S T A T E   O F   N E W   Y O R K
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                                  10374

                          I N  A S S E M B L Y

                              May 25, 2016
                               ___________

Introduced by M. of A. LENTOL -- read once and referred to the Committee
  on Codes

AN  ACT to amend the county law, the executive law and the state finance
  law, in relation to requiring limits on the number of cases  a  public
  defender may be assigned in any given year

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings and declaration.  In GIDEON  V.  WAIN-
WRIGHT,  372  U.S.  335 (1963) the United States Supreme Court held that
the 6th amendment right to counsel required  states  to  assign  defense
attorneys  to defendants charged with serious offenses and who could not
afford counsel. This constitutional rule was  subsequently  extended  to
require  states  to provide counsel to cases where a criminal conviction
could lead to imprisonment. In Gideon, the court held that  the  assign-
ment of counsel was essential to having a fair trial and was a constitu-
tional right of the accused which states could not violate.
  In  2005,  Judith  Kaye,  Chief  Judge  of the New York State Court of
Appeals, was appointed to head a state  commission  to  review  indigent
criminal  defense  in the state of New York. In 2006, The New York State
Commission on the Future of Indigent  Defense  Representation  concluded
that  "{t}he  indigent defense system in New York State is both severely
dysfunctional and structurally incapable of providing each poor  defend-
ant with the effective legal representation that he or she is guaranteed
by  the  Constitution of the United States and the Constitution and laws
of the State of New York." The commission also affirmed that the  exces-
sive  number  of  cases  assigned to public defenders caused irreparable
harm to representation.
  In 2009, the New York state legislature passed and  Governor  Paterson
signed  into  law  "case  caps"  for  public defenders in New York City.
Through the Office of Court Administration, the legislature supplemented
NYC's indigent defense budget  to  effectuate  a  judiciary  rule  which
limited  annual  criminal defense attorney caseloads to 400 misdemeanors
or 150 felonies, with felonies counted as  2.66  misdemeanors  in  mixed
caseloads.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD14846-05-6

A. 10374                            2

  In  October  2014,  Judge Kaye's warning of an on-going crisis came to
fruition as the New York Civil Liberties  Union  and  the  law  firm  of
Schulte Roth & Zabel LLP announced a historic settlement that overhauled
public defense in five New York counties and paved the way for statewide
reform  of New York's broken public defense system. By entering into the
agreement, New York state took responsibility  for  providing  extensive
responsibility for managing and funding indigent legal services.
  In  HURRELL-HARRING  V. NEW YORK, the plaintiffs charged that New York
state's decision to abdicate responsibility for public  defense  to  its
counties resulted in a patchwork of often understaffed, poorly resourced
and  largely  dysfunctional public defense systems where defendants were
routinely arraigned without  attorneys,  urged  to  take  plea  bargains
regardless  of  the  facts  of their cases, burdened by excessively high
bail, and incarcerated for shockingly long periods for misdemeanors  and
petty crimes. The suit contended that by failing to provide poor defend-
ants with adequate representation, New York state was violating the U.S.
Constitution, the state constitution and the laws of New York.
  New  York  state settled on the eve of trial. Under the agreement, the
state adopted major reforms focusing on five New York counties -  Ontar-
io,  Onondaga  (Syracuse),  Schuyler, Suffolk and Washington - that were
chosen because their public defense systems are all different and  cover
communities  large  and  small, but are all emblems of New York's flawed
approach. The agreement, which will last seven and one-half years and is
subject to court approval, contains the following major provisions:
  * Ensures that every poor criminal defendant will have a lawyer at the
first court appearance, where bail often is set and pleas taken;
  * Requires New York to  hire  sufficient  lawyers,  investigators  and
support  staff  to ensure that all poor criminal defendants have lawyers
with the time and support necessary to vigorously represent the  defend-
ant;
  *  Provides  for  the setting of caseload standards that will substan-
tially limit the number of cases any lawyer can carry, thereby  ensuring
that poor criminal defendants get a real defense;
  *  Requires  New  York to spend four million dollars over the next two
years to increase attorney communications with poor criminal defendants,
promote the use of investigators and experts, and improve the qualifica-
tions, training and supervision of lawyers representing indigent defend-
ants;
  * Mandates the creation of eligibility standards  for  representation,
thus allowing more New Yorkers to access public defense services;
  *  Strengthens  the Office of Indigent Legal Services as a state-level
oversight entity tasked with ensuring the  constitutional  provision  of
public  defense services and commits New York to provide the office with
the resources it needs  to  develop  plans  and  implement  and  monitor
reforms mandated by the settlement; and
  *  Provides that the plaintiffs will receive detailed reports allowing
them to monitor compliance with the agreement and, if necessary,  return
to court to enforce it.
  In  2015,  The Center for Court Innovation released a report titled AN
ANALYSIS OF MANDATORY CASE CAPS AND ATTORNEY WORKLOADS, concluding  that
mandatory cases caps dramatically improved the quality of representation
in Kings County.
  The  legislature  finds  and declares that in all criminal proceedings
against people unable to afford counsel, New  York  state  is  constitu-
tionally  responsible  for  ensuring  this fundamental right.   However,
because of the long history of county/city funding and recognizing  that

