11/14/11 REPORT DRAFT

A CONSTITUTIONAL DEFAULT:
SERVICES TO INDIGENT CRIMINAL DEFENDANTS
IN PENNSYLVANIA
REPORT OF THE TASK FORCE
AND ADVISORY COMMITTEE
ON SERVICES TO
INDIGENT CRIMINAL DEFENDANTS
DECEMBER 2011

General Assembly of the Commonwealth of Pennsylvania
JOINT STATE GOVERNMENT COMMISSION
108 Finance Building
Harrisburg, Pennsylvania 17120

The release of this report should not be
interpreted as an endorsement by the
members of the Executive Committee of
the Joint State Government Commission of
all the findings, recommendations and
conclusions contained in this report.

JOINT STATE GOVERNMENT COMMISSION
ROOM 108 FINANCE BUILDING
HARRISBURG PA 17120-0018
Telephone 717-787-4397
Fax 717-787-7020
E-mail: jntst02@legis.state.pa.us
Website: http://jsg.legis.state.pa.us
________________________________________________________________________

The Joint State Government Commission was created by the act of July 1, 1937
(P.L.2460, No.459) as amended, as a continuing agency for the development of
facts and recommendations on all phases of government for the use of the General
Assembly.
________________________________________________________________________

-ii-

JOINT STATE GOVERNMENT COMMISSION

Representative Florindo J. Fabrizio, Chair
Senator John C. Rafferty, Jr., Vice Chair
_____________________________________________________
EXECUTIVE COMMITTEE
Senate Members

House Members

Joseph B. Scarnati, III
President Pro Tempore

Samuel H. Smith
Speaker

Dominic F. Pileggi
Majority Leader

Michael C. Turzai
Majority Leader

Jay Costa
Minority Leader

Frank J. Dermody
Minority Leader

Patrick M. Browne
Majority Whip

Stanley E. Saylor
Majority Whip

Anthony H. Williams
Minority Whip

Michael K. Hanna
Minority Whip

Michael L. Waugh
Chair, Majority Caucus

Sandra J. Major
Chair, Majority Caucus

Richard A. Kasunic
Chair, Minority Caucus

Dan B. Frankel
Chair, Minority Caucus

MEMBER EX-OFFICIO
Representative Florindo J. Fabrizio, Commission Chair
_____________________________________________________
David S. John, Jr., Executive Director
Glenn J. Pasewicz, Assistant Director
Stephen F. Rehrer, Counsel
_____________________________________________________

-iii-

JOINT STATE GOVERNMENT COMMISSION
PROJECT STAFF

Project Manager:
Lawrence G. Feinberg, Staff Attorney
lfeinberg@legis.state.pa.us
717-787-6450

Project Staff:
Karen E. Maynard, Economist
Glenn J. Pasewicz, Assistant Director
Debra P. Reese, Administrative Assistant

NOTE: For additional copies of the report, please contact the Joint State
Government Commission at 717-783-9378. Additional copies of this
report can also be found at the Joint State Government Commission’s
website, http://jsg.legis.state.pa.us, under publications. Any questions
regarding specifics of the report should be addressed to the project
manager.

-iv-

TASK FORCE ON
SERVICES TO INDIGENT CRIMINAL DEFENDANTS

Members
Senator Patrick M. Browne
(Chair)
Senator Jim Ferlo
Senator Wayne D. Fontana
Senator Stewart J. Greenleaf

-v-

ADVISORY COMMITTEE
ON SERVICES TO INDIGENT CRIMINAL DEFENDANTS

Members
James E. Anderson
Gary Neil Asteak, Esq.
Christopher Diviny, Esq.
Ellen T. Greenlee, Esq.
Ellen Kramer, Esq.
Richard Long, Esq.
Michael J. Machen, Esq.
The Honorable Scott Martin
(Brinda Penyak, alternate)
Lisette McCormick, Esq.
Richard Pierce
Kenneth A. Rapp, Esq.
Nathan M. Schenker, Esq.
Phyllis H. Subin, Esq.
Witold “Vic” Walczak, Esq.
Bradley A. Winnick, Esq.
Joseph D. Weale, Esq. CPA
Barbara A. Zemlock, Esq.

-vi-

CONTENTS

EXECUTIVE SUMMARY ..........................................................................................

1

Findings ..................................................................................................................

5

Recommendations ..................................................................................................
Recommendation 1: Compliance with the Constitution ...............................
Recommendation 2: Statewide Indigent Defense Agency ............................
Recommendation 3: Composition of Indigent Defense Agency Board ........
Recommendation 4: Structure of the Statewide Agency ..............................
Recommendation 5: Powers and Duties of the Statewide Agency ...............
Recommendation 6: Defender Association of Pennsylvania ........................
Recommendation 7: Funding ........................................................................
Recommendation 8: Workload......................................................................
Recommendation 9: Compensation .............................................................
Recommendation 10: Conflict Counsel .........................................................
Recommendation 11: Full-Time Counsel .......................................................
Recommendation 12: Data Collection and Access .........................................

9
9
9
9
9
10
10
11
11
11
11
11
12

CHAPTER ONE. INTRODUCTION .........................................................................

13

CHAPTER TWO. THE RIGHT TO COUNSEL ........................................................

17

Individual Representation ......................................................................................
Development of the Right to Representation ...................................................
Effective Representation ..................................................................................

17
17
21

Indigent Defense Systems ......................................................................................

23

-vii-

CHAPTER THREE. INDIGENT DEFENSE SYSTEMS IN OTHER STATES .......

25

General Structures ..................................................................................................

25

Systems in Selected States .....................................................................................
Georgia .............................................................................................................
Structure and Funding ................................................................................
A Problematic Reform ...............................................................................
Indiana ..............................................................................................................
Louisiana ..........................................................................................................
Massachusetts ...................................................................................................
Michigan...........................................................................................................
Montana............................................................................................................
Nevada ..............................................................................................................
New Mexico .....................................................................................................
Oregon ..............................................................................................................
Texas ................................................................................................................
Utah ..................................................................................................................
Virginia.............................................................................................................

26
27
27
28
30
32
34
36
38
40
40
41
42
43
44

CHAPTER FOUR. DATA COLLECTION ................................................................

47

Deficiencies in Indigent Defense Data ...................................................................

47

Data Collection for This Study...............................................................................

48

CHAPTER FIVE. EVALUATION OF
PENNSYLVANIA’S INDIGENT DEFENSE SYSTEM ..........................................

53

Introduction ............................................................................................................

53

Professional Independence .....................................................................................

54

Involvement of Private Bar ....................................................................................

56

Statewide Supervision and Funding .......................................................................
Statewide Funding ............................................................................................
Statewide Oversight .........................................................................................

58
59
60

Defender Association of Philadelphia ....................................................................
Description of Defender Association of Philadelphia ......................................
Role of DAP in Proposed System ....................................................................

62
62
64

-viii-

Timely Assignment of Counsel ..............................................................................
Eligibility Determinations ................................................................................
Collection of Fees from Defendants.................................................................

64
65
65

Facilitating the Attorney-Client Relationship ........................................................

66

Excessive Caseloads ...............................................................................................
National Standards ...........................................................................................
Obligation to Refuse Work ..............................................................................
Capital Cases ....................................................................................................
Public Defender Caseloads in Pennsylvania ....................................................
Excessive Caseloads in Particular Counties .....................................................
Court-Appointed Counsel Caseloads ...............................................................

68
69
71
72
73
75
78

Selection of Counsel...............................................................................................

78

Continuity of Representation .................................................................................

80

Resources ...............................................................................................................
Statewide Resources .........................................................................................
Current Spending Levels ..................................................................................
Comparison of PD and DA Budgets ................................................................
Access to Research ...........................................................................................
Salaries .............................................................................................................
Public Defenders ........................................................................................
Contract and Court-Appointed Counsel .....................................................
Support .............................................................................................................
Investigators ...............................................................................................
Experts........................................................................................................
Social Workers and Administrative Staff...................................................
Technology .................................................................................................
Overuse of Plea Bargaining..............................................................................

81
82
83
87
88
88
88
90
91
91
92
92
93
94

Training ..................................................................................................................

95

Supervision and Accountability .............................................................................

96

Part-Time Public Defenders ...................................................................................

98

Failure of the Luzerne County Judicial System .....................................................

99

CHAPTER SIX. CONCLUSION ............................................................................... 105

-ix-

DRAFT INDIGENT DEFENSE STATUTE ............................................................... 109
Features of Proposal ............................................................................................... 109
Office Structure ...................................................................................................... 110
Costs and Implementation Plan .............................................................................. 111
Draft Indigent Defense Statute ............................................................................... 112

GLOSSARY OF ACRONYMS ................................................................................... 125

BIBLIOGRAPHY ........................................................................................................ 127

APPENDIX A. Senate Resolution No. 42 of 2007 (Printer’s No. 150) ...................... 133

APPENDIX B. Operational Cost Categories
for Office of Indigent Defense Services ..................................................................... 141

-x-

EXECUTIVE SUMMARY

In the landmark case of Gideon v. Wainwright, the U.S. Supreme Court ruled that
free counsel for criminal defendants who cannot afford to hire an attorney is mandated
upon the states by the Sixth Amendment of the U.S. Constitution. Justice Hugo Black
explained why this conclusion is necessary if the courts of this nation are to administer
genuine justice:
[R]eason and reflection require us to recognize that 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. This seems to us to be an obvious truth. Governments,
both state and federal, quite properly spend vast sums of money to
establish machinery to try defendants accused of crime. Lawyers to
prosecute are everywhere deemed essential to protect the public’s interest
in an orderly society. Similarly, there are few defendants charged with
crime, few indeed, who fail to hire the best lawyers they can get to prepare
and present their defenses. That government hires lawyers to prosecute
and defendants who have the money hire lawyers to defend are the
strongest indications of the wide-spread belief that lawyers in criminal
courts are necessities, not luxuries. The right of one charged with crime to
counsel may not be deemed fundamental and essential to fair trials in
some countries, but it is in ours.1
The U.S. Supreme Court has subsequently extended the requirement of free counsel from
the felony prosecution involved in Gideon to misdemeanor prosecutions and juvenile
proceedings and from the trial itself to all “critical proceedings” after arrest.
However, a thorough study of the Commonwealth’s indigent defense system
(IDS) published in 2003 by the Pennsylvania Supreme Court Committee on Racial and
Gender Bias concluded that the Supreme Court’s mandate has been ignored by the
General Assembly, and largely because of that neglect, is not being fulfilled in
Pennsylvania:
Despite the expansive procedural rights afforded under law,
indigent criminal defendants in Pennsylvania are not assured of receiving
adequate, effective representation. Notably, Pennsylvania, South Dakota,
and Utah are the only three states that provide no state funds to ensure that

1

Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796-97 (1963).

-1-

indigent citizens are afforded adequate criminal defense services.
Pennsylvania also does not provide any statewide oversight of indigent
defense systems.
The study reported here . . . indicates that Pennsylvania is
generally not fulfilling its obligation to provide adequate, independent
defense counsel to indigent persons. Contributing factors include the
Commonwealth’s failure to provide sufficient funding and other resources,
along with a lack of statewide professional standards and oversight. In
addition, efforts to improve the indigent defense system have been
impeded by the lack of reliable, uniform statewide data collection.2
In the intervening eight years, the only significant change is that South Dakota and Utah
now do provide some state funding for indigent defense, leaving Pennsylvania as the only
state that does not appropriate or provide for so much as a penny toward assisting the
counties in complying with Gideon’s mandate.3 This failure is particularly burdensome to
the poorer counties, which must contend with the dual handicap of scant resources and
high crime rates.
The lack of state financial support and oversight has led to a service deficiency
syndrome, as summarized in the Racial and Gender Bias Report:
Pennsylvania has no mechanism in place to hold accountable either
the lawyers who represent the poor or the county and judicial officials who
administer indigent defense systems. The absence of guidelines for the
appointment of counsel has resulted in minimal quality control. In
addition, the flat fee paid to appointed counsel can be a disincentive to
effective preparation and advocacy; the low compensation rates create
little incentive to develop expertise in criminal defense. Moreover, the
sparse resources available for support services, coupled with exploding
and unmanageable caseloads, allow indigent defense counsel little time,
training, or assistance for conferring with clients in a meaningful manner,
researching relevant case law, reviewing client files, conducting necessary
pre-trial investigations, securing expert assistance or testimony, or
otherwise preparing adequately for hearings and trials. Compounding
these deficiencies is the lack of political independence afforded PDs
whose budgets are controlled by local county politicians.4

2

Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Judicial
System (Racial and Gender Bias Report) (n.p.: Pennsylvania Supreme Court, 2003), 164-65.
3
Some counties received small amounts that helped support indigent defense for juveniles in FY 2010-11
and earlier fiscal years through the Department of Public Welfare (DPW), but that funding has been
terminated for FY 2011-12. There has never been a line item in the Commonwealth budget specifically for
funding indigent defense, nor do our statutes provide for funding through a special fund or any similar
mechanism.
4
Racial and Gender Bias Report, 168.

-2-

For many defendants, this means the attorney’s knowledge of the facts of the case will be
supplied entirely by the police report, perhaps supplemented by a hurried conversation
with the client on the way to the hearing that will dispose of the case. Due to the
impediments faced by those representing indigent defendants, despite their best efforts,
there have been instances where a man or woman who was completely innocent of the
offense or who had a perfectly valid defense to the charge nevertheless served jail time.
The problem is not the public defenders (PDs) themselves, but the system in
which they work. Most PDs are hard-working, committed, and competent professionals.
The problem is that they must work against daunting obstacles: inadequate training and
oversight, severely limited resources, and unmanageable caseloads. In many of
Pennsylvania’s counties, the most brilliant and accomplished lawyer could not provide
adequate representation because he or she simply would not have the time and resources
needed to mount a constitutionally adequate defense. Broadly speaking, Pennsylvania’s
indigent defense labors under an obsolete, purely localized system, a structure that
impedes efforts to represent clients effectively. The General Assembly can greatly
improve the system by adopting systemic reforms based on the ABA’s “Ten Principles of
a Public Defense Delivery System,”5 which state the widely accepted standards for
improving a state indigent defense system (IDS).
Because our IDS is funded and managed exclusively at the county level, there are
glaring disparities in the services, training and supervision provided in different counties
and often a lack of professional independence from outside interference. The “kids for
cash” scandal in Luzerne County has thrown these deficiencies into sharp relief. Former
Judge Mark Ciavarella of the Court of Common Pleas of Luzerne County violated the
constitutional rights of up to 4,000 juveniles. The special master appointed to determine
the final disposition of these cases identified 1,866 cases in which juveniles appeared
before Judge Ciavarella without counsel or where the right to counsel was not properly
waived. Juveniles who had committed minor offenses were consigned for harshly
excessive terms to juvenile detention centers in return for kickbacks and other favors that
a co-owner of the centers rendered to Ciavarella and former Judge Michael Conahan. The
chief PD of the county at the time directed office staff to deemphasize juvenile cases
because of lack of resources. Partly because of this official policy, it became accepted
practice before these judges that juveniles would face the court with either no legal
representation, or only token representation, and that no effort would be made to ensure
that waivers of constitutional rights would be informed and voluntary.
The failure of the legal community to respond appropriately to these
unconstitutional practices enabled them to continue unchecked. This scandal illustrates
the need for statewide structures to ensure that local IDSs will be overseen and held
accountable for unprofessional practices and will be independent of political and judicial
interference.

5

American Bar Association, “Ten Principles of a Public Defense Delivery System,” (ABA,
February
2002)
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprinciples
booklet.pdf.

-3-

While recognizing the difficult fiscal environment the Commonwealth faces
currently, the advisory committee urges the General Assembly to perform its duties under
the U.S. Constitution and as a civilized society by finally addressing the deficiencies that
undermine its indigent criminal defense system by reforming the system to comply with
national standards.

-4-

FINDINGS

Based on the data collected for this study and the personal observations of the
advisory committee members, based on their extensive experience, the committee
presents the following findings regarding the Commonwealth’s IDS, many of which are
nearly identical to those reached eight years ago in the Racial and Gender Bias Report:
In much of the Commonwealth, the IDS suffers from interference from the
county administration and the county judiciary. An IDS can perform its
function only when it is free from those influences.
Lack of standardized, well-defined training, supervision, and accountability
has contributed to the failure of some indigent defense practitioners to provide
representation that meets professional standards.
Lack of state support has undermined the effectiveness of indigent defense in
much of Pennsylvania.
Local defenders lack access to resources essential to effective representation:
investigators, experts, technology, training and supervision, social workers,
administrative staff, private meeting space, and access to legal research
materials.
Salaries for PDs are seriously inadequate and are often below salaries for
prosecutors, leading to low morale and high attrition rates.
Lawyers representing indigent defendants often carry caseloads so excessive
as to drastically impede the ability of counsel to provide competent, effective,
and ethically responsible representation.
Processes and practices for appointing and remunerating assigned and conflict
counsel result in poor quality representation.
The system lacks any systematic statewide mechanism for collecting data, and
access to existing data is unnecessarily impeded. Since there is no centralized
data collection point, the current data from individual counties is so
inconsistent and unreliable that no useful statewide caseload numbers can be
reported.

