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Counties hoping state finally takes over cost of lawyers for the poor

ALBANY – Two years after the U.S. Supreme Court ordered states to provide legal services for indigent defendants, Gov. Nelson Rockefeller and lawmakers in 1965 came up with a plan to comply.

New York would provide legal services, but county governments – not the state – would pay.

More than 50 years later, state lawmakers and counties believe they are finally poised to resolve that funding dispute – so old that many of its original players are long dead.

Both legislative houses in June unanimously OK’d a bill requiring the state to assume the costs of legal services for people who are charged with a crime but cannot pay for an attorney. But the bill has not yet been sent to Gov. Andrew M. Cuomo for his consideration, and Cuomo’s office will only say that it is under review.

Officials from big and small counties, as well as public defenders and legal aid bureaus, are watching the bill’s status. They see the potential for counties to cut costs, and an opportunity to repair an indigent legal defense system that varies in quality and quantity as one travels across county lines.

“I’m not one to get out there and constantly talk about mandates like some other county executives. But this is an example of one that reaches across the board that will have an impact on Erie County and other counties,” Erie County Executive Mark C. Poloncarz said.

Smaller counties, too, are pressing Cuomo to sign the bill.

“Uniformly, we see this as a good first step toward trying to reduce some of the burden of state mandates on localities,” said Jay Gsell, the Genesee County manager.

Local officials 50 years ago warned that the legal defense program would cost $5 million just for upstate counties.

In fact, the defense program today costs counties nearly $400 million, 42 percent of that upstate and on Long Island.

In Erie County, the tab this year is $12.2 million, and Poloncarz said the state pays zero of it. The costs have risen 35 percent in a decade, he noted.

On Monday, Poloncarz’s office clarified his statement to say the state several years ago reimbursed the county $2.1 million for the legal expenses, but this year the reimbursement is expected to total $184,000.

The Erie County Bar Association and the Legal Aid Bureau of Buffalo handle indigent cases on behalf of the county. The two agencies will take on an estimated 38,820 cases this year, from petty crimes to armed robberies and murders, officials said.

Supreme Court decision

Two years after the Supreme Court’s Gideon v. Wainwright decision, county officials in 1965 pressed Rockefeller not to push the cost of a state responsibility onto local taxpayers.

“If this bill is needed, let the state pay the cost, but not escape payment by mandating the same on local government,” the County Officers Association wrote June 30, 1965, to Rockefeller’s office, according to documents on file in the Capitol’s legislative library.

New York Mayor Robert Wagner wrote Rockefeller that he supported the effort to provide indigent legal services, but his backing was contingent upon the governor and lawmakers approving legislation recognizing that the cost of the legal services should “completely be borne in large measure by the state.”

Rockefeller took Wagner up on his first point, but neither he nor subsequent governors re-visited the idea of the state taking over the program’s expenses.

Some counties do get a small state reimbursement, but many do not.

The state provided New York City in 2015 with 40 percent of its legal defense costs, according to state figures. In the remaining 57 counties, the state covered 23 percent of the total expenses, though many individual counties – including Erie – got nothing.

Wagner’s concerns of five decades ago about providing legal counsel for indigent defendants while protecting county expenses are still evident today.

“These people should not have to deal with criminal or civil matters without counsel,” Poloncarz said. “The problem is, like other things in New York, New York State instead of paying the costs just passes it onto counties.”

Suit opens a window

A 2014 settlement is driving the latest effort to get the state to pick up the costs.

It started when the New York State Civil Liberties Union claimed in a lawsuit that five counties – Ontario, Onondaga, Schuyler, Suffolk and Washington – failed to adequately provide legal services for poor people. As part of the deal, the state agreed to provide more funding to those five counties, and legal services must be improved by imposing caps on the number of cases that often-overworked public defenders can take.

The settlement spawned two reactions. First, while it directly affected only those five counties, other counties acknowledged they are now likely vulnerable to similar litigation that challenges the level of indigent legal services they provide. Second, the state made initial steps to expand indigent legal defense across the state, including sharply raising the income threshold when a defendant can qualify for free legal services.

Those realities meant even bigger costs for counties, already struggling to live under the terms of the state’s property tax cap. Poloncarz estimated the expanded legal services would impose an additional $1.2 million on Erie County.

Why is there movement now after all these years?

“The key ingredient is frankly the magic of self-interest,” said Jonathan Gradess, executive director of the New York State Defenders Association, a group of defense lawyers and others that has pressed for improvements in the indigent legal system.

The 2014 settlement got the attention of other counties, realizing they could be in line for new state funding.

“Everyone woke up and said, ‘Wait a minute,’ ” Gradess said.

More equal defenses

But more is at stake than just the state assuming the legal costs. The lawsuit opened the opportunity to improve a “defective infrastructure” of experienced defense lawyers in one county with manageable caseloads next to another county with ill-trained attorneys fresh out of law school and no investigators to help with cases, Gradess said.

“There’s an inconsistent level of quality representation across the state that’s driven by money,” David Schopp, Legal Aid Bureau of Buffalo chief executive officer, said of the present system.

The upstate caseloads in indigent cases are, on average, far above national standards. The state Office of Indigent Legal Services, a small state agency in Albany, has reported that defense lawyers in upstate counties handled an average of 616 new cases apiece in 2014, which exceeds the 367 caseload limit the agency says is considered the national standard. Case-loads in New York City, which unlike upstate has gotten special earmarks for indigent legal services, are far lower.

In Erie County, the Legal Aid Bureau of Buffalo has 17 attorneys who work on mostly misdemeanor cases in the Buffalo City court. Last year, they handled 11,792 cases, or an average of 694 cases each, Schopp said.

Major felony cases are handled under the “assigned counsel” program administered by the county bar association, which also has a contract with the county to provide legal representation to low-income defendants.

Ultimately, Gradess said he hopes the state also creates a single, statewide defense program for the poor.

“There are 62 counties, more than 120 (legal defense) plans and all are different from each other,” he said.

The bill’s sponsors – Sen. John DeFrancisco, a Syracuse-area Republican, and Assemblywoman Patricia Fahy, an Albany Democrat – included in their bill a requirement that statewide rules be adopted, such as guaranteeing legal counsel at arraignment and establishing maximum attorney caseloads.

Waiting for a ruling

Indigent defense is one of the nine state-mandated programs that consume 99 percent of county property tax collections in New York, according to Mark LaVigne, deputy director of the New York State Association of Counties.

And legal defense could grow substantially for some counties if nothing is done. To help more lower income people get legal representation, the Office of Indigent Legal Services earlier this year proposed a hike in the income level – from 125 percent of the federal poverty rate to 250 percent – at which individuals can qualify for publicly-funded legal services.

In some rural upstate counties, that change could make 90 percent of the population eligible – leaving localities scrambling for a way to pay while living under strict property tax caps, LaVigne said.

“This is, for us, huge. It was probably the biggest action taken in the 2016 legislative session,” LaVigne said. “It’s been a vision since the late 1960s to have this cost go away.”

The bill OK’d by the Senate and Assembly phases the county-to-state cost shift over seven years. It is uncertain when Cuomo will ask the Legislature to send him the bill, which commences a 10-day timetable in which he must sign or veto the bill.


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