For the Defense - Vol. 9, Issue 3 - 38

solely with the Commonwealth, which has abdicated its constitutional
duty to provide for the right to counsel, thus trapping both counsel
and clients in a broken system.
Time and time again over the last three decades, arms of the
state government have documented the systemic underfunding
of indigent defense services and recognized the need for state
funding and oversight.9
In 2003, the Supreme Court's Committee
on Racial and Gender Bias in the Justice System found that
Pennsylvania was " generally not fulfilling its obligation to provide
adequate, independent defense counsel to indigent persons " and
that these constitutional deficiencies resulted, in part, from " the
Commonwealth's failure to provide sufficient funding and other
resources, along with a lack of statewide professional standards and
oversight. " In 2011 and 2020, a General Assembly Task Force and the
Pennsylvania Interbranch Commission for Gender, Racial and Ethnic
Fairness reiterated these concerns.10
In 2016, the Supreme Court of
Pennsylvania in Kuren noted that county indigent defense service
providers " are chronically underfunded and understaffed. " 11
The
Court emphasized that " Pennsylvania holds the dubious distinction
of being the only state in the nation that continues to rely exclusively
upon local, rather than statewide, funding of public defender's
offices. " 12
appointed counsel in more than 20 counties, interviewed indigent
people charged with crimes, analyzed data, and observed court
hearings across the state. The lawsuit focuses on the experiences
of seventeen named petitioners that reflect the broader problems
across the state and represent a class of " [a]ll indigent individuals
who are now facing, or will in the future face, criminal charges
brought by the Commonwealth of Pennsylvania, the penalty for
which includes the possibility of confinement in a jail or correctional
facility (regardless of whether actually imposed) and who do, or
will, qualify for appointed representation... . " 18
The lawsuit is the culmination of years of litigation and advocacy
conducted by members of the Warren litigation team seeking to
reform Pennsylvania's broken indigent defense system. In 1996,
the ACLU-PA filed suit against Allegheny County, alleging that
the County was failing to provide its public defender office with
the resources necessary to enable it to adequately represent its
clients.19
And in 2012, the ACLU-PA and co-counsel sued Luzerne
The Court recognized that " statewide funding lies 'at
the core of nearly every reform recommendation' pertaining to
improving the quality of indigent defense. " 13
After decades of inaction, the Commonwealth took a first step
towards reforming its indigent defense system in 2023 by spending
$7.5 million on indigent defense services and establishing an
Indigent Defense Advisory Committee to oversee such services
statewide.14
Through their words and actions, Governor Shapiro
and the General Assembly's leadership have recognized that there
is a crisis in Pennsylvania's indigent defense services.15
But spending
only $7.5 million in both 2023 and 2024 shows a failure to grasp
the scale of the problem. Bringing Pennsylvania in line with the
national average per-capita state spending on indigent defense
would require approximately $100 million in additional funding for
indigent defense services.16
And for Pennsylvania's per capita indigent
defense spending to approximate Michigan spending (a state which
experts have described as most comparable to Pennsylvania), the
Commonwealth would need to provide an additional $250 million
in funding.17
The state clearly has a long way to go, and the political
process is not by itself sufficient to make this happen.
Warren v. Commonwealth
On June 13, 2024, we filed a lawsuit on behalf of seventeen
indigent people charged with crimes in Pennsylvania over the
Commonwealth's failure to provide adequate funding and
oversight for indigent defense services. With, Langer, Grogan &
Diver P.C., Kairys, Rudovsky, Messing, Feinberg & Lin LLP, Dechert
LLP, and Seth Kreimer, the ACLU-PA filed the lawsuit against the
Commonwealth of Pennsylvania, Governor Josh Shapiro, Speaker
of the Pennsylvania House of Representatives Joanna McClinton,
and President Pro Tempore of the Pennsylvania Senate Kim Ward.
The lawsuit, captioned as Warren v. Commonwealth, asks the
Commonwealth Court of Pennsylvania to order declaratory relief
for violations of the right to counsel and equal protection under
the U.S. and Pennsylvania constitutions, among other alleged
violations.
Before filing the Warren lawsuit, the ACLU-PA and co-counsel
spent two years investigating the crisis in indigent defense
services. The team spoke with dozens of public defenders and
38 For The Defense l Vol. 9, Issue 3
County over its failure to fund its office of the public defender.20
In both matters, the lawsuits led to increases in county funding for
public defense, but the results were short-lived and limited to the
county that was sued. For example, the Kuren case was settled after
Luzerne County agreed to increase funding for its public defender
offices following a landmark 2016 Supreme Court of Pennsylvania
opinion in Kuren acknowledging the crisis in indigent defense
services across the state. But by 2022, the county was again failing
to fund indigent defense services. As a result, the county's chief
public defender felt compelled to request that the local president
judge cease appointing his office in certain cases because he " felt
that they were no longer capable of meeting their constitutional
obligations regarding effective and proper representation. " 21
These
experiences demonstrated to the Warren litigation team that state
funding was necessary to achieve consistent and adequate funding
for indigent defense across the Commonwealth. Counties are
simply unable to pay for the services that are required, and since
the constitutional obligation ultimately rests with the state, the
counties should not be in the position of shouldering the burden by
themselves. It is for this reason that the Warren lawsuit seeks relief
solely against the Commonwealth, the Governor, and the General
Assembly leadership, not against any counties.
Benefits of an Adequately Funded Indigent Defense
System
Adequate funding for indigent defense service providers
supports the fair administration of justice in numerous ways. Most
importantly, proper funding for indigent defense services increases
the chances that an indigent defendant will be fairly treated by the
criminal justice system. As the Supreme Court recognized in Gideon,
" in our adversary system of criminal justice, any person haled into
court, who is too poor to hire a lawyer, cannot be assured a fair
trial unless counsel is provided for him. " 22
But an indigent person
cannot be guaranteed a fair and just prosecution if his or her
attorney is unable to provide them with effective representation.
Indigent people deserve, and are constitutionally entitled to,
counsel that has resources to consistently communicate with them,
investigate their cases, and zealously advocate for them. Indeed,
it is when indigent defense attorneys have enough resources to
communicate, investigate, and advocate for their clients, elements
which the Kuren court referred to as the " traditional markers of
representation, " that indigent clients are most satisfied with their
representation.23
Effective representation reduces the risk of
wrongful convictions and unnecessarily harsh punishment.24
For the Defense - Vol. 9, Issue 3

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