Hurrell-Harring v. New York
October 22, 2014 7:09 AM   Subscribe

After seven years of litigation, the New York Civil Liberties Union has announced a settlement in Hurrell-Harring v. New York, which will reform the way in which low income criminal defendants are represented in court.

The class action lawsuit, which was due to go to trial this year, was filed on behalf of Kimberly Hurrell-Harring and Jackie Winbrone. Hurrell-Harring, a mother of two, plead guilty to a much more serious crime than the one she committed, and as a result, lost her job and her home. Winebrone's assigned counsel was missing in action, while she remained in jail for a crime she did not commit. Her husband died during the 52 days she was incarcerated.

Under the settlement, which will primarily focus on five counties ( Ontario, Onondaga (Syracuse), Schuyler, Suffolk and Washington ), the following reforms will be made:

Ensuring that every poor criminal defendant will have a lawyer at the first court appearance, where bail often is set and pleas taken;

Requiring New York to hire sufficient lawyers, investigators and support staff to ensure that all poor criminal defendants have lawyers with the time and support necessary to vigorously represent the defendant;

Providing for the setting of caseload standards that will substantially limit the number of cases any lawyer can carry, thereby ensuring that poor criminal defendants get a real defense;

Requiring New York to spend $4 million over the next two years to increase attorney communications with poor criminal defendants, promote the use of investigators and experts, and improve the qualifications, training and supervision of lawyers representing indigent defendants;

Mandating the creation of eligibility standards for representation, thus allowing more New Yorkers to access public defense services;

Strengthening the Office of Indigent Legal Services as a state-level oversight entity tasked with ensuring the constitutional provision of public defense services and commits New York to provide the office with the resources it needs to develop plans and implement and monitor reforms mandated by the settlement; and

Providing that the plaintiffs will receive detailed reports allowing them to monitor compliance with the agreement and, if necessary, return to court to enforce it.


Public Defense in New York State (25 minutes)

2006 Final Report (pdf) of the New York State Commission on the Future of Indigent Defense Services

Class Action Complaint (pdf)

The settlement, which needs to be approved by the court, would run seven and a half years. It requires the state to guarantee that within 20 months, all poor defendants in the five counties have defense lawyers at their first appearance. Ten months later, public defender caseloads must not exceed levels set by the state.
posted by roomthreeseventeen (22 comments total) 12 users marked this as a favorite
 
From the complaint:
The public defense systems in the Counties suffer many symptoms of a broken public defense system...including: inadequate staffing resulting in no representation of some defendants, particularly in arraignments where bail determinations and other critical decisions are made; incoherent and excessively restrictive eligibility standards that exclude indigent people from getting counsel; lack of attorney-client consultation and communication impairing the ability to present and prepare a defense and advocate for pre-trial release; lack of training resulting in inexperienced and inadequate counsel; overwhelming caseloads and/or workloads that prevent attorneys from serving all their clients;...; a lack of independence from judicial, prosecutorial and political authorities that compromises the ability to provide adequate representation.
The eligibility standards for access to counsel strike me as particularly outrageous. From the complaint:
*Ownership of a home - even a mobile home - automatically precludes assignment of counsel, without consideration of the value of the home, the equity in the home, or the ability to obtain a loan against one.
*Minors in Onondaga Copunty are excluded from represetation based on parental income, even if the parent will not pay for a lawyer, based on lack of parental cooperation in providing income information.
*In Schuyler Countym, owning a car is considered evidence that a client can afford a private lawyer, regardless of the value of the car, and without accounting for the fact that a car is a basic necessity in rural Schuyler.
*Defendants in Schuyler County under the age of 21 are often disqualified based on parental income, regardless of whether the defendant is able to rely on that income.
This is huge, huge news. NYCLU is calling the reforms "more progressive than anything we've seen in any indigent defense case in the country." Here's hoping this spreads to other states.
posted by likeatoaster at 7:35 AM on October 22, 2014 [8 favorites]


This sounds fantastic.
posted by kyrademon at 7:42 AM on October 22, 2014


This is an awesome coincidence- I was just last night watching this video of Donna Lieberman, the ED of the NYCLU, in order to transcribe it for a report on the criminal legal aid conference she spoke at. It's really worth a listen - she lays out exactly what all the problems are and why they're so egregious, plus she comes off very passionate.
posted by showbiz_liz at 7:44 AM on October 22, 2014


Wow---it's so rare that my morning check shows good news about civil liberties and the rights of the accused. No amount of rain can make this a bad morning.
NY state often gets forgotten on the list of fucked-up states that mistreat poor and black defendants---it's great to see change coming.
posted by ThatFuzzyBastard at 8:31 AM on October 22, 2014 [2 favorites]


this is absolutely incredible.