-5-

Additional state funding necessary to improve the system is likely to be
partially offset by savings generated by reducing the cost of retrials due to
ineffective representation and the cost of inappropriate jail sentences.
This report will describe in more detail the deficiencies in the system and
recommend that statewide oversight and funding are necessary to create an IDS that
recognizes the rights and dignity of individual defendants and complies with the
Constitutions of the United States and of Pennsylvania. Throughout the nation, much
careful thought has gone into formulating the broad principles and particular standards
that should characterize an effective IDS. The “Ten Principles of a Public Defense
Delivery System,” as developed by the ABA are the accepted criteria for IDS reform
throughout the nation. The Commonwealth must strive to develop and implement these
principles if it is to have a system that meets the constitutional demands of basic justice.
The following chart sets forth the advisory committee’s evaluation of
Pennsylvania’s IDS as measured against the ABA’s Ten Principles:

PENNSYLVANIA
IDS PERFORMANCE

ABA PRINCIPLE

1. The public defense function, including In many counties, the IDS is subject to
the selection, funding, and payment
interference from the judiciary, the county
of defense counsel, is independent.
commissioners, or both.

2A. Where the caseload is sufficiently
high, the IDS consists of both a
defender office and the active
participation of the public bar.

The private bar is meaningfully involved in
the provision of indigent defense, but the
quality of representation is not monitored
and attorneys are significantly underpaid.

2B. There should be state funding and a
statewide structure responsible for
ensuring uniform quality statewide.

There is no direct state funding, nor is there
a statewide administrative structure for
ensuring uniform quality of representation
or reasonably consistent eligibility
standards.

3. Clients are screened for eligibility,
and defense counsel is assigned and
notified of appointment, as soon as
feasible after clients’ arrest,
detention, or request for counsel.

In some counties, representation begins
before the preliminary hearing (as it
should), but in other counties, that hearing
is the first time the attorney meets with the
client.

-6-

PENNSYLVANIA
IDS PERFORMANCE

ABA PRINCIPLE

4. Defense counsel is provided sufficient
time and a confidential space within
which to meet with the client.

Compliance unknown, due to lack of data.
However, in some counties problems with
providing adequate space have been
identified.

5. Defense counsel’s workload is
controlled to permit rendering of
quality representation.

In many if not most counties, attorney
workloads substantially exceed
recommended limits, which do not include
several types of cases that did not exist
when those limits were formulated.

6. Defense counsel’s ability, training,
and experience match the complexity
of the case.

Counties use a variety of systems for
assigning counsel to cases. In many
counties, an attorney license and
membership in the county bar are the only
requirements for a noncapital case.

7. The same attorney continuously
represents the client until the
completion of the case.

In many counties, PDs are assigned to
courtrooms rather than clients, and it is
common for several attorneys to handle a
case throughout the entire criminal process.

8. There is parity between defense
counsel and the prosecution with
respect to resources, and defense
counsel is included as an equal partner
in the justice system.

In most counties, the resources available to
the DA are much greater than those of the
PD and the DA has more political influence
than the defense bar.

9. Defense counsel is provided with and
required to attend continuing legal
education.

Aside from mandatory CLE requirements,
indigent defense counsel generally do not
participate in professional development
courses, and when they do they often must
pay all or part of the cost themselves.

10. Defense counsel is supervised and
systematically reviewed for quality
and efficiency according to nationally
and locally adopted standards.

The system’s inability to provide
supervision and accountability has resulted
in a deterioration of professional standards.

-7-

In general, the Defender Association of Philadelphia measures up to these
standards much better than IDSs elsewhere in the Commonwealth. However, the
compensation for contract and conflict counsel in Philadelphia is lower than in the other
counties and thus utterly inadequate. There is considerable variation in the performance
of the other county IDSs in Pennsylvania, but the Commonwealth as a whole meets only
one of these principles, viz., Principle 2, involvement of the private bar. (Continuing
legal education (Principle 9) is mandated but often not “provided” except at the
attorney’s expense.) The advisory committee therefore concludes that Pennsylvania fails
to meet its constitutional duty to provide effective legal defense for indigent defendants
in criminal cases.

-8-

RECOMMENDATIONS

Recommendation 1: Compliance with the Constitution
The Commonwealth of Pennsylvania should adhere to its obligations regarding
the right to competent counsel under the Sixth Amendment of the Federal Constitution
and article I, § 9 of the Pennsylvania Constitution, in order to guarantee fair adult
criminal and juvenile proceedings. Accordingly, the Commonwealth should assure that
quality indigent defense services are provided to accused persons who cannot afford to
hire counsel. This can best be done by adopting the ABA’s “Ten Principles of a Public
Defense Delivery System” as the guiding principles for Pennsylvania’s indigent defense
system.

Recommendation 2: Statewide Indigent Defense Agency
Pennsylvania should establish a statewide, independent, non-partisan Office of
Indigent Defense, headed by a board responsible for all components of indigent defense
services. Because of the longstanding status of the Defender Association of Philadelphia
(DAP) as the city’s the provider of indigent defense services and its recognized
excellence in meeting the heavy responsibilities of that task, it should be exempt from the
control of the statewide office.

Recommendation 3: Composition of Indigent Defense Agency Board
The members of the board overseeing the indigent defense agency should be
appointed by leaders of the executive, judicial, and legislative branches of government.
The board should include representatives of local bar associations, among other groups.
Members should not bear any obligation to those responsible for their appointments. All
members of the board should be committed to the delivery of quality indigent defense
services. A majority of the members should have accumulated substantial experience in
providing indigent defense representation.

Recommendation 4: Structure of the Statewide Agency
The agency should be under the management of an executive director appointed
by the board. The following components of the agency are so essential to its effective
functioning that they should be provided for by statute: a capital case division, under a

-9-

division director; an appellate and postconviction review division, under a division
director; a director of juvenile defense services; an information management and
technology officer; and a director of training and professional development.

Recommendation 5: Powers and Duties of the Statewide Agency
The statewide indigent defense agency should have the power and duty to manage
the delivery of legal representation for indigent adults in criminal cases and all children in
delinquency cases in such a manner as to ensure that such services will be effectively and
competently done. The agency should do this primarily by setting statewide standards
and enforce compliance with them. The standards should cover all key areas of service
delivery and administration, including performance, supervision, training, attorney
workload, support services, eligibility of defendants for public counsel, timeliness of
commencement of representation, and data collection and analysis. In addition, the
statewide agency should have the following powers and duties:
To contract with county PD offices, non-profit defender agencies, and other
providers to deliver local indigent defense services.
To hire, supervise, and fire county chief PDs serving after reform legislation
goes into effect. (Chief county PDs serving currently should be able to retain
their current positions, but should be subject to dismissal for good cause.)
To receive and act upon client complaints of inadequate representation where
they indicate a pattern of poor performance.
To provide for appellate and postconviction litigation services for adults and
juveniles, either directly or through contracts with qualified providers.

Recommendation 6: Defender Association of Philadelphia
Because of the unique and outstanding accomplishments of the Defender
Association of Philadelphia, the advisory committee recommends that it should continue
to handle indigent defense representation for cases arising in Philadelphia. In view of
DAP’s excellent record in maintaining professional standards, it should not be subject to
the professional supervision of the statewide office and should be responsible for
formulating and enforcing its own professional guidelines. The statewide office should
contract with DAP to remunerate the latter for its handling of appeals arising from
Philadelphia cases (including appeals from capital cases). The statewide office should

-10-

also contract with DAP to handle 20% of Philadelphia capital trials. The remaining
capital cases in Philadelphia should continue to be assigned by the Philadelphia Court of
Common Pleas to qualified counsel.

Recommendation 7: Funding
Funding for the agency should be provided primarily by the Commonwealth from
the general fund. Such funding should be sufficient to enable publicly funded defense
attorneys to deliver zealous and highly competent indigent defense representation in
accordance with the adversary system. In addition, the statewide agency and local
providers should seek supplemental funding as available from federal and private
sources. None of the funding for the IDS should come from its clients.

Recommendation 8: Workload
Caseloads for defense attorneys must be controlled so as to be consistent with the
provision of quality defense services as defined by the Rules of Professional Conduct and
must take into account administrative responsibilities as well as direct client
representation. Standards should be formulated and implemented to ensure that caseloads
will not become excessive.

Recommendation 9: Compensation
State and local authorities should provide fair remuneration to publicly funded
defenders, including PDs, appointed counsel and contract counsel. Full-time PDs should
receive salaries commensurate with their professional experience and equal to equivalent
prosecution attorneys when prosecutors are fairly compensated.

Recommendation 10: Conflict Counsel
The IDS must assure that every indigent defendant will be represented by an
attorney who is free from a conflict of interest. There should be a pool of conflict counsel
in each judicial district, independently managed from the PD of that district, but subject
to the jurisdiction of the statewide agency.

Recommendation 11: Full-Time Counsel
The IDS should employ full-time attorneys to the greatest practicable extent. The
executive director and the attorneys employed by the office of indigent defense should be
required to be full-time employees. Chief PDs should also be required to be full-time,
unless the statewide office determines that it is not feasible to require a full-time

-11-

commitment in the particular county. Assistant PDs should be full-time to the maximum
extent feasible as determined by the statewide office. Full-time PDs should be prohibited
from engaging in private practice, but that restriction should not apply to assigned
counsel or contract counsel.

Recommendation 12: Data Collection and Access
The system of data collection established by the agency should provide
continuous and accurate data, according to a plan that is rationally designed to capture the
kinds of data that are most useful for policy analysis. The system’s database should
include the number of new appointments by case type, the number of dispositions by case
type, and the number of pending cases, based on uniform definitions of a “case,” and
other data as determined by the statewide agency after consultation with local defenders.
Funding of local indigent defense agencies should be contingent on their satisfactory
compliance with data reporting requirements.

-12-

CHAPTER ONE
INTRODUCTION

This report is submitted pursuant to 2007 Senate Resolution No. 42, which
mandated a study of Pennsylvania’s “current system for providing services to indigent
criminal defendants.”6 As directed by SR 42, the Joint State Government Commission
assembled an advisory committee to guide this study. The advisory committee held a
series of meetings with Commission staff, and its guidance was essential to the conduct
of the study and the drafting of this report.
Throughout its discussions, the advisory committee held a strong consensus on
many basic points. In their view, the indigent defense system (IDS) of the
Commonwealth is inadequate to reliably afford defendants the rights they are guaranteed
under the Constitutions of the United States and of Pennsylvania. In order to remedy this
defect, the Commonwealth must create a statewide office, under an independent board, to
administer its IDS in accordance with the “Ten Principles of a Public Defense Delivery
System” as formulated by the ABA. The statewide office would ensure that the IDS
would be free of political and judicial interference and would operate under high
professional standards. Such a system requires state funding for the operation of the
central office, but it should incorporate, not supplant, the existing county PDs. Among
other advantages, a statewide office with Commonwealth support would help ameliorate
the disparities in the quality of representation across counties and help equalize the
resources allotted to PD and DA offices.
The advisory committee initially determined that it needed reliable data about the
status of indigent defense in Pennsylvania to inform its discussions. A series of surveys
were conducted by Commission staff with the assistance of several members of the
advisory committee. This study encountered considerable difficulty in collecting usable
data, which supports the committee’s call in this report for a rational data collection
system administered by the statewide office. In addition to its own surveys, the
committee relied to a significant extent on the findings of the 2003 study by the Supreme
Court Committee on Racial and Gender Bias in the Justice System.7
Several national experts on indigent defense suggested by members of the
advisory committee were brought in to address the committee. On September 15, 2009,
David Carroll, director of research and evaluation for defender legal services of the
National Legal Aid and Defender Association (NLADA), presented his research on
indigent defense systems around the country. Mr. Carroll highlighted several states’
6

SR 42 is included in this report as Appendix A.
Racial and Gender Bias Report, chap. 5, 163-97, which contains the findings of the extensive study of
Pennsylvania’s indigent defense system by the Spangenberg Group.
7

-13-

systems that had faced severe problems and the reforms they implemented with some
success. He discussed the ABA principles and how each is being addressed in state
reforms.
At that same meeting, Phyllis Subin made a presentation based on her experience
as a PD with the Defender Association of Philadelphia (DAP), as chief PD in New
Mexico, and as a national consultant. She emphasized the importance of training in
creating a culture of adherence to high professional standards through statewide training
programs for all supervisory and front-line attorneys.
On November 10, 2009, the committee heard a presentation from Robin
Dahlberg, senior staff attorney for the ACLU racial justice program. She discussed the
ACLU’s reform efforts in Allegheny County and Venango County, as well as in
Michigan and Montana. She observed that ACLU’s current strategy focuses on litigation
to force the creation of state systems where county systems exist. Needed reforms include
client-centered adversarial representation, training, supervision, and standards for
practice and workload, as well as increased funding.
At the same meeting, Professor Norman Lefstein made a presentation on IDSs
and reform efforts throughout the United States. He is dean emeritus and professor of law
at the University of Indiana School of Law at Indianapolis and a nationally recognized
expert on indigent defense, whose career includes seventeen years of service as chair of
the Indiana Public Defender Commission, and co-authorship of Justice Denied, the most
comprehensive report on contemporary IDSs in the United States. He stressed the
importance of the Ten Principles, especially the need for independence from judicial and
political interference, control of attorney caseloads, and active involvement of the private
bar.
At the committee’s next meeting on January 26, 2010, Robert Listenbee, chief of
the juvenile unit of DAP and president of the Juvenile Defenders Association of
Pennsylvania, and Barbara Krier, senior assistant PD for York County, presented the
committee with a draft report of the Pennsylvania Juvenile Indigent Defense Action
Network (PA-JIDAN). They provided background information on the structure of
juvenile indigent defense and advocated committee approval of PA-JIDAN’s
recommendations for reform of juvenile defense. These included adoption of standards
for PDs and court-appointed counsel representing juveniles, establishment of a
Pennsylvania Center for Juvenile Defense Excellence, support for legislation providing
that children in the juvenile justice system be deemed indigent and entitled to a
court-appointed lawyer, and restriction of waiver of counsel by juveniles and
appointment of standby counsel when such waiver is permitted.
At the advisory committee meeting on October 12, 2011, Harry J. Cancelmi, chief
public defender of Greene County, and Wieslaw T. Niemoczynski, chief public defender
of Monroe County, presented evidence that the wide disparity in resources between DAs
and PDs seriously undermines the effectiveness of the latter. Mr. Cancelmi detailed how
underfunding the county PDs compromises their independence and impedes the career

-14-

development of professional staff. Mr. Niemoczynski emphasized that the support
organizations for DAs are far better funded than their counterparts on the defense side
and called the imbalance “shortsighted.”
Meetings of the advisory committee took place on March 24, 2010,
September 27, 2010, March 3, 2011, and October 12, 2011, to develop and oversee the
drafting of the report.
Drafts of the report have been circulated to the members of the advisory
committee for review. Factual assertions that are not cited to published sources are
supported by the extensive personal experience of advisory committee members. While
individual members of the advisory committee may disagree with particular points made
in this report, the factual observations and policy recommendations in the report reflect
the broad consensus of the advisory committee.
The Joint State Government Commission would like to express its deep
appreciation to the members of the advisory committee, to David Carroll, Robin
Dahlberg, Barbara Krier, Norman Lefstein, Robert Listenbee, and to the PDs throughout
the Commonwealth who contributed invaluable assistance to this study.

-15-

-16-

CHAPTER TWO
THE RIGHT TO COUNSEL

This chapter describes the leading cases establishing the right to publicly paid
counsel for indigent defendants, the constitutional standard regarding the performance of
counsel, and litigation regarding the minimum standard of effectiveness for the IDS as a
whole.
The right to counsel in the United States is grounded in the Sixth Amendment to
the U.S. Constitution, which states in pertinent part as follows: “In all criminal
prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel in his
defense.” When originally adopted as part of the Bill of Rights, the Sixth Amendment
applied only to the federal government, not to the states, and it guaranteed only that the
government could not prohibit a defendant who had hired counsel to have the benefit of
counsel in court.8
Since 1776, the Constitution of Pennsylvania has provided that “[i]n all criminal
prosecutions, the accused hath a right to be heard by himself and his counsel . . . .” This
provision, along with guarantees of several other rights relating to criminal proceedings,
currently appears in Article I, § 9.

INDIVIDUAL REPRESENTATION
Development of the Right to Representation
In Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932), the federal Supreme
Court expanded the Sixth Amendment to guarantee a right to counsel provided at
government expense to persons who could not afford a lawyer. This case arose from the
famous Scottsboro Boys trial, where nine black youths were accused of raping two white
women. In a whirlwind proceeding, all but the youngest were sentenced to death by an all
white jury. The defendants were afforded a lawyer, as required by Alabama law in a
capital case, but the lawyers were not assigned and did not meet their clients until the
very morning of the trial.9 Speaking through Justice George Sutherland, the Court held

8

The Constitution Project, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to
Counsel (Washington, D.C.: Constitution Project, 2009), 18.
9
Ibid., 18-19.

