September 01, 2015

ABA cites importance of setting eligibility standards for assigning counsel for indigent defendants

ABA President Paulette Brown emphasized the importance of setting eligibility standards for assigning counsel for indigent defendants last month in a statement submitted to the New York State Office of Indigent Legal Services (ILS).

In her Aug. 26 statement, Brown commended the ILS for holding hearings on eligibility standards, which she said will “undoubtedly influence the provision of public defense for years to come.” Development of the standards by ILS is required under the 2014 settlement in Hurrell-Harring et al. v. State of New York, which cited deficiencies in the New York public defense system and required the state to adopt reforms.

Assigned counsel for those who cannot afford representation is required under the Sixth Amendment according to the 1963 U.S. Supreme Court decision in Gideon v. Wainwright, but too often eligibility standards “have fallen prey to political whim or financial concerns,” Brown said. Much of the ABA’s substantial policy regarding eligibility for assignment of counsel is contained in the ABA Ten Principles of a Public Defense Delivery System (Ten Principles) and the ABA Standards for Criminal Justice: Providing Defense Services (PDS).

The Ten Principles require first and foremost that “clients are screened for eligibility, and defense counsel is assigned and notified of appointment, as soon as feasible after clients’ arrest, detention, or request for counsel.”

PDS standards state that eligibility determinations should be made by attorneys, neutral screening agencies, or the court. If the determination is made by an entity or person other than the court, confidentiality should be maintained, and the defendant should be afforded the right to have the court review such determination.

States should monitor and survey the availability and cost of representation, and eligibility should be redetermined if new information comes to light or a change in defendant status occurs, Brown explained.

“Eligibility should not require destitution,” she stressed, explaining that counsel should be provided to persons who are financially unable to obtain adequate representation without substantial hardship and that defendants should not be disqualified from eligibility because they are able to pay part of the cost of representation, have friends or family who can afford it, or have a bond posted.

Brown also emphasized that, if defense services are contracted out, PDS standards recommend that the eligibility determination method should be included in the contract.

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