The examples in the lawsuit are many.

One man held in jail for three months on $100 bail for a minor trespassing and marijuana possession charge.

Another man incarcerated for 10 weeks for charges he drove an unregistered car without proof of insurance.

One man who sat in jail for months before even communicating with his public defender.

In each instance, a new lawsuit filed Thursday in Commonwealth Court alleged that the systemic failure was caused — or at least exacerbated — by a lack of statewide funding for indigent defense in Pennsylvania.

That’s why the ACLU and several private law firms filed a petition Thursday asking the appellate court to declare that Pennsylvania has an obligation under the state and federal constitutions to fund the right to counsel, and that it should be provided equally across counties.

“We’ve long thought the most important thing we can do to bring fairness and justice to the criminal legal system is to upgrade indigent defense,” said Vic Walczak, the legal director of the ACLU of Pennsylvania. “This is an issue that, literally, impacts hundreds of thousands of people every year.

“This is a huge case.”

Indigent defense inconsistencies

Experts have long been critical of indigent defense in Pennsylvania, which was one of only two states in the country — South Dakota is the other — that up until this past year failed to provide any statewide funding for public defender services.

Instead, indigent defense in Pennsylvania is paid for by individual counties — and at wildly varying rates.

Although in 2023 the Legislature appropriated — and the governor approved — $6.75 million for the entire state, the lawsuit asserts it’s wholly inadequate.

“$6.75 million is not nearly enough to address the indigent defense funding crisis, as it supplements the $125 million Pennsylvania counties spent on their public defender offices in 2020 by only 5%,” the lawsuit said.

That’s only $100,000 per county, Walczak said, and barely enough to cover one salaried position.

“It’s a drop in the bucket.”

Similar suits by the ACLU have been successfully brought in Michigan, New York, Idaho and Washington.

“In all of them, we’ve seen a steady uptick in funding,” Walczak said.

This year, the state of Michigan, whose system is similar in size to Pennsylvania’s, will pay $319 million for indigent defense, the complaint said.

“It took litigation filed in state court to force the elected branches of government to take their responsibilities seriously and address the problem,” Walczak said. “The system is broken, and the state needs to fix it.”

The lawsuit, which names as defendants the state of Pennsylvania, Gov. Josh Shapiro, state Senate President Pro Tempore Sen. Kim Ward, R-Hempfield, and state House Speaker Rep. Joanna McClinton, D-Philadelphia, asks the court to declare that the state’s decision to delegate the cost of indigent defense to individual counties has led to widespread constitutional violations.

Spokesperson Manuel Bonder said in a statement Thursday that Shapiro, a former county commissioner and attorney general, recognizes a lack of funding for indigent defense causes unacceptable inequities in the legal system.

“That’s why as governor, he has delivered sustained, dedicated state funding for public defenders for the first time ever in Pennsylvania,” Bonder said. “Governor Shapiro is the first to acknowledge there is a long way to go.”

The administration is reviewing the complaint, Bonder said, and can’t comment on the allegations specifically.

“Gov. Shapiro has made it clear he believes every Pennsylvanian deserves fair and equal treatment under the law — and he is going to continue to fight for fairness in our criminal justice system.”

Erica Clayton Wright, a spokeswoman for Ward, said they have not yet received the lawsuit and will need to review it before providing comment.

Nicole Reigelman, a spokeswoman for McClinton, said the speaker began her career as a public defender and understands the importance of indigent defense in the judicial system.

“Since being elected in 2015, she has used her experience as a defender to inform her policy agenda and has been an outspoken champion of legislation to improve access to legal counsel for indigent clients,” Reigelman said. “Speaker McClinton celebrated when funding for indigent defense was finally included in the 2023-24 state budget, and continues to advocate for additional dollars.”

“This approach to indigent defense funding has failed. Many — too many — counties have shown that they lack either the capacity or the political will to adequately fund or supervise these services,” the lawsuit said. “As a result, indigent Pennsylvanians regularly face criminal prosecution without effective assistance of counsel at each stage of their criminal proceedings.”

“In some counties, indigent people regularly go entirely unrepresented.”