-17-

that the defendants, convicted under these circumstances, were denied meaningful
assistance of counsel in violation of the Due Process Clause of the Fourteenth
Amendment. The Court elaborated on the importance of counsel in assuring a fair trial:
The right to be heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel. Even the intelligent and
educated layman has small and sometimes no skill in the science of law. If
charged with crime, he is incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel he may be put on trial without a
proper charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both the skill
and knowledge adequately to prepare his defense, even though he have a
perfect one. He requires the guiding hand of counsel at every step in the
proceedings against him. Without it, though he be not guilty, he faces the
danger of conviction because he does not know how to establish his
innocence. 287 U.S. at 68-69, 53 S. Ct. at 64.
The right to counsel at this stage was limited to capital cases, and arguably to defendants
who were “incapable adequately of making [their] own defense because of ignorance,
feeble-mindedness, illiteracy, or the like.” However, the right already attached “whether
requested or not” and was not satisfied “by an assignment at such a time or under such
circumstances as to preclude the giving of effective aid in the preparation or trial of the
case.” 287 U.S. at 71, 53 S.Ct. at 65.
The Court declined to apply the Sixth Amendment to the states in Betts v. Brady,
316 U.S. 455, 62 S.Ct. 1252 (1942). In a 6-3 decision, the Court retained a case-by-case
approach.
[T]he Fourteenth Amendment prohibits the conviction and incarceration of
one whose trial is offensive to the common and fundamental ideas of
fairness and right, and while the want of counsel in a particular case may
result in a conviction lacking in such fundamental fairness, we cannot say
that the amendment embodies an inexorable command that no trial for any
offense, or in any court, can be fairly conducted and justice accorded to a
defendant who is not represented by counsel. 316 U.S. at 473, 62 S. Ct. at
1262.
The Court dealt with Powell by recalling that its holding was limited to capital cases (the
defendant in Betts was charged with robbery) and to defendants whose inability to mount
a defense was limited by the factors listed above. 316 U.S. at 463, 62 S. Ct. at 1256-57.
The Court then reviewed the corresponding provisions of the various state constitutions
both at the time of the Constitution’s enactment and contemporaneously with Betts. In
three states the state constitution required appointment of counsel where the defendant
was unable to afford a lawyer, and in eighteen states a statute provided for a right to free

-18-

counsel. In most states, the state constitution guaranteed only that the state could not deny
the defendant the right to be represented by counsel retained by the defendant. 316 U.S.
at 466-72, 62 S. Ct. at 1258-61.
Writing for the three dissenters, Justice Hugo Black maintained that the Sixth
Amendment applies to the states, but noted the majority’s disagreement with that
position. At the same time, he argued that the conviction of Betts without counsel
violated the Due Process Clause, giving a rationale that would be broad enough to apply
the Sixth Amendment to the states as a fundamental right.
A practice cannot be reconciled with common and fundamental ideas of
fairness and right, which subjects innocent men to increased dangers of
conviction merely because of their poverty. Whether a man is innocent
cannot be determined from a trial in which, as here, denial of counsel has
made it impossible to conclude, with any satisfactory degree of certainty,
that the defendant’s case was adequately presented. . . .
Denial to the poor of the request for counsel in proceedings based
on charges for serious crimes has long been regarded as shocking to the
universal sense of justice throughout this country. 316 U.S. at 476, 62 S.
Ct. at 1263 [internal quotations omitted].
In Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), one of the most
celebrated cases in the history of the Supreme Court,10 Justice Black wrote for the Court
in a decision that overturned Betts v. Brady and applied to the states the right to free
counsel for indigent defendants. As with other decisions of the Warren Court, Gideon
embraced an approach to the Constitution that was more protective than previous Courts
of individual rights and less solicitous of federalist diversity among the states. Justice
Black argued strongly that legal representation is essential to the fairness of a criminal
proceeding.
[R]eason and reflection require us to recognize that 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. This seems to us to be an obvious truth. Governments, both state and
federal, quite properly spend vast sums of money to establish machinery to
try defendants accused of crime. Lawyers to prosecute are everywhere
deemed essential to protect the public’s interest in an orderly society.
Similarly, there are few defendants charged with crime, few indeed, who
fail to hire the best lawyers they can get to prepare and present their
defenses. That government hires lawyers to prosecute and defendants who

10

The case is the subject of Gideon’s Trumpet (1964) the bestselling book by Anthony Lewis and a
Hallmark Hall of Fame film of the same name, in which Henry Fonda played the defendant Clarence Earl
Gideon.

-19-

have the money hire lawyers to defend are the strongest indications of the
wide-spread belief that lawyers in criminal courts are necessities, not
luxuries. The right of one charged with crime to counsel may not be
deemed fundamental and essential to fair trials in some countries, but it is
in ours. From the very beginning, our state and national constitutions and
laws have laid great emphasis on procedural and substantive safeguards
designed to assure fair trials before impartial tribunals in which every
defendant stands equal before the law. This noble ideal cannot be realized
if the poor man charged with crime has to face his accusers without a
lawyer to assist him. 372 U.S. at 344, 83 S. Ct., at 796-97.
The opinion relied on the passage from Powell v. Alabama, quoted above, to establish the
need for an attorney to conduct a defense of even an innocent defendant.
By itself, Gideon established the right to be represented at trial where the indigent
defendant was charged with a felony (in Gideon’s case, breaking and entering a pool hall
with intent to commit a misdemeanor, which was a felony under Florida law).
Subsequent precedents have broadened the right to counsel in several ways.11 It applies to
“critical stages” of the criminal justice process prior to trial, but after judicial proceedings
are initiated against the defendant; a “critical stage” is “any stage of the prosecution,
formal or informal, in court or not, where counsel’s absence might derogate from the
accused’s right to a fair trial.”12 Such stages include line-up identification,13
arraignment,14 preliminary hearing,15 plea negotiation, entry of a guilty plea,16 and
appeals.17 Second, the right has expanded to proceedings other than the felony trial
involved in Gideon, to encompass juvenile delinquency proceedings18 and misdemeanors
that may result in imprisonment.19 The Court has also afforded the indigent the right to
related services other than counsel, including trial transcripts20 and expert assistance.21

11

American Bar Association, Standing Committee on Legal Aid and Indigent Defendants
(ABA/SCLAID), “Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice” (Chicago:
ABA, December 2004).
12
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967).
13
Id.; Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951 (1967).
14
Hamilton v. Alabama, 368 U.S. 53, 82 S. Ct. 157 (1961).
15
Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970).
16
White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963).
17
Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963); Halbert v. Michigan, 545 U.S. 605,
125 S. Ct. 2582 (2005).
18
In re Gault, 387 U.S. 1, 87 S. Ct. 1428 (1967).
19
Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006 (1972).
20
Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585 (1956).
21
Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985).

-20-

In Pennsylvania, the right to counsel is in certain respects broader than it is under
the U.S. Constitution.22 The right applies upon the arrest of the suspect, even if no formal
proceedings have commenced.23 Convicted defendants in Pennsylvania have a
constitutional right to representation in postconviction proceedings24 and parole
revocation hearings.25 In both respects, Pennsylvania law may exceed the minimum
requirements under federal constitutional law.

Effective Representation
In Strickland v. Washington, 466 U.S. 468, 104 S. Ct. 2052 (1984), the U.S.
Supreme Court held that the right to counsel includes the right to the effective assistance
of counsel, which is denied when counsel fails to represent the client competently.26 This
case permits a convicted defendant to file a “collateral attack” on the conviction to
overturn it if ineffective assistance of counsel is established. The Court laid down the
standards under which effectiveness would be determined.
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable. 466
U.S. at 687, 104 S. Ct. at 2064.

22

See The Spangenberg Group, “A Statewide Evaluation of Public Defender Services in Pennsylvania”
(West Newton, Mass.: SG, May 2002), 5-7 (Appendix vol. 1 to the Racial and Gender Bias Report, 164).
23
Commonwealth v. Richman, 320 A.2d .351, 352-54 (Pa. 1974) (right to counsel commences upon arrest);
Kirby v. Illinois, 406 U.S. 682 (1972) (right to counsel commences at the indictment), but see U.S. v. Ash,
413 U.S. 300 (1973) (right to counsel does not apply to postindictment photograph identification). The
governing rule under the Sixth Amendment is that the right attaches upon the initiation of adversary
judicial proceedings. Kirby, 406 U.S. at 688, 92 S. Ct. at 1881.
24
Compare Commonwealth v. Mitchell, 235 A.2d 148 (Pa. 1967) (defendant entitled to free counsel for a
collateral attack under PCRA) with Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (U.S. Constitution
requires free counsel only for a direct appeal).
25
Commonwealth v. Tinson, 249 A.2d 549 (1969) (relying on Public Defender Act, § 6(a)(10);
16 P.S. § 9960(a)(10)); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973) (applicability of right to
counsel to parole revocation hearings is decided on a case-by-case basis).
26
The court had already held that effective assistance could be denied by the government if it “interferes in
certain ways with the ability of counsel to make independent decisions about how to conduct the defense”
such as when the government barred counsel from consulting with the defendant during an overnight
recess. Strickland, 466 U.S. at 686, 104 S. Ct. at 2063 (citing cases).

-21-

Clarifying the first prong of this test, the Court added:
When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness. . . . The
proper measure of attorney performance remains simply reasonableness
under prevailing professional norms. 466 U.S. at 687-88, 104 S. Ct. at
2064-65.
These include adhering to the ethical standards applicable to legal representation.
Professional guidelines “are guides to determining what is reasonable, but they are only
guides.” 466 U.S. at 688, 104 S. Ct. at 2065.
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission was unreasonable. . . . Because
of the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action might
be considered sound trial strategy. 466 U.S. at 689, 104 S. Ct. at 2065
[citations omitted].
Justice Denied comments that “commentators have been virtually unanimous” in
their criticism of Strickland because the standard is so deferential to counsel that it has
“proved impossible to meet.”27 In Pennsylvania, however, convictions have been
overturned due to ineffectiveness of counsel, although the majority of such appeals are
unsuccessful.28 The test for ineffectiveness in Pennsylvania, whether applying the U.S.
Constitution or article I, § 9 of the Pennsylvania Constitution, is very similar to the
Strickland test. Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). The prejudice
requirement under Pennsylvania law is more stringent than under federal law, in that the
defendant must prove that counsel’s ineffectiveness “so undermined the
truth-determining process that no reliable adjudication of guilt or innocence could have
taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). Commonwealth v. Buell, 658 A.2d 771,
777 (Pa. 1995).

27

Justice Denied, 40, 41, quoting with approval David Cole, No Equal Justice, 78-79 (1999).
42 Pa.C.S.A. § 9543 nn. 91-180. See, e.g., Commonwealth v. Hague, 840 A.2d 1018 (Pa. Super. 2003),
appeal denied, 878 A.2d 863 (Pa. 2005); Commonwealth v. Johnson, 875 A.2d 328 (Pa. Super. 2005),
appeal denied, 892 A.2d 822 (Pa. 2005); Commonwealth v. Scassera, 965 A.2d 247 (Pa. Super. 2009),
appeal denied, 985 A.2d 219 (Pa. 2009). Ineffectiveness challenges are governed by the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. Ch. 95, Subch. B, §§ 9541—9546.
28

-22-

The U.S. Supreme Court further spelled out its analysis of ineffectiveness of
counsel in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984). It laid down
three conditions, proof of which enabled ineffectiveness to be presumed, so that it did not
need to be established by the detailed facts of a particular case. These are the complete
failure to furnish counsel at all, the failure of the opposing counsel to subject the
prosecutor’s case to any meaningful adversarial scrutiny, and circumstances where “the
likelihood that any lawyer, even a fully competent one, could provide effective assistance
is so small that a presumption of prejudice is appropriate without inquiry into the actual
conduct of the trial.” Cronic, 466 U.S. at 658-60, 104 S. Ct. at 2046-47 (1984). Although
Cronic is not directly applicable to a broad challenge to the constitutionality of an IDS
(because it involved a posttrial collateral attack on the result of a single prosecution), it
has been argued that the third criterion can serve as a test of whether the IDS as a whole
meets the requirements of the Constitution, especially where defense counsel are faced
with clearly excessive caseloads.29

INDIGENT DEFENSE SYSTEMS
Because of the real or perceived inadequacies of IDSs across the United States, a
variety of court challenges have been mounted in order to have the system declared
unconstitutional. These challenges have been adjudicated at both the state and federal
level, with a variety of results. In many cases, the litigation has terminated in a settlement
that avoided a final judgment. In others, courts have ordered remedies that threatened to
bring the criminal justice system to a halt unless the issue was addressed.
Indigent defense attorneys have sued on behalf of all indigent defendants to obtain
sweeping relief. In Lavallee v. Justices in Hampden Superior Court, (2004)30 indigent
defendants in Massachusetts petitioned the trial court with the claim that insufficient
compensation for their defense had led to a withdrawal of attorneys from the system,
leaving an insufficient number of attorneys willing to accept assignments of cases. The
Supreme Judicial Court upheld this claim. Though it did not directly grant increases in
compensation rates, the Court ruled that “any indigent defendant incarcerated pretrial in
the county had to be released after seven days if counsel was not appointed, and any
pending case against an indigent defendant had to be dismissed after 45 days if no
attorney filed a court appearance on the defendant’s behalf.”31 The cases were dismissed
“without prejudice,” meaning that charges could be refiled until the statute of limitations
ran out on the offense. The following year, the Massachusetts legislature raised the
compensation to $100 per hour for homicide cases, $60 per hour for trial court cases, and

29

Justice Denied, 110-11.
http://caselaw.findlaw.com/ma-supreme-judicial-court/1014501.html; 812 N.E.2d 895 (Mass. 2004).
31
Justice Denied, 113-14.
30

-23-

$50 per hour for other cases, and appropriated funding for 100 additional PDs.32 Similar
litigation claiming that insufficient compensation for assigned counsel in New York City
denied indigent defendants their right to counsel resulted in a permanent injunction
requiring the City to pay counsel $90 per hour pending legislative relief, which was
enacted by the New York General Assembly while the case was on appeal.33

32

Ibid., 114, n. 44.
Ibid., 114, referring to New York County Lawyers’ Association v. New York, 196 Misc. 2d 761
(N.Y. Sup. Ct. 2003).
33

-24-

CHAPTER THREE
INDIGENT DEFENSE SYSTEMS IN OTHER STATES

GENERAL STRUCTURES
There are three basic types of indigent defense systems in the United States:
assigned counsel, contract attorney, and public defender.34
Under the assigned counsel system, private attorneys represent indigent
defendants. There are two variations to the assigned counsel model, the ad hoc model,
and the coordinated assigned counsel model. In the ad hoc model, attorneys are selected
without any system or set of criteria for the assignment. Often a judge assigns a case to an
attorney who happens to be in the courtroom at the defendant’s first appearance or
arraignment. Attorneys who are appointed through the ad hoc assigned counsel system
are usually paid an hourly fee for their work, and must petition the court to pay expenses
for expert witnesses, investigators, and support staff. Criticisms of the ad hoc assigned
counsel system include complaints that it allows selection by political patronage,
disregards attorney qualifications, and leads to ineffective representation.35
The second variation of the assigned counsel system is the coordinated assigned
counsel model. This assigned counsel system features an administrative or oversight
agency that determines minimum qualification standards for assigned attorneys, and
provides supervision, training, and support. The agency may coordinate a rotation system
for assignments and may recommend attorneys based on their training and expertise in
relation to the case.36
In the contract attorney system, the court contracts with one or more private
attorneys, law firms, bar associations, or nonprofit organizations for indigent defense.
There are two types of contract systems: fixed price and fee per case. In fixed price
contracts, the attorney’s fees are fixed for the duration of the contract, regardless of the
number or complexity of the cases assigned. The attorney is responsible for all support
costs, secretarial services, expert witnesses, investigators, and other litigation expenses.
The financial burden placed on the attorney by this arrangement can be so oppressive as
to lead to ineffective representation. For this reason, much criticism has been directed at
the fixed fee system, so much so that in 1985 the ABA issued a resolution condemning
the awarding of contracts based on price. The fee per case system awards contracts based
34

Marea L. Beeman and Robert L. Spangenberg, “Toward a More Effective Right to Assistance of
Counsel,” Law and Contemporary Problems 58, no. 1 (Winter 1995): 32.
35
Ibid., 33.
36
Ibid.

-25-

on a set fee for a predetermined number of cases. When the stipulated number of cases
has been assigned, the contract allows the provider to renegotiate the terms and
conditions. 37
The predominant system in Pennsylvania and many other states is the PD system,
which is defined as a “public or private nonprofit organization staffed by full- or
part-time attorneys . . . designated by a given jurisdiction to provide representation to
indigent defendants in criminal cases.”38 Pennsylvania counties are required to establish a
PD by statute.39 Ideally, this system should put indigent defense on an equal or nearly
equal footing to the prosecution in that the state provides both functions with support
personnel and technology.40
When adequately funded and staffed, defender organizations
employing full-time personnel are capable of providing excellent defense
services. By devoting all their efforts to legal representation, defender
programs ordinarily are able to develop unusual expertise in handling
various kinds of criminal cases. Moreover, defender offices frequently are
in the best position to supply counsel soon after an accused is arrested. By
virtue of their experience, full-time defenders also are able to work for
changes in laws and procedures aimed at benefiting defendants and the
criminal justice system.41
The PD model can readily be supplemented by attorneys from the private bar, who can
handle excess case loads and represent defendants that the PD is unable to handle due to
conflict of interest.42

SYSTEMS IN SELECTED STATES
A number of sister states that have IDSs may serve as useful models for
Pennsylvania. Some of the states have recently instituted comprehensive reforms of their
systems, whether by legislative initiative or in response to judicial mandates. States such
as Montana have moved to a statewide PD system while others, such as Indiana, have
established oversight boards that set standards for performance, training, and funding.
Regardless of their different forms, IDSs throughout the U.S. have come under increasing
fiscal pressure due to the current economic difficulties.

