Fifty years ago the U.S. Supreme Court in Gideon v. Wainwright established a promise of fairness and justice. In Pennsylvania (and many other states), that promise remains unfulfilled.
Pennsylvania is the only state in the nation that does not provide funding for indigent defense, and many more states can—and must—assume a greater role in compensating indigent defense counsel.
In Argersinger v. Hamlin, The High Court extended the right to counsel to any crime, including misdemeanors and petty offenses.
As the right to counsel continued to expand, the Court recognized that an accused is entitled to a lawyer during custodial interrogations (Miranda v. Arizona); in direct appeals (Douglas v California); in juvenile proceedings resulting in possible confinement (In re Gault); and in certain probation and parole revocation hearings (Gagnon v. Scarpelli).
But the mere right to counsel was not enough.
Those accused of a crime must be afforded effective assistance of counsel (Strickland v. Washington). Last spring, the Court extended that right one step further. In Lafler v. Cooper and Missouri v. Frye, the Court found that it was not a sufficient guarantee of a fair trial: counsel must also be “effective” when negotiating a plea.
Yet as the responsibility of indigent defense counsel—public defenders as they became known— increased, compensation sputtered.
In Pennsylvania, the Public Defender Act of 1968 provides for the establishment of a Public Defender in each county in Pennsylvania. It has remained an unfunded mandate for 45 years.
The Public Defender is appointed by the Board of County Commissioners and is funded exclusively with local funds. In fiscal year 2008, total indigent defense expenditure statewide was approximately $95.5 million.
According to a Justice Policy Institute report, Justice Overload: The cost of under-resourcing public defense, there are five primary ways in which inadequate public defense systems can increase costs: Needless pretrial detention; increased pressure to plea; wrongful convictions; excessive sentences; and increased barriers to successful reentry.
Sixty-one percent of people in local jails around the country are being held pretrial, and 40 percent simply cannot afford bail. In Pennsylvania, only Philadelphia insures counsel at the preliminary arraignment, one of the most important liberty proceedings in a case.
A significant majority of people accused of a crime in Pennsylvania appear at initial bail hearings unrepresented.
The pressure to plead guilty or the fear of wrongful conviction is palpable in some places. About 20 years ago, Justice Harry Blackmun estimated that a properly conducted capital trial can require hundreds of hours of investigation, preparation and lengthy trial proceedings.
Yet, according to a recent report by the Joint State Government Commission, A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania, with seemingly inadequate funding, the Philadelphia Defenders Association out-performs court appointed counsel in Philadelphia homicide cases.
Why? Court-appointed lawyers in Philadelphia homicide cases get $2,000 for trial preparation and $200 to $400 a day during trial. Using Justice Blackmun’s figures, court-appointed capital defense counsel earn about $10 an hour.
In December 2011, the Joint State Government Commission Task Force on Service to Indigent Defendants issued their report. Each of Pennsylvania’s 67 counties organizes its own indigent defense delivery system.
The task force found: “The lack of state financial support and oversight has led to a service deficiency syndrome.”
The report describes a service deficiency syndrome in the following way:
“[T]he 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.”
In Pennsylvania, the General Assembly needs to act now, especially in these challenging economic times, and fund the mandate of public defense made 45 years ago.
A failure to adequately fund indigent defense, be it in Pennsylvania or any other state across the county, undermines the quality of representation and in turn the fundamental protections provided by Gideon and it progeny over the last half century.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. He is the former district attorney for Lawrence County and former member of the Pennsylvania Board of Probation and Parole. He welcomes comments from readers. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.