It's Time to Reform Indigent Defense in Pennsylvania

Last month, the ACLU of Pennsylvania filed a lawsuit against Luzerne County because adult defendants are not receiving constitutionally required counsel due to an underfunded the Office of the Public Defender (OPD).  The attorneys are so overworked that they rarely have time to meet with clients before hearings, investigate clients' cases, or adequately prepare for trial.  The situation had grown so dire by December 2011 that the OPD started declining representation to individuals charged with less serious crimes.  Over 300 individuals with pending criminal charges in Luzerne County are now facing the criminal justice system without an attorney when they are constitutionally entitled to one.

Today our attorneys are in court seeking a preliminary injunction that would authorize filling vacancies in the Luzerene OPD, increase the budget for the OPD, and provide private lawyers for those 300 criminal defendants who face criminal trials without counsel.

The right to an attorney--no matter one's ability to afford one--has long been established. This past March marked the 49th anniversary of the Supreme Court's decision in Gideon v. Wainwright, where the court declared that individuals with pending criminal charges have a fundamental right under the 6th Amendment to the U.S. Constitution to legal representation even when they cannot pay for it.  Despite this ruling, many people are forced to navigate the criminal justice system effectively unrepresented because public defender offices across the nation are overworked and underfunded.  A lack of representation can mean that no counsel is present or that the attorneys are so under-prepared that their efforts are essentially meaningless.

In Pennsylvania, we have witnessed the startling consequences of the failure to adequately fund public defender offices so that they can provide the representation required by the U.S. Constitution.From 2003 to 2008 during the infamous "kids for cash" scandal, nearly 50% of the juvenile defendants who appeared in court in Luzerne County did not have attorneys because the Public Defender's Office lacked the resources to represent them.  This lack of representation coupled with two corrupt judges resulted in at least half of these juveniles being sent to detention facilities, many for offenses that didn't warrant such harsh punishment.

The reason that many of Pennsylvania's counties have a poor track record when it comes to providing constitutionally required counsel is because indigent defense (legal representation for individuals with pending criminal charges who cannot afford an attorney) is solely funded by the individual counties.  Pennsylvania is the only state that does not provide at least some state funding for indigent defense.  This leaves fundamental rights to the competition and whims of local political battles over meager resources in cash-strapped counties.  Clearly, it is time for the General Assembly to step in and vindicate the constitutional rights of indigent defendants in Pennsylvania by providing at least some funding for county public defender offices.  

For an in-depth look at the state of indigent defense in Pennsylvania, please see the December 2011 report of the Joint State Government Commission's Task Force and Advisory Committee on Services to Indigent Criminal Defendants entitled A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania:.

--Hilary Emerson, ACLU-PA Legal Fellow