The Cautionary Instruction: Pennsylvania only state in the nation not funding public defenders

The Pittsburgh Post-Gazette/Ipso Facto
January 18, 2013

 Last week in The Cautionary Instruction I wrote about sustaining the promise of fairness and justice established 50 years ago by the U.S. Supreme Court in Gideon v. Wainwright. The watershed decision extended the right to counsel to all defendants charged with a felony, whether or not they could afford counsel.

Soon the right to counsel extended to custodial interrogations, Miranda v. Arizona; then to any crime, including misdemeanor and petty offense cases, Argersinger v. Hamlin; direct appeals, Douglas v. California; juvenile proceedings resulting in possible confinement, In re Gault; and certain probation and parole revocation hearings, Gagnon v. Scarpelli.

As the responsibility of indigent defense counsel, or public defenders as they became known, increased, many states began to take on the burden of financing the ever increasing cost. Every state in the country provides at least some funding for indigent defense, every state except one -- Pennsylvania.
Pennsylvania’s Public Defender Act of 1968 provides for the establishment of a Public Defender in each county in Pennsylvania. It has remained an unfunded mandate for 45 years.

The Public Defender is appointed by the Board of County Commissioners and is funded exclusively with local funds. In fiscal year 2008, the total indigent defense expenditure statewide was approximately $95.5 million.

Several years ago a study was conducted by The Spangenberg Group of all 67 counties in Pennsylvania found that indigent defense in Pennsylvania was underfunded and the public defenders were seriously overworked.

In December of 2011, the Joint State Government Committee’s Task Force on Service to Indigent Defendants issued their report. The task force found, “The lack of state financial support and oversight has led to a service deficiency Syndrome.” Each of Pennsylvania’s counties organizes its own indigent defense delivery system.

The level of service varies from county to county. Several years ago, during the infamous "kids for cash" scandal in Luzerne County, nearly 50 percent of the juvenile defendants who appeared in court did not have attorneys because the Public Defender's Office lacked the resources to represent them.

Last spring, the American Civil Liberties Union filed a class action lawsuit against Luzerne County, alleging that gross and chronic underfunding of the Public Defender’s office has led to widespread violations of the constitutional right to adequate counsel for indigent criminal defendants.

Locally, the amount of money allocated for county public defenders varies based on the size of the county. An informal survey of county defender budgets revealed the following: Allegheny County, $7.6 million; Butler County, $738,129; Lawrence County, $613,666; Washington County, $811,221; and Westmoreland County $1.4 million.

About 20 years ago, Justice Harry Blackmun estimated that a properly conducted capital trial can require hundreds of hours of investigation, preparation and lengthy trial proceedings. Today, court-appointed lawyers in Philadelphia homicide cases get $2,000 for trial preparation and $400 a day during trial. Using Justice Blackmun’s figures capital defense counsel make about $10 an hour.

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