Establishes the public defense act of 2009; repealer

Summary of specific provisions

Section 1 creates a new article 15-A of the Judiciary Law, with thirteen sections as follows:

Section 499-a gives the legislation the short title Public Defense Act of 2009.

Section 499-b sets forth the general purposes of the Public Defense Act.

Section 499-c defines the key terms associated with the legislation.

Section 499-d establishes the Public Defense Commission as a public benefit corporation ensuring that the Commission is independent of political interference.

Section 499-e sets forth the appointments to the Commission. The Commission shall consist of thirteen members who reflect the geographic, racial, ethnic and gender makeup of the State and the cultural diversity of the State's public defense clients. Nominees shall be selected from various sources and presented to the Governor for his or her appointment. Appointments shall be completed within sixty days of enactment.

Section 499-f sets forth the terms for the Commission members, the designation of a chairperson and the provisions for filling vacancies.

Section 499-g establishes the general powers, duties and responsibilities of the Commission which shall include, upon enactment, promulgating a strategic plan for the administration and funding of public defense services throughout the State; and, commencing April 1, 2012, undertaking the oversight and administration of all public defense services in New York. The Commission shall also evaluate the existing public defense system and calculate the cost of that system subjected to economies of scale, reduction of waste, elimination of duplication and compliance with best practices. The Commission shall establish qualifications, duties and compensation for staff and appoint the state defender. The Commission shall also set standards for public defense services to ensure quality representation and prepare reports on the needs of the system and potential statutory changes.

Section 499-h establishes a state defender appointed by the Commission who shall serve as the chief executive officer of the Commission.

Section 499-i provides that, at the request of the Commission, all other state and local offices shall render such information, assistance, and cooperation as shall be within their legal authority in furtherance of the purposes of the Act.

Section 499-j provides that the Commission shall be independent yet shall work with the State Division of the Budget to ensure fiscal discipline and accountability.

Section 499-k establishes a Financing Transition Advisory Council to the Commission, members of which shall be appointed to advise the Commission and who shall be knowledgeable in county and city government. The Advisory Council shall consist of fifteen members and shall be charged, among other things, with devising and recommending to the Commission a fair and equitable formula for fixing and permanently capping annual offset contributions by localities to the total cost of providing public defense services. If adopted by the Commission, this per-county capping formula would take effect no earlier than 2022 and would replace the per-county capping formula defined in section 499-m, which would take effect April 1, 2012. The Act provides that, under either per-county capping formula, the total aggregate offset contributions of all the counties to the cost of public defense shall not exceed $339 million, which is the projected total amount that would be spent in 2012, by all 62 counties combined, for indigent defense services under the current system.

Section 499-l provides that, until such time as the Commission has assumed complete responsibility for the oversight and administration of public defense services in the State in accordance with subdivision one of section 499-g of the Act, the Commission shall have no power or authority to impose, enforce or otherwise require compliance by any locality or public defense provider with any standards, including but not limited to standards relating to caseload, training, ethics or client eligibility.

Section 499-m provides that, effective April 1, 2012, counties in the State shall be permanently relieved of the obligation to provide and administer public defense services, which obligation shall become solely a state charge subject to a "fixed annual local offset contribution" to be paid by each county to the Indigent Legal Services Fund to the credit of the Commission. This "fixed annual offset contribution" is subject to both a "per county" cap and an "aggregate" (62-county total) cap. The aggregate cap is fixed at $339 million, which is the projected total amount that would be spent in 2012, by all 62 counties combined, for indigent defense services under the current system.

The formula established by section 499-m for the "per county" cap is fixed as a percentage of this $339 million total. Under the formula, each county would be obligated to pay, on an annual basis, a percentage of the $339 million total that represents the average of the percentage of total net expenditures for indigent defense made by them between 2002 and 2008 as calculated by the State Comptroller. This "averaging" formula for determining the "per county" cap would remain in effect until at least 2022, when the Commission, at the recommendation of the Financing Transition Advisory Council created by section 499-k of the Act, could adopt a revised, and presumably

fairer, formula for determining each county's percentage contribution to the $339 million total.

Section 2 amends County Law section 722 to add a new subdivision six, entitled "Discontinuance of Plan at County Request." This provision, which would become effective one year after the effective date of the Act and would remain in effect only until April 1, 2012, would permit any county or counties (other than those comprising New York City), during that approximately two-year period, to enter into a contract with the Commission whereby the Commission would be solely responsible for providing indigent defense and related services required under County Law section 722 in that county. If the Commission agrees to enter into the contract, the county would then be required to discontinue its section 722 "plan" for providing such services. Any county entering into such a "discontinuance agreement" with the Commission would be required -- during the period of the contract and pursuant to the agreed-to terms thereof -- to pay an annual "discontinuance offset contribution" to the Indigent Legal Services Fund.

