At least 75 percent of New York State counties have developed income guidelines which are used in determining eligibility for appointed counsel. The diverse origins of these guidelines highlight the chaotic disarray which characterizes New York State's public defense system (Appendix 7-14).
For example, some counties acknowledge that they do not know the origin of their income guidelines or when they were established. Others report that their guidelines are based simply on local practice or past experience.
Otsego County employs income guidelines that were promulgated by the Appellate Division, Third Department, in 1977, and have not been updated since. These guidelines were initially created by the thendirector of administration for the Third Department, in an effort to assist the judiciary and public defense providers in the appointment of counsel. In 1977, the income guidelines were: $75.00 net income per week for an individual; $100.00 net income per week for an individual with one dependent; and $15.00 net income per week for each additional dependent. Although the cost of living, as measured by the consumer price index, has risen more than 121 percent [15] in the fifteen years since their creation, these same monetary guidelines are still used in Otsego county.
The most prevalent source of income guidelines used by counties in New York State are the Legal Services Corporation (LSC) poverty guidelines [16] which were established to determine eligibility for free legal assistance in civil cases. The LSC guidelines are updated annually according to the official poverty threshold as defined by the United States Department of Health and Human Services. Generally, the LSC's maximum income level is 125 percent of the official poverty level. This level can be exceeded if the defendant's unique financial situation warrants exceptional treatment.
In 1980, a Legal Aid Society in an upstate urban jurisdiction using LSC guidelines for its civil representation carried over the guidelines to its criminal representation. Thereafter, the LSC guidelines were adopted by several other jurisdictions in the state. Currently, at least 21 jurisdictions use income guidelines that can be traced to the LSC standard. However, many of these counties have failed to adopt the LSC procedures requiring civil legal service programs to conduct annual reviews of their eligibility income guidelines and make appropriate modifications based on changes in the poverty threshold.
Despite the annual updating of the LSC guidelines, only 11 of the 21 jurisdictions using these civil standards for determining eligibility in criminal cases are using the current (1993) LSC guidelines. [17] The remaining 10 counties employ outdated LSC income guidelines from various years past: e.g., St. Lawrence--1980, Genesee--1985, Orleans--1986, Jefferson--1989, and Clinton and Livingston--1991 (Appendix 7-14). [18]
The anomalous consequence of the widespread use of grossly outdated LSC guidelines is that in many counties a person eligible for counsel free of charge in a civil case would not be eligible for appointed representation if charged with a crime in the same jurisdiction.
Use of outdated and inappropriate guidelines that determine "indigency"
rather than the ability to afford counsel, inevitably results
in rejection of applicants who are plainly eligible for appointed
counsel.
2. Variance Among Income Guidelines
The monetary thresholds comprising the income guidelines are as diverse as their sources. There are counties, such as Southern Franklin and Otsego Counties currently using income guidelines as low as $75.00 per week for a single individual while Queens County uses a guideline of $336.00 per week for a single person accused of a felony (Appendix at 7-14). This amounts to a differential of $261.00 dollars per week. Even substantial geographical differences in cost of private representation cannot justify use of such widely divergent criteria.
The lack of any consistency and uniformity in the disparate income guidelines used throughout New York State creates irrational and anomalous results. For example, a criminal defendant with an income of $135.00 per week would be eligible for appointed counsel in approximately 20 counties, but would be denied counsel in 13 other jurisdictions within the same state. [19]
16 Poverty guidelines of the Legal Services Corporation are set
forth in 45 C.F.R. Part 1611, et. seq. RETURN to Document
17 The LSC income guidelines are generally scheduled to be updated
in March or April of each year, but as of the publication date
of this report the 1994 figures have not yet been published.
RETURN to Document
18 Further illustrating the disorganized state of the eligibility
process in New York, Warren County reported that its guidelines
were based on a standard promulgated by the National Institute
of Justice (NIJ), which had not been updated in several years.
Upon closer examination, NYSDA learned that the guideline actually
employed in Warren County was the LSC guideline from 1986, which
was published in an NIJ report. Warren County is now using the
current (1993) LSC guideline. RETURN to Document
19 It cannot be determined whether a person earning this amount
would be elibible for appointed counsel in the remaining counties,
since they either do not use income guidelines or provided insufficient
data to make this assessment. RETURN to Document