New York state faces further questions of constitutionality as officials have proposed to continue reallocating money from the fund designated to provide legal defense for the state’s poor.

In February, Gov. Andrew Cuomo’s proposed budget suggested the state continue the sweeping, or reallocating, of the defense fund. The sweeps have amounted to about $50 million in the last six years, according to a March 25 Democrat and Chronicle article. The New York state budget deadline is April 1.

Jonathan Gradess, the executive director of the New York State Defenders Association, said the fund began in 2003 and has been growing since. Gradess said the fund needs to keep growing in order to create a quality public defense system for the poor.

“There was an oral agreement to let it grow,” Gradess said, “and I have urged that this fund be exempt from sweeps.”

Gradess called the sweeping of public defense funds “unconstitutional,” saying it violates the right to counsel, which is guaranteed under the 14th amendment.

Gradess added that sweeping funds involves reallocating investments from one portion of the budget to a different area of the same budget. The money swept from the indigent public defense council fund mostly went to the general fund and partially to the criminal justice system in New York, he said.

Sweeping funds supporting public defense will prevent lawyers from visiting clients or conducting interviews and investigations, which “creates a system that is radically unfair,” Gradess said.

Syracuse has a poverty rate of 34.3 percent, according to the New York state poverty report released in March 2013. The state’s report also said New York has the 4th most individuals in the U.S. who live in poverty.

Syracuse is a defendant challenging New York in a class action case filed in 2007, known as Hurrell-Herring v. State of New York, Gradess said. The class action alleges that the defense system of New York is broken and New York is failing to provide enough resources for defendants who cannot afford counsel, he added.

The public defense system was created to protect poor people since the Supreme Court ruled in Gideon v. Wainwright (1963) that all citizens have the right to counsel in court, and the states are responsible to fund the council if the defendant cannot afford it, he said.

“Until that fund grows and there is enough resources from the system and New York meets its obligations, the public defense system will continue to be unconstitutional,” Gradess said.

According to Gradess, New York must provide funds to fix the defense system as it is being sued for its failure to do so. Then the state must take money from funds that are assisting the counties’ legal defense programs in order to fight against the lawsuit. The situation of the state as a result creates “the perfect storm,” Gradess said.

Gradess said the sweeps of funds for legal defense for the poor and the cases challenging the state’s failure to provide its citizens the right to counsel show that there is an overall need for improvement in the state’s budget.

Said Gradess: “This is only one of a series of issues pointing in the need for the state to step up to the plate.”

Published on March 31, 2014 at 1:28 am

Contact Anna: almerod@syr.edu