Section 3 would repeal article 18-A and 18-B of the County Law, effective April 1, 2012.

Section 4 would amend the State Finance Law to provide that as of January 1, 2012, moneys from the Indigent Legal Services Fund not designated for the Office of Court Administration for the payment of Law Guardians (now Attorneys for the Child) shall be paid to the credit of the Commission.

Section 5 provides that the Act shall take effective immediately, except for specific provisions as described above.

Justification

Gideon v. Wainright{1} was decided in 1963 by the United States Supreme Court, wherein Justice Black stated that "lawyers in criminal courts are necessities, not luxuries." Today, in New York State, thousands of people are denied their constitutional right to effective assistance of counsel because the delivery system for public defense services is underfunded and overburdened.

Currently, public defense services are delivered by county government, as the State has passed this constitutional obligation down to the localities, in what can only be defined as an unfunded mandate. Over the years, with counties providing services, it has become obvious that there are no statewide standards of what is an "adequate" public defense system. Multiple studies and commissions have examined New York's public defense system and have declared it broken.

The current system is underfunded, faced with excessive caseloads and inadequate support services. Many public defenders are inadequately trained, have minimal client contact and conduct few or no investigations. Under the current public defense system, there is no clear standard of eligibility and there are widespread denials of the right to counsel.

This measure is a solution to this grave problem. This bill would create a public benefit corporation, known as the Public Defense

Commission, which as of April 1, 2012 would oversee and administer all public defense services in New York State. During the initial three-year period the Commission would study the current system, calculate the costs of a public defense system and examine ways to reduce waste, eliminate duplication and produce a system with meaningful economies of scale. The goal of the Commission is to provide effective assistance of counsel while ensuring the system is lifting this longstanding financial burden off the counties.

The Commission would have a Financing Transition Advisory Council that would consist of members familiar with county and local government to ensure a seamless transition from a primarily county-funded public defense system.

When enacted, this bill will empower the Commission to establish a public defense delivery system that meets the constitutional mandate, is independent of political interference and is fiscally responsible.

Prior legislative history

2007 Similar Bill A.9087-A/S.4311-A (Lentol/Volker).

Fiscal implications

The Commission would be funded for the initial three-year period by an appropriation from the Indigent Legal Services Fund (ILSF) in the amount of three million dollars each year for those three years. This expenditure would allow the Commission to establish an office, staff, adapt the public case management system and contract and consult with evaluators and experts and begin to perform its general duties.

In 2012, when the Commission assumes control of all public defense services, the localities will be required to provide a fixed offset contribution to be paid annually by the locality to the ILSF to the credit of the Commission. The aggregate amount to be paid by counties shall be $339,000,000 (the projected local spending based upon 2008 actual spending and historical trends). Each locality shall pay, on an annual basis, a percentage of that amount based on the average of the percentages of total net local expenditures made by the county between 2002 and 2008, as calculated by the Office of the State Comptroller. For most counties, the amount required of them annually, after the Commission has assumed control of the system, will immediately be less than what the counties would be expected to pay in the future, based on current rate of growth.{2}

The Commission shall also be funded by the already existing ILSF in the projected amount of approximately $100 million.

Any expenditure beyond this approximately $439 million combined level of spending will be at the state's expense.

Effective date

Immediately, except for certain provisions as noted above.

Footnotes

{1} 372 U.S. 335, 344 (1963).

{2} See attached Chart.

County Savings With Capping Based on Projected 4.932% Annual Increase in NLE - Using 2008 NLE