A. 10374                            3

a  complete  state  takeover  of  indigent  criminal defense services is
financially unattainable at this moment in time,  the  legislature  will
take  steps  to  ensure that the right to effective counsel is protected
against caseloads that compromise this right.
  The legislature finds and declares that the state is obligated to take
initiatives to improve the quality of indigent defense, ensure represen-
tation at arraignment, and implement caseload standards for providers of
indigent  legal services and implementing statewide standards for deter-
mining eligibility. To advance these initiatives  the  state  shall  pay
counties the full amount necessary to cover the costs of caseloads which
exceed the formula provided for herein.
  S  2.  The county law is amended by adding a new section 722-g to read
as follows:
  S 722-G. RESTRICTIONS ON CASELOADS.  THE  STATE  SHALL  REIMBURSE  ANY
COUNTY OR CITY FOR INDIVIDUAL CASELOADS ANNUALLY EXCEEDING THREE HUNDRED
SIXTY-SEVEN MISDEMEANORS OR ONE HUNDRED THIRTY-EIGHT FELONIES, WITH EACH
FELONY  COUNTING  AS  TWO AND SIXTY-SIX-HUNDREDTHS MISDEMEANORS IN MIXED
CASELOADS. FUNDS TO PAY FOR CASELOADS EXCEEDING THIS  FORMULA  SHALL  BE
REIMBURSED  BY  THE STATE TO THE COUNTY OR CITY PROVIDING SUCH SERVICES,
PROVIDED, HOWEVER, THAT IN THE STATE FISCAL YEAR:
  1. BEGINNING APRIL FIRST, TWO  THOUSAND  SEVENTEEN,  THE  STATE  SHALL
PROVIDE  REIMBURSEMENT  FOR  NOT  LESS  THAN TWENTY-FIVE PERCENT OF SUCH
EXPENSES;
  2. ON APRIL FIRST, TWO THOUSAND  EIGHTEEN,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FIFTY PERCENT OF THE EXPENSES;
  3.  ON  APRIL  FIRST,  TWO  THOUSAND NINETEEN, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN SEVENTY-FIVE PERCENT OF  SUCH  EXPENSES;
AND
  4.  TWO  THOUSAND  TWENTY  AND  THEREAFTER  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR THE FULL AMOUNT OF SUCH EXPENSES.
  S 3. Paragraphs (l) and (m) of subdivision 3 of  section  832  of  the
executive law, as added by section 1 of part E of chapter 56 of the laws
of  2010,  are  amended  and  a  new  paragraph  (n) is added to read as
follows:
  (l) to present findings and make recommendations for consideration  by
the  indigent legal services board established pursuant to section eight
hundred thirty-three of this article; [and]
  (m) to execute decisions of the indigent legal services  board  estab-
lished  pursuant  to section eight hundred thirty-three of this article,
including the distribution of funds[.]; AND
  (N) TO ADOPT, PROMULGATE, AMEND OR RESCIND RULES  AND  REGULATIONS  TO
CARRY  OUT  THE  PROVISIONS OF THIS SECTION, INCLUDING TO (I) ENSURE THE
PRESENCE OF COUNSEL AT THE FIRST APPEARANCE OF  ANY  ELIGIBLE  DEFENDANT
CHARGED  WITH  A CRIME, (II) ESTABLISH CASELOAD/WORKLOAD REGULATIONS FOR
ATTORNEYS PROVIDING MANDATED REPRESENTATION THAT  ALLOW  FOR  MEANINGFUL
AND  EFFECTIVE  ASSISTANCE  OF  COUNSEL;  ASSESS STATEWIDE CASELOADS AND
ALLOCATE MONIES TO COUNTIES AND CITIES  CONSISTENT  WITH  SECTION  SEVEN
HUNDRED TWENTY-TWO-G OF THE COUNTY LAW, AND (III) IMPROVE THE QUALITY OF
MANDATED REPRESENTATION.
  S 4. Subdivision 3 of section 98-b of the state finance law is amended
by adding three new paragraphs (e), (f) and (g) to read as follows:
  (E)  THE OFFICE OF INDIGENT LEGAL SERVICES MAY EXPEND A PORTION OF THE
FUNDS AVAILABLE IN SUCH FUND TO PROVIDE FOR CASELOAD RELIEF  IN  ACCORD-
ANCE WITH SECTION SEVEN HUNDRED TWENTY TWO-G OF THE COUNTY LAW, UP TO AN
ANNUAL AMOUNT OF SIXTY-SEVEN MILLION DOLLARS.

