'Getting closer to true justice:' Pennsylvania funds indigent defense for first time

Pennsylvania public defenders are receiving state funds for the first time in history.

Although Gov. Josh Shapiro included the $7.5 million allotment for indigent defense in his first spending plan for 2023-24, released in the spring, he could not sign the budget-enabling legislation that included funds into law until it was passed by the state lawmakers. That occurred Wednesday night.

“I ran for governor to deliver real, tangible solutions to the most pressing issues folks are facing every day, and the bipartisan bills I am signing tonight include more big wins for Pennsylvania,” said Shapiro Wednesday in a media release.

The act will help every county in the state that now funds the public defender's offices.

"It allows for more access to legal resources for the most indigent," said Somerset attorney Megan Wills. "By adding resources to the already strapped PD's office budgets, the hope is they would be better able to provide legal needs to all indigent clients. For example, maybe they'd be able to hire an additional support person or lawyer to take on more of the caseload so each lawyer isn't juggling 300 cases."

No longer one of two

Up to this point, Pennsylvania and South Dakota were the only states in the country that provided no state funding for public defenders. Except for a few grants for specific programs in Pennsylvania and payment by an indigent defendant for expenses by the few public defenders in South Dakota, defendants who cannot afford representation were on their own to maneuver through the maze of the criminal justice system that for many could mean years behind bars.

What is the difference between the two states?

In South Dakota, where only three of its 66 counties have a public defender office, the judge may order the repayment of the fee as a condition of the defendant's sentence, or the county may bill the defendant for the service at the conclusion.

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In Pennsylvania, public defenders' offices have been funded solely by each of the state's 67 counties, with a few exceptions of limited special grants. Next year's state budget has changed all of that.

Shapiro said it is just the beginning of the state's investment in public defenders.

"Pennsylvania is one of only two states in the country that provides zero dollars for indigent defense. That’s not a list I want to be on," he said.

That is why Shapiro proposed a $10 million investment in public defenders. The Legislature reduced that to $7.5 million and added public defenders in its annual budget program passed into law this week.

"... this year and every year going forward," Shapiro said.

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Former state Gov. Thomas Wolf, also a Democrat, had championed the need for the state to invest money in public defenders and placed the item on his last budget, but it was not included in the final document.

Taking a look at how one county handled the problem

Attorney David Leake of Somerset was previously court-appointed conflict counsel in Somerset County for many years. That position is similar to a public defender. When the public defender's office cannot take on a case because of a conflict that office turns to the court-appointed conflict counsel.

"I would be appointed by the court to represent indigent individuals who could not afford legal representation," he said. Moreover, he is in court often with Somerset County public defenders, whom he calls "excellent attornies."

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"I see defense attorneys, and particularly public defenders, as a critical protection to our citizens as they act as a check and balance to government oppression, protecting the civil liberties of those being prosecuted by the government," Leake said. As such, he said he was very happy to hear that Pennsylvania has passed funding for public defenders.

"This is a big win for the individual citizens and their civil liberties here in Pennsylvania," Leake said.

Somerset public defenders

For the two full-time attorneys who face the everyday needs of indigent defense clients, this is a good move for what has been counties bearing the responsibility of all the funding.

According to the Somerset County District Attorney's Office that puts together the master trial list, which includes public defender, unrepresented and private attorney representation, the list of cases for public defenders is the majority of those cases.

"We appreciate the acknowledgment that this fundamental constitutional right must be supported through appropriate funding," said Somerset County Public Defenders Office Director Tiffany Stanley. "Of course, the goal is always to ensure that defense is adequately funded, and at least as much so as prosecution."

Stanley said she has always subscribed to the principle that “budgets are moral documents,” a phrase often noted as coined by Martin Luther King Jr., although unclear, she pointed out.

"I think this funding is a step toward achieving that goal, though there can be no doubt that there is work to be done and room for growth," Stanley said.

Why does this matter?

"We recognize that both the prosecutor and defense have to be equally resourced," Shapiro told members of the Philidelphia Bar Association in March when funding for public defenders offices was first placed in the proposed budget. "Only then can they be respectfully adversarial in a trial that gets to the truth and allows a jury to come to a decision. That is how we get closer to true justice."

The state bar association

"The Pennsylvania Bar Association has long supported increased funding, including state funding, for indigent criminal defense services," said Pennsylvania Bar Association President Michael J. McDonald.

The state bar association renewed the conversation around state funding for indigent criminal defense a few years ago with legislators. Before that time, legislation was occasionally introduced, but there was little follow-through, he said.

"Until the passage of this year’s budget, Pennsylvania was one of the states in the nation that did not provide any funding for indigent criminal defense. The entire constitutional obligation fell to the counties," McDonald wrote in a statement.

He called the inclusion of a money line item for an indigent defense grant program "a good start and certainly something to celebrate ... However, we are disappointed that the amount was reduced at the last minute from the already modest $10 million that was originally proposed."

The money

An accused person has a constitutional right to be represented by an attorney. If the accused cannot afford an attorney, one will be appointed by a judge.

The enabling legislation passed Wednesday night, which was not passed concurrently with the state budget in the spring, ends the question of whether the governor has the authority to distribute the funds for public defenders.

Somerset County’s 2023 budget includes about $441,000 for indigent defense. In the county's 2024 spending plan, slated for adoption by the county commissioners on Dec. 19, $415,443 is slated for the public defender's office, according to Somerset County Finance Director Rebecca Canavan. The proposed 2024 budget lists more than $900,000 for the county's district attorney's office.

History of funding for those who cannot afford an attorney

Balancing the vast power of the state against an individual in the criminal justice system has been part of the U.S. Constitution since its effective date of March 4, 1789. The centuries-long document was presented for ratification in September 1787 and ratified by the states the following June.

But it took a landmark 1963 decision, for the creation of public defenders to make this right to counsel available to most people charged with crimes who could not afford an attorney to represent them.

Before the federal Supreme Court's ruling in Gideon v. Wainwright, there were only seven state public defender offices. After that ruling, the number has increased to 573 public defender offices in the country with a $200 billion budget.

History of state underfunding public defenders

“The $7.5 million line item to underwrite the cost of public defenders is merely an acknowledgment of the state’s constitutional obligation to ensure the poor are afforded equal justice under the law," said Somerset County Commissioner Pamela Tokar-Ickes. "Counties pay more than $125 million a year, far short of what is needed, to ensure the poor have an adequate criminal defense."

The funds approved by the state Legislature cannot be used to replace any county tax dollars currently allocated toward the operations of our Public Defender’s Office, she said.

According to a bi-partisan legislative study in 2011, Somerset County paid just under $5 per capita for indigent defense.

"Public defenders get such a bad rap as being bad attorneys and it couldn't be further from the truth," Will said. "These are the hardest working people I know and they are so, so good at what they do. They are in underfunded positions and get no praise or admiration for the work they grind out daily."

This article originally appeared on The Daily American: Historic first: Pennsylvania budget sets funds for public defenders