Pennsylvania Indigent Defense: Finally Moving into the 21st Century?

Ms. Subin spent twenty-three years at the Defender Association of Philadelphia where she was a trial and appellate attorney and the Association’s first full time Director of Training and Recruitment responsible for recruiting new attorneys, law interns, and their training/development. An adjunct professor at the University of Pennsylvania School of Law, Ms. Subin was an Assistant Professor, Director of the Indigent Defense Clinical program at the University of New Mexico School of Law, when the Governor appointed her New Mexico’s chief public defender with leadership responsibility and oversight of the state’s public defense judicial district trial offices, four statewide law units, contract conflict legal counsel system, and statewide administration. New Mexico’s statewide indigent defense delivery system is 100% funded by the state legislature where Ms. Subin was a registered lobbyist for public defense funding.

Ms. Subin is one of the founders of the National Association for Public Defense and serves on its Systems Builders Committee where she has conducted public defense systems assessments and mentored public defender leaders.

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Pennsylvania’s Counties Control Indigent Defense Legal Services While State Ignores Sixth Amendment Mandate

For over fifty years Pennsylvania maintained its dubious distinction as the only state, sometimes one of two states, which appropriated no general funds in support of its Sixth Amendment obligation to provide poor adults and children facing criminal charges with effective assistance of legal counsel.

The United States Supreme Court’s landmark constitutional right to counsel decisions in Gideon v. Wainwright and Douglas v. California decided, in 1963, that states must provide criminal defense counsel to indigent defendants facing felony charges and those convicted who file a direct appeal of right. National standards thus require that indigent defense systems are state-supported, even if they are locally-run. The American Bar Association’s Ten Principles of a Public Defense Delivery System (2002, amended 2023), Principle 2, Funding, Structure and Oversight, clearly states that “for state criminal charges, the responsibility to provide public defense representation rests with the state, and, accordingly, there should be adequate state funding and oversight of Public Defense Providers.”

Following Gideon and Douglas, Pennsylvania passed the Public Defender Act of 1968, 16 P.S. Sections 9960 et. seq., which codified common law practice by assigning to sixty-six counties the sole funding and oversight responsibility for indigent defense legal services. The counties complied by forming public defender offices with both full and part-time employees and by creating conflict of interest assigned counsel and/or contract conflict programs. Elected county commissioners and/or a county manager controlled the appointment of a county chief public defender whose job security frequently depended upon which political party controlled the commission and who was subject to dismissal depending upon the political winds in the county. Sometimes, a county would limit employment in a public defender office to those whose voter registration matched that of the political party in control of the commission.

The Public Defender Act outlines a broad range of legal services that the county defender offices must provide. These traditional legal services include adult and juvenile pretrial/detention hearings to pretrial motions, to trials/adjudication hearings, to post-verdict motions, to sentencing/disposition hearings, to appeals, to probation/parole hearings, etc. Mental health commitments must also be covered as well as specialty courts and diversion programs.

Philadelphia is the state’s only county of the first class (all counties are assigned one of eight class designations based upon population) and has a unified city/county governance structure. Philadelphia was exempted from the Public Defender Act. It already had a long and successful contractual relationship with the Defender Association of Philadelphia, formerly a United Way agency as well as a not-for-profit 501c3, that had provided county indigent defense legal services since the 1930s. Unique in Pennsylvania, the Defender Association is governed by a board of directors that has worked for many years to maintain the Association’s independence from any political oversight or interference by the City of Philadelphia.

Unequal Access to Justice: The ACLU of Pennsylvania Sues the State

In June 2024, the American Civil Liberties Union of Pennsylvania (“ACLU”) filed a major lawsuit, a petition for writ of mandamus (Warren et al v. Commonwealth of Pennsylvania et al), in equity and on behalf of seventeen jailed plaintiffs against state officials (Governor, President Pro Tempore PA Senate, and Speaker of the House) acting in their official capacities. Filed in the Commonwealth Court, the petition seeks court review of the indigent defense delivery system, injunctive relief, and a declaratory judgment that these state actors have failed to provide for effective assistance of counsel, for adequate state funding and for Sixth Amendment oversight across the Commonwealth.

For many years the ACLU of Pennsylvania has been an active presence in Pennsylvania monitoring and documenting the many inequities in a completely county funded indigent defense delivery system. As the Warren petition documents, Pennsylvania, excluding Philadelphia, ties with Mississippi as the lowest funded state indigent defense system on a per capita basis. Excessive caseloads exist in many counties and far exceed national standards. Indigent defendants may be constructively denied effective assistance of counsel at all critical stages because assigned counsel does not have the time or resources (paralegals, investigators, social workers, mitigation specialists, experts, etc.) to provide uniform effective assistance.

