When it comes to implementing reforms designed to guard against convicting innocent people, Pennsylvania lags far behind the vast majority of states, reported Slate. It has no law requiring the police to record interviews with suspects to prevent coerced confessions. Nor does it have a law setting guidelines for police to follow when conducting eyewitness identifications.
Another frequent cause of wrongful convictions is bad lawyering by defense attorneys. You get what you pay for when it comes to legal services, and Pennsylvania pays nothing at all—standing alone among the 50 states in its steadfast refusal to allocate any money in the state budget for indigent criminal defense.
Instead, it is up to each Pennsylvania county to design a system to provide legal representation to the poor. Not surprisingly, the performance is uneven: Philadelphia’s public defender office, set up as a nonprofit, is known for its well-trained and diligent attorneys. In other parts of the state, there is no public defender at all. Instead, judges appoint lawyers on an ad hoc basis, often at hourly compensation rates that are shockingly low.
According to Marc Bookman, who directs the Philadelphia-based Atlantic Center for Capital Representation, many of these court-appointed lawyers are poorly trained and show up to trial completely unprepared. More than 250 death penalty verdicts have been thrown out in Pennsylvania since 1979, the majority because of faulty representation by defense counsel. It is, Bookman says, “a bigger reversal rate than any state in the country.” Six of Pennsylvania’s 54 exonerees were death row inmates.
You get what you pay for when it comes to legal services, and Pennsylvania pays nothing at all.
In 2011, Bookman filed a petition for a writ of mandamus—an extraordinary remedy sought in instances of “immediate public importance”—in the Pennsylvania Supreme Court. He sought to have the compensation rates for court-appointed lawyers in Philadelphia County capital cases declared unconstitutional. (Bookman targeted only solo practitioners, not the Philadelphia public defender, which began accepting a small number of capital cases in 1993 and had never had a client sentenced to death.) Capped at $2,000 to investigate and prepare the case pretrial and at $400 per day at trial, the rates were the lowest in the nation by several standards of deviation. Bookman noted that the Florida Supreme Court had ruled that a significantly higher flat fee of $3,500 was unconstitutional in 1986. (Wright’s court-appointed trial lawyer, who was later disciplined by the bar for his shoddy work in other cases, was paid a total of $1,800.)
“Of course, some jurisdiction has to be last,” Bookman wrote, “and had the Philadelphia County fee schedule been even close to the second lowest jurisdiction, this petition would not have been filed. But Philadelphia County is not close.” In fact, the county of Philadelphia lagged well behind far poorer counties in places such as Mississippi, Arkansas, and South Carolina. Bookman’s legal theory was novel but grounded in common sense: No competent lawyer would take a death penalty case for so little money.
As the Pennsylvania Supreme Court was weighing the case, Philadelphia County raised the cap for pretrial preparation in capital cases to $10,000, which, according to Bookman, was still “absurdly low” given the amount of work involved and the hourly rates provided in other states. Bookman pressed on with his lawsuit. In 2014, he lost, in a 4–3 ruling by Pennsylvania Supreme Court. One of the dissenters lamented the lost opportunity to “address a systemic challenge amidst much evidence that Pennsylvania’s capital punishment regime is in disrepair.” He called Philadelphia’s fee reforms “modest.”
A recent study conducted by the Reading Eagle suggests that the past and current fee schedules in Pennsylvania dissuade all but the most incompetent and compromised defense lawyers from taking capital cases. The paper examined 312 capital cases dating back to 1980. The results concluded that almost 1 in 5 of the defendants were “appointed attorneys with drug and alcohol addictions, who suffered from depression, have had a history of mishandling clients’ cases or were convicted felons.” The fact that the attorneys had faced professional discipline—often multiple times—did nothing to stop judges from appointing them. More than 80 percent of the defendants they represented were either black or Latino.
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