5 December 2016
Governor Cuomo:

Let me start by applauding you for your recent actions supporting the rights of the poor and disenfranchised.  Your plan to create of a public/private defense fund for individuals facing immigration deportation proceedings; your passage of legislation requiring the presence of a lawyer at all arraignments of individuals facing possible detention at the start of a criminal case against them; and signing the law which streamlines the process for indigent people to be provided a lawyer free of charge when appealing a conviction; all these actions New York State’s long standing support for the individuals liberty and due process rights of all people within its borders, regardless of their country of citizenship or their ability to pay for a lawyer.  In that spirit and in furtherance of those beliefs, I ask you to pledge equal support for True Justice and indigent defense reform by signing the DeFrancesco/Fahey Bill.  On 17 June 2016, the New York State Assembly unanimously passed A10706, which followed the State Senate’s unanimously approval of a similar bill, S08144.  These bills, titled the Defrancesco/Fahey bill (for its co-sponsors), require the State to take over funding of representation for all individuals who qualify for the assignment of counsel in criminal and family court proceedings. 

Signing this watershed legislation will start the process of real indigent defense reform in New York State; support that has been left woefully lacking for far too long.  Starting this process will add New York to those States that have already demonstrated their support for true indigent defense reform. 

Every politician says they support for public defense.  Words of support are commendable, but we in the indigent defense community have listened to empty promises unsupported by any real action for too long.  The true test of whether New York stands for the rights of the indigent, comes not through words of support but through action.  Signing this bill will allow all to understand that New York believes that those accused, even of the most heinous crimes, deserve to receive top level representation, regardless of whether or not they can afford to pay for an attorney.  The time to start the process of real indigent defense reform is now.  In the coming years, we can expect the number of the indigent and minorities thrown into the courts to increase.  It is also likely that poverty rates both within New York State and around the country will rise significantly.  The direction in which this country is headed, is not one which is likely to support protection of the poor, minorities, and people from other lands.  Signing this bill will show that those trends do not define New Yorkers.  That those trends will end at the borders of our State.  If true indigent defense reform is going to occur in New York State, the time to start this process is now.  The human cost of failing to sign this bills is too high to delay any further in making this legislation the law in our State.

Currently, in New York State financial responsibility for paying for constitutionally required defense services falls primarily on individual counties.  This system has led to inadequacies and inefficiencies in the quality of representation provided to the indigent, which can depend largely upon the County in which an individual is charged.  There is a lack of consistency in funding levels from one county to the next which leads to wide differences in the quality of representation individuals receive, as well as the caseloads their lawyers are required to handle.  It can also effect whether a person in court is represented by a truly client centered lawyer. 

These inadequacies can cause an individual in one county to receive far less effective and diligent representation than one in a county right next door.  Some of the most extreme deficiencies that exist in our State, led to the lawsuit filed by the NYCLU against five counties which resulted in the Hurrell-Harring settlement last year.  While this lawsuit exposed the most extreme problems, to say that they are the only counties in which the indigent are being underserved, is far from reality.  Indigent defense representation across the State needs improvement.  Improvement that can start with the passage of the legislation currently waiting your signature, Mr. Governor. 

Many have hailed this legislation as the first step in the State’s eventual takeover of indigent defense.  Others have argued it is merely a funding bill aimed at mandate relief.  As to which of these two courses the State will follow, only the future will tell.  Far more than simply mandate relief, the spirit behind the current legislation is to ensure equal and quality representation to all indigent clients across the state.  The bill specifically provides a process for the State to take over full funding of indigent representation.  The costs related to the Constitutionally required representation of indigent clients would be transferred gradually, starting with 25 percent in 2017 and increasing by an additional 10 percent every year through 2023-until the entire amount is paid by the State.  The legislation, also provides the Office of Indigent Legal Services (ILS) authority to issue rules and regulations which:

Improve the overall quality of indigent representation equally across the State 

Require the expansion of training of public defenders 

Require the presence of a lawyer at a Defendant’s first appearance when an original plea entered and a bail determination is made 

Establish Reasonable Caseload standardsHowever, in terms of these broader goals, the legislation provides far less specificity.  ILS is an organization created in 2011-originally to oversee efforts to improve the quality of indigent services provided by lawyers appointed under 18B of County Law. Exec Law Art. 30, §832(1).  ILS’ responsibilities were expanded following the Hurrell/Harring, which caused it to be charged with oversee implementation of the settlement in the effected counties.  The goal of the current legislation is to allow ILS to apply programs designed to improve indigent defense representation to the remaining counties in the State.

In the past six months that DeFrancesco/Fahey has remained unsigned, you have passed off on legislation making daily betting legal in New York State legal; legislation that allow festivals to dump rubber ducks into the State’s waterways; allowed MMA fights to be sanctioned within the State; and legislation which allows restaurants to serve alcohol before noon on Sundays-laws which we clearly could not live without (sarcasm noted).  Meanwhile, public defense lawyers remain underfunded, under staffed, and overworked.  Caseloads continue to increase.  Prosecutors indict more cases, while declining to make offers that involve anything other than State Prison.  Your hand selected Chief Justice has imposed arbitrary and unrealistic time requirements on the speed with which indicted cases of all levels are required to go to trial, which is only further increases the burden placed on defense lawyers in order to be able to effectively fight for the rights and freedom of their clients. New regulations are about to be implemented which will have the effect of further increasing the workloads of indigent defense lawyers in both criminal and family court.  You say you want to reduce the number of people in State prison within State but your inaction on this matter in light of recent trends, is causing and will continue to cause those numbers to rise.  The time is now to pass this legislation and start the process of fully and fairly funding indigent defense in our State.

While this legislation is not the end of the work that is needed to achieve indigent defense reform, it is a solid first step.  Further rules and legislation must be passed to ensure that true indigent defense reform occurs equally across the State.  New York should build upon the great work already done being done by indigent defense offices in parts of New York State in terms of developing caseload standards; creating skills based training programs; promoting office cultures that are truly committed to client centered and holistic; making each the standard for all indigent defense providers within our borders.  Additional measures that should be passed include: 

Passing laws to guaranty the independence of public defense representation by transferring responsibility for the selection and appointment of Chief Public Defenders from County Governments to a neutral, independent body.
Raising Salaries and benefits for public defenders and investigators so they are equal to those of prosecutors.  

Implementation of hardline caseloads standards, which when exceeded trigger the automatic funding increase for the hiring of more lawyers to ensure compliance;  
Providing additional funding for public defense lawyers to access to quality forensic experts and training for lawyers and investigators; 
Increase funding for the development of interactive skills based training programs, staffed by top levels educators from around the country. 

These are just a few of the additional measures that are necessary to ensure effective and quality representation for all public defender clients.  However, none of these efforts can even begin until the current funding bill is passed. 

The DeFrancesco/Fahey bill was passed unanimously.  Members of the Legislature on both sides of the aisle saw the importance of this bill and all voted in its favor.  There is absolutely no legitimate reason why this bill has sat for six months, without you calling for it to be forwarded for your signature.  Make that request immediately and sign the bill into law.  I will personally send you one of my own pens, purchased with my own money to assist you in signing this bill.  This legislation must be passed now.  The rights and human lives that will be negatively impacted while the bill sits in limbo are too important, for it to remain unsigned even one more day.

Thank you for your attention to this matter.  I look forward to hearing of your signing of this vitally important legislation.  My support and my pen remain at the ready, in getting this bill signed.
Waiting and Losing Patience,
Andre Allen Vitale
Rochester, NY