting of caseload standards that will substan-
    32  tially limit the number of cases any lawyer can carry, thereby  ensuring
    33  that poor criminal defendants get a real defense;
    34    *  Requires  New  York to spend four million dollars over the next two
    35  years to increase attorney communications with poor criminal defendants,
    36  promote the use of investigators and experts, and improve the qualifica-
    37  tions, training and supervision of lawyers representing indigent defend-
    38  ants;
    39    * Mandates the creation of eligibility standards  for  representation,
    40  thus allowing more New Yorkers to access public defense services;
    41    *  Strengthens  the Office of Indigent Legal Services as a state-level
    42  oversight entity tasked with ensuring the  constitutional  provision  of
    43  public  defense services and commits New York to provide the office with
    44  the resources it needs  to  develop  plans  and  implement  and  monitor
    45  reforms mandated by the settlement; and
    46    *  Provides that the plaintiffs will receive detailed reports allowing
    47  them to monitor compliance with the agreement and, if necessary,  return
    48  to court to enforce it.
    49    In  2015,  The Center for Court Innovation released a report titled An
    50  Analysis of Mandatory Case Caps and Attorney Workloads, concluding  that
    51  mandatory cases caps dramatically improved the quality of representation
    52  in Kings County.
    53    The  legislature  finds  and declares that in all criminal proceedings
    54  against people unable to afford counsel, New  York  state  is  constitu-
    55  tionally  responsible  for  ensuring  this fundamental right.   However,
    56  because of the long history of county/city funding and recognizing  that

        S. 7481                             3
 
     1  a  complete  state  takeover  of  indigent  criminal defense services is
     2  financially unattainable at this moment in time,  the  legislature  will
     3  take  steps  to  ensure that the right to effective counsel is protected
     4  against caseloads that compromise this right.
     5    The legislature finds and declares that the state is obligated to take
     6  initiatives to improve the quality of indigent defense, ensure represen-
     7  tation at arraignment, and implement caseload standards for providers of
     8  indigent  legal services and implementing statewide standards for deter-
     9  mining eligibility. To advance these initiatives  the  state  shall  pay
    10  counties the full amount necessary to cover the costs of caseloads which
    11  exceed the formula provided for herein.
    12    §  2.  The county law is amended by adding a new section 722-g to read
    13  as follows:
    14    § 722-g. Restrictions on caseloads.  The  state  shall  reimburse  any
    15  county or city for individual caseloads annually exceeding three hundred
    16  sixty-seven misdemeanors or one hundred thirty-eight felonies, with each
    17  felony  counting  as  two and sixty-six-hundredths misdemeanors in mixed
    18  caseloads. Funds to pay for caseloads exceeding this  formula  shall  be
    19  reimbursed  by  the state to the county or city providing such services,
    20  provided, however, that in the state fiscal year:
    21    1. beginning April first, two  thousand  seventeen,  the  state  shall
    22  provide  reimbursement  for  not  less  than twenty-five percent of such
    23  expenses;
    24    2. on April first, two thousand  eighteen,  the  state  shall  provide
    25  reimbursement for not less than fifty percent of the expenses;
    26    3.  on  April  first,  two  thousand nineteen, the state shall provide
    27  reimbursement for not less than seventy-five percent of  such  expenses;
    28  and
    29    4.  two  thousand  twenty  and  thereafter  the  state  shall  provide
    30  reimbursement for the full amount of such expenses.
    31    § 3. Paragraphs (l) and (m) of subdivision 3 of  section  832  of  the
    32  executive law, as added by section 1 of part E of chapter 56 of the laws
    33  of  2010,  are  amended  and  a  new  paragraph  (n) is added to read as
    34  follows:
    35    (l) to present findings and make recommendations for consideration  by
    36  the  indigent legal services board established pursuant to section eight
    37  hundred thirty-three of this article; [and]
    38    (m) to execute decisions of the indigent legal services  board  estab-
    39  lished  pursuant  to section eight hundred thirty-three of this article,
    40  including the distribution of funds[.]; and
    41    (n) to adopt, promulgate, amend or rescind rules  and  regulations  to
    42  carry  out  the  provisions of this section, including to (i) ensure the
    43  presence of counsel at the first appearance of  any  eligible  defendant
    44  charged  with  a crime, (ii) establish caseload/workload regulations for
    45  attorneys providing mandated representation that  allow  for  meaningful
    46  and  effective  assistance  of  counsel;  assess statewide caseloads and
    47  allocate monies to counties and cities  consistent  with  section  seven
    48  hundred twenty-two-g of the county law, and (iii) improve the quality of
    49  mandated representation.
    50    § 4. Subdivision 3 of section 98-b of the state finance law is amended
    51  by adding three new paragraphs (e), (f) and (g) to read as follows:
    52    (e)  The office of indigent legal services may expend a portion of the
    53  funds available in such fund to provide for caseload relief  in  accord-
    54  ance with section seven hundred twenty two-g of the county law, up to an
    55  annual amount of sixty-seven million dollars.

        S. 7481                             4

     1    (f)  For  the purpose of caseload relief and pursuant to seven hundred
     2  twenty-two-g of the county law, an annual amount of sixty-seven  million
     3  dollars  shall be made available to every county, except the city of New
     4  York, Suffolk county, Washington county, Ontario county, Onondaga  coun-
     5  ty,  and  Schuyler  county  from such fund for the provision of services
     6  pursuant to section  seven  hundred  twenty-two-g  of  the  county  law;
     7  provided  that  every  county,  except  the city of New York continue to
     8  provide at minimum the aggregate amount of funding  for  public  defense
     9  services  including,  but  not  limited  to,  the  amount of funding for
    10  contractors of public defense services and individual defense attorneys,
    11  that it provided, pursuant to  article  eighteen-B  of  the  county  law
    12  during its two thousand sixteen--two thousand seventeen fiscal year.
    13    (g)  Funds  to pay for caseloads exceeding this formula shall be reim-
    14  bursed by the state to the  county  or  city  providing  such  services,
    15  provided, however, that in the state fiscal year:
    16    (i)  beginning  April  first,  two thousand seventeen, the state shall
    17  provide reimbursement for not less  than  twenty-five  percent  of  such
    18  expenses;
    19    (ii)  on  April  first, two thousand eighteen, the state shall provide
    20  reimbursement for not less than fifty percent of the expenses;
    21    (iii) on April first, two thousand nineteen, the state  shall  provide
    22  reimbursement  for  not less than seventy-five percent of such expenses;
    23  and
    24    (iv) in two thousand twenty and thereafter  the  state  shall  provide
    25  reimbursement for the full amount of such expenses.
    26    § 5. This act shall take effect immediately.
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