NY State Senate Bill S4032B

Archive: Last Bill Status - In Senate Committee Local Government Committee

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

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Actions

view actions (6)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to local government
May 22, 2017	print number 4032b
May 22, 2017	amend (t) and recommit to local government
May 08, 2017	print number 4032a
May 08, 2017	amend and recommit to local government
Feb 02, 2017	referred to local government

Bill Amendments

Original

B (Active)

Original

B (Active)

Co-Sponsors

S4032 - Details

Current Committee:: Senate Local Government
Law Section:: Executive Law
Laws Affected:: Amd §832, Exec L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S7481
2019-2020: S2559
2021-2022: S3356
2023-2024: S1238

S4032 - Summary

Relates to requiring limits on the number of cases a public defender may be assigned in any given year.

S4032 - Sponsor Memo

 BILL NUMBER:  S4032

 TITLE OF BILL :  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

 PURPOSE :

The purpose of this bill is to establish "case caps" for indigent
defense services throughout the State of New York. Specifically, this
bill limits or otherwise caps annual criminal defense attorney
caseloads to 367 misdemeanors or 138 felonies, with felonies counted
as 2.66 in mixed caseloads. Please note that this bill is not
applicable to New York City, Ontario, Onondaga (Syracuse), Schuyler,
Suffolk and Washington Counties, as these areas already have
restrictions in the number of cases a public defender may carry, such
caps achieved either through prior legislation or court settlement.

 SUMMARY OF PROVISIONS :

Section 1 of the bill provides for a Legislative finding and
declaration.

Section 2 of the bill: provides that the state shall reimburse
counties or cities for any caseloads that exceed 367 misdemeanors or
138 felonies, with felonies counted as 2.66 in mixed caseloads. This

section creates a four year phase-in schedule so that 25% of excessive
caseloads are reimbursed in the first year, 50% of excessive caseloads
are reimbursed in the second year; 75% reimbursement for excessive
caseloads in the second year; and 100% reimbursement thereafter.

Section 3 of the bill amends the executive law to commission the
Office of Indigent Legal Services with the power to adopt, promulgate,
amend or rescind rules and regulations regarding representation at
arraignments, caseloads/workloads and eligibility for assigned counsel
outside New York City. This section specifically authorizes the Office
of Indigent Legal Services to assess statewide caseloads and to expend
monies to eligible counties/cities where caseloads are excessive.

Section 4 of the bill amends the state finance law to specify that (1)
this bill provides monies only in situations where counties exceed the
caseload formula and states that the intent of this bill is to
supplement ongoing and locally funded indigent defense services; (2)
This section also provides for a four year incremental phase-in of
supplemental monies to counties/cities; (3) This section authorizes
the Office of Indigent Legal Services to assess statewide caseloads
outside New York City and distribute the funds set aside for case caps
consistent with the formula enunciated in section 722-f of this bill.

 JUSTIFICATION :

In Gideon v. Wainwright, 372 U.S. 335 (1963) the Supreme Court of the
United States 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 holding
was subsequently extended to require States to provide counsel to
cases where criminal conviction could lead to imprisonment.  In
Gideon, the Court held that the assignment of counsel was essential to
a fair trial and a constitutional right of the accused which States
can not abridge.

Judith Kaye, former Chief Judge of the New York State Court of Appeals
was appointed to head a 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
defendant 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 excessive number of cases assigned to public
defenders has a direct impact on representation.

In 2009, the New York State Legislature passed and Governor Patterson
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 an Appellate
Division Rule which limited annual criminal defense attorney caseloads
to 400 misdemeanors or 150 felonies, with felonies counted as 2.66
misdemeanors in mixed caseloads. 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
substantially improved the quality of representation in Kings County.

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, the state took responsibility for
providing public defense for the first time since the Supreme Court of
the United States decided Gideon v. Wainwright.

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 defendants with adequate representation, New York
State was violating the U.S. Constitution, the state constitution and
the laws of New York.

