NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6202C
SPONSOR: Fahy (MS) TITLE OF BILL:
An act to amend the county law, the executive law and the state finance
law, in relation to indigent defense services
PURPOSE OR GENERAL IDEA OF BILL:
To ensure that all persons accused of crimes in New York are able to
receive effective legal representation whether or not they have the
ability to pay for a lawyer by establishing a system of direct state
funding at the requisite adequate level to eliminate the geographic
disparity in representation.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1: provides legislative findings and declaration.
Section 2: amends Section 722-e of the County law to require the State
to reimburse, over a seven year four year phase in period, counties and
cities in which a county is wholly located the full amount of expenses
of counsel services for indigent legal defendants.
Section 3: "Subdivision 3 of section 832 of the executive law, as added
by section 1 of part E of chapter 56 of the laws of 2010, is amended and
a new paragraph (o) is added to read as follows: (o) to adopt, promul-
gate, amend or rescind rules and regulations to carry out the provisions
of this section, including to (i) ensure the presence of counsel at the
first appearance of any eligible defendant charged with a crime, (ii)
establish caseload/workload regulations for attorneys providing mandated
representation that allow for meaningful and effective assistance of
counsel, and (iii) improve the quality of mandated representation."
Section 4: makes technical amendments to paragraph (1) and (m) of
Section 832 of the Executive Law and adds a new paragraph (n) to subdi-
vision 3 of section 832 of the Executive Law granting the office of
Indigent Legal Services the power to approve reimbursement to counties
to provide indigent legal services.
Section 5: amends subdivision 3 of section 98-b of the state finance
law, a amended by part E of chapter 56 of the laws of 2010
Section 6: effective date
JUSTIFICATION:
The state has just recently settled a lawsuit with five counties -
Suffolk, Washington, Ontario, Onondaga, and Schuyler - in which the
settlement calls for the Office of Indigent Legal Services to be in
charge of the public defense operations in the five counties. This would
be the first time in New York that a statewide entity will be responsi-
ble for legal representation of all indigent criminal defendants. Coun-
ties statewide are currently responsible for funding indigent legal
services by federal mandate but adherence is uneven and dependent on a
particular county's ability or inability to properly fund the program.
Many counties have no system for supervising caseloads or quality, no
staffing formula to ensure an appropriate number of public defenders,
and no standard ensuring comparable compensation for defenders.
My legislation would amend the law to provide for the state to take over
full funding of the program in 2023, and relieve all counties of this
financial strain. As the Governor noted during the State of Opportunity
agenda, local governments have been struggling while the state's
finances have generally improved. Now is the time for the state to rein-
vest in its counties and relieve the counties of this unfunded mandate.
PRIOR LEGISLATIVE HISTORY:
New Bill
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
Immediately
STATE OF NEW YORK
________________________________________________________________________
6202--C
2015-2016 Regular Sessions
IN ASSEMBLY
March 17, 2015
___________
Introduced by M. of A. FAHY, LENTOL, AUBRY, McDONALD, STECK, GOTTFRIED,
MAGNARELLI, CRESPO, SEPULVEDA, ARROYO, SIMOTAS, MAGEE, COLTON, DUPREY,
CROUCH, MONTESANO, RAIA, ROSENTHAL, WOERNER, RUSSELL, BRINDISI,
MOSLEY, PALMESANO, LAVINE, BRONSON, SKOUFIS, BARCLAY, BLANKENBUSH,
CAHILL, STEC, MURRAY, BARRETT, PEOPLES-STOKES, BUTLER, LUPARDO, LALOR,
PICHARDO, LINARES, RIVERA, STIRPE, WALKER, JAFFEE, O'DONNELL, FINCH,
RAMOS, RYAN, HUNTER, DAVILA, GRAF, RODRIGUEZ, BRABENEC, OTIS, TITUS,
PERRY, OAKS, MAYER, GUNTHER, ENGLEBRIGHT -- Multi-Sponsored by -- M.