37

Ibid., 34.
Ibid., 36.
39
Act of December 2, 1968 (P.L.1144, No.358) (Public Defender Act); 16 P.S. §§ 9960.1–9960.13.
40
Amy Bach, Ordinary Injustice: How America Holds Court (New York: Metropolitan Books), 28.
41
ABA Standards for Criminal Justice: Providing Defense Services, 3rd ed. (Washington, D.C.:
ABA, 1992), 7.
42
Ibid., 7, 8.
38

-26-

Robert Spangenberg has developed a useful typology of the IDSs of the states,
which is adopted in Justice Denied. Twelve states use a state PD with an oversight
commission, and another seven states have a state indigent defense director, who is also
supervised by a commission. Another eight states use a statewide director who operates
without an oversight commission but with comprehensive authority. Nine states have a
state commission, but the counties maintain substantial authority over the administration
of their respective systems. Six states have statewide commissions whose authority is
limited to appellate defense. Finally, eight states, including Pennsylvania, use a localized
system with no statewide body. The trend in recent years has been toward centralizing
authority with the state. Of the eleven states that have changed their systems in 2000 or
thereafter, eight have adopted a commission and state PD or director with full supervisory
authority and three have a statewide body with partial authority. The full authority
systems are almost entirely state funded, while all but two of the eight partial authority
states rely predominantly on local funding. Justice Denied advocates a statewide, full
authority structure comprised of a state PD or director and an appointed commission to
provide oversight and help protect the system’s independence.43

Georgia
Structure and Funding
Responding to the recommendations of a study commission established by
Supreme Court Justice Robert Benham, Georgia enacted the Georgia Indigent Defense
Act of 2003 (GIDA).44
This legislation provides a more centralized system, whereas the former system
was funded and operated almost entirely by the counties. The state funds defense for
adult felonies, criminal appeals, and juvenile delinquency cases, while counties pay for
misdemeanors and violations of ordinances. The system nevertheless remains
predominantly county funded.45
GIDA created an eleven member oversight board, the Georgia Public Defender
Standards Council (GPDSC) to oversee the PDs serving in the state’s 49 judicial districts.
The board has authority to set performance standards and the power to remove PDs who
fail to meet them. The board also directs the provision of administrative assistance,
education, and training. Counties that can demonstrate that their PD systems meet or
exceed the state standards can opt out of the statewide system but must forgo state

43

Justice Denied, 151-166. The table at p.151 of the source shows the states that operate under each of
these systems and the year each state’s system was established. A table showing the respective funding
responsibilities of the states and counties is at p. 54 of the source.
44
Stephen B. Bright and Lauren Sudeall Lucas, “Overcoming Defiance of the Constitution: The Need for a
Federal Role in Protecting the Right to Counsel in Georgia,” (Washington, D.C.: American Constitution
Society, September 2010), 3. The Georgia Indigent Defense Act of 2003 is codified at Ga. Code
§§ 17-12-1—17-12-81.
45
Justice Denied, 54, 56.

-27-

funding if they do. Cases that are heard by the Superior or juvenile courts are handled by
the new system. State court cases are handled by county offices that contract with the
PD offices.
From 2003 to 2004, the budget for indigent defense increased from $7.5 million
to $9.5 million, a 32 percent increase.46 This increase was requested by the Council to
increase local funding for indigent defense.47 As of the 2005 Spangenberg report, there
were full-time PDs working in the 43 judicial districts under the statewide system, while
six counties opted out of that system. From 2005 to 2010, the percentage of county
funding has stood at about 63 percent, and expenditures have increased from
$55.6 million to $70 million. The state expenditure has increased from $31 million to
$41 million.48 Georgia’s system is funded through fees and surcharges on civil and
criminal cases, bail bonds, and application fees for PD services. These sources are not
sufficient to cover rising costs and are unpredictable.49 Because the funding mechanism
created by GIDA was not explicitly earmarked for indigent defense, from 2006 through
2010, approximately $30 million of the amounts collected under the legislation was
appropriated for other purposes.50
A Problematic Reform
This diversion of funds was an indication that the reformist impulse behind GIDA
has dissipated, and the system is now seen as a grossly inadequate one that suffers from
many of the inadequacies that characterize ineffective IDSs around the country.
While unquestionably an improvement over the fragmented
approaches that existed before it, the new system has in some cases failed
completely to provide representation to some indigent defendants and has
provided inadequate representation to many others. Many PDs carry
crushing caseloads, often lack the investigative and expert assistance
needed to represent their clients effectively, and are pressured to represent
defendants with conflicting interests. Some capital cases have gone
without funding for counsel, investigation, and experts for years, making a
timely investigation and a fair trial impossible. Hundreds of defendants in
felony cases have not had any representation—some pre-trial and others

46

“Governor Sonny Perdue Signs Indigent Defense Legislation,” May 22, 2003, http://gov.georgia.gov/00/
press/detail/0,2668,78006749_91290006_91665626,00.html.
47
Vicky Eckenrode, “Georgia's Public Defender Funds Running Low; Council Requests $9.5 million for
Local Judicial Circuits,” Augusta Chronicle, Jan. 28, 2007,
http://www.nacdl.org/public.nsf/defenseupdates/georgia026?opendocument.
48
Georgia Public Defenders Standards Council Legislative Oversight Committee Annual Report
(Feb. 2010), 18, http://www.gpdsc.com/docs/2010%20Public%20Defenders%20LegislativeOversight
CommitteeReport.pdf.
49
Ibid., 4. See Ga. Code § 15-21A-6(a) ($15 civil action filing fee); § 15-21A-6(c) ($50 indigent defense
application fee).
50
Stephen B. Bright and Lauren Sudeall Lucas, “Overcoming Defiance”, 3.

-28-

on motions for new trial and appeal. And fixed-fee contracts have
increasingly been used to provide only nominal representation to many
other defendants.51
The system has failed to provide counsel for defendants seeking a new trial or an appeal.
A class action lawsuit was filed in December 2009 on behalf of 187 defendants at these
stages who were awaiting appointment of counsel for up to three years. On February 23,
2010, the Superior Court granted the plaintiffs class certification and directed the State
and the GPSDC through a writ of mandamus to provide members of the plaintiff class
“effective and conflict-free counsel” within 30 days of receiving a request (or within 30
days of the court order in this case for current members of the class).
Noted civil rights activist Steven Bright and his colleague Lauren Sudeall Lucas
charge that “cost containment has prevailed over constitutional rights.” They conclude
that litigation is “the sole means to compel compliance from such a mismanaged system.”
and that only federal oversight could discourage Georgia and other states from
perpetuating unconstitutionally ineffective systems.52
A widely distributed book on America’s criminal justice system cited Georgia’s
experience as a prime example of the failure of a state IDS to provide adequate indigent
defense.53 According to PDs and DAs interviewed for the book, continued underfunding,
overwhelming caseloads, and the stagnant culture of Georgia’s indigent defense in most
of the state have thwarted the reform attempted by GIDA. Problems that range from poor
data collection to lack of computer resources to the lack of office supplies as common as
postage stamps have continued to plague indigent defense in Georgia.
The GPDSC Legislative Oversight Committee Annual Report of 2010 charged
that, despite the reforms that created the statewide system, “external forces have caused
parts of the system to become structurally broken.” The report argued that the Georgia
IDS faced collapse because reformist “crusaders” had used litigation “to seek judicial
orders that usurp and disregard the policies of the elected legislature in favor of
compelling the State to adopt expensive and unattainable goals that exceed the
requirements of the Georgia Constitution.”54 The report cited the substantial burden
caused by postconviction review and the Georgia state bar’s formal advisory opinion
requiring conflict counsel to be appointed whenever two attorneys under a common
supervisor would represent defendants in the same case, thereby disallowing “Chinese
wall” arrangements to address such conflicts.55

51

Ibid., 2.
“Overcoming Defiance,” 20.
53
Amy Bach, Ordinary Justice, 11-76.
54
Georgia Public Defenders [sic] Standards Council Legislative Oversight Committee Annual Report
(February 2010), 2.
55
Ibid., 7, 8.
52

-29-

The Augusta Chronicle reported that the statewide system was foundering under
financial difficulties (especially the cost of defending death penalty cases) and received
only “tepid” support from Georgia lawmakers. The system’s inadequacies resulted in trial
delays and failures to provide attorneys for appeals, spawning a number of lawsuits
aimed at reforming the system. The article observed that the system faced the threat of
being parceled back to the counties by legislative action. The chair of the House
Judiciary-Non-Civil Committee delayed action on proposed legislation until the end of
2010 in order to give the GPDSC time to reach a compromise with “other legal groups.”56
In May 2011 legislation was enacted revising the provisions that govern the
Georgia Public Defender Standards Council. The board overseeing the council is reduced
from 15 members to nine, five of whom will be appointed by the governor. The
legislation also expands the director’s authority to remove attorneys. Under the previous
system, attorneys could be removed only by action of the board. Finally, this legislation
permits appointment of an attorney from a judicial circuit other than the one where the
defendant resides. While critics concede that consolidating decision power in the director
of the GPDSC may raise the quality of indigent defense, they fear that placing the
majority of members under the Governor’s appointment power jeopardizes the
independence of the agency. Stephen Bright observes that cross-circuit representation
will cause scheduling conflicts and further burden overworked PDs.57

Indiana
Indiana indigent defense is funded in part by a block grant program administered
through the Indiana Public Defender Commission (IPDC). The duties of the Commission
include:
•

Making recommendations to the Supreme Court regarding:
o determining indigency and eligibility for legal representation
o selection and qualifications of attorneys to represent indigent defendants at
public expense
o determining conflicts of interest

•

Determining guidelines and standards for reimbursement to participating
counties, including:
o determining indigency and eligibility for legal representation
o enforcement of court orders for reimbursement of defense costs
o use of county supplemental PD services funds

56

“Public Defender Shakeup Delayed,” Augusta Chronicle, Apr. 23, 2010, http://chronicle.augusta.com/
news/metro/2010-04-23/public-defender-shakeup-delayed?v=1272066374.
57
Georgia House of Representatives Bill No. 238; Jon Mosher, “A lack of independence in Georgia’s
public defense system,” NLADA Justice Standards, Evaluation & Research Initiative, May 4, 2011,
http://www.nlada.net/jseri/blog/lack-independence-georgia%E2%80%99s-public-defense-system.
Bill
Rankin, “New legislation proposed for struggling public defender system,” Atlanta Constitution Journal,
February 11, 2011, http://www.ajc.com/news/georgia-politics-elections/new-legislation-proposed-for835520.html.

-30-

o qualifications of attorneys practicing indigent defense
o compensation rates for salaried, contractual, and assigned counsel
o minimum and maximum caseloads of PD offices and attorneys
•

Making recommendations concerning delivery of indigent defense services

•

Submitting an annual report to the Governor, Legislature, and Supreme
Court58

In addition to the commission, Indiana also has established a PD council comprised of
PDs and contract counsel, with the responsibility to establish centralized resources, such
as procedure manuals, and assistance with briefs and jury instructions.59
According to the ABA, the state’s legislation prescribes an effective means for
enforcing indigent defense standards.60 However, Justice Denied, which was cowritten by
Norman Lefstein, the former chair of the IPDC, gives a more guarded assessment of its
effectiveness:
The experience of Indiana, which is one of the more successful
partial-authority commissions, illustrates the difficulty with such
programs. In Indiana, the state provides less than half of the funding for
indigent defense, although the commission has persuaded the more
populous of the state’s 92 counties to create independent local boards to
oversee indigent defense in their jurisdictions, which includes determining
the indigent defense delivery method. In order to qualify for 40% state
reimbursement of the county’s indigent defense expenses, counties have
had to adhere to the commission’s caseload standards and increase their
overall expenditures. In some years, however, the commission has
received less funding from the state than was needed for its
reimbursements to the counties, so reimbursements were reduced to less
than 40%, which in turn has frustrated the counties that were part of the
program. In addition, many of the smaller counties have never agreed to
become part of the commission’s reimbursement program, and therefore,
have not been obligated to increase their expenditures or improve their
indigent defense systems. Thus, in Indiana, there is not full statewide
oversight and, rather than having just one commission with full authority
over the entire state, there is a single partial commission and numerous
local boards, all of which are independent of one another.61

58

Ind. Code § 33-40-5-4.
Ind. Code § 33-40-4 et seq.
60
ABA/SCLAID, “Indiana” American Bar Association, 2005,
http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/downloads/in.pdf.
61
Justice Denied, 171.
59

-31-

ABA/SCLAID echoed these criticisms and also noted the system’s lack of complete
independence from undue judicial and political interference.62
In order to qualify for the state block grant, a county must submit a plan that
complies with IPDC guidelines.63 Fifty-eight of the state’s 92 counties, containing 65%
of the state’s population, are eligible to receive reimbursement for non-capital cases.64
The 2010-11 appropriation to the Public Defense Fund, which funds these
reimbursements, is $18.25 million.65
On the local level, county PD boards may be established by the county executive.
The board appoints the county PD, who may use his or her staff to provide
representation, contract out services, or use assigned counsel in accordance with its
comprehensive plan. The county board may apply to the commission for the
reimbursement for noncapital cases other than misdemeanors.66 In counties with a
population under 400,000, the court may contract to provide counsel for indigents at the
county’s expense.67

Louisiana
The state’s IDS was fundamentally reformed by the enactment of the Louisiana
Public Defender Act in 2007.68 This act was adopted to remedy a severely dysfunctional
system.
Until the passage of the Louisiana Public Defender Act (Act 307),
public defense was carried out through a variety of delivery mechanisms
with only superficial oversight by the state PD agency. Many offices could
not produce accurate caseload information, had limited access to
investigative or expert witness resources, were unable to spend adequate
time with their clients, and struggled to retain qualified, competent
counsel. Most PDs had no health insurance or retirement plan, were forced
to pay for their own investigators, support staff, office space and overhead
expenses out of inadequate flat fee contracts and handled workloads far in
excess of reasonable expectations.69

62

ABA/SCLAID, “Indiana.”
Ind. Code §§ 33-40-6-4 and 33-40-6-5.
64
Indiana State Court Administration, Public Defender Commission, “About the Commission,” last
modified Sept. 15, 2010, http://www.in.gov/judiciary/pdc/about.html.
65
Ibid.
66
Ind. Code § 33-40-7 et seq.
67
Ind. Code § 33-40-8 et seq.
68
La. Rev. Stat. §§ 15:141—15:183.
69
Louisiana Public Defender Board, “Louisiana Public Defender Act,”
http://lpdb.la.gov/Serving%20The%20Public/Legislation/Louisiana%20Public%20Defender%20Act.php.
(accessed May 24, 2010).
63

-32-

The Act delegated supervisory responsibilities to the statewide Public Defender
Board, and dissolved the existing 41 local indigent defense boards.70 The system is a full
authority statewide commission with a director who acts as chief PD.71 In addition to an
executive director, the Act mandates the appointment of a director of training, director of
juvenile defender services, budget officer, information technology and management
officer, trial-level compliance officer, and juvenile justice compliance officer. The statute
spells out in detail their qualifications and duties of the mandatory officers.72 In addition,
the board is authorized to establish up to eleven service regions and is mandated to hire a
regional director for each region.73
The primary source of funding for the parish indigent defense is the state
appropriation, which more than quadrupled from $7 million in 2004 to over $28 million
in the 2007 budget.74 Additional revenue is supplied by surcharges on court costs.75 Most
of the parishes operate on a contractual system, which may be in addition to a full-time
PD office.76
The PD system of Louisiana has not escaped the funding challenges confronting
these systems throughout the nation. For instance, the PD of Calcasieu Parish stopped
taking new cases as of August 1, 2010, because the office lacked the resources to provide
adequate defense. In a letter to the district’s chief judge, the chief defender stated that the
office’s workload exceeded state standards, and the moratorium was necessary given the
office’s lack of adequate funding and the potential civil liability of staff attorneys.77
The Louisiana Public Defender Board received a budget increase of $5.3 million
for FY 2011-2012, raising the agency’s budget to $33.1 million. The increase is seen as
an example of the commitment of the governor and legislature to the Public Defender Act
of 2007. (The amount budgeted represents about $7.35 per Louisiana resident, which
would correspond to about $93.4 million for Pennsylvania.) Further, the LPDB believes
that its increased emphasis on training and data collection, its being named in the
litigation alleging the Calcasieu Parish PD failed to provide constitutionally required
right to counsel, and threats of similar litigation in other parishes contributed to the
willingness of the governor and legislature to increase its appropriation.78

70

Ibid.
Justice Denied, 166.
72
La. Rev. Stat. §§ 15:153, 15:154, 15:155, 15:156, and 15:157.
73
La. Rev. Stat. §§ 15:159 and 15:160.
74
Louisiana Justice Coalition, “History,” http://www.lajusticecoalition.org/About/History.php (accessed
Feb. 8, 2011).
75
“Louisiana Public Defender Act.”
76
Louisiana Public Defender Board, “The State We’re In,” 4 http://lpdb.la.gov/About/txtfiles/
pdf/LPDB%20Fact%20Sheet.pdf (accessed September 8, 2010).
77
Jason Brown, “Calcasieu To Stop Taking Indigent Cases,” 2theadvocate, May 29, 2010,
http://www.2theadvocate.com/news/95165714.html. Calcasieu, a rural parish in the southwestern part of
the state, is one of only two parishes that exclusively employs a full-time PD staff, the other being Orleans
Parish.
78
Louisiana Public Defender Board, “Legislature Approves $5.3 Million LPDB Budget Increase For FY
11,” July 10, 2010, http://lpdb.la.gov/Serving%20The%20Public/News/News12.php.
71

-33-

Massachusetts
Indigent defense in Massachusetts is provided through the Committee for Public
Counsel Services. The Massachusetts Supreme Judicial Court appoints the 15 member
board that oversees indigent representation in criminal and civil cases. Approximately
3,000 attorneys receive training and certification to receive appointments. The system is
subdivided into the Private Counsel Division, the Children and Family Law Division, the
Mental Health Litigation Unit, and the PD Division. Approximately 200 attorneys staff
the Committee’s PD Division and are located in offices throughout the commonwealth.
The PDs represent indigent defendants in Superior, District, and Juvenile Courts.79 The
Massachusetts system is noteworthy for its effectiveness in involving the private bar in
the provision of indigent defense services.80
Early in the 2000s, Massachusetts faced a crisis in indigent representation because
of shortages in available attorneys, due primarily to the rates of compensation paid to
appointed counsel. A lawsuit alleging that the shortage of attorneys led to violation of
defendants’ right to counsel reached the Supreme Judicial Court. In July 2004, the Court
held that defendants were indeed denied their right to counsel, yet also that the Court
lacked authority to raise the compensation rates, because setting compensation rates is the
legislature’s responsibility. Using its supervisory power, the Court decreed that indigent
defendants in the affected county would be released after seven days if counsel was not
appointed, and cases would be dismissed after 45 days if no counsel entered an
appearance before then.81
In a second lawsuit, petitioners asked the Court to set rates through the
appointment of a special master. The Court stayed the lawsuit after a slight increase in
rates appeared to pave the way for future increases. However, the increases were not
sufficient to attract and retain enough defenders. In August 2003, judges began to
conscript attorneys to serve as court-appointed defenders under the Professional Ethics
Rules of Massachusetts.82
In response to this crisis, the Governor and Legislature appointed a nine member
Commission to Study the Provision of Counsel to Indigent Persons in Massachusetts. In
2005 the commission recommended that by 2008 hourly compensation rates should be
increased from $61.50 to $110 for homicide cases, from $46.50 to $70 for felony cases,

79

Committee for Public Counsel Services website, http://www.publiccounsel.net/ (accessed
August 9, 2010).
80
Professor Norman Lefstein presentation to SR42 Advisory Committee, November 10, 2009.
81
Justice Denied, 113-114. See Lavallee v. Justices in Hampden Superior Court, 812 N.E.2d 895
(Mass. 2004) http://caselaw.findlaw.com/ma-supreme-judicial-court/1014501.html.
82
NACDL, “The Reform Efforts in Massachusetts,” http://www.nacdl.org/public.nsf/defenseupdates/
mass010 (accessed Feb. 8, 2011).