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  (F)  FOR  THE PURPOSE OF CASELOAD RELIEF AND PURSUANT TO SEVEN HUNDRED
TWENTY-TWO-G OF THE COUNTY LAW, AN ANNUAL AMOUNT OF SIXTY-SEVEN  MILLION
DOLLARS  SHALL BE MADE AVAILABLE TO EVERY COUNTY, EXCEPT THE CITY OF NEW
YORK, SUFFOLK COUNTY, WASHINGTON COUNTY, ONTARIO COUNTY, ONONDAGA  COUN-
TY,  AND  SCHUYLER  COUNTY  FROM SUCH FUND FOR THE PROVISION OF SERVICES
PURSUANT TO SECTION  SEVEN  HUNDRED  TWENTY-TWO-G  OF  THE  COUNTY  LAW;
PROVIDED  THAT  EVERY  COUNTY,  EXCEPT  THE CITY OF NEW YORK CONTINUE TO
PROVIDE AT MINIMUM THE AGGREGATE AMOUNT OF FUNDING  FOR  PUBLIC  DEFENSE
SERVICES  INCLUDING,  BUT  NOT  LIMITED  TO,  THE  AMOUNT OF FUNDING FOR
CONTRACTORS OF PUBLIC DEFENSE SERVICES AND INDIVIDUAL DEFENSE ATTORNEYS,
THAT IT PROVIDED, PURSUANT TO  ARTICLE  EIGHTEEN-B  OF  THE  COUNTY  LAW
DURING ITS TWO THOUSAND SIXTEEN--TWO THOUSAND SEVENTEEN FISCAL YEAR.
  (G)  FUNDS  TO PAY FOR CASELOADS EXCEEDING THIS FORMULA SHALL BE REIM-
BURSED BY THE STATE TO THE  COUNTY  OR  CITY  PROVIDING  SUCH  SERVICES,
PROVIDED, HOWEVER, THAT IN THE STATE FISCAL YEAR:
  (I)  BEGINNING  APRIL  FIRST,  TWO THOUSAND SEVENTEEN, THE STATE SHALL
PROVIDE REIMBURSEMENT FOR NOT LESS  THAN  TWENTY-FIVE  PERCENT  OF  SUCH
EXPENSES;
  (II)  ON  APRIL  FIRST, TWO THOUSAND EIGHTEEN, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FIFTY PERCENT OF THE EXPENSES;
  (III) ON APRIL FIRST, TWO THOUSAND NINETEEN, THE STATE  SHALL  PROVIDE
REIMBURSEMENT  FOR  NOT LESS THAN SEVENTY-FIVE PERCENT OF SUCH EXPENSES;
AND
  (IV) IN TWO THOUSAND TWENTY AND THEREAFTER  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR THE FULL AMOUNT OF SUCH EXPENSES.
  S 5. This act shall take effect immediately.