of A. BLAKE, BRENNAN, COOK, GALEF, GIGLIO, GLICK, HAWLEY, HEVESI,
HIKIND, LIFTON, LOPEZ, MARKEY, ROBINSON, SCHIMEL, SIMON, SKARTADOS,
WEINSTEIN -- read once and referred to the Committee on Codes --
reported and referred to the Committee on Ways and Means -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- again reported from said committee with amend-
ments, ordered reprinted as amended and recommitted to said committee
-- recommitted to the Committee on Codes in accordance with Assembly
Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the county law, the executive law and the state finance
law, in relation to indigent defense services
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. It is a fundamental
2 right of all persons in the United States to be represented by counsel
3 in all criminal prosecutions. In the case of Gideon v. Wainwright, 372
4 U.S. 335, the United States Supreme Court ruled that indigent persons
5 accused in state felony cases who were unable to afford counsel had a
6 constitutional right to be defended by an appointed attorney paid by the
7 state. Subsequently, the Supreme Court determined that indigent persons
8 accused of any criminal charge that could result in imprisonment, wheth-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06929-10-6
A. 6202--C 2
1 er a felony or misdemeanor, are entitled to counsel at the expense of
2 the state.
3 New York state has chosen to fulfill its obligation to provide repre-
4 sentation to indigent persons accused of a crime by requiring each coun-
5 ty outside New York city and New York city to implement and fund a plan
6 to provide such representation. In 2006 the Commission on the Future of
7 Indigent Legal Services concluded that a system of county operated and
8 funded indigent defense services failed to satisfy the constitutional
9 obligation to protect the rights of indigent persons accused of a crime.
10 Such Commission recommended that funding for indigent legal services
11 come from the State's general fund rather than from the counties.
12 New York state has entered into an agreement to settle a class action
13 lawsuit that alleged deprivation of the right to counsel in five coun-
14 ties. The agreement acknowledges that the Office of Indigent Legal
15 Services and the Indigent Legal Services Board are authorized "to moni-
16 tor and study indigent legal services in the state, to recommend meas-
17 ures to improve those services, to award grant monies to counties to
18 support their indigent representation capability, and to establish
19 criteria for the distribution of such funds." While the settlement
20 agreement pertains to only five counties, its criteria establish a stan-
21 dard for providing indigent legal services that should apply statewide.
22 The legislature finds and declares that in all criminal proceedings
23 against people unable to afford counsel, New York state is constitu-
24 tionally required to provide public defense services. The legislature
25 further finds that the state is obligated to undertake initiatives to
26 improve the quality of indigent defense, ensure representation at
27 arraignment, implement caseload standards for providers of indigent
28 legal services, and implement statewide standards for determining eligi-
29 bility for mandated representation. Mandating counties to finance the
30 state's obligation to provide indigent legal services imposes a signif-
31 icant uncontrollable financial burden on counties dependent on real
32 property taxes to fund needed services, and subject to a state imposed
33 tax cap.
34 The legislature finds and declares that in order to fulfill its
35 constitutional obligation to provide indigent legal services, the state
36 shall pay counties the full amount necessary to ensure the delivery of
37 quality legal services for indigent criminal defendants in a consistent
38 manner throughout the State.
39 § 2. Section 722-e of the county law, as added by chapter 878 of the
40 laws of 1965, is amended to read as follows:
41 § 722-e. Expenses. All expenses for providing counsel and services
42 other than counsel hereunder shall be a county charge or in the case of
43 a county wholly located within a city a city charge to be paid out of an
44 appropriation for such purposes and shall be reimbursed by the state to
45 the county or city providing such services, provided, however, that in
46 the state fiscal year beginning:
47 (a) April first, two thousand seventeen, the state shall provide
48 reimbursement for not less than twenty-five percent of such expenses;
49 and
50 (b) April first, two thousand eighteen, the state shall provide
51 reimbursement for not less than thirty-five percent of such expenses;
52 and
53 (c) April first, two thousand nineteen, the state shall provide
54 reimbursement for not less than forty-five percent of such expenses; and
55 (d) April first, two thousand twenty, the state shall provide
56 reimbursement for not less than fifty-five percent of such expenses; and
A. 6202--C 3
1 (e) April first, two thousand twenty-one, the state shall provide
2 reimbursement for not less than sixty-five percent of such expenses; and
3 (f) April first, two thousand twenty-two, the state shall provide
4 reimbursement for not less than seventy-five percent of such expenses;
5 and
6 (g) every year thereafter, the state shall provide reimbursement for
7 the full amount of such expenses.
