Foreword.

• Author: Lippman, Jonathan

The soaring rhetoric of the Supreme Court in Gideon v. Wainwright (1) declared that "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." (2) This landmark decision held that state courts must appoint attorneys for defendants who could not afford to retain counsel on their own and enshrined the principle that individuals have a right to counsel when their liberty is at stake.

Yet in so many corners of our nation, including numerous counties in our state, the realities of the public defender system do not match the eloquent pronouncements of the Supreme Court. Even over fifty years after the holdings of Gideon, there continue to be gross miscarriages of justice due to inadequacies in the public defense system. In many areas, poor defendants are arraigned without ever meeting a lawyer, and public defenders struggle as they labor under excessive caseloads. As a result, public defenders are unable to investigate properly each of their clients' cases and lack the resources to build a truly competent legal defense in every instance. These overextended public defenders may fail "to give their clients informed, professional advice during plea negotiations" and may be unable to "seriously contest the prosecutions' arguments, raise and preserve legal issues for appeal, or provide information about the defendant that is essential for individualized sentencing." (3)

In New York, these deficiencies in representation stem from our fragmented, patchwork indigent defense system and from the lack of sufficient uniformity, oversight, and resources. (4) In 2004, the Commission on the Future of Indigent Defense Services (the Commission) was formed to examine the effectiveness of New York's criminal indigent defense system and to consider alternatives to the present system. The Commission, cochaired by Professor William Hellerstein and the late Burton Roberts, determined that New York's county-operated and generally county-financed indigent defense system failed to satisfy the state's constitutional and statutory obligations and that there was a grossly uneven distribution of services from county to county and between prosecutors' offices and public defenders. (5) The Commission's findings made evident that the status quo could not continue in our state and led to three important developments.

First, a class-action lawsuit, Hurrell-Harring...