Determining Eligibility for Appointed Counsel in New York State:
A Report from the Public Defense Backup Center (1994)
XVII. CONCLUSION AND RECOMMENDATIONS
As NYSDA has learned, and as this report illustrates, the practices
currently employed in counties throughout New York State for determining
eligibility for courtappointed counsel are constitutionally defective
and must be revised. Eligibility standards and the procedures
for implementing them vary widely from county to county, and are
frequently applied inconsistently even within the same jurisdiction.
Counties commonly impose an illegally stringent standard of total
impoverishment, depriving defendants legitimately unable to hire
attorneys of appointed representation.
The personal nature of the right to counsel is routinely ignored
when the resources of friends and relatives disqualify defendants
for appointed counsel. Defendants are improperly forced to choose
between the right to pretrial liberty, and the right to counsel
when ability to post bail results in denial of appointed representation.
The severity of the problem is escalated by the judiciary, which,
in many counties, has abdicated its responsibility to safeguard
and effectuate the counsel rights of criminal defendants. Courts
often delegate eligibility decisionmaking to outside entities,
rely exclusively on the decisions of those third parties, and
retain no role in assuring the integrity of the eligibility process.
This unauthorized practice directly contravenes the constitutional
and statutory obligation of the courts to insure prompt and proper
appointment of counsel.
The direct consequence of the grossly deficient eligibility procedures
being employed throughout the state is that defendants are routinely
denied their constitutional and statutory right to counsel.
The following recommendations should be implemented to ensure
fair, consistent, and accurate determinations of eligibility for
appointed counsel:
- A procedure for determining eligibility for appointed counsel must be formulated
that recognizes the critical distinction between indigency and inability to afford counsel,
and that reaffirms the traditional role of the judiciary in insuring the counsel rights of all
defendants charged with crimes who come before our courts.
- In carrying out its responsibility, the judiciary should appoint counsel whenever a
defendant is financially unable to retain counsel, and make this determination based not on
any single factor, but after careful analysis of all information comprising each applicant's
complete financial picture.
- To avoid substantial hardship to defendants and their families, only liquid assets
should be considered in the eligibility analysis. Appointed counsel must not be denied
based on the assets of friends or relatives, whose funds the defendant does not control.
Nor should ability to secure pretrial liberty by posting bail be a basis for denial of appointed
counsel.
- Income guidelines should never be employed as cutoffs, but should be considered
and weighed in conjunction with the debts and other expenses of the applicant. Moreover,
any use of outdated income guidelines must be prohibited.
- The severity of the charges, the complexity of the case, and the cost of private
representation in the relevant jurisdiction--all highly relevant to the defendant's ability
to retain counsel--must be carefully considered in making eligibility decisions.
- No matter
what "screening" or information gathering program is in effect in any jurisdiction
at present, the courts must take ultimate responsibility for insuring the constitutional appointment
of counsel. This means that at minimum, the courts cannot rely on recommendations to deny
appointment made by another party without making an independent and meaningful inquiry to
assess the applicant's financial status.
- Finally, to insure that eligibility decisions are made in a consistent fashion, and not on an
ad hoc basis, the guidelines for determining eligibility should be in writing, and should define the
process to be followed in approving or rejecting applicants. A process of judicial review should
be implemented for all defendants who are denied appointment of counsel.
The recommendations outlined above, aimed at insuring the appointment
of counsel to all defendants entitled to those services, must
be viewed as an interim step, not as a definitive solution. Unfortunately,
the chaotic disarray which characterizes eligibility decisionmaking
in New York State is symptomatic of much larger problems which
affects every aspect of our public defense system.
Persistent underfunding of public defense services in New York
State, at both the state and county level, has resulted in inadequate
staffing, excessive caseloads, insufficient pay, hiring of inexperienced
and unskilled attorneys, lack of training and the absence of mechanisms
for monitoring provision of defense services. These factors, both
individually, and in tandem, prevent counties from providing defendants
unable to hire lawyers with the competent and effective assistance
of counsel to which they are constitutionally entitled. Meaningful
reform of the public defense system can only occur when the farreaching
effects of systemic nonaccountability and chronic underfunding
can be identified, measured and addressed.
The critical necessity for comprehensive change in the provision
of public defense services, and for consistent and uniform implementation
of those services throughout the state, will ultimately require
development of a politically insulated entity which houses the
financial, administrative and coordination functions of legal
services for lowincome people. Until then, the right to appointed
representation will continue to be at risk for those individuals
who find themselves entangled in the criminal process.