Developing a Level Playing Field

The Pennsylvania Law Weekly
May 24, 2011

Many facets of state government, as well as entities that depend on state government for funding, are facing difficult times.

County and local municipal government bodies are also feeling the pinch. As state government funding dries up, county governments are scrambling to fund local services.

A significant county expenditure is the funding provided for indigent criminal defense through public defender offices. Pennsylvania is one of only two states — the other is Utah — that contributes nothing toward indigent criminal defense costs. Each of Pennsylvania's 67 counties is responsible for all public defender and court-appointed counsel costs.

As we approach the 50th anniversary of Gideon v. Wainwright , the landmark U.S. Supreme Court decision that first established the right to legal counsel for indigent defendants, some may wonder if the spirit of that decision is being sustained.

Gideon found that a defendant facing trial for a felony was entitled to legal counsel even if he could not afford to retain his own attorney. Since Gideon , the Supreme Court has extended the right to counsel not only to cases involving non-felonies that could result in incarceration, but also preliminary hearings, direct appeals and custodial interrogations.

Pennsylvania requires each county to establish a public defender office to provide legal counsel to any person accused or charged with a crime who otherwise could not afford to retain legal counsel when the accused person's freedom is at stake. But as the responsibility to provide legal counsel has expanded, counties have struggled to provide adequate resources for indigent criminal defense.

Often, counties with few economic prospects and a sagging tax base also face the plight of crime and community upheaval. The result? Counties most in need of resources for indigent defense are least capable of raising sufficient revenue to provide adequate legal representation.

In lean economic times, a county's revenue base may also be strained by the need for emergency services like domestic violence and homelessness. High crime rates, economic disadvantage and failing infrastructure are all magnified by a sputtering economy and tight government budgets.

It's not as though the issue of indigent defense is being raised for the first time during a state budgetary crisis.

The Pomeroy Report, issued in 1982 and chaired by Pennsylvania Supreme Court Justice Thomas W. Pomeroy Jr., as well as the Report of the Commission on Judicial Reform, chaired by Superior Court Judge Phyllis W. Beck in 1998, advocated for the state to finance indigent defense costs.

Also, the Committee on Racial and Gender Bias in the Justice System issued a report in 2003 that, in part, addressed indigent defense.

The committee, appointed by the state Supreme Court, found that "Pennsylvania is generally not fulfilling its obligation to provide adequate, independent defense counsel to indigent persons." The committee recommended that Pennsylvania institute statewide funding and oversight of the indigent defense system by establishing an independent indigent defense commission and appropriating state funds for the support of indigent defense.

The Interbranch Commission on Juvenile Justice was created by an act of the legislature to review the "kids-for-cash" scandal in Luzerne County. The commission issued a report in May 2010. One of the commission's recommendations was "the creation of a state-based funding stream for indigent juvenile defense."

The problem is well known and well documented, yet it continues.

How has local funding affected indigent defense?

The legal representation provided by public defenders is often very good. In fact, at times, public defenders possess an unparalleled institutional knowledge of their respective county court that gives them and their clients an edge over privately retained counsel unfamiliar with local court expectations.

Low salaries for public defenders cause frequent turnover, however, while impacting training regiments — if training is even available — and interfering with the continuity of representation.

Public defender investigative resources are often used to determine whether clients are eligible for services as opposed to genuine investigative work for case preparation and trial.

The hectic pace of public defender offices often necessitates that the courts appoint special counsel for conflicts of interest.

And the pace is indeed hectic.

The Committee on Racial and Gender Bias in the Justice System found that public defenders represent 80 percent of Pennsylvania's defendants. Court- appointed counsel is another indigent defense expense incurred by counties beyond the budget for the public defender's office.

Court appointed counsel is also used for complicated and time-consuming cases like homicide. So, a small county with two capital murder trials pending could incur daunting indigent defense costs.

Often, the court will appoint an attorney for the guilt phase of a capital trial and counsel for the penalty phase. Experts of all kinds may be retained to present an adequate defense. In these lean economic times, the district attorney's decision to pursue the death penalty could have a profound impact on the county's economic well being.

Last year, the Defender Association of Philadelphia presented compelling testimony before the Senate Judiciary Committee's subcommittee on crime and drugs.

In the testimony, the association argued: "Public defenders, as well as private court appointed counsel are overworked and grossly underpaid. The inevitable result of reduced funding and increased caseloads is representation that fails to meet the standards published by the American Bar Association and the National Legal Aid and Defender Association."

Counties are in the untenable position of weathering difficult economic times, providing essential services to its taxpayers and insuring that justice is afforded to the indigent.

As David Carroll recently wrote on the National Legal Aid & Defender web site: "The need to balance these responsibilities while maintaining fiscal accountability to the local citizenry often leaves county officials in the unenviable position of having to choose between funding needed services and upholding the constitutional commitment to guarantee adequate indigent defense services."

It is time for Pennsylvania to provide funding for indigent defense and, with it, provide a uniform set of standards for training, competency, caseloads and accountability.  •