Create Public Defense Commission

Section 1. Legislative findings and declaration. The legislature finds and declares that in certain proceedings the state is required to provide high quality legal assistance to persons otherwise financially unable to obtain counsel and/or afford the necessary expenses of representation. Providing public defense services to those who face an economic barrier to obtaining legal counsel serves the ends of justice in accordance with rights and privileges guaranteed by the constitution of the state of New York and the constitution of the United States of America. The availability of high quality public defense services affirms the faith of our citizens in our government of laws.

The legislature further finds that the present system of requiring localities to provide public defense services with little state financial assistance and no state oversight does not and cannot meet the foregoing objectives. The existing statutory limit on fees for counsel assigned to provide public defense services has resulted in a shortage of qualified lawyers to provide defense services, thereby denying or delaying the representation to which public defense clients are entitled. The present system has caused court congestion and delay, and eroded public trust and confidence in the legal system.

The legislature further finds that localities are struggling to carry the increasing burden of fulfilling the state mandate to provide defense services, and cannot bear alone the cost of raising assigned counsel

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD07387-01-9

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fees to reasonable levels. Local property owners should be given some relief from the obligation of providing public defense services.

The legislature further finds that no mechanism currently exists for state oversight of the provision of public defense services, despite its character as a state mandate and the appropriation of some state funds to support public defense services. Sound fiscal and governmental policy requires oversight of defense services to ensure that the state mandate is being met, and to determine the most effective and efficient future allocation of state funds. Certain defense services can most efficiently and effectively be provided by an independent commission. Some localities, especially those with smaller populations, could benefit by a mechanism for delivering defense services directly by the state.

The legislature further finds that public defense services must be provided in a manner that ensures the independence of public defense providers.

Therefore, to address these needs, the legislature establishes in this act the New York state public defense commission to oversee public defense services in this state, reimburse localities for public defense expenditures, and provide defense services in extraordinary circumstances.

§ 2. Short title. This act shall be known and may be cited as the "New York state public defense commission act".

§ 3. Definitions. As used in this act, the following terms are defined as follows:

1. "Client" means a person who is currently receiving or received in the past public defense services.

2. "Client community" means clients, their families, geographic neighborhoods in which a significant number of clients live, and organizations dedicated to providing support and/or advocacy to clients and their families and neighborhoods.

3. "Commission" means the New York state public defense commission established pursuant to section four of this act.

4. "Committee" shall mean the nominating committee established pursuant to section five of this act.

5. "Director" shall mean the director of public defense services appointed pursuant to section six of this act.

6. "Eligible person" means any person financially unable to obtain counsel and/or afford the necessary expenses of representation, when such person is suspected or accused of, charged with, or convicted of committing an offense, or is a party in family court, surrogate's court or other proceedings, and is entitled to counsel by law.

7. "Locality" means a county, except that within any county in the city of New York such term shall mean the city of New York.

8. "Public defense services" or "defense services" means publicly financed legal representation, including the services of an attorney and all necessary ancillary services, provided to persons financially unable to obtain counsel and/or afford the necessary expenses of representation, when such persons are suspected or accused of, charged with, or convicted of committing an offense, or are parties in family court, surrogate's court or other proceedings, and are entitled to counsel by law.

§ 4. New York state public defense commission. 1. There is hereby established the New York state public defense commission, a body corporate and public constituting a public benefit corporation. The commission shall be composed of thirteen members.

2. a. The members of the commission shall be appointed as follows:

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(i) seven members shall be appointed by the governor in accordance with the provisions of paragraph c of this subdivision;

(ii) one member shall be appointed by the temporary president of the senate;

(iii) one member shall be appointed by the speaker of the assembly;

(iv) one member shall be appointed by the minority leader of the senate;

(v) one member shall be appointed by the minority leader of the assembly;

(vi) one member shall be appointed by the chief judge of the court of appeals; and

(vii) one member shall be appointed by the administrative board of the courts.

b. No member of the commission shall be a judge, prosecutor, law enforcement officer or employee thereof, or public official, unless such official is engaged exclusively in providing and/or administering public defense services.

c. (i) Five of the seven members appointed by the governor shall be appointed as follows:

(A) one with the qualifications enumerated in paragraph a of subdivision three of section five of this act, shall be appointed upon the recommendation of the New York State Association of Criminal Defense Lawyers;

(B) one with the qualifications enumerated in paragraph b of subdivision three of section five of this act, shall be appointed upon the recommendation of the Vera Institute of Justice;

(C) one with the qualifications enumerated in paragraph c of subdivision three of section five of this act, shall be appointed upon the recommendation of the Community Action Association of New York;

(D) one with the qualifications enumerated in paragraph d of subdivision three of section five of this act, shall be appointed upon the recommendation of the New York State Defenders Association; and

(E) one with the qualifications enumerated in paragraph e of subdivision three of section five of this act, shall be appointed upon the recommendation of the New York State Bar Association.

