Responses to Free Counsel: A Right, Not a Charity & Determining Client Eligibility for Appointed Counsel


Eligibility for assignment of counsel is one of many areas in which there is more policy than law. The time is ripe to consider practicalities.I do not lay claim to any authority with regard to the law, the policy or the theory. I learned about practical reality as a battered participant in an effort to effectuate the operation of an eligibility screening program within the con-fusion of the New York City courts.

Unless one indulges in the fantasy world outlined by Jim Neuhard, in which everyone would be eligible for assigned free counsel, one must recognize that only some people are eligible for publicly assisted counsel. We must confront the obvious consequence of that, which is the need to determine whois eligible. As a practical matter this has proven to be virtually impossible and has added to cynicism about the administration of criminal justice in NewYork City. To date, the decision on eligibility has been made by a member of the judiciary, the assigned counsel, or, as in the ongoing New York City experiment, a neutral third party. Presently, the Criminal Justice Agency, whose primary function is to interview arrested defendants and assist the courts in making a release or bail determination, is making the eligibility decision. It is partly because of the Agency’s convenient position in the pre-arraignment pro-cess that it has inherited the task of screening for eligibility all those who come through the system.

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