———- Forwarded message ———-
From: Leahy, Bill (ILS) <Bill.Leahy@ils.ny.gov>
Date: Mon, Apr 4, 2016 at 4:26 PM
Subject: Criteria and Procedures for Determining Assigned Counsel Eligibility
Dear Board Members, Chief Defenders, Parental Representation Providers, County and City Officials:
I am pleased to share with you the Criteria and Procedures for Determining Assigned Counsel Eligibility. They are the product of public hearings and surveys we conducted, in which many of you participated. These Criteria and Procedures are an important step toward the goal of having a uniform and legally acceptable eligibility standard in New York for people who are entitled by law to the assistance of counsel but “who are financially unable to obtain counsel.” County Law § 722. They are issued in accordance with Section VI of the Stipulation and Order of Settlement in Hurrell-Harring v. The State of New York and the authority granted to ILS under Executive Law § 832(3)(c). Their effective date is October 3, 2016. During this six-month period, judges and eligibility screeners will receive training in their implementation.
I would like to emphasize a few points about these Criteria and Procedures:
· Both the statute and the settlement order state that the Criteria and Procedures are intended “to guide courts…in determining whether a person is eligible for” publicly funded representation.
· The Criteria and Procedures do not require any change in current practice whereby some judges determine eligibility directly, while others delegate eligibility recommendation responsibility to a screening entity.
· The Criteria and Procedures respond to decades of criticism of New York’s failure to have a consistent set of criteria and procedures for determining eligibility for assigned counsel. In particular, they address the 2006 Kaye Commission critique that “guidelines for the appointment of counsel exist only in a few counties and that even in those counties, the guidelines were not uniformly applied.” Therefore, “a defendant may be deemed eligible for the appointment of counsel in one county and ineligible in a neighboring county or even in a different court within the same county.”
· The process that we used to develop these Criteria and Procedures is explained at pp. 6-10. I emphasize here that an important resource discovered at one of our eight public hearings was the 1977 Memorandum by the then-Director of the Third Judicial Department, Richard J. Comiskey, prepared at the direction of then-Presiding Justice Koreman and entitled “Assignment of Attorneys to Represent Individuals who are Financially Unable to Obtain Counsel.” Our Criteria and Procedures build upon that early effort, which may be found at https://www.ils.ny.gov/files/Hurrell-Harring/Eligibility/Written%20Submissions/6th%20JD/Murphy/1977%20Third%20Department%20Memo.pdf.
· We have heard and we respect the concerns that the implementation of these Criteria and Procedures may, in some localities, increase the number of persons who are eligible for the appointment of counsel. The data collection procedures described at pp. 50-51 are designed to measure that potential fiscal impact. Even in advance of implementation, during this six-month period of preparation, we will attempt to estimate the potential fiscal impact in particular localities; and we will seek additional state funding to pay for any increase in local costs which is attributable to their implementation.
· A comprehensive study that we undertook to inform our establishment of these Criteria and Procedures is available for review on our website, https://www.ils.ny.gov. That report is entitledDetermining Eligibility for Assignment of Counsel in New York: A Study of Current Criteria and Procedures and Recommendations for Improvement (Final Report: February 12, 2016). The Criteria and Procedures themselves are also accessible on our website.
· As explained at page six, second paragraph, these Criteria and Procedures apply to criminal court proceedings in the counties outside of New York City. However, we hope that they will provide guidance also to judges making eligibility determinations in criminal cases in New York City, and to Family Court judges statewide.
Thank you all for your efforts to improve the quality of legally mandated representation in New York.
William J. Leahy
NYS Office of Indigent Legal Services
80 S. Swan Street
Albany, NY 12210
Editor’s NOTE: Forms are included in the appendices to the document.