Stretching 135 pages, the petition includes claims for equal protection, due process and violations of the right to counsel. It alleges the state has failed to meet its constitutional obligation and instead delegated nearly all funding and oversight responsibilities to individual counties.

The court filing alleges that nearly all of Pennsylvania’s 67 counties fail to provide consistently effective representation and that services vary drastically from county to county.

Among the petitioners, they represent defendants in Bedford, Blair, Fayette, Lebanon, Clearfield, Luzerne, Northampton, Schuylkill and Lancaster counties.

In some instances, the plaintiffs were arrested months earlier but still had not met with their public defender, the petition said.

The lawsuit alleges the commonwealth has failed to ensure public defender officers have adequate funding, oversight and independence.

“In better funded counties, the named petitioners would be by lawyers with lower case loads, with additional investigators and other staff to assist them,” the lawsuit said.

According to the petition, excluding funding in Philadelphia, which is provided separately, Pennsylvania is tied with Mississippi for the lowest funded state public defender system.

While the national average public defender expenditures per capita is $19.82, the Pennsylvania average — excluding Philadelphia — is less than $10 per capita.

In Allegheny County, in 2019, that number was $7.70. In Westmoreland, it was $3.80; in Armstrong County, $3.20; in Washington, $5.90. In Beaver County, that number was $8.90; and in Fayette, $9.20.

In Philadelphia, public defender funding was $30.20 per capita.

The lawsuit alleges many counties provide inadequate funding because they do not have the financial capacity to do better.

Undesirable jobs

It’s also difficult for public defender offices to retain experienced attorneys, the complaint said, because of low pay and high caseloads. In addition, there is a lack of adequate training and supervision.

In some counties, there is such a severe lack of funding that they rely on part-time public defenders. Fayette County, for example, has a full-time chief public defender but employs seven part-time attorneys to handle more than 1,700 cases.

In some counties, including Forest, Lackawanna and Northamptom, even the chief public defender is part-time, the lawsuit said.

The petitioners also allege the lack of funding impacts the number of investigators, social workers and support staff at county public defender offices.

While national standards call for every public defender office to employ one investigator and one mental health professional — such as a social worker — only 10 employed a dedicated social worker. Less than half had a dedicated investigator.

Ari Shapell, an ACLU attorney working on the case, said Thursday a legal team analyzed data, interviewed public defenders and spoke to clients in preparing for the lawsuit.

“One thing that’s emerged from our investigation is the sense of hopelessness that indigent people charged with crimes across the commonwealth feel when they’re represented by attorneys that don’t have the time or the resources to advocate for them,” he said.

The lawsuit also is critical of county-mandated funding because it makes chief public defenders beholden to their county executive for continued employment.

“This process undermines necessary independence and creates a significant conflict of interest for chief defenders,” the lawsuit said.

Approximately 8% of adult criminal cases in Pennsylvania in 2019 — more than 130,000 — had either public defenders or court-appointed attorneys, according to the court filing.

“For every one of those people, there are consequences for countless others — spouses, parents, children, employers,” Walczak said.

Although the concern about indigent defense funding in Pennsylvania has existed for decades, the lawsuit notes it has remained largely unchanged.

In December, the Legislature passed a bill to create the Indigent Defense Advisory Committee to propose minimum standards, provide training and gather data.

To meet national standards, the lawsuit said, one study conservatively suggested 537 full-time attorneys would need to be hired. That would cost more than $50 million in additional funding — not including support staff, investigators and social workers.

“Bringing Pennsylvania in line with the national average per-capita state spending on indigent defense would require the commonwealth to appropriate approximately $100 million in additional funding for indigent defense services,” the lawsuit said.

Sara Jacobson, the executive director of the Public Defender Association of Pennsylvania, said the lawsuit was necessary.

“This is a group that doesn’t have a lot of political clout,” she said. “There’s been lots of will to fund prosecutors for years and years. Funding the indigent defense side of it is less politically popular.”

Still, she praised the state for allocating even some funding last year.

“We really appreciate the $7.5 million, but that’s not going to do it,” she said.

---

Copyright ©2025— Trib Total Media, LLC (TribLIVE.com)

---