Access to Counsel for Defendants in Lower Criminal Courts

Abstract

Criminal defendants unable to afford an attorney are entitled to one for free in the United States, but how and when they obtain access to that lawyer is another question. We examine judicial attitudes and behavior in granting access to counsel in areas where logistics are particularly forbidding. Based on survey responses from 1,091 magistrate judges presiding in lower criminal courts in suburban and rural jurisdictions in upstate New York, we describe both the procedures used to determine defendants’ financial eligibility for free counsel, and the logistical challenges that surround securing the physical presence of a lawyer at the first appearance in court. We find that judges strongly favor counsel’s presence in order to maintain courtroom efficiency, and sometimes depart from strict interpretation of financial eligibility guidelines to ensure representation. We introduce the concept of the “procedurally precautious judge” to describe the way these respondents carefully preserve the appearance of integrity in court operations even while availability of counsel for defendants is limited.

Keywords:

• Access to counsel
• indigent defense
• lower criminal courts
• judicial decision-making

Notes

1 Provine asked “In the past twenty years courts have interpreted the Constitution to require increasing attention to procedural safeguards in criminal cases. Do you think this trend has gone: Much too far, Somewhat too far, About far enough, Not quite far enough, Not nearly far enough?” (Provine 1986, 193).

2 In 2014, approximately 37% of judges in these courts were lawyers (State of New York Commission on Judicial Conduct 2015). All City Court judges, in contrast, are required to be lawyers. Currently, 22 states authorize non-lawyer judges (The Sixth Amendment Center, 2016).

3 Originally, our dataset contained 2,285 judgeships. We discovered, however, that some of the judges included on the list had retired, passed away, or stepped down from their appointments by the time we sent out our survey. After these were eliminated, our final sampling frame included 2,188 judgeships.

4 The difference in the percentages is accounted for by the fact that many courts have more than one judge presiding. The 1,091 responses we received came from 845, or 69 percent, of the 1,224 justice courts in the state.

5 The quotations presented in our findings are verbatim from survey responses, with the exception that we took the liberty to correct obvious misspellings and typographical errors, and to expand certain contractions (such as “atty” for “attorney”) for readability. We have allocated gendered pronouns to judges at random throughout.

6 Consistent with this general finding, a 2015 survey revealed that judges in approximately three-quarters of New York counties allowed defendants to access counsel prior to the final determination of their financial eligibility (Davies and Clark 2018).

7 Whereas in certain states it is reported that defendants are frequently charged to access and use “free” public defender systems, in New York this is comparatively rare, but varies by county. New York does not authorize “application fees” for defense services, and available financial data suggests less than 1% of defense system revenue actually comes from fees paid by defendants. However, a 2014 survey revealed that no fewer than 43 states charged defender application fees at that time (National Public Radio 2014).