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A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania - Report of the Task Force and Advisory Committee on Services to Indigent Criminal Defendants
Authorization: 2007 Senate Resolution 42



In the landmark case of Gideon v. Wainwright,the U.S. Supreme Court ruled that free counsel for criminal defendants who cannot afford to hire an attorney is mandated upon the states by the Sixth Amendment of the U.S. Constitution. Justice Hugo Black explained why this conclusion is necessary if the courts of this nation are to administer genuine justice:


[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.


The U.S. Supreme Court has subsequently extended the requirement of free counsel from the felony prosecution involved in Gideon to misdemeanor prosecutions and juvenile proceedings and from the trial itself to all “critical proceedings” after arrest.


However, a thorough study of the Commonwealth’s indigent defense system (IDS) published in 2003 by the Pennsylvania Supreme Court Committee on Racial and Gender Bias concluded that the Supreme Court’s mandate has been ignored by the General Assembly, and largely because of that neglect, is not being fulfilled in Pennsylvania:


Despite the expansive procedural rights afforded under law, indigent criminal defendants in Pennsylvania are not assured of receiving adequate, effective representation. Notably, Pennsylvania, South Dakota, and Utah are the only three states that provide no state funds to ensure that



indigent citizens are afforded adequate criminal defense services. Pennsylvania also does not provide any statewide oversight of indigent defense systems.


The study reported here . . . indicates that Pennsylvania is generally not fulfilling its obligation to provide adequate, independent defense counsel to indigent persons. Contributing factors include the Commonwealth’s failure to provide sufficient funding and other resources, along with a lack of statewide professional standards and oversight. In addition, efforts to improve the indigent defense system have been impeded by the lack of reliable, uniform statewide data collection.


In the intervening eight years, the only significant change is that South Dakota and Utah now do provide some state funding for indigent defense, leaving Pennsylvania as the only state that does not appropriate or provide for so much as a penny toward assisting the counties in complying with Gideon’s mandate. This failure is particularly burdensome to the poorer counties, which must contend with the dual handicap of scant resources and high crime rates.


The lack of state financial support and oversight has led to a service deficiency syndrome, as summarized in the Racial and Gender Bias Report:


Pennsylvania has no mechanism in place to hold accountable either the lawyers who represent the poor or the county and judicial officials who administer indigent defense systems. The absence of guidelines for the appointment of counsel has resulted in minimal quality control. In addition, the flat fee paid to appointed counsel can be a disincentive to effective preparation and advocacy; the low compensation rates create little incentive to develop expertise in criminal defense. Moreover, the 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. Compounding these deficiencies is the lack of political independence afforded PDs whose budgets are controlled by local county politicians.



For many defendants, this means the attorney’s knowledge of the facts of the case will be supplied entirely by the police report, perhaps supplemented by a hurried conversation with the client on the way to the hearing that will dispose of the case. Due to the impediments faced by those representing indigent defendants, despite their best efforts, there have been instances where a man or woman who was completely innocent of the offense or who had a perfectly valid defense to the charge nevertheless served jail time.


The problem is not the public defenders (PDs) themselves, but the system in which they work. Most PDs are hard-working, committed, and competent professionals. The problem is that they must work against daunting obstacles: inadequate training and oversight, severely limited resources, and unmanageable caseloads. In many of Pennsylvania’s counties, the most brilliant and accomplished lawyer could not provide adequate representation because he or she simply would not have the time and resources needed to mount a constitutionally adequate defense. Broadly speaking, Pennsylvania’s indigent defense labors under an obsolete, purely localized system, a structure that impedes efforts to represent clients effectively. The General Assembly can greatly improve the system by adopting systemic reforms based on the ABA’s “Ten Principles of a Public Defense Delivery System,” which state the widely accepted standards for improving a state indigent defense system (IDS).


Because our IDS is funded and managed exclusively at the county level, there are glaring disparities in the services, training and supervision provided in different counties and often a lack of professional independence from outside interference. The “kids for cash” scandal in Luzerne County has thrown these deficiencies into sharp relief. Former Judge Mark Ciavarella of the Court of Common Pleas of Luzerne County violated the constitutional rights of up to 4,000 juveniles. The special master appointed to determine the final disposition of these cases identified 1,866 cases in which juveniles appeared before Judge Ciavarella without counsel or where the right to counsel was not properly waived. Juveniles who had committed minor offenses were consigned for harshly excessive terms to juvenile detention centers in return for kickbacks and other favors that a co-owner of the centers rendered to Ciavarella and former Judge Michael Conahan. The chief PD of the county at the time directed office staff to deemphasize juvenile cases because of lack of resources. Partly because of this official policy, it became accepted practice before these judges that juveniles would face the court with either no legal representation, or only token representation, and that no effort would be made to ensure that waivers of constitutional rights would be informed and voluntary.


The failure of the legal community to respond appropriately to these unconstitutional practices enabled them to continue unchecked. This scandal illustrates the need for statewide structures to ensure that local IDSs will be overseen and held accountable for unprofessional practices and will be independent of political and judicial interference.


While recognizing the difficult fiscal environment the Commonwealth faces currently, the advisory committee urges the General Assembly to perform its duties under the U.S. Constitution and as a civilized society by finally addressing the deficiencies that undermine its indigent criminal defense system by reforming the system to comply with national standards.