Thanks to a plethora of cop shows on TV, most individuals can recite their Miranda rights, including the fact that they have the right to an attorney, and if they cannot afford one, the state will appoint one to them. According to some studies, about 80 percent of all criminal defendants will qualify for legal assistance in some form.
In New York, the Office of Indigent Legal Services has published a file (OILS) outlining the determination for whether a defendant is indigent for purposes of receiving legal aid, and whether they are entitled to an attorney. In 1965, New York provided that all defendants must receive counsel if they cannot pay for the costs of a legal defense if their charges involve any potential serious of imprisonment, no matter what – including traffic violations. The court must determine whether or not the defendant has insufficient resources when deciding to appoint legal counsel in their defense.
The law recognizes that it is unconstitutional to require defendants accused of a crime to choose between hiring their own private attorney and being able to provide necessities for themselves and any dependents. Having to choose between paying the rent and hiring a lawyer who can assert your defense is an unconscionable choice, and the law recognizes that – at least ostensibly.
The New York legislature attempted reformed the system of legal aid after a 2014 class action lawsuit settlement where defense services were so underfunded that defendants often spent months in jail before they were able to speak to a lawyer. Rewriting the system to require the state to pick up the tab for public defenders, Andrew Cuomo vetoed the bill, citing concerns for costs.
To that end, the OILS agrees that there are some circumstances where it is obvious the defendant will need assistance with counsel, without spending too much time on an in-depth analysis. For example, if their net income is at or below 250 percent of the Federal Poverty guidelines, they will be assigned defense counsel. There are several other presumptions court scan make about their ability to pay. Defendants who are currently incarcerated or detained, or if they have been institutionalized, will be presumed eligible. Anyone who is receiving or has been determined to need public assistance, like TANF or SNAP, they will be deemed eligible. And finally, if someone has used public counsel the last six months – even in another jurisdiction – they will be presumed eligible too.
The court will then look to the ability of the defendant themselves to pay for adequate legal assistance. Things that cannot be used in consideration of ability to pay: the ability to post bond (alone), resource of a third party unless the third party explicitly says they will pay, and non-liquid assets (such as owning a car). Income from child support payments is also not considered to be part of the defendant’s income. The court must necessarily look at the defendant’s liabilities, including things like being able to pay for rent and food. The court should also look to the average cost of retaining a private attorney in the relevant jurisdiction for the kind of crime with which the defendant is charged. Therefore, there will probably be different considerations for someone living Manhattan versus someone living in Schenectady or the Bronx.
Given the sensitive nature of this information, the screenings will occur privately, and any documents and information that is disclosed will be confidential and sealed from the public. If the defendant is deemed ineligible, then the court will provide reasons why, and the defendant will also get the opportunity to request reconsideration or appeal the decision.
Overall, most public defender systems are in crisis. However, there seems to be a push by lawmakers and the public at large to make it a priority to ensure criminal defendants get a fair shot to present their case. What remains to be seen is how exactly that right will be funded.