This is a previously submitted op-ed explaining the importance of including language that corrects problems with New York’s indigent defense system in the state budget.

In New York State, the costs of indigent legal services, or legal representation for the poor, have long been covered by county governments. Since the landmark ruling Gideon V Wainwright mandated that legal defense is a constitutional right of those accused of crime regardless of their ability to retain private counsel, county governments have picked up the tab for this vital, but costly, service. This unfunded mandate has resulted in a wide ranging disparity in the quality of services offered county-to-county in New York State, which is why I introduced the Justice Equality Act.

One of the highlights of this year’s Assembly one-house budget resolution is the inclusion of key sections of a bill - the Justice Equality Act – to improve quality and reimburse counties for providing legal representation for poor persons accused of crimes - a constitutional right. Last year, I sponsored this bill with Senator John DeFrancisco, which passed with unanimous support in the legislature, though it was later vetoed by the Governor.

Key provisions of the bill (A. 1903) are included in the Assembly budget resolution - intending to right a wrong, which resulted during implementation of a landmark Supreme Court ruling more than 50 years ago. This decision, Gideon v. Wainwright, guarantees a fundamental right to legal counsel for those accused of a crime, whether they can afford representation or not.

In New York, however, the cost to implement this constitutional right was shifted to the counties as an unfunded mandate. This cost shift resulted in a patchwork system for delivering representation for the last 50 years and a justice system where the poor are disproportionately represented by overburdened defense attorneys in criminal proceedings – particularly in Upstate New York where attorneys may handle caseloads exceeding by the hundreds the maximum prescribed by the American Bar Association.

Despite the New Year's Eve veto, it is noteworthy that Governor Cuomo concurred with the need to reform the quality of indigent legal services. His budget proposed to extend to all counties the groundbreaking Hurrell-Harring settlement (which requires the State of New York to fully fund certain improvements in indigent legal services in the five counties in the lawsuit). This would save the counties millions of dollars by reimbursing future costs of improving quality and expanding legal representation services to those in need (including by adopting caseload standards for defense attorneys).

The Governor’s proposal, however, leaves the counties with the continuing obligation to fund existing public defense operations – which account for the overwhelming majority of costs related to public defense services – roughly $390 million each year. State funding for these current indigent legal services was also not included in the Senate budget, yet it's critical that state funding for criminal court representation be included in the final budget. The county-to-county disparity in the quality of public legal representation is directly related to the present funding structure; only by addressing this cost to counties can we assure meaningful improvements.

For more than 50 years this cost to the counties has resulted in a wide disparity in legal representation and prompted the Hurrell-Harring lawsuit. Quality representation at the front end, including at arraignment, can help prevent unnecessary jail costs for counties as well as unwarranted prosecution.

In his veto message, the governor also expressed concerns about need for state fiscal oversight should the state take on a larger role for the funding of indigent legal services. I agree with the governor’s desire for strong financial supervision. However, it is imperative that the state Indigent Legal Services Office and its Board of Directors maintain its independence in planning, setting standards, and overseeing implementation of the statewide application of Hurrell-Harring; thereby maintaining integrity in the criminal justice process.

I remain optimistic that appropriate fiscal oversight can be assured, while preserving the statutory independence of the Indigent Legal Services Office and Board, and finding common ground in funding mandate relief for counties. It's only fair that counties be reimbursed for some of these expenditures, given that they have been bearing the brunt of these costs for the last half-century. Placing increased financial responsibility on the state is the best way to assure compliance with this landmark Supreme Court ruling and the recent Hurrell-Harring settlement, while assuring quality legal representation for all New Yorkers.