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What you need to know for 08/16/2017

Ensure adequate legal counsel for the poor

Ensure adequate legal counsel for the poor

Editorial: A fundamental constitutional right

“The poor man accused of crime has no lobby,” Robert F. Kennedy once said, which helps explain why they often have no adequate legal representation. This could soon change in New York state thanks to a class-action lawsuit that, according to a Sunday Times Union story, appears headed for a settlement.

The lawsuit was filed by the New York Civil Liberties Union and a New York City law firm working pro bono, on behalf of 20 people charged with crimes in five different counties. It alleges that poor people who face criminal charges and must rely on appointed counsel because they can’t afford a lawyer are disadvantaged to the point where their constitutional rights are violated — i.e., they have a much greater chance, guilty or not, of being convicted and locked up for longer than someone with a private lawyer.

The reason is that public defender’s offices and assigned-counsel systems, the main means by which representation is provided for indigent defendants, are underfunded and understaffed, with far too many cases for the number of lawyers. And those lawyers vary widely in terms of competence and commitment.

This critique isn’t a matter of opinion, but accepted fact within the legal community. It has been documented in numerous reports, including one in 2006 by the New York State Commission on the Future of Indigent Defense Services, established by then-Chief Judge Judith Kaye. And it was accepted by the state Court of Appeals when it overturned a lower court’s dismissal of the class-action suit in 2010, allowing the case to go forward.

Two arguments raised by the state in its defense are that the judiciary shouldn’t encroach on the prerogatives of the executive and legislative branches, and it would be too costly for the state to take over from the counties the cost of legal defense for the poor (an unfunded mandate).

But what we have here is a fundamental constitutional issue: people’s right not to be deprived of their liberty without due process. If the state is, in fact, ready to ensure this through a settlement, that’s fine. If not, the court should require it. Protecting basic legal rights, especially for the poor, is the domain of the judiciary, and cost shouldn’t be its main concern.

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