Gov’s cut to criminal public defense remains as budget deadline nears
/
Governor Kathy Hochul’s plan to sweep $234 million from the state’s Indigent Legal Services Fund sparked backlash among the state’s legal community last week. File photo by Susan Watts/Office of Governor Kathy Hochul
By Jacob Kaye
Governor Kathy Hochul may have reversed her plans to strip $100 million from a fund meant to pay for civil legal services in New York, but a similar proposal to take funds from an indigent defense attorney fund remains on the table as legislators and the governor head into the final week of negotiations over the state’s budget.
A proposal from the governor to “sweep” $234 million from the state’s Indigent Legal Services Fund and put a large chunk of it into the state’s general fund is currently under consideration by the state’s top executive and legislature, who are fast approaching the budget’s April 1 deadline.
Under Hochul’s budget proposal, around $120 million of the fund’s cash would go to the general fund while the remaining $114 million would be used to fund the state’s assigned counsel and 18-B attorneys, who several years ago sued the state for failing to raise their pay for around two decades.
But dozens of public defense and legal services organizations are sounding the alarm on the proposal, warning that the cut to the fund – which some argue isn’t legal – could potentially violate low income New Yorkers’ right to high-quality legal representation in both Criminal and Family Court.
“The ILS Fund was created to ensure equity, justice, quality representation and family unification for indigent New Yorkers,” the organizations said in a letter to Hochul, Senate Majority Leader Andrea Stewart Cousins and Assembly Speaker Carl Heastie. “The proposed sweep of $234 million undermines these goals and sets a dangerous precedent that will harm our communities.”
“We collectively urge you instead to appropriate the funds in the ILSF for their intended purpose of improving public defense throughout New York State,” the organizations, which included Queens Defenders, The Legal Aid Society and Brooklyn Defender Services, added.
The Indigent Legal Services Fund was first created around two decades ago in an effort to ensure that the low income New Yorkers and children in the state’s Criminal and Family Courts had access to representation.
The fund is managed by the New York State Office of Indigent Legal Services and is distributed to counties throughout the Empire State. The money is then sent to public defense firms and used to fund their work – the ILS Fund also provides counties with funding for non-citizen advisals and, in most counties, is the only funding available to support the constitutionally-required work.
“Public defenders meet people at some of the worst moments of their lives, and help them through to the other side,” the groups said. “Without sufficient funding from the ILSF, many defender offices around the state will not have sufficient resources to provide many critical services to their clients.”
The firms said that without the money, public defender organizations could again head into the attrition spiral that only recently began to calm.
“In addition, attorneys will be back to handling too many cases at one time, increasing the risk of missing important legal and factual issues,” they said. “Large caseloads also lead attorneys to leave the public interest field, adding to the attrition that was experienced during the pandemic.”
The fund primarily exists to help the state meet its constitutional obligations to provide a defense attorney to those appearing in New York’s courts who can’t afford one.
Though it’s been in existence for two decades, it only became a major source of funding for public defense firms within the past years after the state was found in court to have failed to provide New Yorkers in certain parts of the state with a defense attorney.
The settlement in that case, known as Hurrell-Harring, specified that it was the state’s responsibility to fund the constitutional obligation. In 2022, the New York Civil Liberties Union sued the state claiming that it had failed to meet the terms of the settlement agreement by not properly funding public defense. That lawsuit came to its conclusion in October of last year following Hochul’s increased appropriation for public defense in last year’s budget.
But the public defense firms in their letter said that any progress made over the past year could be lost should Hochul’s budget proposal go through.
“Without these funds, the state risks going backwards in its obligation,” they wrote.
Richard Lewis, the president of the New York State Bar Association, said in a statement that the top bar association in the state was also in opposition to the proposed cut.
“The sweep is inconsistent with the fund’s legislative intent and earmarked purposes,” Lewis said.
“Accordingly, the New York State Bar Association opposes the ILSF sweep and simultaneously urges that the ILSF be used as intended to improve the quality of public defense consistent with ILS’s budget request,” he added.
While the Senate did not include the governor’s proposed sweep of the fund in its one-house budget, the Assembly did.
The ILS Fund sweep wasn’t the first sweep Hochul proposed for the Fiscal Year 2025 budget.
Her proposed $100 million sweep of the Interest On Lawyer Account fund, which is used to support over 80 nonprofit legal organizations throughout the Empire State that offer civil legal services to indigent New Yorkers, was met with similar backlash among the state’s legal community.
Later in February, Hochul reversed the plan when issuing her 30-day amendments to her executive budget proposal.
