ACLU Accuses Pennsylvania of Unconstitutional Public Defense System in $100M Suit

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Pennsylvania has failed to meet its constitutional obligation to provide an effective defense to those who cannot afford attorneys, and it will cost at least $100 million to do so, according to the ACLU of Pennsylvania in a complaint filed Thursday.

According to the lawsuit, the group filed the suit on behalf of 17 persons who are experiencing concerns such as little to no communication with the public defenders to which they are entitled.

It was also filed on behalf of all current and future destitute people, who are accused of a crime but cannot afford a private defense attorney. If the court approves this group as a class, any outcome will apply to all people involved.

The suit accuses the state, not the counties, of failing to adequately pay these constitutionally mandated programs 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.

Currently, Pennsylvania only provides $7.5 million to help indigent defense. Counties must make up the difference with limited local finances, and public defense offices are frequently barred from funding options accessible to prosecutors, according to the lawsuit, which cites Spotlight Pennsylvania reporting.

The action seeks the Commonwealth Court to declare the current public defense system illegal and to maintain oversight until the state fully complies with the constitutional right to counsel.

According to ACLU of Pennsylvania Legal Director Vic Walczak, the lawsuit seeks holistic reform rather than damages for specific plaintiffs.

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

If the court rules in favor of the petitioners, Pennsylvania officials will likely be able to provide a remedy in consultation with the ACLU of Pennsylvania. According to Walczak, the process will take several years.

Ward spokesperson Erica Clayton told Spotlight PA that the senator has yet to receive the lawsuit and will need time to evaluate it before reacting.

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

In a written statement, Shapiro spokesperson Manuel Bonder noted the governor’s proposed and eventually approved money 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 stated.

Shapiro is reviewing the allegation and cannot speak further, Bonder stated.

The inadequate support has resulted in a system in which too few attorneys are responsible for too many cases, ultimately failing to offer the degree of defense required by the United States and Pennsylvania Constitutions, according to petitioners’ attorneys 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 explained during the briefing. “It requires a professional who has the time and resources to prepare an adequate constitutional defense.”

Pennsylvania did not offer consistent financing for indigent defense until this year. Instead, state law has made it the entire responsibility of each of the 67 counties to pay for the federal mandate, a burden that many cannot bear.

Shapiro suggested $10 million in state support for public defense in 2023, with the promise of continued investment in subsequent years. In December, the legislature authorized $7.5 million, providing most public defense offices their first state funding infusion. Shapiro requested that lawmakers increase the allocation to $10 million in his 2024 budget plan.

The legislature also established a committee to distribute the funds and establish statewide criteria for public defense, which did not previously exist. In April, the committee revealed each county’s allotment, which ranged from approximately $90,000 for Potter County to $141,000 for Philadelphia.

Even with this extra funding, each county’s allotment will not be sufficient to cover the deficit that public defender offices face, according to the lawsuit, or to level the playing field with prosecutors.

According to the lawsuit, Pennsylvania would need to spend hundreds of millions of dollars to match average national spending per capita or similar states, a level that counties cannot achieve on their own.

“Counties do not have the means to raise revenue in the same way that the state does,” Walczak said, noting that counties must also pay for competing and more politically appealing public services like 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 stated. “By definition, they have no resources. So, during the previous 50 years, indigent defense services have fallen steadily.”

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

According to the complaint, many of the identified petitioners have been detained for months and have received no contact from a public attorney despite multiple attempts to contact them. Others witnessed attorneys they had never met make legal files or dismissals with their seeming approval, but none were ever secured.

According to the lawsuit, a part-time public defender in Clearfield County asked petitioner David McCauley to pay $3,500 for private representation. When McCauley declined, the same attorney appeared at a subsequent hearing as no-cost counsel on behalf of the county public defender’s office.

“We do not endorse the practices described 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.”

According to Jacobson, attorneys must prioritize cases when there isn’t enough staff to handle the backlog because their financing only allows for that.

The complaint cites a guy in Lebanon County who attempted to contact his public defender by letter several times before being awakened up one night after seven months in prison for a midnight conference with an attorney as per

“Of course, that’s awful,” Jacobson remarked. “I recognize that public defender, though. She had been at the prison until 2 a.m. because she had spent the entire day in court.”

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