Governor, state legislators should work to reform indigent defense system

Posted 4 January 2017 at 6:15 pm


Recently, Governor Cuomo vetoed a bill passed unanimously by both houses of the legislature that was endorsed by many organizations from both sides of the aisle. The purpose of the bill was to provide a comprehensive overhaul of the system of providing indigent legal services to those unable to afford counsel in New York State.

Counties in New York have long toiled to balance local concerns and a state mandate system that is unique to New York in relation to the rest of the country. For years, local needs have in many cases suffered as the system of mandated programs has been expanded by state government in order to fund or fill the gaps of unbalanced state budgets.

Virtually all property taxes collected at the county level are collected for the purpose of funding these state created programs and funding shortfalls. No other state depends as heavily on the property tax system as the State of New York to fund state programs and mandates. This is the root cause of the high property tax rates under which citizens of our state struggle or, as is too often the case, simply move away.

The question of New York State taking responsibility for its’ own obligations (in this case guaranteed by the U.S. Constitution) has again been raised and answered by the Hurrell-Harring et al. v. State of New York et al. case. The settlement of the case required the state to fund reforms to the indigent defense systems of the five named counties.

In the veto message dealing with Senate Bill Number 8114 entitled “An Act to amend county law and the executive and state finance law, in relation to indigent defense services,” the governor raises objections about the state taking financial responsibility for indigent legal work that counties are already being mandated to pay by the state and that are outside of criminal defense work for legal representation.

The idea that these non-criminal defense costs, like family court and other constitutionally required expenses, are generally born by state governments across the country and not counties appears to be lost in the state analysis. This is one of the many shifts of state responsibility that have taken place in New York over decades that have resulted in the current, systemic, and oversized property tax burden.

The settlement of the Hurrell-Harring lawsuit, to which the state is a signatory, created a structural imperative to provide legal services at a level consistent with the terms of the settlement to all areas of the state. That imperative has a price. To take a position that the state cannot increase the taxes of every taxpayer in the state to pay for such an imperative ignores the fact that those same taxpayers will pay whether it is funded by income taxes levied by the state or property tax payers at the county level.

Income taxpayers and property taxpayers are virtually one in the same. To the extent that the two tax bases vary, it is the property tax base that draws from a smaller pool and the income tax base that draws from a larger pool. Statewide obligations should be borne by the state.

The Governor’s veto message makes an excellent point that reform of the current system is necessary and should require prudent oversight. However, we disagree that the legislation was merely a ploy for financial redistribution of existing local expenses.

Unfortunately, we find again and again that there is a willingness on the part of New York State to ignore the idea that we as counties share with the state a commonality, the same people. There is a willingness to ignore the state role in the property tax problem. In this case, the legislature chose to recognize those facts and the governor did not. The legislature’s approach was to provide a solution that represents a comprehensive fix of the entire system. Isn’t that exactly the type of reform that we should be seeking?

There is no reason that the interest of the people of New York cannot be served by both reforming the indigent defense system and providing real and sustainable property tax relief at the same time. Coming to an agreement that accomplishes both should be a top priority for our state and county elected officials for 2017.


Charles H. Nesbitt, Jr.

President, New York State Association of County Administrators and Managers

(Nesbitt is also chief administrative officer for Orleans County.)

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