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Feb. 26, 2018
News Picks from NYSDA Staff

News Picks
Supreme Court, Dutchess County, Requires Consideration of Ability to Pay Bail. On Jan. 31, 2018, Dutchess County Supreme Court Judge Maria G. Rosa issued a  decision that concluded: "ORDERED AND ADJUDGED that the failure of a court imposing bail as a condition of pre-trial detention to consider an individual's ability to pay that bail, as occurred in this case, is a violation of the due process and equal protection clauses of the New York State Constitution and the United States Constitution."
An action seeking a writ of habeas corpus for Christopher Kunkeli had been commenced in the Second Department after bail was set in a town court; the Appellate Division referred the matter to Supreme Court. A subsequent plea bargain leading to Kunkeli's release did not render the matter moot, Rosa said, applying the exception for substantial issues likely to recur and yet evade review. Recognizing that the State Legislature needs to rectify the lack of a statutory requirement that judges consider ability to pay when setting bail, the judge noted that "[i]n the interim, thousands of individuals will be in a similar situation ...." And so the judge analyzed--without addressing whether setting bail was appropriate in this case, or even whether it was appropriate "to knowingly set bail the defendant could not afford"--the propriety of the town court's failure to consider the ability to pay the amount of bail set. Based on the finding quoted above, Rosa issued this declaratory ruling: "ORDERED AND ADJUDGED that when imposing bail the court must consider the defendant's ability to pay and whether there is any less restrictive means to achieve the State's interest in protecting individuals and the public and to 'reasonably assure' the accused returns to court. Pugh v. Rainwater, 572 F2d 1053 , 1057 (1978)." [Hyperlink added.]
The habeas petition for Kunkeli and related papers, filed by the New York Civil Liberties Union (NYCLU), are available on the NYCLU's website. Arguments were held on Jan. 19, 2018, as reported here . This Dutchess County ruling was the first of its kind in the state, according to a February 7 article  in the New York Law Journal entitled "Judge Decides Setting Bail Without Regard to Ability to Pay Violates Constitutional Rights." It comes in the midst of increasing discussion about and demand for bail reform in New York State and nationally. Defenders are taking active roles, from litigation in individual cases as described in the most recent issue of the Backup Center REPORT (p. 4) to participation in public forums such as that in Rochester on February 12
and advocacy for bail reform in Albany.

DOCCS Announces New Phone System for Calls with People in Prison. The Department of Corrections and Community Supervision (DOCCS) has announced a new "inmate phone system including a small price decline"; Securus Technology will now provide phone services. The message is posted on the DOCCS home page, http://www.doccs.ny.gov/ . The announcement states that "[t]hose wishing to accept calls from incarcerated individuals in NYS Correctional Facilities are required to have an account with Securus. An account can be created by visiting the website ( www.securustech.net ) or calling them at 1-800-844-6591." [Emphasis added.] The message includes a link to a planned schedule for installing the system at various prisons, including immediate dates of Feb. 26, 2018 (Hudson Correctional Facility [CF]) and Feb. 27, 2018 (Albion CF, Bedford Hills CF, Moriah Shock Incarceration CF, and Taconic CF). The new system will be implemented at other prisons through the first two weeks of March.

NLADA Issues Report on Public Service Loan Forgiveness. The National Legal Aid & Defender Association (NLADA) has issued a report based on a survey of "the impact of PSLF [Public Service Loan Forgiveness] on equal justice advocates and the communities they serve." Highlights include:
  • 81 percent of respondents who were aware of PSLF at the time they took their current job reported having been significantly influenced by the program's promise, with 51 percent indicating they were not likely or certain not to have taken their positions had PSLF not existed, and an additional 30 percent indicating they were only somewhat likely to have taken their positions.
  • 71 percent of respondents who are top executives at their program (Executive Director, Chief Public Defender, etc.) consider PSLF to be a highly important tool for retaining experienced staff, and almost two thirds believe it is important for attracting new hires.
  • 87 percent of respondents indicated that qualification for PSLF would make them much more likely to accept a particular opportunity in the future, and more than half would be very likely or certain to leave their jobs if PSLF did not exist.
The White House budget proposal has called for an elimination of PSLF for future borrowers. The Coalition to Preserve PSLF was formed in response to this proposal. For more information, visit the Coalition's website .
Resources regarding loan forgiveness and repayment assistance are available from, among others, Federal Student Aid , Equal Justice Works , and American Bar Association .
The application for the state's District Attorney and Indigent Legal Services Attorney Loan Forgiveness Program (Education Law § 679-e) should be available in early March. More information about the program is available on the NYS Higher Education Services Corporation  website .
If you have questions about loan forgiveness programs, please contact Deputy Director Susan Bryant or Staff Attorney Jacob Drum at (518) 465-3524.

Public Service Attorney Salary Survey Deadline: March 2. The National Association for Law Placement (NALP), a nonprofit association of over 2,500 legal career professionals, conducts a Public Service Attorney Salary Survey every four years. The survey, which is endorsed and supported by NLADA, Equal Justice Works, the Legal Services Corporation, and the National District Attorneys Association, "collects salary and related information for attorneys employed at government and public interest organizations." Click here to participate in the survey . The deadline for completing the survey is Friday, March 2.

Rutgers School of Criminal Justice Conducting Study of Current and Former Public Defenders.  A group of researchers at the Rutgers School of Criminal Justice is working on a study of public defenders and is interested in talking to current and former public defenders about their experiences working in the field of indigent criminal defense. According to information provided by the researchers (Assistant Professors Sara Lageson and Valerio Bacak and Research Coordinator Kathleen Powell), interviews last about an hour, can be done via phone/Skype, and participants receive $50. If you are interested in participating, please reach out to Kathleen Powell at kathleen.powell@rutgers.edu .

Immigrant Defense Project Hosting Gala Celebrating its 20th Anniversary. The Immigrant Defense Project (IDP) is celebrating its 20th Anniversary with an inaugural gala on Apr. 10, 2018 at Houston Hall in Manhattan. IDP will be honoring the contributions of individuals, organizations, and law firms in the fight for fairness and justice for immigrants in the U.S., including Norman Reimer (NACDL's Executive Director), Alina Das (Professor of Clinical Law, NYU School of Law), Khalil Cumberbatch (Associate VP of Policy, The Fortune Society), Carlos Menchaca (NYC Council Member), Wilmer Hale, Orrick, Herrington & Sufcliffe LLP, and Gibson Dunn.

Association News
NYSDA's Metropolitan NY Trainer on March 10. The New York State Defenders Association will be presenting the 32nd Annual Metropolitan Trainer at NYU Law School on Saturday, March 10. More information about the program is available here . Pre-registration by Friday, March 2, 2018 is required. Questions? Contact the Backup Center at 518-465-3524.

Registration for Families Matter III Conference Now Open. Registration for the Families Matter Statewide Family Defender Conference on April 20 and 21 is now open. The brochure is available here. The conference will be held at Albany Law School. The conference rate at the Hilton Garden Inn (Albany Medical Center) is $125 until March 2, 2018. To make a reservation for April 20, call 1-877-782-9444 or 518-396-3500 with the group code "NYSDA" or click here . Questions? Contact Family Court Staff Attorney Lucy McCarthy at 518-465-3524 x 24 or lmccarthy@nysda.org .

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