PROJECTED COUNTY SPENDING WITHOUT CAP Permanent County

Cap based on County 2012 2013 2014 339,000,000

Albany $4,893,399 $5,134,741 $5,387,987 $4,510,418 Allegany $ 715,140 $ 750,411 $ 787,421 $ 623,739 Broome $4,187,427 $4,393,951 $4,610,660 $3,817,585 Cattaraugus $1,502,274 $1,576,366 $1,654,112 $1,310,939 Cayuga $ 728,747 $ 764,741 $ 802,459 $ 659,124 Chautauqua $1,508,408 $1,582,803 $1,660,867 $1,614,959 Chemung $1,779,112 $1,866,858 $1,958,932 $1,603,713 Chenango $ 683,271 $ 716,970 $ 752,331 $ 494,342 Clinton $1,488,748 $1,562,174 $1,639,220 $1,421,023 Columbia $ 822,735 $ 863,312 $ 905,890 $ 889,322 Cortland $1,021,232 $1,071,599 $1,124,450 $ 825,446 Delaware $ 498,684 $ 523,279 $ 549,087 $ 505,989 Dutchess $5,574,686 $5,849,630 $6,138,133 $4,917,376 Erie $9,495,480 $9,963,797 $10,455,211 $9,670,692 Essex $ 655,278 $ 687,597 $ 721,509 $ 522,103 Franklin $ 769,586 $ 807,542 $ 847,370 $ 571,783 Fulton $ 705,608 $ 740,409 $ 776,926 $ 505,484 Genesee $1,033,748 $1,084,733 $1,138,232 $ 973,695 Greene $ 673,322 $ 706,530 $ 741,376 $ 653,497 Hamilton $ 138,962 $ 145,816 $ 153,007 $ 90,804 Herkimer $ 317,510 $ 333,170 $ 349,601 $ 366,593 Jefferson $1,288,350 $1,351,892 $1,418,567 $1,293,224 Lewis $ 370,923 $ 389,217 $ 408,413 $ 316,392 Livingston $ 695,266 $ 729,556 $ 765,538 $ 643,937 Madison $ 762,479 $ 800,084 $ 839,545 $ 670,316 Monroe $10,890,612 $11,427,737 $11,991,353 $10,494,438 Montgomery $ 629,316 $ 660,354 $ 692,922 $ 479,522 Nassau $10,196,763 $10,699,668 $11,227,375 $9,744,726 Niagara $2,032,790 $2,133,048 $2,238,250 $1,992,961 Oneida $3,184,032 $3,341,069 $3,505,850 $3,365,655 Onondaga $6,157,787 $6,461,489 $6,780,169 $6,356,335 Ontario $1,842,059 $1,932,910 $2,028,241 $1,572,556 Orange $4,504,720 $4,726,892 $4,960,023 $4,280,667 Orleans $ 604,541 $ 634,357 $ 665,644 $ 506,389 Oswego $1,291,221 $1,354,904 $1,421,728 $1,152,659 Otsego $ 940,955 $ 987,363 $1,036,060 $ 978,960 Putnam $ 872,055 $ 915,064 $ 960,195 $ 880,003 Rensselaer $1,824,604 $1,914,593 $2,009,021 $1,680,092 Rockland $4,245,806 $4,455,209 $4,674,940 $4,313,335 St.Lawrence $1,734,553 $1,820,102 $1,909,869 $1,640,605 Saratoga $1,355,166 $1,422,003 $1,492,136 $1,291,155 Schenectady $3,161,556 $3,317,484 $3,481,103 $2,908,848 Schoharie $ 441,958 $ 463,755 $ 486,627 $ 379,437 Schuyler $ 375,825 $ 394,360 $ 413,810 $ 289,143 Seneca $ 385,251 $ 404,251 $ 424,189 $ 426,424 Steuben $1,387,389 $1,455,815 $1,527,616 $1,282,796 Suffolk $14,075,151 $14,769,337 $15,497,761 $12,916,155 Sullivan $1,645,366 $1,726,516 $1,811,667 $1,780,391 Tioga $ 422,510 $ 443,348 $ 465,214 $ 408,569

Tompkins $1,832,108 $1,992,468 $2,017,284 $1,672,536 Ulster $2,718,215 $2,852,278 $2,992,952 $2,485,948 Warren $1,019,101 $1,069,363 $1,122,104 $ 829,313 Washington $ 559,952 $ 587,569 $ 616,547 $ 503,485 Wayne $1,375,105 $1,442,926 $1,514,091 $1,570,946 Westchester $18,599,191 $19,516,503 $20,479,057 $18,433,157 Wyoming $ 342,820 $ 359,728 $ 377,470 $ 336,264 Yates $ 324,976 $ 341,003 $ 357,822 $ 296,989

New York City $196,093,769 $205,765,114 $215,913,449 $202,277,046

Total $339,377,648 $356,115,763 $373,679,382 $339,000,000

Non NYC Total $143,283,879 $150,350,640 $157,765,933 $136,722,954

Projected County Expenditures were extrapolated from 2008 spending figures. NYSDA projected increases in public defense spending based on an average rate of annual increase for all counties in the years for which data are available. By examining changes in county funding of public defense between the years 2002-2003, 2005-2006, 2006-2007, and 2007-2008, NYSDA found that counties increased funding to public defense by 4.932% a year. Changes across the years 2003-2004 and 2004-2005 were excluded because assigned counsel fees increased in 2004 by state mandate. This resulted in considerable increases in spending in 2004 followed by reductions in 2005 as counties adapted their programs to compensate for the increased fees. These changes were dramatic, but atypical, and so were excluded from the analysis.

Permanent County Cap amount of $339,000,000 represents a projection of an annual 4.932% increase in net local expenditures through the year 2012, beginning in the year 2009. The amount was then rounded to $339,000,000 for the calculation of the permanent county cap.

Forecasting patterns over time in statistical data are best accomplished using AutoRegressive Integrated Moving Average (ARIMA) time-series analysis. This sophisticated econometric method is commonly used to find underlying patterns in sequences of data and predict future outcomes. This method requires a minimum of thirty data points in a time series to be usable, however, and reliable public defense spending data for New York counties are only available for the years 2002-2008.