New York settled on the eve of trial. Under the agreement, the state
adopted major reforms focusing on five New York counties Ontario,
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 7; 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
defendant;

*Provides for the setting of caseload standards that will
substantially limit the number of cases any lawyer can carry, thereby
ensuring that poor criminal defendants get a real defense;

*Requires New York to spend $4 million over the next two years to
increase attorney communications with poor criminal defendants,
promote the use of investigators and experts, and improve the
qualifications, training and supervision of lawyers representing
indigent defendants;


*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.

Although the prime sponsor of this bill supports a complete state
takeover of indigent defense services, the financial restraints of the
state and the historic funding of legal services by counties and the
city of New York would make a complete state takeover unlikely.  This
bill represents a bridge to the day when the State of New York takes
direct and complete responsibility for the provision of indigent
criminal defense services.

This bill provides mandate relief for counties or cities and resolves
some of the issues raised in the recent court settlement surrounding
the right to counsel,

 EXISTING LAW :

Currently, counties and the City of New York are charged with
providing funding for indigent criminal defense programs. Limits on
the number of cases assigned to public defenders and supplemental
state aid to pay for caseloads in excess of a judicial formula exist
in the City of New York, and by court settlement in Suffolk County,
Washington County, Ontario County, Onondaga County, and Schuyler
County. However, there are no restrictions for caseloads, nor
supplemental state aid to pay for case caps in the rest of the State
of New York.

 LEGISLATIVE HISTORY :

2015-16: S.7481/A.10374(Lentol) - Referred to Local Government

 FISCAL IMPLICATIONS :

This bill sets aside 67 million dollars to be disbursed to every
county in the state except those in the City of New York, Ontario,
Onondaga (Syracuse), Schuyler, Suffolk and Washington Counties.

 EFFECTIVE DATE :
This act shall take effect immediately.

S4032 - Bill Text download pdf


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

                                  4032

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                            February 2, 2017
                               ___________

Introduced  by  Sens.  BAILEY,  COMRIE,  HAMILTON,  MONTGOMERY,  PARKER,
  PERKINS, PERSAUD -- read twice and ordered printed, and  when  printed
  to be committed to the Committee on Local Government

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

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

                                                           LBD03923-01-7

S. 4032                             2

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.
  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.

S. 4032                             3

  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  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.
  § 2. The county law is amended by adding a new section 722-g  to  read
as follows:
  §  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  EIGHTEEN, THE STATE SHALL
PROVIDE REIMBURSEMENT FOR NOT LESS  THAN  TWENTY-FIVE  PERCENT  OF  SUCH
EXPENSES;
  2.  ON  APRIL  FIRST,  TWO  THOUSAND NINETEEN, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FIFTY PERCENT OF THE EXPENSES;
  3. ON APRIL FIRST,  TWO  THOUSAND  TWENTY,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT  FOR  NOT LESS THAN SEVENTY-FIVE PERCENT OF SUCH EXPENSES;
AND
  4. TWO THOUSAND TWENTY-ONE AND  THEREAFTER  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT FOR THE FULL AMOUNT OF SUCH EXPENSES.
  §  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.
  § 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:

S. 4032                             4

  (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.
  (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 SEVENTEEN--TWO THOUSAND EIGHTEEN 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 EIGHTEEN, THE STATE SHALL
PROVIDE REIMBURSEMENT FOR NOT LESS  THAN  TWENTY-FIVE  PERCENT  OF  SUCH
EXPENSES;
  (II)  ON  APRIL  FIRST, TWO THOUSAND NINETEEN, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN FIFTY PERCENT OF THE EXPENSES;
  (III) ON APRIL FIRST, TWO THOUSAND TWENTY,  THE  STATE  SHALL  PROVIDE
REIMBURSEMENT  FOR  NOT LESS THAN SEVENTY-FIVE PERCENT OF SUCH EXPENSES;
AND
  (IV) IN TWO THOUSAND TWENTY-ONE AND THEREAFTER THE STATE SHALL PROVIDE
REIMBURSEMENT FOR THE FULL AMOUNT OF SUCH EXPENSES.
  § 5. This act shall take effect immediately.

