Pennsylvania public defense system is unconstitutional, underfunded by at least $100M, new ACLU suit says

This story originally appeared on Spotlight PA.

Pennsylvania has failed to live up to its constitutional responsibility to provide an effective defense to people who can’t afford attorneys and will need to spend at least $100 million to fulfill this obligation, the ACLU of Pennsylvania said in a lawsuit filed Thursday.

The group brought the suit on behalf of 17 people facing issues including little to no contact with the public defenders they are entitled to, according to the lawsuit.

It was also filed on behalf of all current and future indigent people, those accused of a crime and unable to pay for a private defense attorney. If the court approves this group as a class, any outcome will extend to all of those affected.

The suit blames the state, not the counties, for failing to properly fund these constitutionally mandated services and names Democratic Gov. Josh Shapiro, state Senate President Pro Tempore Kim Ward (R., Westmoreland), and state House Speaker Joanna McClinton (D., Philadelphia) as defendants.

At the moment, Pennsylvania only provides $7.5 million to support indigent defense. Counties must make up the rest with limited local funds, and public defenders’ offices are often shut out from funding opportunities available to prosecutors, the suit asserts citing Spotlight PA reporting.

The suit asks Commonwealth Court to rule the current public defense system unconstitutional and retain oversight until the state fully complies with the constitutional right to counsel.

Rather than seeking damages for specific plaintiffs, the suit is pursuing holistic reform, said ACLU of Pennsylvania Legal Director Vic Walczak.

“You’re trying to change how an institution works — here we’re actually talking about how 67 institutions work,” he told Spotlight PA.

Should the court rule in favor of the petitioners, Pennsylvania officials will likely have an opportunity to propose a remedy in consultation with the ACLU of PA. The process will take years, Walczak said.

In a statement to Spotlight PA, Ward spokesperson Erica Clayton said the senator had yet to receive the lawsuit and would need time to review it before commenting.

McClinton spokesperson Nicole Reigelman wrote that “McClinton started her career as a public defender and knows firsthand the value that indigent defense plays in the judicial system.”

Shapiro spokesperson Manuel Bonder, also in a written statement, highlighted the governor’s proposed and ultimately approved funding for public defense in the 2023 budget.

“Governor Shapiro is the first to acknowledge there is a long way to go — which is why he is focused on delivering real results on this critically important issue,” Bonder wrote.

Shapiro is reviewing the complaint and cannot comment further, Bonder said.

The result of the inadequate support is a system in which too few attorneys are responsible for too many cases, and ultimately cannot provide the level of defense the U.S. and Pennsylvania Constitutions demand, attorneys for the petitioners said at a news briefing Thursday morning.

“The right to counsel is not just the right to a warm body with a law degree standing next to you,” Walczak said during the briefing. “It requires a professional who has the time and resources to prepare an adequate constitutional defense.”

Pennsylvania has not provided consistent funding for indigent defense until this year. Instead, state law has made it the sole responsibility of each of the 67 counties to pay for the federal mandate, a burden many are unable to meet.

In 2023, Shapiro proposed $10 million in state funding for public defense, with the promise of consistent funding in the years to come. The legislature ultimately approved $7.5 million in December, giving most public defenders’ offices their first-ever infusion from the state. Shapiro asked lawmakers to increase that allocation to $10 million in his 2024 budget proposal.

The legislature also created a committee to allocate the money and establish statewide standards for public defense, which previously had not existed. In April, the committee announced each county’s allotment, which ranged from about $90,000 for Potter County to $141,000 for Philadelphia.

But even with this new support, each county’s allotment will not be enough to make up the deficit public defender’s offices face, according to the lawsuit, or even the playing field with prosecutors.

To reach parity with average national spending per capita, or with similar states, Pennsylvania would have to allocate hundreds of millions of dollars, the lawsuit argues, a level of spending that counties cannot accomplish on their own.

“Counties do not have the means to raise revenue in the way the state does,” Walczak said, noting counties also have to pay for competing and more politically attractive public services such as education, health, and law enforcement.

“You’re talking about an agency, the office of the public defender, that serves a constituency that has no political clout,” he said. “By definition, they’ve got no resources. So, over the course of the last 50 years, indigent defense services have declined persistently.”

The ACLU of PA alleges that public defense is likely underfunded and inadequate in every county, citing a recent study from researchers at the University of Pennsylvania, and singles out some of Pennsylvania’s rural and sparsely populated counties as particularly unequipped to handle their criminal caseload.

Many of the named petitioners have been incarcerated for months, according to the complaint, but received no contact from a public defender despite attempts to reach out. Others saw attorneys they had never met make legal filings or dismissals with their apparent consent, though none was ever secured.

The suit alleges a part-time public defender in Clearfield County asked petitioner David McCauley to pay him $3,500 for private representation. When McCauley declined, the same attorney showed up to a later hearing as no-cost counsel on behalf of the county public defender’s office.

“We don’t endorse the practices laid out in the complaint,” said Sara Jacobson, executive director of the Public Defender Association of Pennsylvania. “That’s not what clients deserve, but that’s also not what public defenders want to be able to provide.”

When there aren’t enough people available to handle the caseload, attorneys have to triage cases, Jacobson said, because that’s all their funding allows.

The complaint describes a man in Lebanon County trying repeatedly to reach his public defender by mail, only to be awoken one night after seven months of incarceration for a midnight meeting with an attorney.

“Of course that’s awful,” Jacobson said. “I know that public defender, though. She had been at the prison until 2 a.m. because she was in court all day.”

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