I'm looking forward to digging into this and learning more. It seems to me that the NYACLU must have had an *incredible* case to get such an incredible settlement
posted by rebent at 8:38 AM on October 22, 2014


It seems to me that the NYACLU must have had an *incredible* case to get such an incredible settlement

The 2006 report (linked above, and heavily relied upon in the complaint) was the product of a Commission that included several high-profile NY Supreme Court justices, as well as county judges, prosecutors, law professors, and other accomplished litigators. The report was strongly worded, and completely lambasted the public defense system, especially as it operates in rural NY counties. In some ways, it is shameful that these kinds of changes took as long as they did, in light of the overwhelming evidence, and the success is in large part thanks to the many plaintiffs, who stuck with the litigation for 7-odd years.
posted by likeatoaster at 8:45 AM on October 22, 2014 [1 favorite]


*In Schuyler Countym, owning a car is considered evidence that a client can afford a private lawyer, regardless of the value of the car, and without accounting for the fact that a car is a basic necessity in rural Schuyler.

This is idiocy. So if you were homeless and living in your car, you STILL wouldn't be considered poor enough unless you were living on the street?
posted by nicebookrack at 8:48 AM on October 22, 2014 [4 favorites]


It seems to me that the NYACLU must have had an *incredible* case to get such an incredible settlement

Even though many states delegate the responsibility to the counties, states have a constitutional obligation to provide legal aid to people who can't afford a lawyer. This was established 50 years ago in the Supreme Court case Gideon v Wainwright. It's shocking to me that it took so long to get this decision, honestly- New York State has been in blatant violation of its constitutional obligations.
posted by showbiz_liz at 8:53 AM on October 22, 2014


For starters, Mr. Cuomo has pledged to include $5.5 million in his executive budgets over the next two fiscal years as part of the agreement.

With respect, that sounds kind of low. Which raises the interesting question, has anyone estimated how much will the final tab come to? (I do not disagree with the settlement by any means, I ask purely out of curiosity.)
posted by IndigoJones at 8:58 AM on October 22, 2014


Has anyone estimated how much will the final tab come to?

One reason it's hard to estimate this is, there's a real cost to the state when it fails to provide representation as well. Fewer people get bail while awaiting trial, so the state must house them; more people get sentenced and for longer sentences, which also costs money both in court costs and prison costs; when people are sent to prison in lieu of diversion programs, they're more likely to re-offend, which costs money; and is a breadwinner is jailed, their family may wind up going on welfare, which is a whole new cost. So if you add in more PDs, the entire criminal justice budget of a state can wind up being shifted.

(Sorry you guys I just work for a legal aid nonprofit and live in NY and I'm really excited about this)
posted by showbiz_liz at 9:02 AM on October 22, 2014 [9 favorites]


showbiz liz: Thank you for the work you do. You make the world a better place.
posted by el io at 9:12 AM on October 22, 2014 [3 favorites]


> So if you were homeless and living in your car, you STILL wouldn't be considered poor enough unless you were living on the street?

It implies to me that the county could arrest you for indigence, because you were found sleeping in your car, and then deny you access to a public defendant because of the car.
posted by ardgedee at 9:19 AM on October 22, 2014 [4 favorites]


With respect, that sounds kind of low.

To me too. But apart from Suffolk County (eastern Long Island, over a million people) and Onondaga (Syracuse, like half a million), I bet it wouldn't take a whole lot of money to make pretty dramatic improvements to the PD systems of these counties.
posted by ROU_Xenophobe at 9:25 AM on October 22, 2014


(el io, to be honest I am a mere grants/comms person who could just as easily be working for a symphony or something, but I will accept that praise on behalf of my lawyer colleagues who do the really tough shit!)
posted by showbiz_liz at 9:33 AM on October 22, 2014


showbiz liz: it takes a team. no offense to the symphony, but I'm glad you're working on the team you are.
posted by el io at 9:36 AM on October 22, 2014 [1 favorite]


*Ownership of a home - even a mobile home - automatically precludes assignment of counsel, without consideration of the value of the home, the equity in the home, or the ability to obtain a loan against one.
*Minors in Onondaga Copunty are excluded from represetation based on parental income, even if the parent will not pay for a lawyer, based on lack of parental cooperation in providing income information.
*In Schuyler Countym, owning a car is considered evidence that a client can afford a private lawyer, regardless of the value of the car, and without accounting for the fact that a car is a basic necessity in rural Schuyler.
*Defendants in Schuyler County under the age of 21 are often disqualified based on parental income, regardless of whether the defendant is able to rely on that income.


Color me unimpressed.

