The Right to Counsel in the State of New York

New York has endured a long, tortured journey since Gideon v. Wainwright held that the Sixth Amendment guarantees a right to counsel to criminal defendants facing serious charges and the loss of liberty in state court. Only now, fifty-four years later, does New York appear to be on the brink of true statewide reform. A fateful mistake was made in 1965 with creation of a statutory scheme calling upon each of the state’s counties to create its own system for criminal defense representation. With no state funding or standards, this approach resulted in a system in which the quality of representation is largely dependent on the wealth of the counties. To be sure, there have been many calls for reform over the years from many sources, including bar associations, the court system, and others. Studies were done, conferences were held, recommendations were made, and they all helped fuel the improvements now being seen. A critical catalyst for change was a lawsuit brought against the state and five counties on behalf of named criminal defendants denied the right to counsel by a flawed system. When the state’s high court held that the lawsuit could go forward, the legislature responded by creating the State Office of Indigent Legal Services (ILS). The new agency was empowered to make efforts to improve the quality of representation but not to deliver services. Staffing and funding were modest at first. However, settlement of the lawsuit against the state and five counties led to recent legislation at last requiring the state to take responsibility for fulfilling the promise of Gideon. This Article describes New York’s journey—from the original sin of the 1965 law to the 2017 legislation fueling true statewide reform—and ends with reflections meant to spur and contribute to a national discussion regarding how we are complying with Gideon and how each