-34-

and from $37.50 to $55 for all other cases.83 In July 2005 the legislature raised the
compensation rates to their current schedules, effective January 1, 2006. Rates range
from $50 to $100 per hour.84
The National Association of Criminal Defense Lawyers (NACDL) reports
continuing difficulties with the Commonwealth’s indigent defense program:
In July of 2005, a number of court-appointed counsel chose not to
renew their contracts. In Suffolk County, which includes Boston, only 140
of the 320 bar advocates renewed, and in Middlesex County, only 90 of
the 325 lawyers renewed. The result was yet another indigent defense
crisis. On the first day of the new fiscal year, courts statewide were
without defenders. At least one judge threatened to hold a lawyer in
contempt for refusing to accept a case, even though the lawyer did not
have a contract. It is noteworthy that the Massachusetts Association of
Criminal Defense Lawyers immediately offered to represent any attorney
charged with contempt, and no attorneys were jailed for their refusal to
take new cases.85
In early 2011, Governor Deval L. Patrick announced a plan to reconstruct the
IDS. The Governor’s plan, which is included in his proposed budget for FY 2012, would
create a Department of Public Counsel Services in the executive branch and abolish the
Committee for Public Counsel Services.86 About 90 percent of indigent cases that are
now handled by private attorneys would be transferred to state employed PDs. Currently,
200 PDs represent 10 percent of indigent cases. The plan would add 1,000 new PDs and
cut 3,000 private attorneys contracted through the Committee for Public Counsel
Services.87 Supporters of the plan predict the plan will reduce the annual cost of
providing indigent defense by $45 million from the current $207 million budget.88 (The
current budget represents $30.60 per Massachusetts citizen, which would correspond to
$401.4 million for Pennsylvania.) In defense of its plan, the Patrick administration reports
that the amount budgeted for the Committee for Public Counsel Services has increased by
$100 million since 2003. The plan would tighten eligibility requirements for indigency.89
Critics of the plan argue that the present system is, in the long run, less expensive than
PDs would be, because the Commonwealth is not obligated to pay for personnel, office,
83

Ibid.
Committee for Public Counsel Services website, “V. Policies and Procedures Governing Billing and
Compensation,” last modified Apr. 6, 2006 http://www.publiccounsel.net/Billing_Information/
compensation_rates.html.
85
NACDL, “Reform Efforts.”
86
Andrea Estes, “Call for Public Defender Overhaul,” Boston Globe, January 24, 2011,
http://www.boston.com/news/local/massachusetts/articles/2011/01/24/patrick_wants_to_end_use_of_privat
e_attorneys_for_public_defense//.
87
Chris Cassidy, “Public Defenders Question Patrick’s Legal System Plan,” The Salem News,
January 25, 2011, http://www.salemnews.com/local/x530800184/Public-defenders-question-Patricks-legalsystem-plan.
88
Estes, “Call for PD Overhaul.”
89
Ibid.
84

-35-

and other expenses of private attorneys currently representing indigent defendants.90 The
proposal is expected to meet with stiff resistance in the legislature, which includes many
former defense attorneys.91

Michigan
Michigan’s 83 counties are responsible for organizing and funding their own
IDSs. They use PDs, assigned counsel, or contract attorneys. The state role in the
administration of the system is restricted to providing appellate representation.93 There
are two divisions of appellate counsel. The State Appellate Defender Office (SADO)
provides appeal services for 25 percent of indigent defendants who are pursuing appeals.
SADO is funded by the state and overseen by a seven member board, the Appellate
Defender Commission, appointed by the governor. The Appellate Defender Commission
also oversees the Michigan Appellate Assigned Counsel System (MAACS).
Administrative costs for MAACS are provided for by the state, and counsel costs are
borne by the counties in which the assigned counsels serve.94
92

The Michigan system has come under withering criticism. A 2003 study
conducted by the ABA Standing Committee on Legal Aid and Indigent Defendants
(SCLAID) listed the following deficiencies in the U.S. indigent defense systems, with the
implication that Michigan’s system suffered from all of them:
•

Lack of independence of counsel from judges and politicians

•

Absence of sufficient training, qualification standards, and performance
evaluations for counsel

•

Inordinately high caseloads

•

Lack of standards and accountability

•

Lack of uniformity of service within the state

•

Absence of statewide oversight

•

Inadequate funding

•

Lack of resources for investigative, expert and other support services

90

Cassidy, “Public Defenders Question.”
Estes, “Call for PD Overhaul.”
92
Spangenberg Group, “State and County Expenditures for Indigent Defense Services in Fiscal Year
2005,” 16.
93
Justice Denied, 149, 151.
94
NACDL, “Michigan Indigent Defense,” http://www.nacdl.org/public.nsf/DefenseUpdates/Michigan1
(accessed Feb. 8, 2011).
91

-36-

•

Inadequate compensation for counsel

•

Disparity in funding and resources for indigent defense versus prosecution95

A second detailed study was published by NLADA in 2008.96 The method
consisted of an in-depth analysis of the system in ten representative counties using the
ABA’s Ten Principles as the basis for evaluation. Like the ABA study, the NLADA
found widespread failure to meet the standards, due in part to the deficiencies in the
structure and funding of the system. The report noted that all of the system’s funding is
supplied by the counties and there is no statewide administrative oversight. Michigan
spent $7.35 per capita on indigent defense, ranking 44th among the states. (At that time,
Pennsylvania ranked 40th at $8.10; the national average was $11.86.) While there was
some variation among the counties studied, the NLADA found all of the ten counties
constitutionally deficient.97 The report emphasized that the state’s responsibility to fulfill
the Sixth Amendment cannot be completely delegated to the counties. “Though some
may argue that it is within the law for state government to pass along its constitutional
obligations to the counties, it is also the case that the failure of the counties to meet
constitutional muster regarding the right to counsel does not absolve state government of
its original responsibility to assure its proper provision.”98
A class action lawsuit filed in Michigan is currently a significant legal
battleground in the debate about judicial review of allegedly deficient IDSs. Duncan v.
Michigan was filed in 2007 by the ACLU and the Brennan Center on behalf of indigent
defendants in three Michigan counties, claiming that the PD system was not meeting its
constitutional obligations and that the plaintiffs’ Sixth Amendment rights had been and
would be violated.99 On June 11, 2009, the plaintiffs prevailed before the Michigan Court
of Appeals on a 2-1 decision. On April 30, 2010, the Michigan Supreme Court upheld the
Court of Appeals decision on the ground that it was premature to dismiss the suit without
allowing the petitioners to present evidence, and further directed the trial court to
consider the plaintiffs’ motion for class certification.100

95

ACLU, “ACLU of Michigan Argues in Supreme Court that the Poor Have a Right to Counsel,”
April 25, 2005. http://www.aclu.org/racial-justice/aclu-michigan-argues-supreme-court-poor-have-rightcounsel.
96
NLADA, Evaluation of Trial-Level Indigent Defense Systems in Michigan: A Race to the Bottom; Speed
and Savings over Due Process; A Constitutional Crisis (NLADA, June 2008).
97
NLADA, Race to the Bottom, i-v.
98
Ibid., 5.
99
Tresa Baldas, “Michigan Faces Constitutional Case Over Cash-Strapped Public Defenders,” National
Law Journal, December 24, 2009, http://www.nacdl.org/public.nsf/DefenseUpdates/Michigan052.
100
The Michigan Supreme Court reversed this decision on July 16, 2010, but reinstated it
on November 30, 2010 http://coa.courts.mi.gov/documents/sct/public/orders/20101130_s139345_117_
139345_2010-11-30_or.pdf.

-37-

The Judicial Crossroads Task Force, a collaboration of civic, business, and bar
association leaders, recently released a report advocating reforms to the Michigan justice
system.101 The task force recommends that Michigan take the following actions:
•

Create and enforce statewide standards for the delivery of indigent public
defense to reduce errors and costs

•

Shift the responsibility for public defense funding from local government to
the state

•

Create the necessary mechanisms to implement, measure, enforce, and fund
statewide standards for indigent defense that will meet national norms and
thereby reduce costly errors

•

Enact statutory changes related to indigent defense to free up funds for the
state’s public defense system102

Montana
A class-action lawsuit filed by the ACLU in 2002 led to the nation’s first state
legislation aimed at implementing the Ten Principles.103 The lawsuit (White v. Martz,
CDV-2002-133), filed in February 2004, claimed that inadequate funding and lack of
state oversight in Montana’s PD system rendered Montana’s IDS constitutionally
deficient.104 The lawsuit was stayed when Montana’s Attorney General agreed to
advocate for improving indigent defense services before the state legislature.105
Prompted by the impending lawsuit and the findings of its Law and Justice
Interim Committee, the Legislature created a statewide PD system with statewide funding
and comprehensive authority.106 In June 2005, the Legislature passed the Montana Public
Defender Act. The act replaced judicial appointment of counsel, local PD offices, and
contract counsel with a single statewide system of assigned counsel. The system is
supervised by an appointed independent, eleven-member Public Defender Commission
and is administered by the Office of State Public Defender. All cases where publicly
101

Judicial Crossroads Task Force, “Report and Recommendations, Delivering Justice in the Face of
Diminishing Resources,” Judicial Crossroads Task Force, State Bar of Michigan, January 2011.
http://www.michbar.org/judicialcrossroads/.
102
Ibid., 15.
103
ACLU, “ACLU Hails Montana’s Public Defense Bill as Leading National Trend,” June 8, 2005,
http://www.aclu.org/racial-justice_prisoners-rights_womens-rights_immigrants-rights/aclu-hails-montanaspublic-defense-b.
104
ACLU, “ACLU Agrees to Postpone Trial over Lack of Legal Defense for Montana's Poor While
Attorney General Seeks Legislative Remedy,” May 7, 2004, http://www.aclu.org/racial-justice_prisonersrights_womens-rights_immigrants-rights/aclu-agrees-postpone-trial-over-lack.
105
NACDL,
“ACLU
Lawsuit against Montana,” http://www.nacdl.org/public.nsf/defense
updates/montana006 (accessed May 13, 2010).
106
Justice Denied, 56, 148.

-38-

funded counsel is mandated by law are under the act, including felonies, misdemeanors,
civil cases involving child abuse and neglect, juvenile delinquency, involuntary civil
commitment, and guardianship.107
The office selects a state PD, who is directed to develop a strategic plan for
delivering indigent defense services throughout the state. The Commission is also
responsible for establishing statewide standards for qualification and training of public
defense attorneys, caseloads, performance measures, and evaluation. Appellate defense is
handled by the Office of Appellate Defender, which serves under the state PD. The act
transferred authority to determine indigency from the judiciary to the PD so that
statewide standards for indigency could be implemented. A person is considered indigent
if his or her gross household income is at or below 133 percent of the federal poverty
level, or whose personal and household assets are at a level that makes hiring an attorney
a substantial hardship.108
Prior to the adoption of reform legislation, indigent defense was financed by the
counties and reimbursed by the state at 65 percent.109 Under the act, the Office of State
Public Defender is funded by the state. The FY 2007 budgeted amount was $13.8
million.110 This amount represents about $14.20 per capita, which corresponds to about
$180 million for Pennsylvania.
In July 2009, American University issued a draft assessment of the performance
of the Office of State Public Defender to the Public Defender Commission.111 The report
contained 32 recommendations for improvement in such areas as caseloads and caseload
controls, data collection and sharing, training, and communications between office staff
and attorneys, and lines of authority. In response to the draft report, the ACLU
commented that the report demonstrates how the PD system has improved under the new
office, but that further progress is still needed.112
As of March 2010, the Office of State Public Defender included eleven regions
and used the services of 114 staff attorneys and 225 contract attorneys. The office covers
56 district courts, 140 lower courts, and 20 specialty courts. The budget for each of 2010
and 2011 is $19.9 million ($20 per person as of 2010). The office handled 28,417 new
cases in 2009, at an average cost of $700 per case.113
107

Montana Legislative Services Division, Bill Summary: SB 146 (Montana Public Defender Act)
(June 2005),
http://publicdefender.mt.gov/forms/pdf/bill_summary.pdf; Mont. Code § 47-1-101 et seq.
108
Bill Summary, SB 146.
109
Spangenberg Group, “State and County Expenditures FY 2005,” 19.
110
Bill Summary, SB 146.
111
American University, School of Public Affairs, “Assessment of the Initial Period of Operations of the
Montana Statewide Public Defender System” (Washington, D.C.: American University, July 2009),
http://publicdefender.mt.gov/meetings/docs/07302009/AUDraftRecomm.pdf.
112
ACLU of Montana, “Public Defenders Office Scrutinized,” Aug. 3, 2009, http://www.aclumontana.org/
index.php?option=com_myblog&show=Public-Defenders-Office-scrutinized.html&Itemid=44.
113
Phil Drake, “Public Defender: Cuts to Department Not Possible” (Montana Policy Institute,
March 16, 2010), http://www.montanapolicy.org/main/story.php?story_id=46 .

-39-

Nevada
Nevada’s system has moved from legislative to judicial management. The
enabling statute established a limited authority commission system.114 Indigent defense
services were provided by the state PD offices. Counties with populations under 100,000
without a county PD office received services through the state office. The state PD was
appointed by the governor to serve a four year term. In addition to providing services for
the specified counties, the state PD handled post-trial proceedings and appeals on behalf
of the county PDs.115
In 2007 the Nevada Supreme Court created the Indigent Defense Commission to
examine the state’s IDS and recommend improvements. The commission was directed to
make recommendations for performance standards, removing judges from the
appointment of counsel process, and to put the rural IDS offices under the supervision of
the statewide office. In 2009 the Supreme Court accepted the report and ordered that
standards be put in effect in April of that year.
David Carroll of the NLADA commented that the Nevada judiciary responded
effectively to the system’s deficiencies. In a single administrative order, the judges ended
judicial control of the appointment of counsel, defined uniform eligibility standards for
indigent defendants, adopted the ABA standards, established a statewide commission,
and developed a system of case-weighting to help control workloads. The judiciary
tailored the ABA and NLADA standards for juvenile and appellate representation,
reforms that have not occurred in other states.116

New Mexico
Recently reformed in accordance with national models, the New Mexico Public
Defender Department is a fully state-funded statewide system. The judiciary plays no role
in qualifying or selecting contract counsel. The department establishes qualifications,
reporting requirements and fees. The courts appoint contract and conflict counsel as
named by the department by random assignment. New Mexico’s centralized PD system
under the governor’s jurisdiction allows reforms to be implemented through executive
order. New Mexico’s Chief PD serves as a member of the Governor’s cabinet and can
advocate effectively for the system from that position. The state PD has overridden trial
judges when they have attempted to bypass the standards to retaliate against zealous
PDs.117

114

Justice Denied, 151, 170; Nev. Rev. Stat. § 180.101 et seq.
Nev. Rev. Stat. § 180.060.
116
Carroll, David, presentation to the SR 42 Advisory Committee, Joint State Government Commission,
September 15, 2009.
117
Phyllis Subin, presentation to the SR 42 Advisory Committee, Joint State Government Commission,
September 15, 2009. Ms. Subin was Chief Public Defender of New Mexico from 1997 to 2003.
115

-40-

New Mexico’s system is funded entirely through state appropriations for trial and
appellate cases.118 There are two divisions of the department. On one side of the agency,
state employees at the centralized state PD office staff ten trial offices and four statewide
units providing for appeals, mental health, post-convictions, and serious case
representation. On the other side of the Public Defender Department, attorneys are
contracted for primary and conflict counsel.119 The office is equipped with updated
technology statewide; especially notable are the case tracking and case management
systems. The office’s attorneys are supported by paralegals, investigators, social workers,
an alternative sentencing advocate, and technology staff.120 Private contract attorneys
provide indigent defense services in counties where the state office is not present.
According to Tony Ortiz, Director of the New Mexico Sentencing Commission,
funding for indigent defense services has not increased since the onset of the Great
Recession.121

Oregon
The Oregon Public Defense Services Commission consists of seven members
appointed by the chief justice and is an independent agency within the judicial branch.122
The Office of Public Defense Services works under the oversight of the commission and
consists of two divisions. Trial-level services are provided by contract defenders,
certified and overseen by the Contract and Business Services division, which oversees
training for psychologists, investigators, and other professionals who assist defense
services. The other division, Legal Services, represents indigent clients in criminal
appeals, and parole board and postconviction appeals.123
The ABA attributes the success of the Commission to its having a sufficient
budget for indigent defense services provided entirely by the state.124 NACDL reported in
June 2009 that Oregon was among the top states in per capita spending for indigent
defense, having maintained per capita funding of approximately $24 for several years.125
(For Pennsylvania, this level of funding would correspond to about $305 million.)

