Determining Client Eligibility for Appointed Counsel: A Strategy for Reform in New York State


Throughout their history, publicly financed criminal defense services have experienced little organizational development. Unlike civil legal services, criminal defense services have developed primarily on the local level with little attention given to systemic issues, such as client eligibility. This paper reviews, the status of client eligibility decision making in New York State. Although our fundamental contention is that the right to publicly financed counsel for all should exist in every jurisdiction which chooses to prosecute individuals for crime, this paper focuses on defining eligibility for publicly financed counsel for those unable to afford counsel.

Over the past twenty-three years, issues relating to the right to counsel have proliferated. Much has been written on the scope of the right to counsel and the quality of representation provided by public defense services. Yet, few studies have examined client eligibility standards closely; consequently, too often the issue of “inability to afford counsel” is transformed into an issue of “indigency.” A state of indigency, however, is not equivalent to being unable to afford counsel. One may be unable to afford counsel without being indigent. Factors such as the defendant’s assets and debts, the seriousness and complexity of the case, the defendant’s prior criminal history, and the average hourly fees of attorneys in the jurisdiction all affect the defendant’s ability to afford counsel. Reliance on a standard of “indigency” leads to a consideration of a defendant’s assets and debts exclusive of other important factors.

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