Ed. Note: This is a guest post by Pittsburgh criminal defense lawyers, Joe Otte, former public defender until he went rogue.
Before the chatbots replace online human opinions, I’d like to say my piece about indigent defense funding in the Commonwealth of Pennsylvania. Here in the Commonwealth, we have no state-level funding for indigent defense.* We rely upon counties to fund public defenders and court-appointed attorneys in criminal cases. It’s a moronic system that has thankfully gone by the wayside in 49 states.
Pennsylvania wasn’t always lonely. Michigan, despite its divided legislature, came around in 2013. Utah got wise in 2016. Now, Pennsylvania is in 50th place. Unfortunately for us Keystoners, the high court, the legislature, and the executive have twiddled their thumbs for the last seven years.
However, things appear to be changing. Governor Josh Shapiro, who investigated or prosecuted every possible living organism and corporate entity while he was attorney general, agrees that the status quo is unacceptable.
Pennsylvania is one of only two states in the nation that provides zero dollars for indigent defense.
That’s not a list we want to be on.
Today, I’m proposing a $10 million investment in public defenders — this year and every year going forward.
— Governor Josh Shapiro (@GovernorShapiro) March 7, 2023
His solution is underwhelming. The plan he developed is to throw $10 million to the Pennsylvania Commission on Crime & Delinquency (PCCD). This is a mistake, and it’s a mistake that I tried to warn him about. Unfortunately, his office likely thought I was a regular lunatic rather than a well-informed lunatic (Josh, if you’re reading this, my phone number is publicly available. Cut out your staff. Let’s talk!).
The first part of the mistake is that $10 million isn’t nearly enough money to measurably improve indigent defense in Pennsylvania. It would be foolish to suggest that it won’t make any difference, but I know what happens an hour after I have a salad for lunch. Pennsylvania has 13 million people in 67 counties. If apportioned by population without saving any money for the state to train attorneys, a county like Cambria with its 132,000 inhabitants** could see an additional $100,000 per year. Taking into account benefits, that’s an additional 1.4 untrained, just-barred assistant public defenders. It’s an improvement, but if you’ve seen a struggling public defender office in action, you know that one newbie isn’t going to drastically change things.
And the world doesn’t revolve around full-time public defenders. Even in the 50+ counties where the public defenders bear the brunt of the burden, private attorneys are appointed to represent clients in cases of conflicts of interest, the whim of the judiciary, or overflow. So, after the counties start paying assigned counsel a little more, that additional 1.4 untrained assistant public defenders might now be 1.1.
Experience tells us that training is important. So, that $10 million shouldn’t be pumped into salary alone. Barred lawyers, much like 3Ls, don’t wake up on Day 1 and know how to practice criminal defense. That 1.1 untrained assistant public defenders that Cambria could potentially hire is now 0.9 untrained assistant public defenders after the PCCD develops a training curriculum and some Carlisle training sessions. And thus, Cambria gets 0.9 untrained assistant public defenders, zero paralegals, zero secretaries, zeros social workers, and maybe some training [Ed. Note: In the correct use of pronouns?].
The second issue is what caused me to shake my fist at the sky. The PCCD is not an indigent defense commission. Not even close. It’s composed of prosecutors, victim’s advocates, judges, bureaucrats, politicians, cops, academics, more politicians, more cops, and more judges. When you search the minutes of the PCCD meetings, the only action items you’ll find relating to indigent defense are the occasional appropriation for capital defense. The PCCD is almost certainly composed of well-meaning people. Unfortunately, those well-meaning people have no business deciding what to do with the $10 million if it’s intended for indigent defense.
“But…but!” you say? “But, the funds in the Governor’s budget are to be distributed by the Criminal Justice Advisory Committee (CJAC) of the Pennsylvania Commission on Crime and Delinquency, not the Commission itself!” Yes, indeed. Meet the new boss. Same as the old boss.
Neither the PCCD nor its CJAC have a single public defender or criminal defense attorney as a member. Sure, there are some formers, but there’s nobody in the trenches. They cannot adequately understand this issue. They cannot adequately address this issue. Most of them simply haven’t a damn clue. The ones who do have a damn clue have moved on and are now Honorables or Partners. They have other jobs.
There needs to be people whose job it is to administer indigent defense. It needs to be the full-time job of several people. There is no need to study the issue. There is no need for a goddamn task force. Pennsylvania will not be sanctioned for plagiarizing another state’s system. The legislative research arm of the General Assembly could draft a fantastic plan if given the order. Pennsylvania can easily create a commission that will fully implement the promise of Gideon by 2027.
In 2013, Michigan chose to create the Michigan Indigent Defense Commission. In 2016, Utah chose to create the Utah Indigent Defense Commission. Those two states were far behind the rest of the pack a decade ago. But their respective governments chose to finally do the hard work of public policy despite the poor man charged with crime having no lobby.
Governor Shapiro chose the path of least resistance this time around. He need not do the same in 2024.
*Pennsylvania effectively has no state-level funding. The last budget included a $1 million appropriation, but that was not a serious attempt to address indigent defense funding.
**Cambria County has the correct population for my example and it also has some of the nicest people.