Lawmakers now must find revenue for indigent legal services

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New York state lawmakers have voted to shift the cost of legal services for the poor from the counties to the state, raising two big questions: Will Gov. Andrew Cuomo sign the bill and, if he does, how will the initiative that will eventually cost $600 million annually be paid for.

“We passed a major hurdle here, but that doesn’t mean there aren’t very big ones left to go,” said Assembly member Patricia Fahy, the Albany Democrat who co-sponsored the bill with Republican state Senator John DeFrancisco, of Syracuse.

“I think that this is going to be about how we work together and how we figure out how to get this paid for,” Fahy said.

Since both house of the Legislature unanimously passed the bill about three weeks ago, Cuomo’s staff has only said he is reviewing the bill. Fahy said she is confident that Cuomo will sign it, but the delay is probably tied to the funding question.

“I think he has every reason to sign it,” said Jonathan Gradess, executive director of the New York State Defenders Association.

“I’m confident he will sign it but one never knows. He’s not expressed a position on this,” Gradess said.

Currently, the state provides about 20 percent of the funding in most counties.

In Monroe County, the total cost of indigent legal services, including the Monroe County Public Defender‘s Office, the county’s Conflict Defender and the assigned counsel program, is about $14 million. The county pays about $11.7 million of that.

“The governor is very supportive of trying to reform criminal justice. We just see this as another step in the reformation of the criminal justice system in New York,” said Monroe County Public Defender Tim Donaher.

Under the legislation, state ILS funding would start to be phased in over seven years starting in 2017 and become part of the budget talks next year. It will be subject to annual budget negotiations in the future, just as funding for other state programs, such as education.

Fahy said she has had meetings with Cuomo’s staff to discuss possible revenue sources for the program, but nothing specific has materialized.

“It’s a massive financial lift, so we assume this one’s going to take a while and take some conversations,” she said.

The plan follows on a 2014 settlement of the Hurrell-Harring case, a lawsuit brought by the New York Civil Liberties Union against the state and five counties over the quality of defense services provided to indigent defendants. Under that settlement, the state agreed to pay for additional staff, increased training, support staff and investigators.

Fahy said she is encouraged by the fact that Cuomo agreed to the settlement in that case.

“That set the stage for this bill in so many ways,” Fahy said.

When Cuomo agreed to that settlement he must have recognized it would open the door to a demand for similar funding for all other New York state counties, she said.