The Supreme Court of Pennsylvania Establishes a Sixth Amendment Right to a Pre-trial Challenge to Systemic Underfunding of Public Defender Offices
In Kuren v. Luzerne County (September 28, 2016), the Pennsylvania Supreme Court joined a growing number of courts that have established a Sixth Amendment right to challenge systemic underfunding of state or county indigent defense services by way of an injunctive action, as opposed to the standard Strickland post-conviction process. The Court ruled that allegations by a class of defender clients in Luzerne County of high caseloads and inadequate funding for lawyers, investigators, social workers and other support systems that resulted in the inability of the Defender Office to provide minimally effective representation to its clients were, if proven, sufficient to mandate the issuance of an injunction requiring increased funding. This ruling builds upon earlier litigation in other jurisdictions. See, e.g., Hurrell-Harring v. New York, 930 N.E.2d 217 (N.Y. 2010); Duncan v. Michigan, 774 N.W.2d 89 (Mich. Ct. App. 2009); Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988).
Pennsylvania is the only state in the nation without any state funding for indigent services, leaving its 62 counties to independently fund public defender offices and conflict counsel. Predictably, this has led to a crisis in indigent defense representation, with the now familiar “meet them, greet them, plead them” process. In this case, Al Flora, then Chief Defender of Luzerne County took the courageous step of suing the County for additional funding after years of futile attempts to secure adequate funding and services for his office. The Complaint alleged:
Inability to interview clients before the preliminary hearing
Inability to confer with clients as case proceeded to trial
Inability to conduct investigation or secure relevant discovery in large number of cases
Failure to file necessary pre-trial motions
Lack of trial preparation and plea bargaining without necessary information
Poor appellate practice due to lack of appellate lawyers
Following the grant of some limited preliminary relief, the County refused to agree to the necessary remedial measures and dismissed Flora from his Chief Defender position. Thereafter, the lower court dismissed the action for lack of plaintiff standing and lack of a Sixth Amendment right to injunctive relief.
On appeal to the State Supreme Court, the County argued that the remedy provided by Strickland on a post-conviction petition that required a showing of sub-standard performance and prejudice was adequate and was the only remedy available under the Sixth Amendment. In response, we argued that Strickland did not foreclose other remedial measures for ineffectiveness of counsel claims, and that systemic flaws in funding and resource allocations could only be addressed in a comprehensive fashion by permitting a court to order injunctive relief in the form of increased funding. We were supported by an able set of amicus briefs from the U.S. Department of Justice, the American Bar Association, the Innocence Project, and the Pennsylvania Association of Criminal Defense Lawyers.
The Supreme Court, in a unanimous opinion, rejected each of the County’s arguments and, in a sound and powerful ruling, recognized the central role of the courts in ensuring a “system” of adequate representation that cannot be provided by post-conviction review under Strickland. The Court stressed the significance of effective counsel in the vindication of almost all constitutionally protected rights of the accused and in ensuring a reliable, adversarial testing of the prosecution’s case. As the Court stated: “[H]arm results when widespread, systematic deficiencies deprive indigent defendants of the traditional markers of legal representation, such that those defendants are constructively denied counsel.”
Kuren is most comprehensive ruling on remedial measures under the Sixth Amendment and should be considered a template for litigation in other jurisdictions. Counsel should also consider corollary theories for remedial measures, including a public defender’s ethical responsibility under state professional responsibility standards not to take more cases than can adequately be defended, a doctrine expressly recognized by the Supreme Courts of Missouri and Florida. See Pub. Defender v. State, 115 So. 3d 261 (Fla. 2013); State ex rel. Mo. Pub. Defender Commission v. Waters, 370 S.W.3d 592 (Mo. 2012).
And for those defenders concerned that they might face the plight of Al Flora (who, as noted, was fired by the County after being named as the lead plaintiff in this lawsuit), there is comfort in the aftermath: he has successfully sued the County in federal court for a violation of his First Amendment rights to be free from this type of retaliation. In any event, it will take defenders and/or defender clients to engage in this type of reform litigation if we expect to see any change in the current crisis in indigent defense services.