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Pennsylvania Must Fulfill the Constitutional Guarantee of Adequate Representation | Opinion


by Capital-Star Guest Contributor, Pennsylvania Capital-Star
March 16, 2023

By Ari Shapell and Jessica Li

Sixty years ago this month, the U.S. Supreme Court issued a landmark ruling that the Sixth Amendment’s right to counsel requires a state to provide a competent attorney to any indigent person the state charges with a serious crime.

Writing for a 9-0 court in Gideon v. Wainwright, Justice Hugo Black ruled that any person “who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for [them].”

Since this ruling, the right to an attorney as a constitutional guarantee has saturated American culture. Its inclusion alongside the right to remain silent has led to countless references across American pop culture. This has reinforced the idea that the right to an attorney even if you can’t afford one –often called indigent defense– is sacrosanct.

Despite widespread societal acceptance and the Gideon ruling, the sad truth is that the criminal legal system too often falls short in providing adequate legal representation to those who cannot afford counsel. And while this shortcoming is an issue across the country, the failures in indigent defense are nowhere more glaring than in Pennsylvania.

Pennsylvania is one of only two states in the nation that provide essentially no funding for its public defenders. There is also no statewide oversight or guidance for public defenders; each county entirely funds and manages its own system.

As a result, the quality of indigent defense services varies widely by county. This patchwork system has left most county public defender offices grossly underfunded and their attorneys and staff unable to meet constitutional minimum guarantees for competent representation.

The lack of state funding and oversight leads to a pattern of injustice that leaves tens of thousands of low-income Pennsylvanians without consistently effective representation. No lawyer should represent a client – in any matter, much less where your freedom is at stake – without getting to know the client, their circumstances, and details of what happened. But even the most dedicated Pennsylvania public defenders regularly lack the time and resources to perform required services.

Pennsylvania’s indigent defense crisis is not new. The state Legislature, public defenders, and other advocates have been sounding the alarm for over 30 years.

In 1996, the ACLU sued Allegheny County, challenging its “overwhelming caseloads, severe understaffing, inadequate resources, defective policies and procedures, inferior physical facilities and other long-standing systemic problems.”

Similarly, a 2011 study by the state Legislature concluded that inadequate funding for indigent defense contributed to the infamous “kids for cash” scandal in Luzerne County, in which two judges received payments from a private, for-profit prison company to sentence youth to “harshly excessive” time in detention.

The report called for “statewide structures to ensure” that those who provide indigent defense “will be overseen and held accountable for unprofessional practices and will be independent of political and judicial interference.”

To be clear, the crisis is systemic and affects all of Pennsylvania, with the possible exception of Philadelphia, which has a unique funding and governance structure. Across the commonwealth, public defenders carry hundreds of cases, without access to investigators, paralegals, social workers, and experts. There aren’t enough hours for them to do the basics of adequate representation in every case.

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It’s time to bring Pennsylvania in line with nearly every other state in the nation when it comes to funding and overseeing indigent defense.

Fortunately, some elected officials and counties are starting to address this crucial issue.

In Luzerne County, the County Council recently approved an agreement to raise salaries for public defenders across the office. And Gov. Josh Shapiro’s proposed budget proposes a lump sum of $10 million for indigent defense. That is less than 10% of what the counties combined spend annually to fund public defender offices and is not nearly enough. But it’s a start.

So what’s the solution?

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The Legislature must pass adequate funding for indigent defense across the commonwealth. They should also establish an independent, nonpartisan board to oversee and support these indigent defense services. Until the commonwealth provides money and leadership, counties must dig deeper to immediately allocate more funds to bring public defenders services up to constitutionally minimum standards.

The continued failure to adequately fund and oversee indigent defense in Pennsylvania is a travesty for our criminal legal system that harms thousands of low-income Pennsylvanians and their families and communities. It’s time for the commonwealth to make real the promise of Gideon and ensure that a person’s fate in the criminal legal system isn’t based on their income.

Ari Shapell is the Toll Public Interest Legal Fellow and Jessica Li is the Criminal Justice Investigator at the ACLU of Pennsylvania

Pennsylvania Capital-Star is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor John Micek for questions: Follow Pennsylvania Capital-Star on Facebook and Twitter.