Pa. Gov. Calls For State-Level Public Defender Funding

By James Boyle | March 22, 2023, 9:31 PM EDT ·

Gov. Josh Shapiro urged members of the Philadelphia Bar Association on Wednesday to support dedicating $10 million of his $44 billion budget proposal to end Pennsylvania's distinction as being the only state to not provide state-level funding to public defenders.

Shapiro chose the Philadelphia Bar Association's observance of the 60th anniversary of Gideon v. Wainwright , the landmark U.S. Supreme Court decision guaranteeing the right to counsel for criminal defendants, to argue that the current funding system, under which each of the state's 67 counties foot the bill for public defenders, was unfair and that his budget proposal represented a first step in the right direction.

"This is long overdue," Shapiro told hundreds of attorneys gathered for a luncheon at the Philadelphia Westin on Wednesday afternoon. "An indigent defendant should not have to face the justice system in an unfair fight. The justice system should treat all Americans equally, regardless of their ZIP code."

Providing funding on a county-by-county basis, Shapiro said, created a stark disparity between the wealthier and not-so-wealthy counties. The more resources a county has, the more money can be devoted to the office, he said.

According to the governor, Mifflin County, a rural area between the city of Harrisburg and the municipality of State College, has the third-highest number of criminal cases handled by a public defender, but the county spends the least per capita on the public defender office's budget — less than $3.25 per person.

"We recognize that both the prosecutor and defense have to be equally resourced," Shapiro said. "Only then can they be respectfully adversarial in a trial that gets to the truth and allows a jury to come to a decision. That is how we get closer to true justice."

In 1963, the U.S. Supreme Court held unanimously that the Constitution's 14th Amendment demanded state courts adhere to the Sixth Amendment, which guarantees a defendant's right to counsel in a criminal trial. Until then, that constitutional right only applied to federal defendants. That landmark decision was lauded by the Philadelphia Bar Association Wednesday afternoon, with the caveat that much more is needed to make sure everyone had the same access to an adequate defense.

"We have to take a hard look at the promise not fulfilled," said Marc Zucker, the Philadelphia Bar Association chancellor, in his speech opening up the luncheon event. "Public defenders are not funded at the state level, and they are at breaking point."

The event's first featured speaker, Pennsylvania Supreme Court Chief Justice Debra Todd, highlighted the progress the state's judicial branch has been able to make with the limited space it has in the state constitution.

The judges cannot create legislation, Justice Todd said, but there are programs the courts have created and supported to provide some relief for attorneys. The state's Interest on Lawyers' Trust Accounts Board has used interest payments from the fund and portions of legal fees to support more pro bono work and increase access to civil legal services.

The State Supreme Court also amended a rule in Pennsylvania's Professional Rules of Conduct to allow retired attorneys interested in providing pro bono services to take an emeritus role in the state bar. The emeritus status means lower annual registration fees and reduced obligations for continuing legal education credits.

"More attorneys are always needed to dedicate their time and talent in service to the most vulnerable in society," Justice Todd said Wednesday. "We should continue to make pro bono a priority."

The significance of a state-level source of funding to help level the playing field of the state's justice system was reiterated in a panel discussion following the luncheon. Pennsylvania House of Representatives Speaker Joanna McClinton said it has been difficult to convince her fellow lawmakers of the real need to better fund public defenders in the state.

In 2019, she pushed through a bill authorizing a two-year study on the funding of indigent criminal defense.

"There was no political will to fund criminal defense in Pennsylvania," McClinton said Wednesday during the panel discussion. "[Lawmakers] have a hard time with approving new items in a budget. They don't understand why they have to pay for something new, on top of the hundreds of other items they have to fund in their districts."

McClinton echoed Shapiro's call for the Philadelphia Bar Association's lawyers to get involved with lobbying to get approval for the governor's budget proposal.

"This needs to be on the list of priorities," McClinton said. "Right now, depending on where you are arrested, if you don't have the means for an adequate defense, you are significantly out of luck."

--Editing by Lakshna Mehta.

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