“While there are pending legal and constitutional challenges” to systemic indigent defense deficiencies in New York that will play themselves out, there remains “an independent and compelling moral obligation for every participant in the criminal justice system to work together” to end the practice of arraigning and jailing indigent defendants who are not represented by counsel, announced New York’s Chief Judge Jonathan Lippman on May 2, 2011 during his annual Law Day address. Calling the practice “a fundamental failure that can no longer be tolerated in a modern, principled society governed by the rule of law,” he vowed that by next year’s Law Day “the norm in our great State will be that defendants are represented by counsel at arraignment, and that anything less than that will be aberrational in nature.”
“The basic fairness of our criminal justice system is being compromised by the reality -- in New York and around the country -- of chronically overburdened public defenders who have very little time to investigate the facts, get to know a client or build a competent legal defense in each case. Countless defendants are processed every day in an assembly line fashion miles removed from the ideal of equal justice for all,” New York's highest judicial official continued. “In New York, as has been reported prominently in the press, defendants in our vitally important Town and Village Courts, the courts closest to the people, are routinely arraigned and sometimes even jailed in lieu of bail -- all without a lawyer present to argue for their pretrial liberty or begin to prepare their defense.”
Current practices in New York are unconstitutional. Through a long series of cases, the U.S. Supreme Court has defined when it is, between arrest and conclusion of a case, that an indigent person facing loss of liberty is entitled to have a lawyer be appointed and represent them – this is referred to as when the right of counsel attaches. In 2008 in Rothgery v. Gillespie County, TX, the Court made clear that the right to counsel attaches “at the initial appearance before a judicial officer,” by whatever name that hearing is known in a given jurisdiction, but “generally the hearing at which ‘the magistrate informs the defendant of the charge in the complaint, and of various rights in further proceedings,’ and ‘determine[s] the conditions for pretrial release.’” In 2010, the Maryland Supreme Court relied heavily on Rothgery in ruling that counsel must be provided at bail hearings. (Click here for Phyllis Mann’s fuller discussion of case law and standards requiring prompt appointment of counsel).
Chief Judge Lippman used the Law Day address to announce a change in how state money is disseminated to counties as the means of ridding New York of these unfair practices. In 2003, the New York legislature established the Indigent Legal Services Fund (ILSF), an annual appropriation of the state legislature augmented by court and department of motor vehicle (DMV) fees and administered by the Comptroller. Historically, the amount of money each county government received from ILSF was calculated based solely on their individual percentage of the overall expenditure for right to counsel services during the previous fiscal year. In 2010, the legislature created the Indigent Legal Services Office (ILS) transferring control of ILSF from the Comptroller to the new ILS office. As Lippman states, “One of the key ways in which we will promote reform is by transitioning away from payments to localities that are based solely on local expenditures and by moving toward a funding system in which future payments will be based on performance, attention to quality, and need.”
He continued, “[t]he Office will use its discretionary grant authority and technical expertise to encourage and support localities in crafting creative approaches to this problem, including where adjoining localities agree, utilizing centralized arraignments, as well as taking full advantage of modern technology, streamlining inter-agency procedures and improving communications and information sharing.”
Here is hoping that other states follow New York’s lead in ending the practice of no counsel courts. Perhaps it is important to remind readers that it was the U.S. Supreme Court in the case of the Scottsboro Boys [Powell v. Alabama, 287 U.S. 45 (1932)] that first cautioned state courts against placing too much emphasis on celerity of case processing over due process: “The prompt disposition of criminal cases is to be commended and encouraged. But, in reaching that result, a defendant … must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of a mob.”