From Elon Harpaz: Court of Appeals Recognizes Fundamental Due Process Right to Competency
TUESDAY, APRIL 07, 2015

The Court of Appeals today unanimously recognized a fundamental due process right to competency in parole revocation proceedings. The Court decided Lopez v. Evans under the New York State Constitution, so there can be no review by the Supreme Court. The decision is attached.

The ruling today still leaves us with a major battle to wage. The Court urged the legislature to establish procedures for making competency determinations. But the Court declined in the meantime to establish any procedures itself. Specifically, the Court took no position on whether presiding officers at revocation hearings can make competency determinations. We’ll have to work out in the days and weeks to come what this means operationally. I suspect that ALJs will continue to declare themselves unable to do anything, leaving us seemingly only with the option of filing writs. But there’s no way DOCCS can take the position it has taken up to now that it can proceed against our clients as to whom there is an open question of competency.

For now, though, this is a day of celebration for Parole Revocation Defense Unit, the culmination of a long struggle to vindicate this fundamental right. This victory belongs to everyone at PRDU, past and present. But special recognition must go to our amazing social work staff, led by the incomparable Susanna Eckblad. To Eve Rosahn, our former director, who championed this issue, recognizing long ago the inhumane way in which DOCCS has treated our mentally ill clients. A shout out also to Hamilton Lee, who raised this issue at Edwin Lopez’s final hearing in 2008. Yep, that’s how long this has taken. And to Kerry Elgarten, my partner in crime for the past decade, whose intellectual brilliance and incredible work ethic has been the backbone of this office’s writs and appeals practice on the competency issue and every other issue that has come down the pike.

Legal Aid was not alone in the Court of Appeals. Outstanding amicus briefs were submitted by the Fortune Society with pro bono assistance from the law firm of Stroock & Stroock & Lavan LLP, Mental Hygiene Legal Services who received pro bono assistance from Cleary Gottlieb Steen & Hamilton LLP, and the City Bar Association Committee on Corrections and Community Reentry.

Finally, on a personal note, I want to say what a privilege it has been to work on this case. It’s not every day you get to ask the courts to recognize a fundamental constitutional right on behalf of a whole class of clients. And they did! Congratulations to us all!!!!