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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