The eligibility determination must be premised on an assessment of whether or not the accused is financially unable to afford counsel, not on whether he is "indigent." See N.Y. County Law § 722 (McKinney 1991); 18 U.S.C. § 3006A (1989). As mentioned previously, many defendants who do not fall at or below the poverty level are nevertheless without sufficient financial resources to retain private counsel. See ABA Standards for the Criminal Justice, Providing Defense Services 5-7.1 (Commentary) (1990).
Accordingly, use of social service, public assistance, or any other government benefit standards as income cutoffs for determining eligibility in criminal cases are wholly inappropriate, since such standards assess only whether the applicant is "indigent" or "poor," a more stringent standard than that which qualifies a criminal defendant for appointed counsel. Income guidelines may at most be considered as one factor in the eligibility analysis, and may never be the sole determining factor. Moreover, recipients of public assistance should be deemed presumptively eligible for appointed counsel. See ABA Standards for Criminal Justice, Providing Defense Services 5-7.1 (Commentary) (1990). [13]
Despite the clear mandate of law, many jurisdictions in New York state nonetheless transmute the standard of "inability to afford counsel" into one of absolute poverty. Many counties employ the inappropriately stringent "indigency" standard by premising eligibility decisions on public assistance, social service, [14] or other government benefit standards, thus excluding legitimately eligible defendants from public defense services.
Moreover, the income guidelines utilized in seventeen counties are so low that defendants must earn significantly less than the current federal poverty level ($6,970 per year) to be eligible for appointed representation. For example, in Southern Franklin and Otsego Counties, single defendants earning more than $75.00 per week, or 56 percent of the federal poverty guideline, are not eligible for appointed counsel. In St. Lawrence county, a single defendant earning more than $91.00 per week, or 68 percent of the federal poverty level, cannot receive public defense services. The income guidelines used in the remaining fourteen counties range between 75 and 97 percent of the federal poverty guideline (Appendix 7-14).
14 Chenango, Columbia and Herkimer counties indicate that their
income guidelines are based on social services standards (Appendix
at 7, 9).
RETURN to Document