118

Robert L. Spangenberg, “State and County Expenditures FY 2005,” 21.
E-mail from Phyllis Subin to Joint State Government Commission staff, April 22, 2010.
120
ABA/SCLAID, “Primary Indigent Defense Delivery System.”
121
Telephone conversation between Mr. Tony Ortiz, Director of the New Mexico Sentencing Commission
and Commission staff, August 9, 2010.
122
The Oregon indigent defense system is governed by Ore. Rev. Stat. ch. 151.
123
NACDL, “Oregon Indigent Defense” (Washington, D.C.: NACDL) http://www.nacdl.org/
public.nsf/defenseupdates/Oregon001 (accessed August 18, 2010).
124
ABA, “State Commissions Project: Final Report” American Bar Association, 5, accessed
August 18, 2010, http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statecommfinal
report.pdf (site discontinued).
125
Rick Jones, “The New Frontier in Indigent Defense—Big Firms in State Trial Courts,” The Champion,
NACDL, 30, http://www.criminaljustice.org/public.nsf/01c1e7698280d20385256d0b00789923/cf5666f1ea
26a303852576190065f43c?OpenDocument (accessed August 18, 2010).
119

-41-

Texas
Texas has a county based system with partial state agency oversight and
predominantly state funding.126 The Texas Fair Defense Act of 2001 provides state
funding for counties to improve local IDSs and for state oversight through the Texas Task
Force on Indigent Defense. The state has nearly doubled its contribution since
enactment.127
The Fair Defense Act was prompted by reports by the State Bar of Texas and the
Spangenberg Group128 that documented the problems with indigent defense in the
state.129 Prior to enactment all responsibility for the funding and management of indigent
defense fell to the state’s 254 counties. The act created a statewide agency to administer
statewide policies and appropriations. In exchange for state funding, the local judiciary
submits indigent defense plans to the Task Force.130 Each of the counties organizes and
funds its own indigent defense program; most rely on assigned counsel and contract
defenders.131 To comply with the Fair Defense Act, counties must establish procedures
for providing prompt access to appointed counsel, fair and neutral selection methods for
appointed counsel; qualifications for appointed counsel; financial standards and
procedures for determining indigency; and procedures and fees for appointed counsel,
experts, and investigators.132
The Task Force on Indigent Defense is composed of 13 members. It is responsible
for analyzing county expenditures, policies, and procedures; developing policies and
standards; promoting local compliance and proficiency, assuring accountability
in meeting statutory and constitutional indigent defense requirements, guided by
evidence-based practices; and allocating and accounting for the effective distribution of
state funds.133
Funding is provided to the counties by one of seven methods. Formula grants are
awarded to counties that have submitted plans to improve indigent defense, accounting
for $12 million to 219 counties. Direct disbursement grants are provided to counties that
do not apply for formula grants, and accounted for $180,818 appropriated to
35 counties.134 Equalization disbursement funds are made available to counties that have

126

Justice Denied, 54, 151, 170.
ABA/SCLAID, “Primary Indigent Defense Delivery System”; Justice Denied, 56.
128
The Spangenberg Group is a nationally recognized research and consulting firm specializing in
improving justice programs. It has conducted nationwide research projects on a variety of topics relating to
IDSs. See http://www.spangenberggroup.com/.
129
Spangenberg Group, “State and County Expenditures FY 2005,” 29.
130
Texas Task Force on Indigent Defense (TFID), “Who We Are and What We Do,” accessed
May 14, 2010, http://www.courts.state.tx.us/tfid/whoweare.asp.
131
“State and County Expenditures FY 2005,” 30.
132
Ibid., 29.
133
TFID, “Who We Are and What We Do.”
134
Dollar amounts and numbers of affected counties are as of FY 2009.
127

-42-

increased indigent defense costs and a low proportion of state funds. Extraordinary grants
are given to counties suffering financial hardship. The remaining funding streams are
targeted specific funding, technical support funding, and discretionary grants.135
Several counties have taken initiatives to improve funding for their IDSs, which
have come under increasing financial pressure. Property taxes have been the main tax
revenue stream funding indigent defense services, but these taxes have not been able to
maintain adequate funding, especially in the face of the Great Recession.
In 2007, 70 counties formed a regional PD office to handle capital cases. The
counties pay a yearly fee into the cost-sharing system, which provides lawyers and
investigators for each case. According to reports, the system saved the participating
counties $400,000 in its first year of operation. Other counties have attempted to improve
screening and verification systems for defendants claiming indigence. It was estimated
that up to $2 million could be saved annually if 25 percent of defendants currently
receiving indigent services were found ineligible.136

Utah
Utah’s 29 counties are solely responsible for providing indigent defense services.
Two of the counties have PD offices, with the remaining 27 counties relying on contract
and assigned counsel. The NLADA ranks Utah 48th among the states in per capita
spending for indigent defense services at $5.22 per resident (the corresponding spending
level for Pennsylvania would be $66.3 million). There are glaring funding disparities
within the state. For example, training is provided and CLE expenses covered for
prosecutors by statute, while no standard training is provided for PDs, and defense
attorneys must pay for their own CLE.137
In 2009 the Utah legislature established financial assistance for indigent defense
in the form of four special funds administered by the state’s Division of Finance: the
Indigent Aggravated Murder Defense Trust Fund, the Indigent Felony Defense Trust
Fund, the Indigent Inmate Defense Fund, and the Post Conviction Indigent Defense Fund.
Counties that participate in these voluntary funds obligate themselves to contribute an
amount based on formulas according to population and assessed property values. In
exchange for its contribution to the Indigent Aggravated Murder Defense Trust Fund, a
county is eligible to apply for benefits if the county has incurred or expects to incur

135

Texas Task Force on Indigent Defense, 2009 Annual and Expenditure Report 2009 (Austin: TFID,
Jan. 10, 2010), 9-10,
http://www.courts.state.tx.us/tfid/pdf/09AnnualReportFINAL011110.pdf.
136
Jared Janes and Jeremy Roebuck, “Texas Counties Take Different Approach to Common Indigent
Defense Problem,” The Monitor, December 21, 2009, http://www.nacdl.org/public.nsf/defense
updates/texas057?opendocument.
137
Marina Lowe, “Utah Ranks First in the Nation When It Comes to Literacy, Volunteerism, Jell-O
Consumption, and Birth Rates. Unfortunately, Utah’s Ranking Dips Dramatically When It Comes to
Providing for Indigent Defense,” The Defender UACDL, Winter 2009. http://www.acluutah.org/uacdl.pdf.

-43-

expenses “arising out of a single criminal episode.”138 Similarly, a county that
participates in the Indigent Felony Defense Trust Fund may apply for benefits if it has
incurred or expects to incur expenses in excess of $20,000 arising from a single criminal
episode.139 The Indigent Inmate Defense Fund is to defray defense costs for inmates
accused of a crime while serving a sentence in state prison. As of 2009, only one county
participated in this fund.140 The Felony Defense Fund was seeded with a one time
appropriation from the legislature, and the Aggravated Defense Fund receives an annual
appropriation from the legislature. The Post Conviction Indigent Defense Fund provides
financial assistance for post-conviction appeals of indigents who have received a death
sentence. Litigation and other expenses are paid for out of state funds without county
financial involvement.141 At its inception, this fund was overseen by the Attorney
General, but it was subsequently moved into the Division of Finance because of the
conflict of interest in having the state’s head prosecutor fund defense representation.142

Virginia
The Virginia Indigent Defense Commission (VAIDC) was established within the
judicial branch in 2004.143 The VAIDC oversees and supports indigent defense services,
including certification of qualified attorneys, provided by PDs and the private bar.
According to the NACDL, the fees paid to court-appointed attorneys for the indigent are
among the lowest in the country. Entry-level PDs received $38,000, while entry-level
prosecutors received $50,000.144 In 2004, NACDL reported a long history of the barely
functioning IDS in Virginia, including anecdotes from court-appointed attorneys who
admitted to providing inadequate defense and PDs who reported that cutting corners to
stay within their budgets is standard procedure taught to all new PDs. Several defenders
reported struggles with obsolete equipment.145

138

Utah Code §§ 77-32-601—77-32-604.
Utah Code §§ 77-32-701—77-32-704.
140
Utah Office of the Legislative Fiscal Analyst, Capital Facilities and Government Operations, “Summary,
Budget Brief—Post Conviction Indigent Defense Fund,” Jan. 9, 2007, http://le.state.ut.us/interim/2007/
pdf/00000513.pdf.
141
Utah State Legislature, Compendium of Budget Information for the 2009 General Session, Capital
Facilities & Government Operations, Appropriations Subcommittee, accessed Dec. 6, 2010,
http://www.le.state.ut.us/lfa/reports/cobi2009/LI_FKA.htm.
142
“Summary, Budget Brief – Post Conviction Indigent Defense Fund.”
143
Spangenberg Group, “Statewide Indigent Defense Systems: 2006,” 20.
144
NACDL, “Virginia’s Indigent Defense System,” http://www.nacdl.org/public.nsf/defense
updates/Virginia028 (accessed May 17, 2010).
145
NACDL, “Virginia’s Indigent Defense System Still Failing,”
http://www.nacdl.org/public.nsf/DefenseUpdates/Virginia025 (accessed May 17, 2010). These accounts
were excerpted from the Spangenberg Group, “A Comprehensive Review of Indigent Defense in Virginia
(February 2004).”
139

-44-

In 2007, the NACDL threatened a lawsuit over caps imposed on the funding of
indigent defense that were the lowest in the country.146 To forestall the lawsuit, the
Virginia legislature approved two bills that allowed judges to lift the caps on fees paid to
court-appointed defense attorneys. Under the caps, the limit paid for a defendant facing a
felony conviction of life imprisonment capital case was $1,235, while cases carrying
sentences of up to 20 years were reimbursed at $445. The legislation allowed judges to
reimburse an additional $850 for the most serious felony cases and an additional $120 for
lesser cases. Capital murder case reimbursements were, and remained, uncapped. The
expected budget for the reimbursements was $8.2 million, which contributed to the total
$58 million Virginia paid for court-appointed indigent defense work.147
It was reported in March 2010 that the caps may be reinstituted because of budget
pressures faced by the Commonwealth of Virginia, which faced a $4 billion shortfall.148
Observers feared that the IDS would fail to provide adequate services if the budget was
reduced and that attorneys would refuse to take court-appointed cases. However, in
subsequent reporting of the budget difficulties, it appears that waivers of the caps will be
available.149

146

Larry O’Dell, “Va. Lawmakers May Again Impose Strict Fee Caps,” HamptonRoads.com,
March 4, 2010, http://hamptonroads.com/2010/03/va-lawmakers-may-again-impose-strict-fee-caps.
147
Nolan, Jim, “Bills Lift Fee Caps for Defense Attorneys: Court-Appointed Attorneys’ Low Pay Can Hurt
Cases, Legal Experts Say,” Richmond-Times Dispatch, February 27, 2007.
148
O’Dell, “Va. Lawmakers May Again Impose Strict Fee Caps.”
149
VLW Blog, “Fee Cap Waivers Survive Budget Crunch,” Virginia Lawyers Weekly, March 16, 2010.
http://valawyersweekly.com/vlwblog/2010/03/16/fee-cap-waivers-survive-budget-crunch/.

-45-

-46-

CHAPTER FOUR
DATA COLLECTION

DEFICIENCIES IN INDIGENT DEFENSE DATA
Lack of systematic and complete data hampers analysis and evaluation of our
IDS, as it did when the Pennsylvania Supreme Court Committee on Racial and Gender
Bias in the Justice System Report issued its report in 2003:
Policymakers need complete and accurate data if they are to make
informed decisions about improving public legal defense systems. One of
the biggest challenges [The Spangenberg Group]150 encountered . . . was
the lack of systematic data reporting, collection, and maintenance. In
particular, information concerning caseloads was woefully inadequate.
Many of the smaller counties could not even estimate their caseloads;
other counties collected certain data, but could not break down the data
into types of cases.151
This study was equally frustrated by the lack of adequate data about the system.
The advisory committee directed Commission staff to gather data on county PD offices
and court-appointed counsel statewide. This proved impossible because complete data is
not collected on court-appointed counsel or PD offices on such basic factors as staffing
levels, budgets, and caseloads. Without adequate recent data, it is impossible for the
public to make a quantitative evaluation of the system’s performance.
Because each county is responsible for collecting its own data and substantive
policies differ from county to county, there are numerous inconsistencies in the available
data. PD offices and AOPC define “case” differently, and this makes it difficult to
reconcile AOPC and PD office data.
The advisory committee emphasizes that the lack of available statistical data
should not be taken as an excuse for failure to address the deficiencies of the
Commonwealth’s IDS that are detailed in this report. Most of the shortcomings were
pointed out in the Racial and Gender Bias Report published in 2003. Such factors as
excessive caseloads, inadequate resources, inappropriate interference from other

150

The Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System
commissioned the Spangenberg Group to review Pennsylvania’s indigent defense system.
151
Racial and Gender Bias Report, 184.

-47-

governmental bodies, and lack of statewide management guidance and assistance are
regularly and personally experienced by members of the advisory committee, especially
the chief PDs on the committee.

DATA COLLECTION FOR THIS STUDY
The advisory committee determined that this study should attempt to collect data
from each county relevant to the issues facing the Commonwealth’s local indigent
defense systems. Key issues where data collection would assist analysis of the IDS
include the following:
•

Staff (full and part-time attorneys, investigators, social workers, and clerical
workers)

•

Caseloads (total number of cases handled and cases per attorney)

•

Representation (PD, court-appointed, contract)

•

Expenditures

Several preexisting data sources were consulted. Data is routinely collected by the
Administrative Office of Pennsylvania Courts (AOPC) in a database called the Common
Pleas Court Management System (CPCMS) from information collected by the county
clerks. This database contains the total number of felony, misdemeanor, and ungraded
offenses, probation, forfeiture and habeas corpus cases. PD offices handle other cases
including mental health commitments, protection from abuse hearings, juvenile
delinquency and dependency, paternity, guardianship, and civil contempt arising from
support decrees.152 The database provides some detail about each case, including whether
the defendant in the case was represented by a PD, court-appointed counsel, other, or
unknown.
Data is collected by the Juvenile Court Judges’ Commission (JCJC) on juvenile
delinquency cases. JCJC provided juvenile delinquency data by county including the
number of court dispositions per county and the number of formal juvenile delinquency
hearings represented by PDs, court-appointed attorneys, and private attorneys, and
hearings in which the defendant waived their right to counsel or the representation was
unreported. One court disposition can have multiple cases that are disposed of together.

152

These were detailed in the survey performed by the Public Defender Association of Pennsylvania
(PDAPA) in 2005.

-48-

The number of formal juvenile delinquency hearings is actually a count of the number of
court dispositions that had at least one formal hearing; if one court disposition had three
formal hearings, it would only be counted once in the JCJC data.
The Public Defender Association of Pennsylvania (PDAPA) performed a survey
in 2005 that collected data from 41 counties. This survey covered cases, personnel,
support staff, budget, computer utilization, eligibility standards and procedures,
continuing legal education (CLE), and the county criminal justice system.
The advisory committee concluded that the available statewide data was
insufficient and directed Commission staff to survey all the counties. In February 2009
Commission staff sent a survey to the PD, DA and court administrator offices of all
counties. The survey was sent to the County Commissioners Association of Pennsylvania
(CCAP) for distribution to the county commissioners. The survey comprised three
separate sections including sections to be completed by the PD, the DA, and the court
administrator, respectively. The original deadline for the survey was March 15, 2009.
The section submitted to the PD offices covered personnel (numbers and salaries),
caseloads, budget, CLE, computers, and eligibility for appointment of counsel. The
section submitted to the DAs covered personnel (numbers and salaries), caseloads,
budgets, computers, and CLE. The section submitted to the court administrators covered
caseloads, judicial resources, and outside counsel. Space was provided for comments on
the PD system in Pennsylvania. Data was collected for the years 2007, 2008, and 2009.
On March 4, 2009, AOPC advised Commission staff that some information
requested on the survey was included in the CPCMS database and would be made
available to the staff. Specifically, the AOPC provided the Commission with data for
2007 and 2008 for the following categories of cases: all adult criminal, capital murder,
other murder, other felony, misdemeanor, probation and parole revocation, forfeiture, and
habeas corpus. In addition to the numbers of total cases, this data included the number of
cases assigned to the PD offices and the number of cases assigned to court-appointed
counsel.
While the CPCMS data was helpful and uniform across all counties, there were
several problems with it. Many counties recorded up to 40 percent of their cases as
having “undefined counsel” meaning that the county clerk did not record or did not know
what type of representation the defendant had. Non-criminal cases that were processed by
PDs were not reflected in this database, including mental health commitments, protection
from abuse hearings, juvenile delinquency and dependency hearings, paternity,
guardianship, and non-support civil contempt. Finally, discrepancies existed between
AOPC and county data because of inconsistent methods of counting cases; some PD
offices indicated they had many more (or in a few counties fewer) cases than AOPC
reported.

