Gary Craig

@gcraig1

The fund%27s revenue comes from fees for criminal background checks and other services%2C including restoration of suspended driver%27s licenses.

Legal services for the poor are one unfunded state mandate that the state could do something about.

In 2013%2C statewide criminal history checks by the Office of Court Administration generated nearly %24100 million in revenue. Of that%2C %2453.6 million was earmarked for the Indigent Legal Services Fund.

As counties like Monroe struggle to cover the cost of legal defense for the poor, state lawmakers have been raiding tens of millions of dollars from a fund designated for that very purpose.

Over the past six years, the state's elected officials have yanked close to $50 million from a fund designated for indigent legal services.

While the "sweeps," as they are called, have not had immediate impact on a fund designated for indigent defense, those lost millions may be needed in future years as counties across New York try to provide constitutionally sound legal services for the poor. And the practice speaks to a larger issue, advocates for indigent defense services say: A continued unwillingness by state officials to confront a patchwork system of indigent legal aid.

"There isn't a logic to sweeping funds from there if your interest is to have a fund that will improve the quality of public defense," said Jonathan Gradess, who heads the New York State Defenders Association, which works to improve indigent defense.

For decades, public defense services in New York have battled to reach constitutionally mandated levels. Public defense offices are weighted with tremendous caseloads, and counties struggle to cover the costs.

In February, state Office of Indigent Legal Services director William Leahy, addressing Gov. Andrew Cuomo's proposed budget, denounced the continuing sweeps of money from indigent legal funds. The sweeps could total more than $56 million since 2008, he said.

"These lost funds would have been able to provide mandate relief to the counties," Leahy said. "... I cannot emphasize strongly enough that any further sweeps from the Indigent Legal Services Fund would pose an extremely grave threat to our ability to continue improving the quality of legal services in New York."

The state's Office of Indigent Legal Services, which opened in 2011, was created to bolster legal defense for the poor in New York. The office was created partly as a response to a 2006 report from a commission, formed by then Chief Judge Judith Kaye.

The commission found that "there is, indeed, a crisis in the delivery of defense services to the indigent throughout New York State and that the right to the effective assistance of counsel, guaranteed by both the federal and state constitutions, is not being provided to a large portion of those who are entitled to it."

State officials say that a designated pool of funds for indigent legal services is fiscally sound, and is actually tens of millions more than budgeted in the current year. That's why the state has eyed the fund as one revenue source, though there have not been firm commitments to restore the money in future years.

For instance, the fund, which includes money from criminal background checks and other fees, is expected to end the fiscal year with a balance of more than $67 million, said state Division of Budget spokesman Peter Morris. The recent annual amount of money awarded to counties from the fund is $81 million, so the fund is well stocked for the future, he said.

"As the numbers show, the fund is firmly in the black," Morris said.

But, Leahy said, the numbers are misleading, and future funding needs — especially trying to ensure that upstate public defense meets constitutional levels — will eat up that surplus.

"It's fiscally sound in the short term," he said. " ... There's an awful lot of that $67 million that's going to be spent downstream."

Meanwhile, counties across New York are strained by the increasing costs of indigent defense. Counties largely fund their own public defense, but the state fund was created because counties were not always fiscally able to provide adequate services.

The state's Indigent Legal Services Fund pays for the Office of Indigent Legal Services and provides grants across the state to counties to improve public defense services.

Monroe County right now is trying to reduce costs for its "conflict defense" services for the poor — legal defense required when the Public Defender's Office cannot represent a defendant because of a conflict. A request for proposals for the service engendered lukewarm response, and now the county is looking toward expanding its own office that provides representation for those defendants.

Several counties across New York have passed resolutions encouraging the state to take over the public defense system. One of those is Genesee County.

"Counties simply can't meet a common standard and can't afford to provide the needed levels of service," Genesee County Manager Jay Gsell said in a March 18 statement. "Why don't they take the whole thing over and let Albany cover the costs of an independent state defender system?"

Meanwhile, a lawsuit filed by the New York Civil Liberties Union is challenging the state's public defense system, claiming it fails to meet the constitutional guarantee of reliable legal counsel for all, regardless of income. That lawsuit, if successful, could require an overhaul of indigent legal services.

