New York Public Defense

Public defense issues and developments in New York.

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New York has undergone significant criminal justice changes in the past decade, from systemic challenges to public defense delivery systems in several of the state's counties to sweeping legislative overhauls of discovery and pretrial practices.  Many of these changes will have a significant impact on the state's public defense system, the community, and individuals who face criminal accusations. 

Major Criminal Justice Reforms in New York

Beginning January 1, 2020, a series of major criminal justice reforms will take effect in New York. Among other areas, the legislation passed in April, 2019, provides sweeping changes to New York's discovery rules and reshapes its bail process. NACDL has long advocated for reform in these areas along with its state affiliate, the New York State Association of Criminal Defense Lawyers (NYSACDL), and worked to help bring about meaningful improvements to New York’s criminal justice system. Read NACDL's Press Release for more information. 

  • Bail: CPL 510.30 eliminates the use of monetary based bail for most misdemeanors and low level, non-violent felonies and promotes the uses of services over detention for those who may face greater obstacles. While not wholly ending the use of monetary bail, the changes are expected to significantly reduce the number of individuals being detained pending trial.

  • Discovery: CPL 245.10 et seq. ushers in a complete overhaul of New York's discovery practices. From significantly expanded the scope of materials to be provided, to requiring production occur in advance of the entry of any guilty plea; and from requiring police cooperation in disclosure of information to prosecutors, to requiring prosecutors to be diligent in disclosing mitigating information, New York's new discovery rules catapult the state from being one of the most restrictive in the country, to being a leader in openness and transparency. 

Clemency Campaign

Building on the historic work done together in support of ClemencyProject 2014, in 2017, NACDL and Families Against Mandatory Minimums (FAMM), with support from the Foundation for Criminal Justice (FCJ) partnered to create a state-focused clemency initiative. The first state to sign on was New York. Working with the governor's office to identify inmates seeking clemency, the Project's volunteer lawyers are trained and supported to assist eligible inmates present their petitions, helping those who have worked hard at rehabilitation have a second chance.

Learn more about The State Clemency Project.

Learn more about NACDL’s commitment to the restoration of rights after conviction.

End the Trial Penalty in New York

The use of trials has all but disappeared from the criminal legal system, eviscerating a key check on government abuse, overreach, and error. It is widely believed the main culprit in the decrease in trials is the “trial penalty”—the substantial difference between the terms of the prosecutor’s offer to resolve the case without a trial and the sentence one may receive if convicted of that same conduct. In an effort to understand the causes and impact of the trial penalty and identify was to end it, NACDL undertook a multi-year study of the issue in federal court, culminating in the 2018 publication of The Trial Penalty Report. But the impact of the trial penalty is not just felt in federal courts. Across the country states have developed their own system of levers, threats, and incentives to facilitate an accused waiving their right to trial and pleading guilty. To date there has been little examination of the state system. In 2018 working with our state affiliate, NYSACDL, NACDL launched the New York trial penalty project. The New York State Trial Penalty: The Constitutional Right to Trial Under Attack was released in March 2021.

Read the New York State Trial Penalty Report

Systemic Litigation

In 2010 New York agreed to make substantial, systemic changes to its public defense delivery system in 5 counties. The settlement agreement came following a divided New York State Court of Appeals decision to reinstate the case of Hurrell-Harring v. New York, The Hurrell-Harring litigation challenged the public defense delivery system in 5 of New York's 57 counties, asserting it was inadequate to ensure the right to counsel, and it launched a wave of systemic public defense challenges that continue today. Most notably, the Hurrell-Harring Court recognized a cognizable claim for relief based on systemic flaws rather than individual case claims that arise in ineffective assistance of counsel cases.

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Read NACDL's Amicus Brief

The terms of the settlement included:

  • Having counsel at first appearance
  • Workload standards
  • Additional funding for staff and training
  • Increased access to investigators, mitigation specialist and experts
  • State support and oversight.

More on Systemic Litigation

In 2019 New York celebrated an important milestone. In the 4 years following the court's approval of the settlement agreement all 5 jurisdictions from the litigation were meeting the settlement conditions. 

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