-49-

On March 11, 2009, Commission staff requested CCAP to remind members of the
impending survey deadline, and CCAP placed a reminder in its monthly newsletter. After
the original survey deadline of March 15 passed, staff continued to collect surveys as the
response rate on the survey was still very low.
On April 3, 2009, Commission staff contacted JCJC for data on juvenile
delinquency and dependency proceedings handled by the PD. JCJC data on delinquency
cases uses court dispositions rather than individuals as the unit of count. JCJC provided
this information to Commission staff for 2007 and 2008.
On April 24, 2009, the Commission’s project director for SR 42 spoke to PDAPA
members at its annual meeting to explain the SR 42 study and the importance of the
survey to encourage the counties to complete their responses. It was discovered that many
PDs did not received their part of the survey from the county commissioners. PDAPA
sent out the PD section of the survey to non-responding PDs. The Pennsylvania
Association of Criminal Defense Lawyers (PACDL) also followed up with the PDs to
encourage their participation.
Only six counties had completed all three parts of the survey, which is not a
sufficient response to enable a comprehensive analysis. Twenty-seven counties had
completed the PD part of the survey, a response sufficient to enable a tentative analysis.
Seven DAs and 15 court administrators also responded. The spotty response to the survey
may be because the counties do not routinely collect the information requested by the
survey.
At its meeting of September 15, 2009, the advisory committee noted the
disappointing response rate to the survey and directed Commission staff to gather
information from a few select counties through direct phone interviews and a new survey
asking more open-ended questions. The advisory committee selected eight counties
(which make up seven judicial districts), viz., Erie, Tioga, Montgomery, Beaver, Elk,
Cameron, Monroe, and York.153 The PDs and DAs of these counties were sent the
questions before the phone interviews, and the offices were given the option of either
returning a written response or arranging a phone interview with Commission staff.
Unfortunately after multiple attempts to contact all of these DA offices, staff was able to
gather responses from only five DA offices and two PD offices.154
Despite these assiduous efforts to collect it, the data relating to the determination
of caseloads was so inconsistent and incomplete that the advisory committee directed
staff to withdraw it from this report. In March 2011, advisory committee member Nathan
Schenker, then-president of the PDAPA, did an informal e-mail survey of the PDs to
assist the staff in gathering basic data about caseloads. The survey requested data as of
2010 on overall caseload; caseload by category (capital murder, homicide, felonies,
153

Elk and Cameron counties make up one judicial district and share a PD, but have separate DAs for each
county.
154
The five responding DA offices were Beaver, Elk, Cameron, Montgomery, and Tioga Counties. The two
PD offices responding were Tioga and York Counties.

-50-

misdemeanors, and other); caseload by attorney; number of attorneys in the office broken
down by full and part time; support staff (investigators, secretaries, social workers,
paralegals, etc.); and other information pertinent to workload and resources in narrative
form.155 This data is used in the section of Chapter Five entitled “Excessive Caseloads.”
The lack of consistent, regularly collected data, and the formidable difficulty even
official observers meet in collecting comprehensive and usable information support this
report’s recommendation that a statewide agency establish a uniform and usable system
of data collection for criminal and juvenile delinquency cases handled by the IDS. The
draft statute included in this report provides for an administrative structure that can
determine what data will be most useful for administering the system and can oversee the
collection, dissemination, and analysis of that data.

155

E-mail from Nathan Schenker to chief public defenders, March 10, 2010.

-51-

-52-

CHAPTER FIVE
EVALUATION OF PENNSYLVANIA’S
INDIGENT DEFENSE SYSTEM

INTRODUCTION
This chapter evaluates the Pennsylvania IDS. In accordance with the direction of
the advisory committee, the criteria for evaluation are supplied by the ABA’s “Ten
Principles of a Public Defense Delivery System,”156 which have gained wide acceptance
as “an excellent blueprint for the fundamental criteria necessary to construct an effective
public defense system.”157 They are solidly grounded in U.S. Supreme Court precedent
and have come to constitute “the most widely accepted and used version of national
standards for public defense systems.”158 The Ten Principles have been endorsed by the
Philadelphia Bar Association159 and the Wilkes-Barre Law and Library Association,
which is the bar association of Luzerne County.160 The reforms in the states that have
changed their systems since the Ten Principles were promulgated have taken their
bearings from them, as evidenced by the trend toward centralized administration and full
state funding that characterizes most of such reforms.161 The U.S. Supreme Court has
looked to other ABA standards as evidence of “prevailing norms of practice” that are
“guides to determining what is reasonable,” although they are “only guides and not
inexorable commands.”162
156

American Bar Association, “Ten Principles of a Public Defense Delivery System,”
(ABA, February 2002), http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/ten
principlesbooklet.pdf.
157
Justice Denied, 33; Mary Sue Backus and Paul Marcus, “The Right to Counsel in Criminal Cases, A
National Crisis,” 57 Hastings L.J. 1031, 1123.
158
David Carroll, Phyllis Mann, and Jon Mosher, “The Judicial Underpinnings of the American Bar
Association’s Ten Principles of a Public Defense Delivery System and Their Use in Defining
Non-Representation under United States v. Cronic, 466 U.S. 648 (1984)” (NLADA, October 26, 2011),
4, 5-10 http://nlada.net/sites/default/files/na_judicialunderpinningsofabatenprinciples_10262011.pdf.
159
“Resolution of the Philadelphia Bar Association Adopting and Endorsing the American Bar
Association’s Ten Principles of a Public Defense Delivery System,” June 30, 2011,
http://www.philadelphiabar.org/page/ResJune11_2?appNum=4.
160
“Resolution of the Wilkes-Barre Law and Library Association Endorsing the American Bar
Association’s Ten Principles of a Public Defense Delivery System,” http://www.pabarcrc.org/pdf/WilkesBarre%20association%20resolution.pdf. The resolution was adopted on June 11, 2011.
161
See Justice Denied, 54 and 151. One exception is Georgia, which restricted the authority of the state
commission and retained predominantly county funding. These policy choices may have contributed to the
partial failure of reform in that state. See this report, 27-30.
162
Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 1482 (2010), citing inter alia Strickland v.
Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510, 534 (2003); and Bobby v. Van Hook,
558 U.S. ___, 130 S. Ct. 13 (2009).

-53-

The Ten Principles describe the standards that the system as a whole should meet.
They are not intended to be used as performance standards to apply to individual lawyers
or particular cases; for instance, it would be a misapplication of these standards to seek to
overturn a conviction solely on the grounds that the defense attorney was appointed by a
judge, even though such an appointment would be contrary to the Ten Principles.
The SR 42 advisory committee observed that the goal of IDS reform is
representation of the indigent so as to enable the accused to receive a fair disposition
under the applicable law. This principle does not require every case to go to trial.
Nontrial resolutions following informed negotiations between prosecution and defense,
(including guilty pleas, plea bargains, or alternative dispositions) save resources for both
the prosecution and defense (and thus for the taxpayer), yet are perfectly compatible with
a fair adversary system, when the IDS is structured and supported so that it can meet the
prosecution on a level playing field. However, it is essential that any waivers by the client
be knowing, intelligent and voluntary, and that the validity of the waiver be verified by
the court on the record.

PROFESSIONAL INDEPENDENCE
Principle 1 of the ABA’s Ten Principles addresses the need for the IDS to
maintain the professional independence of the attorneys who serve in it:
The public defense function, including the selection, funding
and payment of defense counsel, is independent. The public defense
function should be independent from political influence and subject to
judicial supervision only in the same manner and to the same extent as
retained counsel. To safeguard independence and to promote efficiency
and quality of services, a nonpartisan board should oversee defender,
assigned counsel, or contract systems. Removing oversight from the
judiciary ensures judicial independence from undue political pressures and
is an important means of furthering the independence of public defense.
The selection of the chief defender and staff should be made on the basis
of merit, and recruitment of attorneys should involve special efforts aimed
at achieving diversity in attorney staff.163
The board or agency overseeing the IDS should be structured so that it is
independent from both judicial and political control. The advisory committee stresses the
central importance of this standard, as indigent defense can be severely compromised
when it is ignored:

163

ABA Ten Principles, 2.

-54-

When the defense function lacks [professional and political]
independence, the integrity of the indigent defense system is
compromised. To ensure that the defense function is protected, the
establishment of an independent policy board to provide oversight is
strongly recommended. Such boards now exist in some states, but there
still are parts of the country where indigent defense is plagued by the
oversight and interference of governmental funding sources and the courts.
This influence, which may be rooted in a desire to control costs, or a
preference for certain attorneys known to resolve cases without litigation,
often runs contrary to the duties of the defense provider and the interests
of defendants. In short, the lack of independence of the defense function
threatens the right to counsel.164
Judicial interference may lead to real or perceived favoritism and the intrusion of
extraneous considerations that may hamper professional representation. A report on
Michigan’s IDS elaborates on how this can affect the right to counsel:
By statute, Michigan’s elected judges are authorized to pass out
assignments and have discretion to set fee schedules in their jurisdiction.
Having judges maintain a key role in the supervision of indigent defense
services can create the appearance of partiality—thereby undermining
confidence in the bedrock principle that every judge be a scrupulously fair
arbitrator. Policy-makers should guarantee to the public that critical
decisions regarding whether a case should go to trial, whether motions
should be filed on a defendant’s behalf, or whether certain witnesses
should be cross-examined are based solely on the factual merits of the case
and not on a PD’s desire to please the judge in order to maintain his job.165
In Pennsylvania, lack of guidelines or oversight permits local judges free reign
over the appointment of counsel and the selection of contract counsel. Such judicial
authority may result in some cases in the selection of counsel on the basis of political or
personal favoritism rather than professional quality. As such counsel owe their positions
to the judge, they have an incentive to avoid displeasing him or her, which discourages
zealous advocacy. Lack of standards impedes accountability of counsel for quality
representation. At the same time, judges fail to monitor for manageable caseloads or
provide additional resources when caseload limits are exceeded.166
“Probably the greatest risk to independence of the defense function is the pressure
defenders receive from their funding sources.”167 Since Pennsylvania’s system is funded
by the counties, the county commissioners constitute the predominant threat in this
regard, as “chief PDs in all counties except Philadelphia are appointed by the county
commissioners, and may therefore have obtained their positions through political
164

Justice Denied, 80.
NLADA, A Race to the Bottom, 35-36.
166
Racial and Gender Bias Report, 190.
167
Justice Denied, 80.
165

-55-

connections.” The power to appoint and fund the PD allows the county commissioners
“to control the PDs’ budgets and sometimes interfere in the operations of their offices.”168
This is especially troubling because the political incentive at the county level favors the
DA as against the PD.169

INVOLVEMENT OF PRIVATE BAR
Principle 2 identifies the respective roles of the private bar and the PD in the
provision of indigent defense services:
Where the caseload is sufficiently high, the public defense
delivery system consists of both a defender office and the active
participation of the private bar. The private bar participation may
include part-time defenders, a controlled assigned counsel plan, or
contracts for services. The appointment process should never be ad hoc,
but should be according to a coordinated plan directed by a full-time
administrator who is also an attorney familiar with the varied requirements
of practice in the jurisdiction. Since the responsibility to provide defense
services rests with the state, there should be state funding and a statewide
structure responsible for ensuring uniform quality statewide.170
AOPC has compiled data on the types of defense counsel that handle criminal
cases. Table 1 shows the different kinds of counsel handling all criminal cases in the
respective counties. Table 2 shows the kinds of counsel handling different kinds of
criminal cases statewide.
The data indicate that Pennsylvania probably does meaningfully involve the
private bar in the provision of indigent defense, as the “court-appointed” and “other”
counsel are private attorneys and an unknown proportion of the “undefined” category is
also private. However, few counties systematically select attorneys in a manner assuring
that the attorney is genuinely qualified to try the assigned criminal case.171

168

Racial and Gender Bias Report, 190.
Ibid., 191.
170
ABA Ten Principles, 2.
171
See segment on Selection of Counsel in this report, 78-80.
169

-56-

Table 1
NUMBER OF CRIMINAL CASES HANDLED BY EACH COUNTY BY DEFENSE COUNSEL TYPE (2008)
_______________________________________________________________________________________________________________
____Public defender__ Court-appointed counsel __Undefined counsel__ ____Other counsel____
Percentage
Percentage
Percentage
Percentage __Total_
Number
of total
Number
of total
Number
of total
Number
of total
Number
County
of cases
cases
of cases
cases
of cases
cases
of cases
cases
of cases
_______________________________________________________________________________________________________________
Adams
Allegheny
Armstrong
Beaver
Bedford
Berks
Blair
Bradford
Bucks
Butler
Cambria
Cameron
Carbon
Centre
Chester
Clarion
Clearfield
Clinton
Columbia
Crawford
Cumberland
Dauphin
Delaware
Elk
Erie
Fayette
Forest
Franklin
Fulton
Greene
Huntingdon
Indiana
Jefferson
Juniata
Lackawanna
Lancaster
Lawrence
Lebanon
Lehigh
Luzerne
Lycoming
McKean
Mercer
Mifflin
Monroe
Montgomery
Montour
Northampton
Northumberland
Perry
Philadelphia
Philadelphia MC*
Pike
Potter
Schuylkill
Snyder
Somerset
Sullivan
Susquehanna
Tioga
Union
Venango
Warren
Washington
Wayne
Westmoreland
Wyoming
York

482
6,195
304
1,527
284
2,961
1,293
247
2,656
1,017
1,540
68
280
909
1,911
220
396
336
395
224
1,701
3,095
3,235
261
1,413
869
36
1,231
58
209
252
478
98
207
1,166
2,050
746
912
1,628
542
1,152
222
658
438
735
3,745
5
1,047
560
301
8,624
43,450
240
90
1,022
130
385
34
211
196
121
369
276
849
315
1,539
189
3,188

36.2%
32.0
34.9
54.2
54.4
50.4
45.3
39.3
29.3
38.2
55.9
72.3
34.1
38.1
37.5
26.8
38.4
62.9
45.8
25.3
53.2
53.2
37.6
57.4
46.9
41.0
46.2
50.8
30.7
41.8
42.2
47.5
14.1
59.7
40.0
41.5
50.1
41.8
33.0
12.3
57.9
29.4
49.7
60.9
41.2
36.4
2.6
24.6
38.6
54.3
51.5
68.7
47.9
38.0
46.8
29.8
45.1
50.0
45.0
47.6
28.5
45.8
51.2
29.3
50.2
29.0
45.2
39.3

71
727
44
141
36
478
409
47
541
166
186
0
87
141
271
45
37
1
37
35
202
218
281
31
168
80
2
332
26
70
146
13
1
10
142
414
140
142
134
42
41
48
142
47
69
84
2
137
146
0
3,270
5,358
9
10
157
29
109
11
55
15
45
36
55
80
0
241
59
743

5.3%
3.8
5.1
5.0
6.9
8.1
14.3
7.5
6.0
6.2
6.7
0.0
10.6
5.9
5.3
5.5
3.6
0.2
4.3
3.9
6.3
3.7
3.3
6.8
5.6
3.8
2.6
13.7
13.8
14.0
24.5
1.3
0.1
2.9
4.9
8.4
9.4
6.5
2.7
0.9
2.1
6.4
10.7
6.5
3.9
0.8
1.0
3.2
10.1
0.0
19.5
8.5
1.8
4.2
7.2
6.7
12.8
16.2
11.7
3.6
10.6
4.5
10.2
2.8
0.0
4.5
14.1
9.2

299
7,365
179
306
42
385
281
31
1,545
888
228
4
208
277
497
262
280
41
113
317
112
546
877
55
340
309
19
372
56
54
50
94
373
25
298
370
175
480
1,580
2,208
230
315
108
41
288
1,725
178
1,725
305
63
135
6,975
20
52
312
90
91
8
21
7
80
74
54
1,053
66
1,626
44
1,024

22.5%
38.1
20.6
10.9
8.0
6.6
9.8
4.9
17.1
33.4
8.3
4.3
25.3
11.6
9.7
31.9
27.2
7.7
13.1
35.7
3.5
9.4
10.2
12.1
11.3
14.6
24.4
15.4
29.6
10.8
8.4
9.3
53.8
7.2
10.2
7.5
11.8
22.0
32.0
49.9
11.6
41.8
8.2
5.7
16.2
16.8
90.8
40.6
21.0
11.4
0.8
11.0
4.0
21.9
14.3
20.6
10.7
11.8
4.5
1.7
18.8
9.2
10.0
36.3
10.5
30.7
10.5
12.6

478
5,060
344
845
160
2,051
871
303
4,308
590
802
22
247
1,061
2,423
295
318
156
317
311
1,184
1,959
4,205
108
1,093
860
21
488
49
167
149
421
221
105
1,310
2,111
428
647
1,588
1,632
565
169
415
193
690
4,733
11
1,343
438
190
4,701
7,506
232
85
691
187
269
15
182
194
179
327
154
920
247
1,897
126
3,163

35.9%
26.2
39.5
30.0
30.7
34.9
30.5
48.2
47.6
22.2
29.1
23.4
30.0
44.4
47.5
35.9
30.8
29.2
36.8
35.1
37.0
33.7
48.9
23.7
36.3
40.6
26.9
20.1
25.9
33.4
25.0
41.8
31.9
30.3
44.9
42.7
28.7
29.7
32.2
36.9
28.4
22.4
31.4
26.8
38.7
46.0
5.6
31.6
30.2
34.3
28.1
11.9
46.3
35.9
31.7
42.9
31.5
22.1
38.8
47.1
42.1
40.6
28.6
31.7
39.3
35.8
30.1
39.0

1,330
19,347
871
2,819
522
5,875
2,854
628
9,050
2,661
2,756
94
822
2,388
5,102
822
1,031
534
862
887
3,199
5,818
8,598
455
3,014
2,118
78
2,423
189
500
597
1,006
693
347
2,916
4,945
1,489
2,181
4,930
4,424
1,988
754
1,323
719
1,782
10,287
196
4,252
1,449
554
16,730
63,289
501
237
2,182
436
854
68
469
412
425
806
539
2,902
628
5,303
418
8,118

Statewide total
113,523
47.5
17,092
7.2
38,651
16.2
69,530
29.1
238,796
_______________________________________________________________________________________________________________
*Municipal court.
NOTE: The “undefined counsel” category includes records where the representation type was not recorded. This field is not
required in reporting data to AOPC because sometimes clerk staff members do not know the representation type. The “other” category
includes the following values: cocounsel, conflict counsel, migrated, PCRA counsel, and private counsel. E-mail from Ralph W. Hunsicker,
senior projects director, Judicial Automation, AOPC, to Commission staff, Jan. 12, 2011.
SOURCE: CPCMS database, 2008, e-mail from AOPC to JSGC staff, March 13, 2009.

