MOTNICELLO, NY — One of the gifts sought by the New York State Association of Counties (NYSAC) from the state budget process this year, is that the state would give more money to counties to help the counties pay for the defense of indigent residents. Officials in Albany did not provide additional money to the counties, but they did change the rules so that it might become more expensive for counties to provide the services.

Janet Young, the Sullivan County commissioner of Management and Budget explained at a meeting at the government center on April 14, as the current rules stand, indigent defense must be provided for all defendants who earn up to 150% of the federal poverty level, and income from a spouse can be factored into the equation as can other components such as home ownership. Beginning in October of this year, the bar will be lifted to 250% of the federal poverty level, and the income of a spouse and other factors such as home ownership will not become part of the equation.

The upshot of this is that the cost to Sullivan County to provide indigent defenses to those who qualify might increase substantially, although at this point officials are not certain of the impact. Young said in 2015 the county spent $1,647,923.98 on public defense but received state aid of $239,946.85 to help pay for the cost, leaving a county share of about $1.4 million.

County manager Josh Potosek told legislators that judges already have the power to grant waivers on the current limits, and the size of the population that falls within the new limits is not yet known. He said the contracts with the two entities that provide indigent legal services in Sullivan County operate on flat, fixed fees, but if their caseloads suddenly double, they will likely seek more resources from the county.

NYSAC has been advocating for some time that the entire indigent defense program be taken over by the state, which is what is done in many other states. But in 1965, when the U.S. Supreme Court ruled that every defendant deserves competent legal representation, state officials here decided that most of the expense of providing that defense would be borne by county residents.

Meanwhile, the system has been criticized as being woefully inadequate, mostly because of a lack of resources available.

In 2007 the New York Civil Liberties Union (NYCLU) and a private law firm brought a lawsuit on behalf of about 20 defendants in five counties, charging that they could not get fair trials because of the inadequacies of the indigent defense programs in those counties.

After the case moved through various courts, an agreement was reached in 2014, in which the state agreed to a number of provisions, such as setting case-load standards that will limit the number of indigent cases any lawyer can carry. The settlement also essentially guarantees that the state will pick up the costs for the indigent defense programs in the counties involved: Ontario, Onondaga, Schuyler, Suffolk and Washington.

But the court settlement only involves those counties, and the rest of the counties are left paying their own bills.

At the meeting, Potosek told legislators that officials at the New York State Office of Indigent Legal Services would like to see the state take over the program state-wide, because it will help insure consistency in the quality of service offered to indigent defendants. But he said making the switch won’t be an easy task because it will cost the state a lot of money.

According to the American Bar Association, about 29 states provide all of the funding to cover the costs of indigent defense programs. Three states provide more than 50% of the funding. In 16 states, including New York, counties provide more than 50% of funding (according to NYSAC, in New York counties provide about 80%.) And in only one state, Pennsylvania, do the counties pay the entire cost of indigent defense.