Co-Sponsors

S4032A - Details

Current Committee:: Senate Local Government
Law Section:: Executive Law
Laws Affected:: Amd §832, Exec L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S7481
2019-2020: S2559
2021-2022: S3356
2023-2024: S1238

S4032A - Summary

Relates to requiring limits on the number of cases a public defender may be assigned in any given year.

S4032A - Sponsor Memo

 BILL NUMBER:  S4032A

 TITLE OF BILL :

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

 PURPOSE :

The purpose of this bill is to establish "case caps" for indigent
defense services throughout the State of New York.

 SUMMARY OF PROVISIONS :

Section 1 of the bill provides for Caseload relief to develop and
implement a written plan that establishes numerical caseload/workload
standards for each provider of constitutionally mandated publicly
funded representation in criminal cases for people who are unable to
afford counsel, provided that annual individual numerical
caseload/workload standards may not exceed 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.

 JUSTIFICATION :

In Gideon v. Wainwright, 372 U.S. 335 (1963) the Supreme Court of the
United States 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 holding
was subsequently extended to require States to provide counsel to
cases where criminal conviction could lead to imprisonment. In Gideon,
the Court held that the assignment of counsel was essential to a fair
trial and a constitutional right of the accused which States can not
abridge.

Judith Kaye, former Chief Judge of the New York State Court of Appeals
was appointed to head a 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
defendant 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 excessive number of cases assigned to public
defenders has a direct impact on representation.

In 2009, the New York State Legislature passed and Governor Patterson
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 an Appellate
Division Rule which limited annual criminal defense attorney caseloads
to 400 misdemeanors or 150 felonies, with felonies counted as 2.66
misdemeanors in mixed caseloads. 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
substantially improved the quality of representation in Kings County.

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, the state took responsibility for
providing public defense for the first time since the Supreme Court of
the United States decided Gideon v. Wainwright.

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 defendants with adequate representation, New York
State was violating the U.S. Constitution, the state constitution and
the laws of New York.

New York settled on the eve of trial. Under the agreement, the state
adopted major reforms focusing on five New York counties Ontario,
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 7 years, contained,
among other provisions, requirements for the setting of caseload
standards that will substantially limit the number of cases any lawyer
can carry, thereby ensuring that poor criminal defendants get a real
defense.

In the 2017 state budget, New York finally implemented reforms to the
public defender system by strengthening the Office of Indigent Legal
Services and applying the lessons learned from Hurrell-Harring
statewide. The budget instructed the Office of Indigent Legal Services
to devise plans to provide counsel at all arraignments, improve the
training and supervision of public defenders, and set caseload caps.
The State will reimburse counties for the costs of implementing these
plans, subject to approval of the plans by the Division of the Budget.

Although the prime sponsor of this bill supports a complete state
takeover of indigent defense services, the financial restraints of the
state and the historic funding of legal services by counties and the
city of New York would make a complete state takeover unlikely.

This legislation will ensure that the Office of Indigent Legal
Services aggressively pursues caseload caps that will allow public
defenders to devote sufficient time and energy to each case. The
standards must not be more than 367 misdemeanors or 138 felonies per
year. With the state funding available to achieve these goals, local
governments can truly achieve transformational success in their public
defense systems.

 LEGISLATIVE HISTORY :

2015-16: S.7481/A.10374(Lentol) - Referred to Local Government

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
This act shall take effect immediately.

S4032A - Bill Text download pdf


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

                                 4032--A

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                            February 2, 2017
                               ___________

Introduced  by  Sens.  BAILEY,  COMRIE,  HAMILTON,  MONTGOMERY,  PARKER,
  PERSAUD -- read twice and ordered printed,  and  when  printed  to  be
  committed   to   the   Committee  on  Local  Government  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03923-02-7

S. 4032--A                          2

  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.
  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.

