The integrity of the eligibility decisionmaking process is critically important to both the individual facing criminal charges and to the criminal justice system as a whole. Proper and reliable determinations of eligibility for assigned counsel ensure that the relatively scant public resources currently devoted to public defense services are expended appropriately.
During the 15 years that the New York State Defenders Association (NYSDA) has studied the public defense system in New York State [2], [3] it has learned that the procedures and standards employed for appointment of counsel: 1) vary widely from county to county; 2) are inconsistently applied even within the same jurisdiction; 3) often entail the illegal delegation of eligibility decisionmaking; 4) frequently employ standards so stringent they illegally disqualify eligible defendants from appointed representation; 5) fail to properly consider factors critical to an appropriate eligibility determination, and; 6) frequently consider, or rely exclusively on factors wholly irrelevant to an accurate assessment of eligibility.[4]
In their zeal to contain the increasing costs of public defense services, many jurisdictions also attempt to illegally recover the cost of representation from defendants legitimately unable to afford counsel. Moreover, the complete lack of meaningful accountability for eligibility decisionmaking makes it difficult to collect the data necessary to assess the full extent to which counties fail to provide constitutionally required appointed counsel in criminal cases.
The following examination of the eligibility practices employed in counties throughout New York State is based on empirical data collected by NYSDA through a comprehensive, statewide survey, as well as information obtained while assisting public defense providers and county officials with eligibilityrelated issues. [5] NYSDA's indepth research and analysis of the disparate and frequently irrational eligibility standards and practices employed across the state highlight the critical need for meaningful reform of our public defense system. The empirical survey data confirm what our experience has long revealed the inequitable, disparate and arbitrary methods used for determining eligibility for public representation in counties throughout the state critically undermine the right to counsel of all criminal defendants. The defective eligibility practices currently employed in New York fail to insure that eligible defendants receive constitutionally mandated legal representation.
The goal of this report is to identify the grave deficiencies that characterize eligibility decisionmaking in New York State, and to outline a course of action that will both end these illegal practices and guarantee appointed representation to all individuals charged with crimes who are financially unable to retain counsel.
2 Government officials and the media generally focus on the perceived
problem of ineligible criminal defendants receiving "free"
counsel. Concern over the possible abuse of the public fisc most
recently prompted an eligibility experiment in Queens County.
The purpose of the experiment is to determine whether the implementation
of eligibility guidelines will effect the number of defendants
in Queens County receiving courtappointed counsel. NYSDA's research
and work in the area of eligibility supports the opposite conclusion; current
eligibility practices have the effect of excluding legitimately
eligible individuals, rather than accomplishing the desired goal
of screening out defendants able to retain private counsel.
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3 Under state contract, NYSDA is obligated to "review, assess
and analyze the public defense system, identify problem areas
and propose solutions in the form of specific recommendations
to the Governor, the Legislature and the Judiciary and
other appropriate instrumentalities." Contract #C175729
between the New York State Defenders Association and the New York
State Criminal Justice Services.
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4 In its 1989 Annual Report, the New York State Commission
on Judicial Conduct echoed this concern:
The Commission has become aware of varying and often confusing
practices around the state as to whose responsibility it is to
determine the financial eligibility of a particular defendant
for assigned counsel. There are also varying standards as to the
eligibility requirements themselves. Because the guidelines are
vague, the results may be arbitrary. Different officials of the
same county often cite different standards.
New York State Commission on Judicial Conduct, Annual Report,
51 (1989).
In 1991, the problems associated with eligibility and assignment
practices persisted, and were still the focus of concern for the
Commission on Judicial Conduct, which again commented on them
in its 1992 Annual Report [New York State Commission on
Judicial Conduct, Annual Report, 16 (1992)].
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5 Examples of some of the work NYSDA has undertaken on this issue
include: NYSDA, "Eligibility for Public Defense Representation:
The High Risks of Being Unable to Afford Counsel in New York State,"
(March 1986); Hall and Gradess, "Determining Client Eligibility
for Appointed Counsel: A Strategy for Reform in New York State,"
N.Y.U. Rev. L. and Soc. Change, Vol. XIV, No. 1 (1986); and
NYSDA, Public Defense Services in Schenectady County: An Assessment
of the Assigned Counsel Program (March 1984).
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