Counties and NYSDA Say to New York State: Settle Hurrell-Harring Class Action Lawsuit

News from New York State Defenders Association

On the 51st anniversary of the U.S. Supreme Court’s opinion in Gideon v Wainwright, a growing community of counties is asking New York State to take over the funding and administration of public defense services.

Urging that a statewide class action challenging New York ‘s public defense system gives rise to a perfect moment for reform, county legislatures from St. Lawrence on the Canadian border to Cattaraugus in the Southern Tier, including Tioga County, have passed resolutions making this request. Similar resolutions are pending in additional counties.

Stephen D. Button, Public Defender in St. Lawrence County, where the first resolution passed earlier this month, had this to say: “I’m proud to work in an office of dedicated professionals who take seriously the burden of providing legal defense to our indigent population. But their caseload increases by leaps and bounds each year. The Supreme Court case that affirmed everyone’s right to legal representation (Gideon v Wainwright 1963) gives the responsibility for its implementation to the state. We’d like to see the state lift that burden from the County’s shoulders. We’ve carried that weight on our own shoulders long enough.”

Jay Gsell, County Manager in Genesee County, which has also passed a resolution asking the State to assume the provision of public defense, noted that “This isn’t the first time this idea of a state-funded model has come up; we would gladly step aside. Counties simply can’t meet a common standard and can’t afford to provide the needed levels of service. Why don’t they take the whole thing over and let Albany cover the costs of an independent State defender system?”

New York State delegated its responsibility under Gideon to the counties in 1965 by passing Article 18-B of the County Law. Deficiencies in the resulting system have been repeatedly documented, and in 2007 the New York Civil Liberties Union (NYCLU) brought suit against New York State for those deficiencies as illustrated by public defense in five representative counties. The five counties – Onondaga, Ontario, Schuyler, Suffolk, and Washington – were later added as defendants by the court. A trial, currently scheduled for September, could last for months according to the NYCLU.

“The Oswego County Legislature supports the State takeover of public defender services,” said Oswego Legislative Chairman Kevin Gardner, District 13. He went on to note that after “the US Supreme Court ruled that states must provide adequate legal defense for defendants who can’t afford a lawyer on their own, New York State unwisely delegated that responsibility to counties as an underfunded mandate, which has resulted in inconsistent public defense services throughout the State and contributed to the State’s reputation for high property taxes.”

Individual counties are not alone in seeking a change. New York State Association of Counties Executive Director Stephen Acquario observed, “The State of New York has a constitutional obligation to provide counsel for those who cannot afford legal representation in a criminal proceeding. For nearly 50 years, the counties of New York have been mandated to assist the State with this obligation. We have done this to the best of our ability.” He added, “In recognition of the 51st Anniversary of the U.S. Supreme Court decision, Gideon v Wainwright, and the pending NYS lawsuit in Hurrell-Harring v New York, the state has a unique opportunity to improve the present legal system of protecting the poor. We encourage the Governor to use his authority to improve the system thereby ensuring justice for all.”

“Settling Hurrell-Harring in a way that sets New York State on a path to a model system would be a win for everyone,” said Jonathan Gradess, Executive Director of the New York State Defenders Association (NYSDA). He called on the State to replace the current county-by-county patchwork with a state-funded, statewide system designed to provide quality representation in a cost-efficient way. “These are the three points we are making on Gideon’s anniversary: settle the lawsuit by creating an Independent Public Defense Commission heading a statewide, fully and adequately state-funded public defense system; lift the unfunded mandate that was imposed on localities in 1965; and provide consistent, quality representation across the state.”

The problems in the five counties named in Hurrell-Harring, and in all counties, vary, but every county struggles with the public defense mandate. For instance, Franklin County Manager Thomas Leitz observed: “Franklin County struggles against incredible odds to provide adequate representation in criminal and family court cases. Seven years ago a national study found that we had five lawyers doing the work of 12; this is underscored by a recent state report that describes that same problem as applying across the state. Our public defender workload is further aggravated by New York’s unique court structure: with 19 town courts and 3 village courts our lawyers spin like tops to get the job done. We desperately need the State to fully lift this burden from us.” The resolution is pending in Franklin County.

Gradess noted that the timing for the State to act is right: “Our current governor has the leadership ability and acumen to put together an approach to public defense that will incorporate national standards to bring about representational quality and equality and structural efficiencies that make public defense representation cost-effective.”

Gardner made a related observation: “Governor Cuomo is calling for more government consolidation and shared-services. He has an opportunity to lead by example by consolidating public defense under the State, a reform that would provide consistent indigent defense services and provide significant local property tax relief.”