8 § 3. Subdivision 3 of section 832 of the executive law is amended by
9 adding a new paragraph (o) to read as follows:
10 (o) to adopt, promulgate, amend or rescind rules and regulations to
11 carry out the provisions of this section, including to (i) ensure the
12 presence of counsel at the first appearance of any eligible defendant
13 charged with a crime, (ii) establish caseload/workload regulations for
14 attorneys providing mandated representation that allow for meaningful
15 and effective assistance of counsel, and (iii) improve the quality of
16 mandated representation.
17 § 4. Paragraphs (l) and (m) of subdivision 3 of section 832 of the
18 executive law, as added by section 1 of part E of chapter 56 of the laws
19 of 2010, are amended and a new paragraph (n) is added to read as
20 follows:
21 (l) to present findings and make recommendations for consideration by
22 the indigent legal services board established pursuant to section eight
23 hundred thirty-three of this article; [and]
24 (m) to execute decisions of the indigent legal services board estab-
25 lished pursuant to section eight hundred thirty-three of this article,
26 including the distribution of funds[.];
27 (n) to review the public defense operations of any county for compli-
28 ance with applicable professional standards promulgated by the office
29 and to ensure that recipients of services provided pursuant to article
30 eighteen-B of the county law are provided with meaningful and effective
31 representation before making reimbursement pursuant to section seven
32 hundred twenty-two-e of the county law and before making payment pursu-
33 ant to paragraph (b) of subdivision three of section ninety-eight-b of
34 the state finance law; and
35 § 5. Subdivision 3 of section 98-b of the state finance law, as
36 amended by section 2 of part E of chapter 56 of the laws of 2010, is
37 amended to read as follows:
38 3. Amounts distributed from such fund shall be limited to amounts
39 appropriated therefor and shall be distributed as follows:
40 (a) The office of court administration may expend a portion of the
41 funds available in such fund to provide assigned counsel paid in accord-
42 ance with section thirty-five of the judiciary law, up to an annual sum
43 of twenty-five million dollars.
44 (b) [An] In addition to the amounts paid to each county and the city
45 of New York pursuant to section seven hundred twenty-two-e of the county
46 law and in accordance with sections eight hundred thirty-two and eight
47 hundred thirty-three of the executive law an annual amount [of forty
48 million dollars shall be made available to the city of New York from
49 such fund for the provision of services pursuant to article eighteen-B
50 of the county law; provided that the city of New York shall continue to
51 provide at minimum the aggregate amount of funding for public defense
52 services including, but not limited to, the amount of funding for
53 contractors of public defense services and individual defense attorneys,
54 that it provided, pursuant to article eighteen-B of the county law
55 during its two thousand nine--two thousand ten fiscal year] shall be
A. 6202--C 4
1 paid to such counties and city equal to the amount paid from such fund
2 to such counties and city in March two thousand ten.
3 (c) [Within the first fifteen days of March two thousand eleven, each
4 county other than a county wholly contained within the city of New York,
5 shall receive ninety percent of the amount paid to such county in March
6 two thousand ten. Within the first fifteen days of March two thousand
7 twelve, each county other than a county wholly contained within the city
8 of New York shall receive seventy-five percent of the amount paid to
9 such county in March two thousand ten. Within the first fifteen days of
10 March two thousand thirteen, each county other than a county wholly
11 contained within the city of New York shall receive fifty percent of the
12 amount paid to such county in March two thousand ten. Within the first
13 fifteen days of March two thousand fourteen, each county other than a
14 county wholly contained within the city of New York shall receive twen-
15 ty-five percent of the amount paid to such county in March two thousand
16 ten. For all state fiscal years following the two thousand thirteen--two
17 thousand fourteen fiscal year, there shall be no required annual
18 payments pursuant to this paragraph. Notwithstanding the provisions of
19 this paragraph, for each of the four required payments made to counties
20 within the first fifteen days of March two thousand eleven, two thousand
21 twelve, two thousand thirteen and two thousand fourteen, Hamilton and
22 Orleans counties shall receive such percentage payments based on the
23 amounts that each county would have received in March two thousand ten
24 had it satisfied the maintenance of effort requirement set forth in
25 paragraph (c) of subdivision four of this section in effect on such
26 date.
27 (d)] Remaining amounts within such fund, after accounting for annual
28 payments required in paragraphs (a)[,] and (b) [and (c)] of this subdi-
29 vision and subparagraph (iii) of paragraph (a) of subdivision two of
30 this section shall be distributed in accordance with sections eight
31 hundred thirty-two and eight hundred thirty-three of the executive law.
32 § 6. This act shall take effect April 1, 2017.
