Access to Counsel: The Determination of Eligibility for Counsel in Upstate New York

• In Event: Policy Panel: Addressing Barriers to Access to Counsel in Criminal Courts

Abstract

In Gideon v. Wainwright the Supreme Court said those ‘too poor to hire a lawyer’ must be provided with counsel. But how poor is too poor? In New York, determination of financial eligibility for assignment of counsel is the sole province of the more than two-thousand judges presiding in the state’s courts of original jurisdiction. Mostly non-lawyers working with little external support or training, these judges must grant or deny access to legal services deemed fundamental to any person facing deprivation of liberty. Qualitative data from our survey of over a thousand of these magistrates suggest that these ‘street level bureaucrats’ share a sense of the rules, responsibilities and resource constraints which shape their work, yet that they vary in their approaches to deciding how to assign counsel in ways that can have a profound impact on the legal services defendants receive. Policy implications are discussed in the context of recent initiatives in New York to expand early access to counsel.

Authors

• Alyssa Clark, NYS Office of Indigent Legal Services

• Andrew L.B. Davies, NYS Indigent Legal Services / SUNY Albany