Pennsylvania’s continuing struggles to meet Gideon’s promise

BY David Carroll on Friday, April 8, 2011 at 3:43 PM

Though the Commonwealth of Pennsylvania requires each of its counties to establish a public defender office, Pennsylvania remains one of only two states that have elected to delegate its entire right to counsel financial obligation under Gideon v. Wainwright and its progeny to its counties (Utah is the other).  Leaving counties responsible for administering and funding their criminal justice systems, and in particular indigent defense services, can put an undue hardship on local jurisdictions to ensure adequate representation of poor people accused with crimes.  Nationally, counties with fewer sources of revenue may have to dedicate a far greater portion of their limited budget to defender services than would counties in better economic standing. 

For instance, crime rates tend to increase when there is a high level of unemployment. Thus, at a time when tax revenues may be down due to depressed real estate prices and people leaving the community, the criminal justice system is often expected to increase its workload.  A county’s revenue base may also be strained during economic downturns because of the need for increased social services, such as indigent medical costs.  In addition, counties also must provide the citizenry with other important services, such as public education.  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.

The inherent problems associated with funding the criminal justice system at the county level were recognized in the Interim Report of the Master in the Pennsylvania Supreme Court case Pennsylvania State Association of County Commissioners v. Commonwealth of Pennsylvania, 681 A. 2d 699 (1996), mandating the transition from county to state funding of the unified judicial circuit: 

The fundamental principle that anchors the Allegheny decisions is the Constitutional right of equal access to equal justice for all Pennsylvanians, Pa. Const. Art. 1. §11, exercised within the framework of an integrated judicial system.  It has been clearly recognized that where there is financial fragmentation and disparity among counties, the right is seriously compromised, and the system unified in name only.  That fragmentation is readily apparent in the Judiciary as it now stands: there are 67 counties comprising 60 judicial districts in Pennsylvania, suffering from numerous disparities in staffing, compensation, caseloads and programs.  The President Judge of these districts are [sic] dependent upon the beneficence of 67 boards of commissioners for hiring, salary determinations, program support and physical and technological improvements.  Each of these boards has a different vision of what constitutes the role of the judiciary, and indeed what elements comprise the Judiciary; some of these visions are in diametric opposition to a judicial system which is a true and equal participant in a tripartite system of government.

As Pennsylvania counties continued to bear the responsibility for funding indigent defense services, the disparity of resources noted above began to raise serious allegations against specific counties of violations of the right to counsel and due process under both the U.S. and Pennsylvania State Constitutions.  In 1998, the American Civil Liberties Union (ACLU) filed a class action lawsuit against Allegheny County (Pittsburgh) alleging inadequate representation on behalf of all clients of the county public defender office, an agency which provides services in adult criminal, juvenile delinquency, and involuntary commitment proceedings. The ACLU suit was settled when Allegheny County agreed to a substantial increase in public defender staff size and resources.  

A report from the ACLU and the National Association of Criminal Defense Lawyers (NACDL) on Venango County in 2001 found that high caseloads and sub-par resources there made it “impossible for the lawyers to do a constitutionally acceptable job of representing their indigent clients.”  A follow-up report by NLADA in 2002 concluded that, despite Venango County’s best efforts to meet the expectations of the ACLU & NACDL, “the economic realities of the county are such that should all of the recommendations … be enacted … it is only a matter of time until the adequacy of indigent defense services is again put in jeopardy. The number of cases entering the Venango County criminal court system is growing and becoming more serious in nature with each passing year, despite a declining population. Thus, the burden of paying to protect the rights of defendants will continue to increase as the county tax-base further declines.”

The Spangenberg Group was the next national expert to study Pennsylvania’s fragmented indigent defense systems and reported in 2003 that "[m]any counties in Pennsylvania are not meeting their constitutional, ethical and professional obligation to provide fair and equal treatment to poor people.”  That report became the basis for a 2005 report by the Interbranch Commission for Gender, Racial and Ethnic Fairness (formed at the request of the Supreme Court with the concurrence of the governor and legislative leaders), which determined that “Pennsylvania has no mechanism in place to hold accountable either the lawyers who represent the poor or the county and judicial officials who administer indigent defense systems. The absence of guidelines for the appointment of counsel has resulted in minimal quality control. In addition, the flat fee paid to appointed counsel can be a disincentive to effective preparation and advocacy; the low compensation rates create little incentive to develop expertise in criminal defense. Moreover, the sparse resources available for support services, coupled with exploding and unmanageable caseloads, allow indigent defense counsel little time, training, or assistance for conferring with clients in a meaningful manner, researching relevant case law, reviewing client files, conducting necessary pre-trial investigations, securing expert assistance or testimony or otherwise preparing adequately for hearings and trials.”  

On May 27, 2010, the same commission delivered a scathing indictment of the Luzerne County “kids for cash” scandal, in which judges allegedly made millions of dollars in kick-backs for placing juvenile offenders into private detention centers, stating that the Luzerne County public defenders “whether due to indifference, inexperience, incompetence or intimidation … clearly abdicated their responsibilities to zealously defend their clients and to protect their due process rights.” (To read more on the Luzerne scandal, click here.)

The Commonwealth’s delegation of its indigent defense duties to the counties simply does not end all of the state’s obligations.  While a state may delegate obligations imposed by the constitution, “it must do so in a manner that does not abdicate the constitutional duty it owes to the people.”  [See: Claremont School Dist. V. Governor, 147 NH 499, 513 (2002)].  In other words, the state has an obligation to ensure that the counties are capable of meeting the obligations and actually meet them.  If the counties cannot meet the delegated obligations, the state — as the original obligor — must step in to fulfill the obligation. 

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