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At What Cost Legal Representation?

Contributed by: Alexander Simone
According to the Sixth Amendment of the Constitution, all criminal defendants have the right to legal representation and a fair trial.

New York has had several cases and passed several legislations since the 1960s that reaffirm the Sixth Amendment, guaranteeing that anyone who cannot afford representation in court, at any level, is supplied an attorney.

There are a few inconsistencies within these examples though.

The first is that there is no statewide standard for who financially qualified, which is instead decided by the individual counties.

“There was some general information provided, but there’s no oversight by any government agency,” Genesee County public defense attorney Jerry Ader said. “We used the 125 percent of the Federal Poverty Standards that had come out every year as a guideline, but then we also look into other available assets a person might have.”

According to the Office of the Assistant Secretary for Planning and Evaluation, within the U.S. Department of Health & Human Services, the 2015 Poverty Guideline for the 48 bordering states and the District of Columbia was $11,770 for one person.

This would mean that to qualify for a public defender in Genesee County, not accounting for assets, a single adult would need to make less than $15,000.

If a consistent cutoff were established, however, it would have to account for the difference in the cost of living in various areas.

If areas with a significantly higher income per capita were to use the same standard as Genesee County, the results would not be the same.

“Legal assistance is not cheap, I think most people know that,” said Kristin Shanley, a lawyer in the city of Oswego. “I don’t think it has to be as expensive as people assume that lawyers are just out getting huge fees for nothing.”

As an attorney in Oswego County, Shanley is not required to take on cases, but she said that it is a good way to pick up cases.

If a lawyer were interested in taking on cases through the county, they would get them through the Assigned Counsel Program, the program director, Sarah Davis said.

The job of the Assigned Counsel Program is to review cases in Oswego County and decide whether they warrant a lawyer supplied by the county.

If Davis and the other members vote in favor of representation, then an attorney takes the case and they are then paid by the county.

This stands in sharp relief to Genesee County, which has a full-time public defense team.

Lawyers in Oswego County may take cases from the county as they see fit, while Genesee County’s public defense team receives several hundred cases per attorney each year.

“There were 1,800 criminal court cases referred to our office, 530 family court matters,” Ader said. “The public defense office handles family court and criminal court. Those are the figures for 2015 and we have two family court attorneys in the office and four criminal attorneys.”

Each attorney handles roughly the same number of cases, meaning that the criminal attorneys took around 450 cases each or almost 1.25 per day.

Some counties banded together to change this practice in their areas.

According to the New York Civil Liberties Union, the counties of Onondaga, Ontario, Schuyler, Suffolk and Washington collectively sued New York State in 2010.

The case, Hurrell-Harring, et. al. v. State of New York, followed an investigation into the state’s justice system, in which the NYCLU found inconsistencies they deemed unconstitutional.

Among the findings were, “a failure to provide representation for some defendants in critical stages; incoherent or excessively restrictive eligibility standards that exclude indigent people from getting counsel; a lack of attorney-client consultation and communication… a lack of resources for investigations and expert services; overwhelming caseloads and/or workloads.”

This was problematic because it meant there was not enough representation available to responsibly supply to the “indigent” or those deemed below the counties’ poverty levels, and that not enough cases were being accepted.

Originally filed in 2007 by the counties and the NYCLU, the matter was settled on Oct. 2014, the day before the trial was to begin.

In doing so, the state agreed to limit the caseloads of attorneys, create a standard for who is deemed eligible and dedicate $4 million over two years to improve attorney communications with impoverished criminal defendants.

An assurance was also made that each indigent criminal defendant would have a representative at the first court appearance, which is often where plea bargains are made or bail is set, according to the NYCLU.

The settlement only applies to the five counties that sued, but there is legislation being pushed to create a consistent, statewide standard for who is financially qualified and to give counties the money needed for more cases.

If need be, Ader said that a similar case to Hurrell-Harring may occur again.

“I think that that may [happen] if the bill before the governor isn’t signed,” Ader said. “Many of the counties may feel that even though it’s costly to do that, it might be the only way to force the state’s hand to do what they did for the five counties.”

There are other factors to take into account however, such as whether public defense offices will become a requirement.

According to Davis, whether Oswego County should create a full-time public defense team has been a topic of discussion at the county’s Assigned Counsel Program, since before she became the program director a year ago.

A public defense team appears more expensive, but it is still widely debated.

One of the key differences between Oswego County and Genesee is that Oswego County population is 120,000, more than double Genesee’s.

According to the 2015 census, Oswego had a poverty rate of 17.4 percent, residents’ median income was almost $48,000 and the per capita income was $23,466.

Genesee County’s poverty rate was 13.4 percent, the median income was almost $51,000 and the per capita income was $25,240.

Taking into account population and poverty rate, Genesee County had almost 8,000 residents at or below poverty level.

If the 1,800 criminal public defense cases are taken into account, roughly 23 percent of the county’s impoverished took public defense assistance in 2015.

Oswego County, on the other hand, had almost 21,000 residents at or below poverty level, just more than a third of Genesee County’s total population.

If the same percentage were applied for how many indigent residents sought aid, just more than 4,900 defendants would have sought assistance from Oswego County for a criminal case.

While requiring a public defense team is not currently part of the discussion for new legislation, the numbers are still relevant, since the eligibility standard in Oswego will rise in the spring.

A new eligibility standard will go into effect statewide on April 1, Davis said.

The effect in Oswego County will be that 50 percent of the Oswego populace will qualify for financial assistance on their cases.

It is important to note, however, that it does not mean 50 percent of cases will be accepted; merely that 50 percent of residents will be eligible, which she attributed, in large part, to the significant college population within the county.

Regardless of the statistics and viewpoints, all three agree that more money for cases and a statewide standard are musts.

Alexander Simone is a Journalism student at SUNY Oswego.