(ii) In the case of members to be appointed pursuant to subparagraph (i) of this paragraph, the governor may request the provision of additional recommended qualified candidates from the appropriate recommending entity. The two members of the commission appointed solely by the governor and all other members appointed by the other appointing authorities shall be selected from the pool of candidates provided by the committee pursuant to section five of this act. A majority of the members of the commission shall be attorneys admitted to practice in this state.

d. The members of the commission shall serve terms of four years; provided, however, that the members initially appointed shall serve the following terms:

(i) two members appointed by the governor, two years;

(ii) two members appointed by the governor, and the members appointed by the chief judge of the court of appeals and the administrative board of the courts, three years; and

(iii) all remaining members, four years.

All members may be reappointed to additional terms and shall serve until their successors are appointed. Vacancies on the commission shall be filled for the remainder of the term in the manner provided for by the original appointment.

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3. The members of the commission shall receive no compensation for their services, but shall be allowed their actual and necessary expenses incurred in the performance of their duties.

4. The powers of the corporation shall be vested in and shall be exercised by the commission at any meeting duly called and held where a quorum of eight members is present. No action shall be taken by the commission except pursuant to the favorable vote of at least seven members present at the meeting at which such action is taken.

5. Any action required or permitted to be taken by the commission or any committee thereof may be taken without a meeting if all members of the commission or the committee consent in writing to the adoption of a resolution authorizing such action. The resolution and the written consents thereto by the members of the commission or committee shall be filed with the minutes of the proceedings of the commission or committee.

6. The members of the commission or any committee thereof may participate in a meeting of such commission or committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time; participation by such means shall constitute presence in person at such meeting.

7. The commission shall establish an advisory committee representative of public defenders, attorneys-in-charge of private legal aid bureaus or societies and not-for-profit corporations, voluntary associations, organizations providing public defense services, and assigned counsel administrators in all areas of the state.

§ 5. Nominating committee. 1. There is hereby established the public defense commission nominating committee. Such committee shall be composed of eleven members as follows:

a. the commissioner of criminal justice services, or his or her designee;

b. a representative of the New York State Association of Counties;

c. a representative of the New York State Bar Association;

d. a representative of the Vera Institute of Justice;

e. a representative of the Community Action Association of New York;

f. a representative of the Fund for Modern Courts;

g. a representative of the Puerto Rican Legal Defense and Education Fund;

h. a representative of the National Association for the Advancement of Colored People Legal Defense and Educational Fund;

i. a representative of the New York State Association of Criminal Defense Lawyers;

j. a representative of the New York State Defenders Association; and

k. the president or chief executive officer of the League of Women Voters of New York state, or their designee, who shall chair the committee.

2. The committee shall deliberate upon and apply the categories established in subdivision three of this section to select and maintain a pool of not less than twenty nor more than thirty-five qualified candidates for appointment to the commission. In such selection, it shall take into account the need for broad representation reflecting the geographic, racial, ethnic, gender and cultural diversity of the state's public defense clients. Organizations including, but not limited to, the following shall be solicited on a need basis to recommend candidates:

a. entities or plans providing public defense services and related human services;

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b. professional legal organizations, including bar associations; and

c. social justice organizations and civic organizations, especially organizations composed of or concerned with persons or groups who have been public defense clients and communities that include a high percentage of public defense clients.

The committee shall meet biennially to select a new pool of candidates which may include candidates selected for previous pools. The League of Women Voters of New York State shall be entitled to reasonable expenses incurred in organizing the work of the committee.

3. The following shall be the categories of qualifications that the nominating committee shall utilize in nominating candidates for the commission:

a. experienced and distinguished trial and appellate criminal defense practitioners with a demonstrated and deep-rooted sensitivity to the complex issues affecting people in poverty and a proven commitment to enhancing the constitutional rights of clients and the client community;

b. persons with established credentials that demonstrate the ability to make innovations designed to conserve public resources while enhancing legal or other human services to low income clients in the criminal justice system;

c. former consumers of public defense services who, having been exonerated or having paid their debt to society by service of a sentence, have demonstrated a commitment to the improvement of legal services for those unable to afford counsel;

d. persons with a proven commitment to enhancing the constitutional rights of low income clients and who administer or have administered a public defense system in this state or a state public defense system in one of the United States of America whose experience can aid New York in formulating an organized statewide approach to ensuring quality local defense services; and

e. lawyers from moderate to large sized general practice law firms with an established and demonstrated commitment to resolving problems associated with the representation of low income people whose experience in the representation of clients can enhance the ability of public sector lawyers to take advantage of private sector firm management techniques.