PUBLIC DEFENDER ASSOCIATION OF PENNSYLVANIA :

RECOMMENDATIONS FOR INTERIM COST EFFECTIVE MEASURES IN 2013 TO ADDRESS THE CRISIS IN INDIGENT DEFENSE

BY WIESLAW T. NIEMOCZYNSKI, CHIEF PUBLIC DEFENDER MONROE COUNTY

On behalf of the Public Defender Association of Pennsylvania April 2013, at Harrisburg, Pennsylvania

SUMMARY OF THE EXISTING PROBLEM. Old News Revisited. In December 2011, the PENNSYLVANIA JOINT STATE GOVERNMENT COMMISSION Report of the Task Force And Advisory Committee On Services To Indigent Criminal Defendants (SIDC Report) reported the following basic conclusion: Pennsylvania is generally not fulfilling its obligations to provide adequate, independent defense counsel to indigent persons in adult criminal, juvenile criminal, dependency, and mental health proceedings because lawyers representing indigent criminal defendants and parties carry caseloads which are excessive. A major contributing factor to excessive caseload is the Commonwealth's routine failure to assist in providing sufficient funding and other resources to the counties who directly fund and resource indigent defense. This is old news. The only suggested remedy was the creation of a new state level public defense agency. The PDA proposes a cost-effective alternative. The Indigent Defense Funding Landscape. Indigent defense in Pennsylvania is funded entirely on a county level basis. While amply funding prosecution is politically popular and enjoys a broad constituency, indigent defense has no similar constituency. As everywhere, indigent defense funding is seen as a necessary evil rather than a constitutional mandate. Human natures natural hope for security tends to support increases to prosecutorial resources more readily than increases to indigent defense services. Public Defenders are often seen as clever villains rather than important public servants with a role in criminal justice system 2

co-equal to that of the District Attorney. Consequently, defense routinely suffers from inadequate funding. Defender resources are often a first target for cutting or reallocation. Asking for more resources to defend indigent persons accused of crime is not popular. Nonetheless, the county level Public Defender Offices must be poised to address the routinely increasing caseload to fulfill its constitutionally mandated task. Counties struggle to adequately fund indigent defense for the bulk of cases that can be characterized as routine. Certain economies of scale in those cases help mask the inadequacy of resources. More resource intensive cases, such as death penalty cases or those cases involving sophisticated, advanced scientific techniques, can readily overwhelm the capabilities of county-funded indigent defense. In those types of cases, the inadequacy of resources for indigent defense is more readily unmasked. Excessive caseloads significantly impede the ability of defense counsel to provide timely, effective, and ethically responsible representation. The excessive caseload problem is exacerbated because public defenders lack ready access to resources essential to effective representation including: private meeting space, investigators, experts, advanced technology, support staff, administrative staff, and social workers. Efforts to improve the indigent defense system statewide have been materially impeded by the lack of reliable, uniform statewide data on the current scope of indigent defense. The lack of a single, central administrative 3

office dedicated solely to the interests of indigent defense reinforces this haphazard state of affairs. A central office could carry out the long overdue necessary task of formulating, gathering, and maintaining uniform case data about indigent defense from each of the 67 counties. It would coordinate defender specific effective training, along with maximizing effective use of existing resources for indigent defense by resource pooling for death penalty cases, those involving sophisticated science or complex legal issues, and for appellate assistance. The office would be in a position to issue to the Legislature periodic reports using the data it collects to help direct existing indigent resources most effectively.

Prosecutorial Resources Dwarf Indigent Defense. The state routinely assists counties by funding half the cost of salary for a full time District Attorney for over 15 years. The state has recently mandated full-time District Attorneys statewide by 2012 in all except 8 th class counties. The criteria the state has established for justifying a full time District Attorney in an 8th class county are worthy of note. The case number thresholds are likely exceeded by every Public Defender Office in the state and have been handily exceeded by the Public Defenders office in Monroe County for the 15 years that the county has had a full-time DA. Excerpted, the thresholds are:

(i)

the average caseload of felony, misdemeanor and juvenile cases for the past five years has exceeded two hundred per year; (ii) the average caseload for homicide cases for the past five years has equaled or exceeded one per year; ... a major controlled substances transportation route passes through the county; the average number of convictions under 75 Pa.C.S. 3802 (relating to driving under influence of alcohol or controlled substance) or the former 75 Pa.C.S. 3731 (relating to driving under influence of alcohol or controlled substance) subject to the alcoholic ignition interlock statutory provision requirements exceeds thirty per year;

(ii) (iii) (iv)

Not surprisingly, despite meeting case number thresholds that are manifestly higher, there is no similar state mandate or planned state assistance for the county Public Defenders to be full-time. Federal and state grants of various types are routinely targeted to law enforcement. As an example, Monroe County has within the last few years received 2 armored vehicles, one at a cost of $300,000. To prosecutors, the routine assistance of state and local police forces is a given. Expert and technical assistance is readily available from state police laboratories, the state Attorney Generals Office, and the FBI. The costs are often passed to convicted defendants as part of court costs. In contrast, indigent defense has to scramble for every dime on a county level. No central resource is readily or routinely available. Forfeiture monies, gathered by county prosecutors from the criminally accused but concealed from public scrutiny, constitute a ready fund from which county prosecutors handily overcome budget shortfalls in certain cases, and in others, avoid the necessity of publically viewable budget 5

requests entirely. No part of forfeiture monies, state or local, are allocated to indigent defense. Perhaps they should be. Giving police and prosecutors a proprietary interest in the fruits of prosecution is an inherent conflict of interest analogous to the one that existed in the minor judiciary before the late 1960s reforms which removed defendants fines for convictions as the source of minor judiciary pay. In stark contrast to prosecution funding, indigent defense in the states eyes is largely an afterthought, relegated solely to the counties. The most recent example of this phenomenon is the firm promise by a Deputy Secretary of the Department of Public Welfare of state reimbursement by the Department of Public Welfare for defense services for juveniles in delinquency and for parents in dependency. The promise evaporated when its fulfillment was sought by submitting the required data on behalf of Monroe. No additional reimbursement from the state arrived. It would have been easier, and likely more successful, to pursue a unicorn and sell it to raise money for indigent defense.