Regular "sweeps"

The Office of Indigent Legal Services is far from alone in having its funds "swept" by state lawmakers and directed toward other purposes. State Comptroller Thomas DiNapoli has consistently criticized the practice as one that cloaks budgetary weaknesses.

In a 2010 report DiNapoli said that in the previous decade more than $3.7 billion had been swept from dedicated funds and shifted to the state's general fund to mask revenue shortfalls and cope with deficit spending.

An Environmental Protection Fund established in 1993 has been a primary source of fund sweeps, with hundreds of millions "transferred to the General Fund for budget relief," the report said.

The general fund is where most of the state tax money lands that is not already earmarked for designated programs.

"These actions," DiNapoli wrote of sweeps and other budgeting maneuvers, "are fiscal manipulations used annually to reduce the General Fund deficit."

In the 2013-14 budget, Dinapoli noted in a report, legislators and the governor shifted $11 million from the indigent legal services fund for other purposes.

The Governor's Office did not respond to a request for comment.

Assemblyman David Gantt, D-Rochester, said the state needs to find a way to do more for indigent services.

"Even if the guy's 100 percent wrong, in this country he's innocent until proven guilty," Gantt said of criminal defendants. "He should get a lawyer."

Legal fund

Criminal history reports from the state's Office of Court Administration, a big business because of employer background checks, provide the bulk of the money. Each background check costs $65, and $35 of that is earmarked for the fund.

Last year there were more than 1.9 million requests for criminal checks, resulting in more than $53.6 million for the Indigent Legal Services Fund, according to the Office of Court Administration, or OCA.

Other smaller sources — such as fees paid when a revoked license is reinstated and a surcharge on attorney registrations — also provide money for the fund.

According to Jonathan Patrick, the chief operating officer for Metrodata Services Inc., state officials in recent years have increased the cost of criminal background checks, highlighting that the funds will be directed to public defense.

Metrodata, which has offices in Rochester and Buffalo, performs background checks on prospective hires for employers. In the last three years alone, the company has spent more than $1 million on statewide New York criminal checks, he said.

"Prior to 2003 we were able to obtain an OCA search for $16 and the information was limited to just criminal information in the counties of the boroughs in New York City," Patrick said.

OCA later increased the cost to $55 and opened up state-wide criminal information, he said.

"At that time we and our clients were told that the fee increase was to help pay for public defenders for the indigent in our state," Patrick said in an email. "A few years after that we again incurred a price increase to $65 which to the best of our knowledge is currently the highest fee charged by any state entity in the nation for this type of information."

If the state were committed to indigent defense, it would not rely heavily on a fluid funding base, nor would it then raid the fund for other purposes, said Gradess, of the state Defenders Association.

"It's dependent on employers seeking criminal history records from OCA," he said. "It's dependent on people with suspended driver's licenses trying to get them back."

"The same Legislature that created this fund and spoke about the fund growing each year has passed a budget that includes these sweeps," Gradess said. "... If things stay the same, it's the status quo and the status quo is what the Kaye commission said was unconstitutional."

GCRAIG@DemocratandChronicle.com

Twitter.com/gcraig1

About Indigent Legal Services

The Indigent Legal Services Fund was established in 2003 to help localities meet the constitutional mandate of legal services for the poor. For years, critics said, the funding was not earmarked to meet the most needs.

The Office of Indigent Legal Services was created to help better steer the money, including performance-based grants. The office monitors indigent legal services to decide how to direct funding.

The Office of Indigent Legal Services is funded out of the Indigent Legal Services Fund. The proposed budget for the fund for 2014-15 is $82.8 million. The office is asking for $4 million more to help counties hire more public defenders to lower caseloads and ensure defendants have attorneys when first arraigned.

Monroe County, for instance, recently received a three-year grant of $724,000 as part of a "first appearance" program.

In the past, defendants in town and village courts have not always had a defense lawyer when first arraigned. The grant, and scheduling work with local judges, are changing that, said Monroe County Public Defender Tim Donaher.

"Thanks to that grant we were able to add some staffing to our town court sections," he said.

He said he expects the funding to continue after the three years.

"I'm assuming that the intent is to maintain that funding level, realizing that counties are loath to add employees without reasonable assurance that funding will be maintained in the future," he said.