Prior to the Warren petition against state actors, in 2012, the ACLU had filed a lawsuit against Luzerne County challenging that county’s failure to adequately fund its public defender office, which caused widespread constructive denial of the right to effective assistance of counsel. That action eventually came before the Pennsylvania Supreme Court, whose opinion acknowledged that county public defender offices are “chronically underfunded and understaffed and are hard-pressed to meet the baseline demands of the Sixth Amendment, raising the disconcerting question of whether counties are complying with Gideon.” Kuren v. Luzerne County, 146 A.3^rd 715 (2016). The U.S. Department of Justice filed a statement of interest in the case that supported a constructive denial-of-counsel claim for prospective injunctive relief. The Kuren PA Supreme Court recognized that “a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding and to seek and obtain an injunction forcing the county to provide adequate funding to a public defender’s office.” Kuren at p. 718.

The 2024 Warren petition clearly outlines the many studies that have documented the failures of a county-only funded indigent defense delivery system with no state oversight. These studies, by national experts as well as by state governmental agencies, task forces, and university think tanks, have offered concrete action steps and recommendations for reform that would greatly improve the delivery of effective assistance of counsel across the Commonwealth. Regrettably, almost all these reforms, including the necessity for indigent defense state funding, have been ignored by both elected and appointed state and county officials.

The Pennsylvania Indigent Defense Advisory Committee: A Beacon of Reform Hope

While we await final disposition of the Warren litigation, a positive reform step forward has been the legislature’s passage in 2023 of a bill authorizing the creation of the Pennsylvania Indigent Defense Advisory Committee (“IDAC”). (Act No 34 of 2023) The Committee, staffed by the Pennsylvania Commission on Crime and Delinquency (“PCCD”), currently consists of twenty-seven appointees who represent the not only the broad public defender community but also the legislature, judiciary, relevant bar associations, the district attorneys, police chiefs, and academia. A number of these representatives are non-voting members, and the public defender community representatives clearly have majority voting power with the executive director of the Pennsylvania Public Defender Association serving as IDAC’s chair and a leader of Philadelphia’s assigned counsel program as vice-chair.

In addition to establishing the IDAC, the legislature appropriated $7.5 million for the Committee’s first year of operation, a landmark given the state’s history, but below the governor’s requested $10 million. Under the Indigent Defense Grant Program, approved by PCCD, IDAC has now successfully conducted its first statewide grant program allocating a total of $6.75 million between all sixty-seven counties.

Act 34 articulates the IDAC’s many responsibilities beyond the grant program, including setting standards. Previously, the Pennsylvania Bar Association, Philadelphia Bar Association and the Allegheny Bar Association have all passed resolutions endorsing the ABA Ten Principles as the “best practices standards” for the delivery of indigent defense legal services. However, these bar associations are all voluntary membership as PA does not have mandated state bar association membership. Attorney legal practice is guided by the ethical standards adopted by the Pennsylvania Supreme Court through the Rules of Professional Conduct.

IDAC is responsible for proposing minimum standards for the delivery of indigent defense services, including standards for attorneys providing these services and submitting them to the Pennsylvania Supreme Court. In April 2024, IDAC recommended two standards for indigent defense practice:

• Standard 1: Funding, Structure and Oversight

This standard incorporates Principle 2 of the ABA’s Ten Principles with minor language changes to reflect the involvement of Court Appointed/Conflict counsel in a mixed system of delivery with public defense.

• Standard 2: Essential Components of Effective Representation

This standard incorporates Principle 9 of the ABA Ten Principles which adopts a client-centered approach to legal representation, and it endorses sufficient funding for Public Defense Providers to call upon the services of experts, investigators, social workers, mitigation specialists, and other necessary professionals. This standard also encourages defenders to address client civil/non-legal life issues through their own work or through collaborations with civil legal service organizations, social services providers, and other lawyers and non-lawyer professionals.

These IDAC Standards were presented to the Pennsylvania Supreme Court, which, on May 29, 2024, adopted without amendment IDAC’s two standards for the “purpose of providing guidance to IDAC and PCCD regarding the Indigent Defense Grant Program applications submitted in fiscal year 2023-2024.” The court also described these standards “aspirational in nature”. It remains an open question as to how, if at all, these standards apply to any 2024-2025 IDAC grants.

For the 2025 fiscal year state government funding cycle, the governor again requested an indigent defense budget of $10 million dollars, and the legislature again reduced that amount to $7.5 million. Since this budget was only recently passed and signed, we await news from IDAC as to how these funds will be appropriated and spent.

Conclusion: Indigent Defense Systemic Reform Remains an Aspiration in Pennsylvania

As we await the outcome of the Warren mandamus action and any new or continuing funding goals or standards from IDAC, the effort and battle to reform Pennsylvania’s problematic, county-funded indigent defense delivery system continues. At least there is finally some change for the better and hope for the future.

STAY TUNED!