Gideon Alert: State-sanctioned commission finds Pennsylvania defaulting on the Sixth Amendment

BY David Carroll on Monday, December 12, 2011 at 2:46 PM

On December 8, 2011, Pennsylvania’s Joint State Government Commission issued its report, A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania, concluding that public defense providers labor “under an obsolete, purely localized system,” and that the structure of services “impedes efforts to represent clients effectively.” Echoing the 2003 report of the Supreme Court Committee on Racial and Gender Bias in the Judicial System, the new report states:

Pennsylvania has no mechanism in place to hold accountable either the lawyers who represent the poor or the county and judicial officials who administer indigent defense systems. The absence of guidelines for the appointment of counsel has resulted in minimal quality control. In addition, the flat fee paid to appointed counsel can be a disincentive to effective preparation and advocacy; the low compensation rates create little incentive to develop expertise in criminal defense. Moreover, the sparse resources available for support services, coupled with exploding and unmanageable caseloads, allow indigent defense counsel little time, training, or assistance for conferring with clients in a meaningful manner, researching relevant case law, reviewing client files, conducting necessary pre-trial investigations, securing expert assistance or testimony, or otherwise preparing adequately for hearings and trials. Compounding these deficiencies is the lack of political independence afforded PDs whose budgets are controlled by local county politicians.

Because of these long-standing deficiencies, the report determines that: “[f]or many defendants, this means the attorney’s knowledge of the facts of the case will be supplied entirely by the police report, perhaps supplemented by a hurried conversation with the client on the way to the hearing that will dispose of the case.”  Furthermore, “[t]he system’s inability to provide supervision and accountability has resulted in a deterioration of professional standards.”

The report goes to great lengths to blame the failing system, rather than the attorneys operating within that broken structure, for the lack of competent representation. “Most PDs are hard-working, committed, and competent professionals,” the report concludes, but “[t]he problem is that they must work against daunting obstacles: inadequate training and oversight, severely limited resources, and unmanageable caseloads. In many of Pennsylvania’s counties, the most brilliant and accomplished lawyer could not provide adequate representation because he or she simply would not have the time and resources needed to mount a constitutionally adequate defense.”

How Pennsylvania fails to provide adequate indigent defense services is not news.  This column has written numerous times about the problems of Allegheny County (Pittsburgh), the Luzerne County “kids for cash” scandal, a pending challenge to Philadelphia’s capital case compensation rates, and the litany of previous reports that have come before making similar conclusions (click here, here, here and here).  What is important is that the report was requested by the Pennsylvania Senate (pursuant to 2007 Senate Resolution No. 42) and conducted by the Joint State Government Commission -– a state-supported, non-partisan research organization serving the General Assembly.  The report was overseen by a bipartisan, bicameral group of legislators and advised by representatives from the Administrative Office of Pennsylvania Courts, the Secretary of Budget and Administration, the Attorney General, the Auditor General, the County Commissions Association of Pennsylvania, the Pennsylvania Public Defenders Association, and the Pennsylvania District Attorneys Association, as well as individuals with expertise in the area of quality representation of indigent criminal defendants.

Because one of the goals of the Joint State Government Commission is to “reach consensus on recommendations to propose to the legislature,” the report includes not only numerous recommendations for reform but also draft legislation anticipated to be entered during the next legislative session.  Significantly, the report recommends that the best way to “assure that quality indigent defense services are provided to accused persons who cannot afford to hire counsel,” is by adopting the American Bar Association’s Ten Principles of a Public Defense Delivery System as “the guiding principles for Pennsylvania’s indigent defense system.”  Among other things, the report recommends:

  • Pennsylvania should establish a statewide, independent, non-partisan Office of Indigent Defense, headed by a board responsible for all components of indigent defense services.
  • The members of the board overseeing the indigent defense agency should be appointed by leaders of the executive, judicial, and legislative branches of government. The board should include representatives of local bar associations, among other groups. Members should not bear any obligation to those responsible for their appointments. All members of the board should be committed to the delivery of quality indigent defense services. A majority of the members should have accumulated substantial experience in providing indigent defense representation.
  • The agency should be under the management of an executive director appointed by the board. The following components of the agency are so essential to its effective functioning that they should be provided for by statute: a capital case division, under a division director; an appellate and post-conviction review division, under a division director; a director of juvenile defense services; an information management and technology officer; and a director of training and professional development.
  • The statewide indigent defense agency should have the power and duty to manage the delivery of legal representation for indigent adults in criminal cases and all children in delinquency cases in such a manner as to ensure that such services will be effectively and competently done. The agency should do this primarily by setting statewide standards and enforce compliance with them. The standards should cover all key areas of service delivery and administration, including performance, supervision, training, attorney workload, support services, eligibility of defendants for public counsel, timeliness of commencement of representation, and data collection and analysis.
  • Funding for the agency should be provided primarily by the Commonwealth from the general fund. Such funding should be sufficient to enable publicly funded defense attorneys to deliver zealous and highly competent indigent defense representation in accordance with the adversary system. In addition, the statewide agency and local providers should seek supplemental funding as available from federal and private sources. None of the funding for the IDS should come from its clients.

The report recommends that the Defender Association of Philadelphia be excluded from the supervision of the statewide office, while continuing to handle Philadelphia’s indigent defense cases and being “responsible for formulating and enforcing its own professional guidelines.” 

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