Ruling Boosts Overworked Public Defenders in Only State That Doesn't Fund Them

by | November 4, 2016

By Colt Shaw

The offices were filthy. Not enough phones; not enough computers. Just overwhelming caseloads, and not enough hours to handle them. As a result, some courtrooms, according to one attorney, became guilty-plea assembly lines.

Al Flora Jr., then the chief public defender of Luzerne County, was at his wit's end. So in 2012 he filed a class-action suit against his own employer, joined by the ACLU, arguing that the county was violating the constitutional rights of poor defendants by failing to fund his office adequately.

Flora lost his job, but the litigation survived and has resulted in a potentially huge victory for public defenders across Pennsylvania -- the only state in the nation that provides no public-defender funding, placing all the burden on the state's 67 economically disparate, and in some cases economically challenged, counties.

In September, the state Supreme Court held that defendants and/or their advocates could sue counties on the ground that inadequate funding of public-defender offices violated constitutional rights.

"It's more likely there will be more lawsuits filed in other counties, and possibly the state," State Sen. Stewart Greenleaf (R., Montgomery), author of a bill calling for Pennsylvania to set up a central agency overseeing and facilitating indigent defense, as New Jersey has, said last week.

"Pennsylvania is the only state at this point that has absolutely no funding, no standards, no structure, no higher oversight at all for public defenders offices," said Mary Catherine Roper, the ACLU lead counsel. "That means depending on where you live, you could have a good public defender or you could have a public defender that doesn't have time to learn your name."

Until September, Roper said, understaffed, overworked, and underfunded public defender offices had no recourse.

"There was no way to address any of these problems," Roper said. "And that's what this court decision gave us."

Some counties struggle more than others to provide defense for the indigent, juggling mammoth caseloads on shoestring budgets. But, lacking money, they all have one obstacle in common in attracting and keeping legal talent: A public defender's job is not the fast track to wealth.

Even in Philadelphia, where the nonprofit Public Defender Association provides the highest per-capita funding levels in the state, salaries for lawyers with several years of experience in the District Attorney's Office -- $70,000 to $75,000 -- are a third higher than those of public defenders.

And the workload is overwhelming, said Keir Bradford-Grey, the city's chief public defender, with about 200 attorneys each handling roughly 400 misdemeanor cases annually, double the national average. An attorney might need to work up to 15 hours a day to complete it. That situation, she said, "creates a huge amount of burnout." It also creates attrition: Over a four-year period, the office loses 65 percent of its hires, which means more money to train the replacements.

Douglas Roger, the chief public defender in Delaware County, which has the third-largest budget in the commonwealth, is asking the County Council for more money for salaries, saying it is key to recruiting and retaining lawyers.

Ed Olexa, an alumnus of the Luzerne County office, knows something about life in the trenches. He had worked part-time in the Wilkes-Barre office, theoretically 19 hours a week, but he said he couldn't have managed all his cases if he worked 75 to 80 hours a week. So he left.

"I noted in my exit letter that I couldn't effectively provide quality representation," Olexa said. "I felt that the caseloads were excessive and there wasn't enough being done about it.

"At my private practice now, I'm trying to do all the things I wasn't able to as a public defender."

Since the suit was filed, conditions at Luzerne have improved, said Stephen Greenwald, the current chief public defender. "I think the county has really stepped up and addressed some deficiencies," he said. Now Luzerne and other counties await the fallout from the Supreme Court decision.

"I think it's a positive step for public defense across the commonwealth," Greenwald said.

Pennsylvania spends only $7.66 per capita on public defense, according to the Gideon at 50 Project from 2013, an accounting of the state of indigent defense 50 years after Gideon v. Wainwright, the Supreme Court ruling that states must provide counsel to poor defendants in criminal cases. Only Texas, Missouri, Maine, and South Carolina allocate less, but even in those four, the states provide some funds and oversight from a central system.

New Jersey has a central statewide public defender office, and furnishes it completely from state coffers. According to the Gideon at 50 Project, the state spends $12.42 per capita on indigent defense.

Jonathan Rapping, the president and founder of Gideon's Promise and a 2014 MacArthur fellow, said the criminal justice system often runs through the poor and accused if proper public defense isn't available to them.

Poor defendants, he said, "enter a system that treats people like widgets. If you're poor, then your life just isn't worth much in our justice system."

Misidentification, false confessions, and shoddy forensic science are some of the most widespread sources of wrongful convictions, according to Rapping.

"If you have the time, you can ferret out these problems," Rapping said. "If you're overwhelmed, all you can do is accept the evidence the state brings against you and try to mount the best defense."

For now in Pennsylvania, said Roper, "funding of public defender offices has nothing to do with need.

"Counties can't affect how many people are arrested; they can't affect how many people the DA charges. They have no control over what the volume of cases in the criminal justice system is. But they're expected to fund the Public Defender's Office.

"It's just politics."

(c)2016 The Philadelphia Inquirer