The ACLU says Pennsylvania’s public defenders are so underfunded it violates the law
The ACLU said the lack of funding deprived citizens of their constitutional rights to due process, equal protection, and an effective lawyer even if they can’t afford one.
Pennsylvania’s lack of funding for public defenders is so pronounced that the state is depriving citizens of their constitutional rights to due process, equal protection, and an effective lawyer even if they can’t afford one, according to a new lawsuit filed by the American Civil Liberties Union of Pennsylvania.
The suit, filed Thursday in Commonwealth Court, says the lack of state funding for indigent defense in criminal cases has “significantly compromised” the ability of public defenders to provide adequate representation to their clients, with overwhelming caseloads and a lack of resources hampering their ability to investigate cases, file motions, or prepare for crucial stages of the process.
The suit recounts experiences from people who said they were charged with crimes and went months without being able to reach their public defenders, watched hearings occur without their lawyers present, or decided to file motions on their own because their defenders hadn’t done so.
One woman, charged last year in Schuylkill County with felony trespass and related offenses, said her attorney had never visited her in person — but had filed a petition to have her involuntarily committed to a mental health treatment facility.
Vic Walczak, legal director of the ACLU Pennsylvania, said in an interview that “the one thing that’s crystal clear is that the current system is not working.”
“There are a lot of services municipal government provides that are, let’s say, nice — but this is constitutionally required,” Walczak said. “People need to have faith that anybody who is facing jail time is going to get effective representation, and the consequences of this failure are dramatic.”
How is public defense currently funded?
The suit is the latest development in an ongoing debate over public defense in the state. The vast majority of funding for indigent defense is left up to individual counties, and last year, when state lawmakers for the first time allocated $7.5 million for indigent defense, it made Pennsylvania the second-to-last state in the nation to provide some form of statewide money to public defenders.
Gov. Josh Shapiro has said he will seek to raise the allocation to $10 million in the budget for the next fiscal year. Manuel Bonder, a spokesperson for the governor’s office — which is named as a defendant in the suit, along with House Speaker Joanna McClinton and Senate President Pro Tempore Kim Ward — said in a statement Thursday that Shapiro has advocated for public defense funding throughout his career, which is why he “delivered sustained, dedicated state funding for public defenders for the first time ever in Pennsylvania.”
Shapiro “has made it clear he believes every Pennsylvanian deserves fair and equal treatment under the law — and he is going to continue to fight for fairness in our criminal justice system,” Bonder said.
Nicole Reigelman, spokesperson for McClinton, a former Philadelphia public defender, said McClinton has used that experience “to inform her policy agenda” and support policies seeking to improve indigent defense. McClinton also “continues to advocate for additional dollars” to be put toward public defenders in the state budget, Reigelman said.
Erica Clayton Wright, spokesperson for Ward, said Ward’s office had “yet to receive the lawsuit and will need time to review before providing comment.”
Walczak said that although any money from the Capitol represents a step forward, the state’s current funding proposals were “a drop in the bucket.”
The ACLU said in its suit that the total amount spent on public defense across Pennsylvania was about $125 million in 2020. By contrast, Michigan — which has a slightly smaller population, but a similar mix of rural, suburban, and urban counties — spent nearly $320 million on public defense last year, according to the suit. (The ACLU in Michigan filed and won a similar class-action lawsuit targeting that state’s public defense system more than a decade ago.)
In addition, because the majority of Pennsylvania’s indigent defense funding comes from individual counties, Walczak said, defenders are forced to vie for funding with such essential public services as road repairs, nursing homes, or public housing.
“Indigent defense gets low priority,” Walczak said. “By definition you’re talking about people without money, and all of the people that we’re trying to represent in this lawsuit have been charged with crimes. That’s just not a constituency that most politicians are going to go to the mat for.”
The ACLU said funding for indigent defense has been particularly woeful outside of Philadelphia, where the city’s Defender Association has a budget of more than $60 million, the vast majority provided by City Council. In the state’s other 66 counties, the ACLU says, “Pennsylvania is tied with Mississippi for the lowest-funded state indigent defense system on a per-capita basis.”
What are the consequences of low funding?
The Defender Association of Philadelphia said in a statement Thursday that it supported the suit because “this isn’t just about money — it’s about justice and ensuring that everyone, regardless of their financial situation, gets the constitutionally required effective representation.
Walczak said the consequences of failing to live up to that standard are far-reaching. Some innocent people may be wrongfully convicted, he said, but even in cases in which someone may be guilty, competent representation can ensure a fairer process, a higher degree of advocacy for the accused, and ultimately a more just outcome.
“Everybody should be getting a fair shake,” he said. “We’re talking about basic effectiveness. ... And we’re just not seeing that, and not because the lawyers don’t care — they just don’t have enough hours in a day.”
That assertion echoes findings from a recent study by the University of Pennsylvania’s law school, which found that just six of the state’s 66 public defenders’ offices employed enough lawyers to adequately cover a typical annual caseload.
Walczak said the ACLU believes even more resources are needed to account for certain aspects of public defense that were not included in Penn’s analysis, such as the handling of juvenile cases, or probation or parole matters.
The ACLU’s suit does not seek a specific monetary reward, but asks the court to find Pennsylvania in violation of the U.S. and state constitutions, which could ultimately force the state to develop a solution to fix the issue.