A revolution always starts somewhere.  This one might have started with Kimberly Hurrell-Harring trying to smuggle marijuana in to her husband, who was a resident of a New York state correctional facility.  Her lawyer, Patrick Barber, told her that she had no options but to plead guilty to a felony.  She did.  The day before she was to be sentenced, Barber got a call from another attorney, who told him there was a case pending in the appellate courts on the issue of  whether that amount of marijuana could be defined as “dangerous prison contraband,” or whether it was ordinary contraband, which would have been a misdemeanor offense.  Barber wasn’t interested; he didn’t ask for copies of briefs, and made no mention of the case the next day at sentencing.  He later said he was afraid of bringing up the issue because he feared that it would make prosecutors ask for a longer prison sentence.  Hurrell-Harring was given four months in prison and lost her job.

Her life changed for the better when an appeals court overturned her conviction on the basis that the amount of marijuana didn’t qualify as dangerous contraband.  Barber’s life changed for the worse when he was subsequently disbarred for fabricating family court orders and letters.  But Hurrell-Harring then became the featured plaintiff in a case challenging the way New York State handles indigent criminal defendants, and on May 6 of this year, the New York Court of Appeals agreed in Hurrell-Harring v. New York that the state’s system of paying for lawyers for indigents might be so deficient that it constituted a violation of the defendant’s right to counsel.

That system is not too dissimilar from the one Ohio has.

The only major difference, in fact, is the degree to which the state pitches in for the costs of indigent defense.  In New York, the state pays only about 15% of that figure.  When the Ohio Public Defender Commission was set up in 1976, the state was supposed to provide 50% of the funding, with each county providing the other half.  It hasn’t worked out that way in a long time; it’s at 35% now, up from just 25% a year ago.  And not all of that money goes where it’s supposed to.  Last year, Hamilton County put its $1.2 million share in its general fund; only $500,000 of it actually went for indigent defense.

This can lead to some wide disparities in funding, and that’s what caused the trouble in New York.  The plaintiff’s complaint alleged a variety of problems:  defendants unrepresented at arraignments, where bonds were set, and lawyers who were unavailable and unprepared, and “who ultimately appeared to do little more on their [client's] behalf than act as conduits for plea offers, some of which purportedly were highly unfavorable.”

The plaintiffs in Hurrell-Harring had two major obstacles.  The first was that this was not a claim of denial of counsel (except in the arraignment context, and the courts have never held that counsel is always required at arraignment), it was a claim that the system resulted in counsel being ineffective.  Ineffective assistance claims, of course, are normally gauged in an individual context:  was the lawyer’s representation so deficient that it prejudiced the defendant in this particular case?  The second obstacle was that, even assuming it could be shown, what was the remedy?  At oral argument, which can be viewed here, counsel for the plaintiffs studiously avoided answering that question, and the posture of the case allowed her to do so:  it had been dismissed by the appellate court, and the only question at this juncture was whether to allow the plaintiffs a chance to prove their claims. 

The answer to that is four words:  mo’ money, mo’ money.  Everybody even vaguely familiar with the system knows that indigent defense is woefully underfunded.  Since the dustup in Hamilton County over how last year’s appropriations were used, the County promised to use the money it got this year for the purpose for which it was intended.  The result?  Public defenders in Cincinnati will get paid close to what prosecutors make, will get a conference room where they can talk to clients with some modicum of privacy, and will get their own computers, rather than having to share a bank of them with their officemates.  And that’s public defenders; I’ve written more than a few posts — here, here, and here – on the inadequacies of compensation for appointed counsel. 

Several of the justices on the panel in the New York case expressed concern during oral argument at eventually being put in a position to order the counties, and quite possibly the New York legislature, to pony up more bucks for indigent defense.  If there’s going to be a remedy to the problem, though, it’s hard to see how it’s not going to be done that way.  In the current economic climate, I don’t see many legislators deciding that a viable strategy for re-election would be campaigning on a platform of having the average citizen reach deeper into his pockets so child molesters and drug gang-bangers can have adequate representation in court.

The New York case isn’t a done deal by any stretch.  As mentioned, the case simply goes back to the lower court now to give the plaintiffs a chance to prove their claims, and in any event the suit is only directed at five of New York’s sixty-two counties.  But given the growing concern in judicial circles about the problem of underfunded indigent counsel, the New York could well be a harbinger of things to come.