Pa.’s lack of support for public defenders is unconstitutional. So we’re suing.

If you’ve ever watched a television show or movie that includes police as part of the storyline, chances are you’ve heard the phrase: “You have the right to an attorney. If you cannot afford an attorney, one will be provided to you at no cost.”

That right isn’t fiction, it’s a fact.

The right to an attorney after you’ve been charged with a crime is enshrined in the United States and Pennsylvania Constitutions, which mandate that the right to effective representation shouldn’t be just for rich people.

This right has been affirmed repeatedly for decades by both the United States and Pennsylvania Supreme Courts, both declaring that public defenders act as a safeguard against the deprivation of human rights.

Despite this right being enshrined in legal doctrine (and pop culture), the intent of this right is not just about having a warm body with a law degree sitting next to you in court. The right to counsel is actually the right to effective counsel. This right means a public defender or court-appointed attorney must have the time, resources, oversight, training, and supervision to adequately prepare and vigorously advocate for their clients.

Unfortunately, Pennsylvania provides almost no state funding for public defenders. Instead, the commonwealth leaves nearly all funding and control of public defender offices to the discretion of each individual county.

But counties have a more limited revenue base than does the commonwealth, as most counties cannot collect income or sales taxes. And in local politics, funding for services for older adults, roads, public health, and law enforcement will always win out over an office that, by design, serves only people accused of crime who cannot afford a private attorney.

A lack of funding for public defenders means people arrested and placed in jail often don’t meet with an attorney for days or even weeks.

This is plainly unconstitutional.

That’s why, after more than two years of research, data analysis, court observation, and countless interviews with participants in the criminal legal process, especially the public defenders and their clients, the American Civil Liberties Union of Pennsylvania sued the state. Our lawsuit asks the court to find that Pennsylvania’s decision to delegate nearly all funding and control for public defenders to the counties violates the Pennsylvania and U.S. Constitutions. The commonwealth has the ultimate obligation to ensure adequate representation for poor people charged with crimes in the state.

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To be clear, this isn’t a knock on the public defenders. The large majority are hardworking, dedicated, and grossly underresourced professionals. The problem is not them; the problem is the system they work under. Even the most talented lawyer could not provide effective representation with caseloads that only allow mere minutes to help each client.

The ACLU of Pennsylvania is not the only one ringing the alarm on the public defense funding crisis in the commonwealth.

A recent report by a law professor at the University of Pennsylvania’s Carey Law School found that at least 60 of Pennsylvania’s 66 counties with public defenders did not have enough attorneys in their public defender offices to meet national standards.

The national standards, compiled in 2023, established different caseload recommendations based on the complexity of the matters an attorney handles. For example, the study estimated that a public defender may spend roughly a dozen hours handling a low-level misdemeanor, while a high-level felony — where the accused could be sentenced to life in prison without the opportunity for parole — could consume nearly 300 hours. Even under the University of Pennsylvania study’s conservative methodology, which did not factor in the time public defenders spend on additional work such as appeals and probation and parole violation hearings, nearly all Pennsylvania county public defender offices had caseloads that exceeded the national standards.

These aren’t minor shortfalls, either; an estimated 47 Pennsylvania counties would need to more than double their attorney staffing levels to meet the national standards.

These aren’t minor shortfalls.

Some welcome news is that many of Pennsylvania’s elected leaders have acknowledged the funding crisis, and have started to take some baby steps toward addressing it. Gov. Josh Shapiro secured $7.5 million in his 2023-2024 annual budget proposal for public defender funding and has continued that level of funding in next year’s budget, just signed into law. It’s a good start, but it’s not nearly enough.

A fairly and fully funded network of public defender offices is the only way to make sure every Pennsylvanian has a fair chance to navigate the criminal legal system.

Hundreds of thousands of Pennsylvanians are impacted by the public defense resource crisis per year. They are the people who spend extra time incarcerated while they wait to be assigned a public defender, in jails where drug deaths and overdoses can run rampant. They are the public defenders who work tirelessly to represent an overwhelming number of clients. They are the children whose parents unjustly sit in jail. They are the spouses who struggle to make ends meet while their partners await their day in court. And so many others.

This lawsuit isn’t just about making sure Pennsylvania is following the law. It’s about preventing the unjust and unnecessary suffering of so many Pennsylvanians as a result of a broken system.

Veronica Miller is the senior policy counsel for criminal legal reform at the ACLU of Pennsylvania. Ari Shapell is the Toll Public Interest fellowship attorney at the ACLU of Pennsylvania.