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An Ongoing Crisis: 10 Critical Problems in NY Public Defense
Adapted from the 2006 report to former NY Chief Justice Judith Kaye

New York’s current fragmented system of county-operated and largely county-financed public defense services fails to satisfy the state’s constitutional and statutory obligations to protect the rights of the person accused.

  1. There is no statewide standard that defines “adequate” public defense and there exists no mechanism to enforce any particular set of standards.

  2. The amount of money currently allocated within the State of New York for the provision of constitutionally-mandated public defense is grossly inadequate, leading to . . .

    (a) excessive caseloads
    (b) inability to hire full-time defenders
    (c) lack of adequate support services
    (d) lack of adequate training
    (e) minimal client contact and investigation

  3. The current method of providing public defense services in New York imposes a large unfunded mandate by the State upon its counties, results in a very uneven distribution of services and compromises the independence of defense providers.

  4. In Town and Village Courts, in which a majority of the justices presiding are not lawyers, there is a widespread denial of the right to counsel and even a lack of clear understanding as to which cases trigger the right to counsel.

  5. There is a significant statewide disparity between the resources available to public defenders and those enjoyed by prosecutors.

  6. There are no clear standards regarding eligibility determination and procedures.

  7. The lack of more open discovery procedures and variations in discovery practices impedes the efficient expedition of cases, timely investigation by the defense, including location of witnesses, and gives rise to unfairness. This necessitates more time and effort on the part of defense lawyers.

  8. Defense providers are not providing the requisite counseling with regard to collateral issues that can affect critically a defendant’s case, especially those regarding a defendant’s immigration status. Insofar as minorities are disproportionally represented in the criminal justice system, this failure has particular implications for individuals in those communities.

  9. There is no comprehensive system of data collection designed to provide accurate statistics regarding the provision of public criminal defense services in New York. The absence of such a system significantly hampers the ability of policy makers and administrators to make informed judgments and plan meaningful improvements in the administration of public defense services.

  10. The Kaye Commission's ultimate conclusion, based on all the information that was presented to it, is that the delivery system most likely to guarantee quality representation to those entitled to it is a statewide defender system that is truly independent, is entirely and adequately state-funded and is one in which those providing public defense services are employees of entities within the defender system or are participants in an assigned counsel plan that has been approved by the body established to administer the statewide defender system.