S. 4032--A                          3

  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  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.
  § 2. The county law is amended by adding a new section 722-g  to  read
as follows:
  §  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  EIGHTEEN, THE STATE SHALL
PROVIDE REIMBURSEMENT FOR NOT LESS  THAN  TWENTY-FIVE  PERCENT  OF  SUCH
EXPENSES;
  2.  BEGINNING  APRIL  FIRST,  TWO  THOUSAND  NINETEEN, THE STATE SHALL
PROVIDE REIMBURSEMENT FOR NOT LESS THAN FIFTY PERCENT OF THE EXPENSES;
  3. BEGINNING APRIL FIRST, TWO THOUSAND TWENTY, THE STATE SHALL PROVIDE
REIMBURSEMENT FOR NOT LESS THAN SEVENTY-FIVE PERCENT OF  SUCH  EXPENSES;
AND
  4. BEGINNING IN TWO THOUSAND TWENTY-ONE AND THEREAFTER THE STATE SHALL
PROVIDE REIMBURSEMENT FOR THE FULL AMOUNT OF SUCH EXPENSES.
  §  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

S. 4032--A                          4

HUNDRED TWENTY-TWO-G OF THE COUNTY LAW, AND (III) IMPROVE THE QUALITY OF
MANDATED REPRESENTATION.
  §  4.  Paragraph  (b) of subdivision 4 of section 832 of the executive
law, as added by section 12 of part VVV of chapter 59  of  the  laws  of
2017, is amended to read as follows:
  (b)  Caseload relief. Develop and implement a written plan that estab-
lishes  numerical  caseload/workload  standards  for  each  provider  of
constitutionally  mandated  publicly  funded  representation in criminal
cases for people who are unable to afford counsel, PROVIDED THAT  ANNUAL
INDIVIDUAL  NUMERICAL  CASELOAD/WORKLOAD  STANDARDS MAY NOT EXCEED 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.
  § 5. 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.
  (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 SEVENTEEN--TWO THOUSAND EIGHTEEN 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  EIGHTEEN,  THE  STATE  SHALL
PROVIDE  REIMBURSEMENT  FOR  NOT  LESS  THAN TWENTY-FIVE PERCENT OF SUCH
EXPENSES;
  (II) BEGINNING APRIL FIRST, TWO THOUSAND  NINETEEN,  THE  STATE  SHALL
PROVIDE REIMBURSEMENT FOR NOT LESS THAN FIFTY PERCENT OF THE EXPENSES;
  (III)  BEGINNING  APRIL  FIRST,  TWO  THOUSAND TWENTY, THE STATE SHALL
PROVIDE REIMBURSEMENT FOR NOT LESS THAN  SEVENTY-FIVE  PERCENT  OF  SUCH
EXPENSES; AND
  (IV)  BEGINNING  IN  TWO  THOUSAND TWENTY-ONE AND THEREAFTER THE STATE
SHALL PROVIDE REIMBURSEMENT FOR THE FULL AMOUNT OF SUCH EXPENSES.
  § 6. This act shall take effect immediately.

Co-Sponsors

S4032B (ACTIVE) - Details

Current Committee:: Senate Local Government
Law Section:: Executive Law
Laws Affected:: Amd §832, Exec L
Versions Introduced in Other Legislative Sessions:: 2015-2016: S7481
2019-2020: S2559
2021-2022: S3356
2023-2024: S1238

S4032B (ACTIVE) - Summary

Relates to requiring limits on the number of cases a public defender may be assigned in any given year.

S4032B (ACTIVE) - Sponsor Memo

 BILL NUMBER:  S4032B

 TITLE OF BILL :

An act to amend the executive law, in relation to caseload relief

 PURPOSE :

The purpose of this bill is to establish "case caps" for indigent
defense services throughout the State of New York.