I practice in front of a judge who -- on a daily basis -- says things to people making their first appearance like this:

"That looks like an expensive shirt. How did you pay for that?"
"I see you have a tattoo. I know those aren't cheap."
"It seems to me that if you can afford that gold chain, then you can afford a lawyer."

In North Carolina, a person is not entitled to court appointed counsel if the person is only charged with a Class 3 misdemeanor (punishable by up to 20 days in jail) and the person is not likely to go to jail. The North Carolina legislature was not happy with how much the state was paying court appointed counsel, so they changed some common misdemeanors from Class 1 or 2 misdemeanors to Class 3 misdemeanors so they wouldn't have to pay for those lawyers.

There are a couple minor problems with that. One is that when someone gets a judgment in a Class 3 misdemeanor and fails to comply with the judgment, then the person can get that 20 day suspended sentence activated. So even though the judge may have not given the defendant active time at sentencing, it is still possible that person winds up serving that jail time. Also, the conviction sits on the person's record forever -- even if it is just a Class 3 misdemeanor.

One of the offenses changed from Class 1 to Class 3 was Driving While License Revoked. So now someone can only get 20 days instead of 120 days. Fine. However, that person's license will still be revoked an additional one year (at a minimum) for a conviction of the offense.
posted by flarbuse at 9:49 AM on October 22, 2014 [2 favorites]


Color me unimpressed.

Yeah, sorry, but that reaction just doesn't make any sense to me. Like, okay, the state of indigent defense in this country is super bad and people's constitutional rights get violated on a near constant, daily basis. Which is why this matters, because it sets a precedent for a state saying "hey okay you were right, this is really bad, we are breaking the law." And maybe folks in NC will take it and run with it. Because it needs to change everywhere, not just NY.
posted by likeatoaster at 11:35 AM on October 22, 2014


How does a judge confuse having $150 once for having $15,000 now?
posted by 0xFCAF at 11:35 AM on October 22, 2014


I'm not finding the details of the Hurrell-Harring case, but pleading guilty to a serious crime you obviously didn't commit is foremost a failure of the judge and prosecutor and only secondarily that of the plaintiff's counsel.
I practice in front of a judge who -- on a daily basis -- says things to people making their first appearance like this:

"That looks like an expensive shirt. How did you pay for that?"
"I see you have a tattoo. I know those aren't cheap."
"It seems to me that if you can afford that gold chain, then you can afford a lawyer."
If you spend any time around a US criminal court you can't fail to notice that the system is discriminatory against poor and indigent defendants... and many of the most important decisions are made before court is convened. The role of public defense is to convince the middle class that a system which is blatantly unjust is justice. But it helps that indigent plaintiffs are often very unsympathetic people... the sort of people nice Democratic voting middle class people would cross the street to avoid from but never admit it. So, on the one hand you get to keep a system which protects you from the growing underclass, and on the other feel like while the system is flawed, justice is right around the corner.

It was very very easy for the left to talk about the abuses in Ferguson as being about race, when actually they put a spotlight on what justice is like for the poor in this country. If poor people got the legal defense accorded to rich people, the court system would collapse within weeks but then, if poor people were charged like rich people they wouldn't need as much defense. But, then if poor people weren't charged the way they are, then all of those men sleeping in their cars would be less scared and more angry.
posted by ennui.bz at 11:42 AM on October 22, 2014 [2 favorites]


pleading guilty to a serious crime you obviously didn't commit is foremost a failure of the judge and prosecutor and only secondarily that of the plaintiff's counsel.

Well, that's theoretically the whole point of defense counsel - to hold prosecutors and judges to their burden of proof. The founder of my org likes to say that we're successful if the average number of convictions goes UP, because that means that fewer spurious charges are making their way into the court system in the first place.

many of the most important decisions are made before court is convened.

This is why early access to a lawyer (at the arrest stage, before interrogation) is important.

As for this:

The role of public defense is to convince the middle class that a system which is blatantly unjust is justice.

Public defense is pretty much the only safeguard that poor people have against getting railroaded by courts. I'm not sure what you mean by this.
posted by showbiz_liz at 12:49 PM on October 22, 2014


(For clarity's sake: we are based in the US but primarily work in developing countries with new legal aid systems.)
posted by showbiz_liz at 12:55 PM on October 22, 2014


This is great news.

Fingers crossed that, somehow, the public defender caseload stipulation trickles down to the Bronx, and does something to reduce court delays.
posted by evidenceofabsence at 1:04 PM on October 22, 2014


« Older Increase Your Trumpet Range With This One (Stupid)...   |   The results confirmed her findings: Thomas had... Newer »


This thread has been archived and is closed to new comments