Tuesday, January 30, 2024

PLW: Pennsylvania Approves Funding for Indigent Criminal Defense

Matthew T. Mangino
The Legal Intelligencer
January 26m 2024

Pennsylvania will soon provide funding for indigent criminal defense. The legislature approved $7.5 million for criminal defense for those who cannot afford an attorney. The historic legislation was signed into law by Gov. Josh Shapiro. What is so historical about funding a constitutional right that was confirmed by the U.S. Supreme Court in 1963?

For Pennsylvania, it is an opportunity to move on from the dubious distinction of being one of only two states, South Dakota is the other, providing zero state funding for indigent defense. For Pennsylvania counties the burden of providing counsel to indigent defendants was previously paid for without state assistance.

Article I, Section 9 of the Pennsylvania Constitution provides: “In all criminal prosecutions the accused hath a right to be heard by himself and his counsel.“

According to the Pennsylvania indigent criminal defense services funding and caseloads report of the state legislative and budget committee, Pennsylvania Supreme Court decisions confirm that the Pennsylvania Constitution aligns with the U.S. Constitution in terms of an indigent criminal defendants’ right to counsel at trial.

In 1968 the Public Defender Act was adopted providing that each county is required to appoint a public defender through local government action. The county was also responsible, exclusively, for funding the office.

The Public Defender Act was the result of a 1963 U.S. Supreme Court decision that extended the Sixth Amendment—by way of the 14th Amendment—to indigent criminal defendants facing felony charges in state court. The high court later expanded the protection to misdemeanor charges.

The dire state of indigent defense in Pennsylvania has been front and center for decades. A dozen years ago, in a column for The Legal Intelligencer, I described concerns raised more than 40 years ago. The Pomeroy Report issued in 1982, chaired by Pennsylvania Supreme Court Justice Thomas W. Pomeroy and the 1998 report of the governor’s judicial reform commission, chaired by Superior Court Judge Phyllis W. Beck, both advocated for the state to finance indigent defense costs.

In 2003, The Pennsylvania Supreme Court report on racial and gender bias in the justice system 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 report found that “Pennsylvania is generally not fulfilling its obligation to provide adequate, independent defense counsel to indigent persons.”

In 2011, the joint state government task force on services to indigent criminal defendants found, “There is no direct state funding, nor is there a statewide administrative structure for ensuring uniform quality of representation or reasonably consistent eligibility standards.”

How did we get here?

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.”

In 1932, the U.S. Supreme Court decided Powell v. Alabama, 287 U.S. 45 (1932), nine Black youths—the “Scottsboro Nine”—were accused of raping two white women in Alabama. County officials moved quickly. A total of three trials took one day and all nine were sentenced to death. Alabama law required the appointment of counsel in capital cases, but counsel was little more than a “warm body” sitting next to the defendants at trial.

The high court ruled that the U.S. Constitution requires defendants in capital cases, those facing the death penalty, be given access to counsel.

Ten years later in Betts v. Brady, 316 U.S. 455 (1942), the court refused to extend the right to counsel to criminal charges other that capital murder. Betts was indicted for robbery in Maryland. He was unable to afford counsel and requested one be appointed for him. His request was denied. He was convicted and appealed to the U.S. Supreme Court.

The high court held that a refusal to appoint counsel for an indigent defendant charged with a felony did not violate the U.S. Constitution.

In the early 1960s Clarence Earl Gideon was a 51-year-old drifter and petty-thief. He was charged with breaking and entering in Florida. The charge was a felony and Gideon asked the court to appoint him a lawyer.

Gideon was denied a lawyer. He was convicted and his state appeal denied. He ultimately made his way to the U.S. Supreme Court. Gideon was appointed an attorney for his appeal. His attorney argued that the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges. He also pointed out that 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, 22 state attorneys general joined Gideon in urging the court to establish an absolute constitutional right to counsel in criminal cases. See Gideon v. Wainwright, 372 U.S. 335 (1963).

Justice Hugo Black’s brief opinion in Gideon was compelling:

“Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

Last spring, I wrote in the Pennsylvania Capital Star, that over the decades since Gideon “the focus has evolved from merely the right to counsel—to the right to effective representation.  That representation has turned from ensuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.”

The evolution from a “warm body” at counsel table to a competent attorney creates an additional problem in Pennsylvania. Besides not providing statewide funding for indigent defense, according to the National Conference of State Legislatures, Pennsylvania provides no statewide administration of right to counsel services. The county-based systems remain entirely decentralized with no oversight by state government.

Who will administer the new state funding and establish standards for local public defenders? A county-by-county review by the legislative budget and finance committee of the General Assembly in 2021 found Philadelphia spends the most money on criminal defense per person, around $30.20 in fiscal year 2019, reported The Express. The same year, Mifflin County in rural central Pennsylvania spent $3.20 per person.

The new legislation will establish a committee to decide how to spend the state’s funding for indigent defense. The legislation directs the committee to develop educational training for public defenders and to collect data that will assist in monitoring the quality of public defender services on a county level.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George in New Castle. He is the author of “The Executioner’s Toll,” 2010 and a columnist with Creators. He was the former district attorney of Lawrence County. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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