 SUMMARY OF PROVISIONS :

Section 1 of the bill provides for Caseload relief to develop and
implement a written plan that establishes numerical caseload/workload
standards for each provider of constitutionally mandated publicly
funded representation in criminal cases for people who are unable to
afford counsel, provided that annual individual numerical
caseload/workload standards may not exceed 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.

 JUSTIFICATION :

In Gideon v. Wainwright, 372 U.S. 335 (1963) the Supreme Court of the

United States 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 holding
was subsequently extended to require States to provide counsel to
cases where criminal conviction could lead to imprisonment. In Gideon,
the Court held that the assignment of counsel was essential to a fair
trial and a constitutional right of the accused which States can not
abridge.

Judith Kaye, former Chief Judge of the New York State Court of Appeals
was appointed to head a 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
defendant 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 excessive number of cases assigned to public
defenders has a direct impact on representation.

In 2009, the New York State Legislature passed and Governor Patterson
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 an Appellate
Division Rule which limited annual criminal defense attorney caseloads
to 400 misdemeanors or 150 felonies, with felonies counted as 2.66
misdemeanors in mixed caseloads. 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
substantially improved the quality of representation in Kings County.

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, the state took responsibility for
providing public defense for the first time since the Supreme Court of
the United States decided Gideon v. Wainwright.
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 defendants with adequate representation, New York
State was violating the U.S. Constitution, the state constitution and
the laws of New York.

New York settled on the eve of trial. Under the agreement, the state
adopted major reforms focusing on five New York counties Ontario,
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 7 years, contained,
among other provisions, requirements for the setting of caseload
standards that will substantially limit the number of cases any lawyer
can carry, thereby ensuring that poor criminal defendants get a real
defense.

In the 2017 state budget, New York finally implemented reforms to the
public defender system by strengthening the Office of Indigent Legal
Services and applying the lessons learned from Hurrell-Harring
statewide. The budget instructed the Office of Indigent Legal Services
to devise plans to provide counsel at all arraignments, improve the
training and supervision of public defenders, and set caseload caps.
The State will reimburse counties for the costs of implementing these
plans, subject to approval of the plans by the Division of the Budget.

Although the prime sponsor of this bill supports a complete state
takeover of indigent defense services, the financial restraints of the
state and the historic funding of legal services by counties and the
city of New York would make a complete state takeover unlikely.

This legislation will ensure that the Office of Indigent Legal
Services aggressively pursues caseload caps that will allow public
defenders to devote sufficient time and energy to each case. The
standards must not be more than 367 misdemeanors or 138 felonies per
year. With the state funding available to achieve these goals, local
governments can truly achieve transformational success in their public
defense systems.

 LEGISLATIVE HISTORY :

2015-16: S.7481/A.10374(Lentol) - Referred to Local Government

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
This act shall take effect immediately.

S4032B (ACTIVE) - Bill Text download pdf


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

                                 4032--B

                       2017-2018 Regular Sessions

                            I N  S E N A T E

                            February 2, 2017
                               ___________

Introduced  by  Sens.  BAILEY,  COMRIE,  HAMILTON,  MONTGOMERY,  PARKER,
  PERSAUD -- read twice and ordered printed,  and  when  printed  to  be
  committed   to   the   Committee  on  Local  Government  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the executive law, in relation to caseload relief

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

  Section 1.  Paragraph (b) of subdivision 4 of section 832 of the exec-
utive law, as added by section 12 of part VVV of chapter 59 of the  laws
of 2017, is amended to read as follows:
  (b)  Caseload relief. Develop and implement a written plan that estab-
lishes  numerical  caseload/workload  standards  for  each  provider  of
constitutionally  mandated  publicly  funded  representation in criminal
cases for people who are unable to afford counsel, PROVIDED THAT  ANNUAL
INDIVIDUAL  NUMERICAL  CASELOAD/WORKLOAD  STANDARDS MAY NOT EXCEED 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.
  § 2. This act shall take effect immediately.




 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03923-03-7

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senate Bill S4032B

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