The District Attorneys offices routinely have larger existing complements of lawyers, support staff, and county detectives. The District Attorneys office additionally has available to it the Victim -Witness offices, with their support staff members to deploy in criminal and PFA contempt cases, among others. The prosecution is also uniquely positioned to draw on the resources of non-governmental organizations like Womens Resources, 6

MADD, and other pro prosecution advocacy groups to directly augment its efforts at prosecution. The Public Defender offices have no similar resources from which to draw. It should not be overlooked that dependency cases are prosecuted by the separate, county funded, CYS solicitors; and mental health proceedings prosecuted by separate, county funded, mental health authority. The Public Defender Office is obliged to provide representation of the indigent in these cases.

RECOMMENDATIONS.
The Commonwealth of Pennsylvania should work to meet its constitutional obligations under Article I, Section 9 of the Pennsylvania Constitution, and also under the United States Constitution, Amendment 6, protecting the right of indigent persons in criminal, juvenile, dependency, and mental health proceedings to have effective counsel, by assuring that sufficient resources exist at the County level as follows:

1.

Adequate Funding Of A Central Office Dedicated Solely To The

Interests Of Indigent Defense. Before embarking on major structural changes to the existing system of indigent defense in Pennsylvania, the Commonwealth should establish a dedicated, adequate funding stream for the Public Defender Association of Pennsylvania to open and maintain a single administrative office which can: coordinate statewide public defender training; formulate, gather, and maintain uniform case data from each of the 7

67 counties in adult criminal, juvenile criminal, dependency, and mental health proceedings (and in any other types of cases to which public defenders may be assigned); provide a central resource tasked with developing methods to maximize effective use of existing resources; and determine whether particular types of cases such as death penalty and appeals can be best handled by a state level indigent defense agency rather than at the county level to take advantage of economies of scale.

2.

Data Collection And Training Dedicated To The Interests Of

Indigent Defense. Through this central office, the Public Defender Association, in addition to providing for statewide training resources oriented to the specific needs of public defenders, would be tasked with developing a system of case, resource, and workload data collection rationally designed to capture the kind of data most useful for indigent defense policy making. Routine read & data download access to the current CPCMS data base in use by the Administrative Office of Pennsylvania Courts (AOPC) should be provided to assist in this endeavor, in particular to determine whether data loss occurs to the state system as compared to the actual caseload of county public defender offices.

3.

Formulation Caseload/Workload Standards For A Guideline Of

Performance And Measure Of Effectiveness In Indigent Legal Defense Services Delivered. The Public Defender Association of 8

Pennsylvania should within a reasonable time provide additional detail to its interim standards for public defender caseloads to ensure that caseloads do not remain excessive or again become excessive in the future. Caseloads for indigent defense attorneys should be held to the adopted standards consistent with the provision of quality defense services as defined in the rules of professional conduct taking into account not only direct client representation, but also administrative responsibilities, professional development, and continuing legal education requirements.

4.

Fair Compensation For Indigent Defense Attorneys. State and

local authorities should provide fair compensation to public defenders. Salaries should be commensurate with their professional experience and equal to prosecution attorneys with equivalent experience. Separately appointed or contract counsel for the indigent should be fairly compensated.

5.

Recognition That Indigent Defense Is No Less Important Than

Prosecution. The Chief Public Defenders of each county should be required to be full time where the District Attorney of the county is required to be full time. Salaries should be commensurate, reimbursed by the state in part as for full-time District Attorneys. Full-time public defenders should be prohibited from engaging in private practice, but the restriction should not apply to part-time public defenders, assigned counsel or contract counsel for the indigent. 9

6.

Periodic Follow Up Reports To The Legislature Regarding The

Ongoing State Of Indigent Defense. Within three years after its establishment (or sooner if possible), the central office for the Public Defender Association of Pennsylvania shall provide a report to the Legislature regarding the current state of indigent defense in Pennsylvania as of that time, with the Associations recommendations for its improvement. In particular, the report should detail by county to the maximum extent possible: the status of public defender caseload, the types of cases requiring significant out of the office resources with identification of what the necessary resources are, the customary resources made available by the county to meet public defender mission requirements, along with a comparison to prosecutorial resources in the same jurisdiction. The efficacy of statewide centralization of mitigation aspects of death penalty representation, pooling of scientific or other expert resources, and specifically dedicated appellate counsel to conduct appeals from the trial level courts to the appellate courts should be examined in the Associations report to identify possible economies of scale which may be possible. Respectfully submitted, Wieslaw T. Niemoczynski, Esq. On behalf of the Public Defender Association of Pennsylvania April 2013, at Harrisburg, Pennsylvania

10