Case: Hurrell-Harring v. State of New York

On November 8, 2007, 20 named plaintiffs--criminal defendants with cases pending in New York state courts--filed this class action lawsuit in the Supreme Court of the State of New York in Albany County. The plaintiffs sued the State under 42 U.S.C. §1983 for violations of the Sixth and the Fourteenth Amendment to the U.S. Constitution, and Article 1, Section 6 of the New York Constitution. Represented by the New York Civil Liberties Union and private counsel, plaintiffs sought declaratory and injunctive relief to ensure meaningful and effective representation for indigent defendants.

The plaintiffs claimed that New York's persistent failure to guarantee effective legal services for indigent defendants in five New York counties was a violation of their right to counsel. Specifically, the plaintiffs claimed that the State's system effectively denied indigents their right to counsel because of its (1) failure to provide representation to some defendants at critical stages of their cases; (2) eligibility standards that excluded indigent people from counsel; (3) lack of attorney-client consultation and communication; (4) insufficient hiring criteria, performance standards, and trainings and supervisory controls; (5) insufficient resources for investigations and expert witnesses; (6) lack of independence from political, prosecutorial, and judicial authorities; and (7) inadequate resources and compensation for public defenders as compared with prosecutors.

On August 12, 2008, Judge Eugene Devine denied the defendants' Motion to Dismiss. The defendants appealed to the state intermediate appellate court (the Supreme Court, Appellate Division). In July 2009, Judge Michael Kavanagh overruled the lower court and granted the defendants' Motion to Dismiss. 66 A.D.3d 84. He held that the plaintiffs could only bring retrospective cases charging a denial of counsel. Therefore, plaintiffs would have to wait for conviction before claiming insufficient counsel. The plaintiffs then appealed to New York's highest court, the New York Court of Appeals.

On May 6, 2010, Judge Jonathan Lippman found for the plaintiffs, ruling that (1) the issue of whether the State of New York was meeting its constitutional obligation under Gideon v. Wainwright (372 U.S. 335) was ripe for review, the plaintiffs' preconviction status notwithstanding. Judge Lippman also found that (2) the issue of the state's compliance with the Gideon requirement to provide indigent people with lawyers was not an issue best left to the legislature, and could be considered and ordered by the Courts. 930 N.E.2d 217. The case was remanded to the trial court (New York Supreme Court).

Meanwhile, in 2010, the New York legislature created the Office of Indigent Legal Services (ILS) to gather information, make recommendations, and distribute state funds to improve legal services.

On January 6, 2011, Judge Karen Peters, writing for the Supreme Court, Appellate Division, certified the plaintiffs' class and remanded the case to the Supreme Court for discovery. 81 A.D.3d 69. Class certification had previously been denied in July 2009 by the Supreme Court.

On September 1, 2014, the United States Department of Justice (DOJ) filed a Statement of Interest in the case. Without taking a position on the particular facts, the DOJ provided its opinion on what constitutes a "constructive" denial of counsel under the Sixth Amendment. Even where a defense attorney represents indigent defendants, constructive denial of counsel may occur if (1) lawyers for indigent defendants must systematically work under substantial structural limitations, or (2) traditional markers of representation are systematically compromised. The statement provided examples of such conditions including: insufficient resources; excessive caseloads; serious understaffing to public defender offices; and inadequate opportunity for consultation with clients. Such conditions indicate that appointment of counsel is "superficial," and therefore allows a court to step in to correct Sixth Amendment violations.

The DOJ's statement helped prompt a settlement agreement on October 21, 2014. The settlement required the state to implement significant reforms in the five New York counties specifically named in the complaint. Specifically, the state would (1) guarantee a lawyer at arraignment for every indigent defendant; (2) require ILS to track and report on lawyer caseloads and set appropriate caseload standards for lawyers representing indigent defendants; (3) ensure adequate conditions for attorneys including supervision, training, manageable caseloads and access to investigators, interpreters, and expert witnesses; (4) create eligibility standards so more New York defendants have access to public defense services; and (5) implement monitoring and reporting procedures. The settlement also required the Governor's office to use its best efforts to enact legislation necessary to implement the settlement agreement. Overall, the State was required to apportion $8.5 million to implement the settlement agreement, and $5.5 million for attorney fees. The settlement agreement was set to last for 7.5 years, and was court enforceable, after a pre-court dispute resolution process.

On June 17, 2016, the New York Assembly passed A10706, requiring states to take financial responsibility for indigent defense. Supporters of the bill claimed that by removing the burden from counties, it would have helped ensure defendants received appropriate counsel. Governor Cuomo vetoed the bill in December 2016.

In April 2017, New York passed a bill to implement many of the requirements listed in the settlement. While counties will be responsible for covering the expense initially, the State will reimburse counties for these expenses.

On October 30, 2017, the New York State Office of Indigent Legal Services submitted a report detailing ongoing compliance with the settlement. The report discussed the steps the five counties had taken to implement the Quality Plan and the Counsel at Arraignment Plan. It found significant achievements in implementation and noted that the State had met its funding obligation fully and continued the $2 million each year in Quality Improvement funding beyond the two years the settlement required.