Grants and Distributions - Counsel at First Appearance

In November 2013, the Office of Indigent Legal Services (ILS) embarked upon improving the quality of constitutionally legal representation constitutionally guaranteed to all indigent persons by making funds available and soliciting proposals from counties to develop new, innovative programs and processes designed to measurably improve the delivery of indigent defense services afforded at a defendant’s first appearance before a judge or judicial officer. In response to an RFP to make demonstrable and measurable improvements to the delivery of indigent legal services, ILS awarded demonstration grants to support 25 upstate New York counties in their effort to provide effective representation of counsel at arraignment and to promote continuous representation of such persons throughout their criminal proceedings. Grants were also awarded to those counties able to produce a replicable model or practice that is usable and adaptable by other localities or counties throughout the State. Funding was also provided to support those efforts in establishing a replicable model or practice that could be adaptable in similar localities and/or counties throughout the State. A list of grantee counties is available for review.

On January 6, 2017, ILS released its Second Counsel at First Appearance RFP.

The right to representation in a criminal matter is a basic right guaranteed by the Constitutions of New York and of the United States and by State statutes. These rules of law guarantee that defendants in criminal cases have legal assistance for their defense. In Gideon v Wainwright, 372 US 335 (1963), the Supreme Court held that states are required under the Sixth Amendment to provide representation in criminal cases for defendants who are unable to afford their own attorneys. Supreme Court Justice Hugo Black wrote in Gideon that “. . .in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him,” and that in the United States, the defendant’s right to counsel is fundamental and essential to a fair trial.

In 1965, in response to the Gideon decision and People v Witenski, 15 NY2d 392 (April 22,1965), New York enacted County Law 18-B and created a county-based system of delivering mandated legal services to indigent defendants to ensure that they receive meaningful and effective assistance of counsel. However, across New York State, this guaranteed right to effective legal representation has yet to be fully realized. In a 2006 report issued by the Commission on the Future of Indigent Defense Services, created by then-Chief Judge Judith Kaye, glaring deficiencies were found in the quality of indigent legal services offered by counties, including excessive caseloads, inability to hire full-time defenders, lack of adequate support services, lack of adequate training, minimal client contact and, in some courts, outright denial of the constitutional right to counsel.

The Supreme Court in Rothgery v Gillespie County,Texas, 554 US 191 (2008), made clear that the right to counsel attaches at arraignment. The Court stated “that the right to counsel guaranteed by the Sixth Amendment applies at first appearance before a judge at which a defendant is told of the formal accusations against him and restrictions are imposed on his liberty.”

In furtherance of recent efforts to improve the overall quality of indigent legal representation, a historic settlement agreement was reached in New York State on October 21, 2014, to ensure the constitutional right of counsel guaranteed under Gideon. The settlement agreement was reached in response to a complaint brought by the New York Civil Liberties Union on behalf of indigent criminal defendants in Hurrell-Harring et al v State of New York, 15 NY 3d 8 (May 6, 2010). The agreement recognized that an arraignment is a “critical stage of the proceeding” that requires the presence of counsel particularly when a defendant’s “pretrial liberty interests” are at stake and may, when deprived, subject individuals to some of the “most serious consequences, both direct and collateral, including the loss of employment and housing, and inability to support and care for particularly needy dependents.” This agreement, to be implemented and monitored by ILS, will produce recommendations for reforms in indigent legal representation that, among reforms, will ensure counsel at arraignment for indigent defendants in the five following counties - Ontario, Onondaga, Schuyler, Suffolk and Washington - over a period of 7½ years subject to court approval.

ILS has also recently entered into a partnership with the University at Albany, School of Criminal Justice, to gather and analyze research relating to the state of legal counsel available for indigent persons in New York State. A two-year study has been initiated to review the representation of counsel at a defendant’s first appearance in several New York counties to determine if sufficient and appropriate resources are readily available during this early and critical stage of a criminal proceeding. The project, funded by the National Institute of Justice (NIJ), will focus on six specific upstate New York counties and is designed to assess the impact of funding the improvement of counsel at first appearance across upstate New York. For more information, visit http://www.albany.edu/news/54018.php.

Though several counties have made recent progress in providing counsel at first appearance, significant challenges persist. Thus, persons deemed eligible for indigent legal defense services continue to be arraigned without counsel at first appearance. Causes include, among other things, excessive caseloads, a lack of resources, statutory restrictions, and logistical challenges. This often results in unnecessary or excessive bail being set and keeps people of limited financial means in jail awaiting trial.

In light of reports describing the crisis in the delivery of indigent defense services throughout New York State, and the developments that have taken place over the last year to enhance the provision of legal services to persons who cannot afford them, ILS recognizes the essential need for counsel at a defendant’s first appearance before a judge and remains committed to building upon those initiatives that serve to improve the overall quality and availability of legal representation available to all indigent persons.