-57-

Table 2
NUMBER OF CRIMINAL CASES IN PENNSYLVANIA
BY TYPE OF CASE AND DEFENSE COUNSEL TYPE (2008)
_______________________________________________________________________________________________________________
____Public defender__ Court-appointed counsel __Undefined counsel__ ____Other counsel____
Percentage
Percentage
Percentage
Percentage
__Total_
Number
of total
Number
of total
Number
of total
Number
of total
Number
County
of cases
cases
of cases
cases
of cases
cases
of cases
cases
of cases
_______________________________________________________________________________________________________________
Capital murder
Other murder
Other felony
Misdemeanor
Ungraded
County probation
Forfeiture
Habeas corpus

267
1,001
51,947
58,356
839
1,103
4
6

28.3%
39.5
53.7
43.6
37.5
60.9
1.0
3.2

337
526
11,922
4,052
140
111
1
3

35.7%
20.8
12.3
3.0
6.3
6.1
0.3
1.6

20
167
8,902
27,944
852
247
346
173

2.1%
6.6
9.2
20.9
38.1
13.6
87.4
91.5

319
838
24,038
43,530
404
349
45
7

33.8%
33.1
24.8
32.5
18.1
19.3
11.4
3.7

943
2,532
96,809
133,882
2,235
1,810
396
189

Statewide total
113,523
47.5
17,092
7.2
38,651
16.2
69,530
29.1
238,796
_______________________________________________________________________________________________________________
SOURCE: CPCMS database, 2008, e-mail from AOPC to JSGC staff, March 13, 2009.

STATEWIDE SUPERVISION AND FUNDING
Somewhat hidden in the last sentence of Principle 2 are two of the most essential
structural elements of an effective IDS: “Since the responsibility to provide defense
services rests with the state, there should be state funding and a statewide structure
responsible for ensuring uniform quality statewide.”172 This topic has unmistakably
assumed greater salience in the thinking of observers who wish to reform the nation’s
IDSs. As recently as 1992, the ABA’s official standards went only so far as to suggest
that “[c]onditions may make it preferable to create a statewide system of defense.”173 And
statewide organization was not included in the black letter statement of any of the ABA
principles, but was included in what appears to be the commentary to the Principle 2,
which is more conspicuously about the role of the private bar. However, the comment to
the ABA Standard hints that statewide organization has grown in importance:
[Standard 5-1.2(c)] acknowledges the continuing national trend toward the
organization of defense services at the state level. Such programs have
generally fared better than locally funded programs in resource allocation
and quality of service in recent years.174
Since 2000, eleven states have established a statewide authority over their IDSs, although
three of these state bodies have only partial authority.175
172

Emphasis added.
ABA Standards for Criminal Justice: Providing Defense Services, 3 (Standard 5-1.2(c)).
174
Ibid., 5.
175
Justice Denied, 151. The eleven states referred to are Georgia, Louisiana, Montana, North Carolina,
North Dakota, Oregon, South Carolina, Texas, Virginia, Washington, and West Virginia. The states whose
central structure has partial authority are Georgia, Texas, and Washington.
173

-58-

Statewide Funding
Pennsylvania is the only state that does not provide for any funding for indigent
defense. As of 2008, 28 states fund the IDS entirely or almost entirely at the state level.
In another three states, the majority of the funding is borne by the state. In eighteen states
the county bears most but not all of the cost.176 The shift toward state funding reflects a
consensus among commentators that a predominance of state funding is necessary to a
successful system.
As numerous statewide indigent defense studies have shown, when
counties primarily fund indigent defense, there are certain to be inequities
among the locally funded systems. Inevitably, urban counties have far
more cases than rural counties and are often overburdened. At the same
time, a rural county, with fewer resources, may be financially crippled by
the need to fund the defense of a single serious homicide case.177
State funding is superior to local funding “because the financial obligation is more easily
borne by the state and central funding avoids inconsistencies in funding levels among
counties or other subdivisions.”178 In these respects, the rationale for a significant
contribution from the state for indigent defense is similar to that for state support for
public education. As the counties and municipalities are creatures of the Commonwealth
and have no independent sovereignty,179 the responsibility for establishing and
overseeing the IDS falls primarily on the state. It is consistent with the U.S. and
Pennsylvania Constitutions for the Commonwealth to delegate some of this responsibility
to counties, but the Commonwealth must ensure that the service is adequately provided
throughout Pennsylvania.180
Counties that face the double burden of a high crime rate and a poor economy
cannot be expected to maintain a viable system. Per capita income by county ranges from
$62,086 in Montgomery County to $20,097 in Forest County.181 National experience
shows that the greater the demand for indigent defense funding, the less county funding is
available, because counties with the greatest need for indigent defense commonly face
falling property values, increasing unemployment, poor schools, and poor social services.
Nationally, counties with fewer sources of revenue may have to dedicate a
far greater portion of their limited budget to defender services than would
counties in better economic standing.

176

Spangenberg Project, “State County and Local Expenditures for Indigent Defense Services Fiscal Year
2008” (ABA, 2010), 5.
177
Justice Denied, 54-55.
178
ABA/SCLAID, “Gideon’s Broken Promise,” 8.
179
Pa. Const. art. IX, § 1; Cali v. City of Philadelphia, 177 A.2d 824 (Pa. 1962).
180
See NLADA, Race to the Bottom, v.
181
U.S. Census Bureau, USA Counties, General Profile, Per Capita Personal Income 2007
http://censtats.census.gov/cgi-bin/usac/usacomp.pl (accessed Nov. 15, 2010).

-59-

For instance, crime rates tend to increase when there is a high level
of unemployment. Thus, at a time when tax revenues may be down due to
depressed real estate prices and people leaving the community, the
criminal justice system is often expected to increase its workload. A
county’s revenue base may also be strained during economic downturns
because of the need for increased social services, such as indigent medical
costs. In addition, counties also must provide the citizenry with other
important services, such as public education. The need to balance these
responsibilities while maintaining fiscal accountability often leaves county
officials in the unenviable position of having to choose between funding
needed services and upholding the constitutional commitment to guarantee
adequate indigent defense services.182
In counties heavily impacted by depressed economies, the safety net that would otherwise
support people tempted to turn to crime is ineffective.183 In systems that depend primarily
on county funding there is often justice by geography: “the measure of justice received by
an indigent defendant may depend more on location than the actual merits of the case.”184

Statewide Oversight
Besides more equitable funding, a statewide public defense agency will help
assure that PDs face greater accountability to our citizens and taxpayers. A statewide
office can develop performance standards and implement them through training and
supervision.
National standards have long acknowledged the need for a
statewide structure to oversee indigent defense services, ensure uniformity
in the quality of services, and provide system accountability. . . . [A] lack
of statewide oversight and structure results in a hodgepodge of local
indigent defense systems that are unsupervised and vary greatly in their
effectiveness. The result is a system in which justice for the poor is
unpredictable and subject to local political and budget pressures.185
For instance, had the system in Luzerne County been required to report regularly on its
activities to a statewide office, the county system might have been forced to explain the
high proportion of juvenile clients appearing without counsel, which may have brought
the Luzerne County “kids for cash” scheme into the open earlier.

182

David Carroll, “Pennsylvania’s Continuing Struggles to Meet Gideon’s Promise” (NLADA,
April 8, 2011) http://www.nlada.net/jseri/blog/pennsylvania%E2%80%99s-continuing-struggles-meetgideon%E2%80%99s-promise.
183
Presentation of David J. Carroll, director of Research and Evaluation, Defender Legal Services, National
Legal Aid and Defender Association (NLADA).
184
ABA/SCLAID, “Gideon’s Broken Promise,” 9.
185
Ibid., 21.

-60-

Justice Denied, a study that reflects the consensus of indigent defense reform
advocates, recommends a high degree of control for the statewide agency:
While it is always hazardous to generalize, usually, the greater the
responsibility of the oversight body for the management of the state’s
indigent defense services, the better and more consistent is the
representation throughout the state.
Oversight bodies with full authority and clear independence are
best equipped to have a positive impact on indigent defense. This is
especially true when the commission controls most or all of the state’s
funds for indigent defense. The relationship between state funding and an
indigent defense oversight body’s level of authority is inextricable and, for
the most part, directly proportionate. Without adequate funding, even a
well-designed and empowered commission will struggle to keep the
indigent defense system afloat.186
Consistent with a more centralized system with clear accountability, the advisory
committee recommends that the statewide agency be granted the authority to promulgate
standards through regulation that would govern the provision of services in all the
counties except Philadelphia.187 These standards should apply to all the key elements of
service provision, including:
•

performance evaluation

•

qualifications for attorneys and professional staff

•

compensation of attorneys and professional staff

•

supervision and training

•

attorney caseload and workload

•

eligibility of defendants for public counsel

•

time of commencement of representation

•

data collection

While there should continue to be local PDs, those appointed after the effective date of
the legislation instituting the reformed system should be selected by the statewide agency
and be subject to dismissal by that office if their performance fails to meet the applicable

186
187

Justice Denied, 166.
See this report, 64.

-61-

standards or for other good cause. (PDs in office at the time the new system is instituted
could to retain their positions, but would be subject to dismissal for good cause by the
agency.)

DEFENDER ASSOCIATION OF PHILADELPHIA
Indigent defense cases arising in Philadelphia have been assigned to the Defender
Association of Philadelphia (DAP) under a long-standing contractual arrangement
between DAP and the city government. Because of DAP’s unique and outstanding
accomplishments, the advisory committee recommends that it should be autonomous in
most respects from the statewide office.

Description of Defender Association of Philadelphia
DAP is nationally recognized as one of the best PD offices in the country. It has
been honored by the NLADA for its excellence, and it has received other awards for its
training programs, its dedication to quality representation of delinquent juveniles and
children in abuse and neglect proceedings, its commitment to zealous capital case
representation, and its leadership within the Philadelphia, Pennsylvania, and national PD,
criminal, and delinquency justice communities.
DAP is guided by the best practices set forth in the Ten Principles and makes
every effort to fully comply with them. It is structured to assure independence in its
management and law practice and has maintained high standards of ethical, competent,
and effective assistance of counsel. These standards of quality legal practice are
communicated throughout its supervision process, training programs, and training
materials.
Originally founded in 1934, DAP formally became the only PD office for
Philadelphia through a perpetual contract originally signed in 1969. The contract provides
that DAP is governed by a board of thirty directors representing the city administration as
well as DAP itself. The board appoints the chief PD and the first assistant defender and
provides policy guidance and oversight. The board fully supports the independence of
DAP from political and judicial influences, but does not interfere with the representation
of individual clients.
DAP provides state court representation for adults facing criminal prosecutions,
and it files and staffs appeals to the Pennsylvania appellate courts and, when appropriate,
the U.S. Supreme Court. It represents clients at probation review and parole violation
hearings. All representation services are fully supported by staff investigators, social
workers, mitigation specialists, administrators, technology staff, and support staff. DAP

-62-

attorneys, professional and support staff are full-time employees. Staff comprises
approximately 600 full-time employees who work in its state and federal court divisions,
units, and administration.
DAP’s Juvenile Court Unit (JCU) has received national and state attention for its
excellence. JCU represents juveniles in the delinquency court system at adjudication and
disposition hearings, probation and other review hearings, habeas corpus filings, civil
mental health review proceedings regarding sex offenders, and appellate representation. It
participates in formulating policy regarding the delinquency system and in the
rule-making process for juvenile court. JCU founded the Juvenile Defenders Association
of Pennsylvania, which has become an important voice for juvenile PDs and for the
children whom they represent. Members of the unit have contributed to the writing and
publication of performance guidelines and other practice materials.
DAP was one of the nation’s first defender offices to provide legal representation
for children involved in the dependency court system through its Child Advocate Unit.
The teams of attorneys and social workers comprising this unit seek to protect infants,
children, and youth who have been physically and psychologically harmed. Many of
these children may remain clients of CAU until they age out of the foster care system as
young adults. The dedication of the CAU’s attorney and social worker teams has saved
the lives of many clients.
Among DAP’s foremost priorities is the training, education, and development of
its attorneys. DAP was one of the first PD offices in the country to establish a full-time
attorney director of training responsible for the recruitment of outstanding law graduates
and the training and supervision of interns and new attorneys. When the Pennsylvania
Supreme Court instituted mandatory CLE requirements for all attorneys, DAP was
recognized as one of the first accredited CLE providers, based upon its history of quality
training programs.
DAP also provides specialized representation for adults and juveniles who have
mental retardation or serious mental health conditions. This group of attorneys and social
workers provides legal services for civil and criminal mental health hearings and
commitment proceedings. They have also been active in discussions pertaining to the
establishment of a Philadelphia mental health treatment court and in state and county
policy impacting the mentally ill involved in the criminal and delinquency systems.
Finally, DAP serves as the federal community defender office for the Eastern
District of Pennsylvania, providing trial and appellate representation in the federal courts.
The federal office includes a large capital habeas unit that specializes in representing
Pennsylvania inmates who face the death penalty. This unit’s litigation has identified
ineffective assistance of counsel issues in the training and funding of Pennsylvania’s
capital litigators, particularly the lack of financial support from the Commonwealth.
Litigation by this unit has resulted in rulings in its favor by the Third Circuit and by the
U.S. Supreme Court.188
188

See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456 (2005).

-63-

Role of DAP in Proposed System
The advisory committee recommends that DAP continue to handle indigent
defense representation for cases arising in Philadelphia. Because of the excellent record
of DAP in maintaining professional standards, it should not be subject to the professional
supervision of the statewide office and should be responsible for formulating and
enforcing its own professional standards.
To afford Philadelphia some benefit from the statewide system, the statewide
Office of Indigent Defense Services should contract with DAP to remunerate the latter
for its handling of appeals (including appeals from capital cases). With respect to capital
trials, the statewide office would pay DAP to handle 20% of those cases, as Philadelphia
does currently through its contract with the City. The First Judicial District (which
comprises the Pennsylvania Unified Judicial System in Philadelphia) should continue to
assign the other 80% of the capital cases in Philadelphia to counsel qualified under court
rules to represent capital defendants. While it might be fairer for DAP to handle all
Philadelphia indigent capital cases, the advisory committee recognizes that the cost of
doing so would be overly burdensome to the Commonwealth. Locally assigned counsel
would also handle all postconviction litigation. The statute is drafted so as to implement
this plan.
The advisory committee urges the City administration and the First Judicial
District to adequately fund assigned counsel representing capital defendants.

TIMELY ASSIGNMENT OF COUNSEL
Principle 3 deals with the initiation of the attorney-client relationship:
Clients are screened for eligibility, and defense counsel are
assigned and notified of appointment, as soon as feasible after clients’
arrest, detention, or request for counsel. Counsel should be furnished
upon arrest, detention, or request, and usually within 24 hours
thereafter.189
For the most part, the PDs that responded to the Commission staff’s initial SR 42
Survey reported that they do begin representation of indigent defendants as soon as
possible, normally before the preliminary hearing. Several counties reported that they
sometimes represent clients as early as the preliminary arraignment. A few PD offices
responded that while they technically begin representation before the preliminary
hearing, that hearing is often the first time the defendant and counsel actually meet

189

ABA Ten Principles, 2.

-64-

face-to-face. The advisory committee believes that the time of commencement of
representation should be governed by statewide standards which should generally direct
that defense counsel meet with the defendant prior to the preliminary hearing.

Eligibility Determinations
The SR 42 Survey found that the majority of counties use the Federal Poverty
Guidelines (FPG)190 to determine eligibility for indigent defense services, but the
eligibility cutoff varied among the counties. Of the responding counties, 21 either use
FPG or guidelines that mirror them for income eligibility. Most of those use a percentage
of FPG ranging from 120 to 185 percent. For example, a defendant with a family size of
four who is charged with a crime in Cambria County (eligibility standard of 120 percent
of FPG) would be eligible for indigent defense services up to an income of $26,460. In
Franklin County (eligibility standard of 185 percent of FPG), a defendant would be
eligible for those services up to an income of $40,793. In several counties eligibility is
affected by factors in addition to FPG, such as the grading of the offense, the defendant’s
assets, and whether the defendant is incarcerated at the time of the application.
The consensus of the advisory committee is that whether a juvenile is represented
by counsel in delinquency proceedings should not depend on whether his or her family or
guardian has sufficient means to pay for private counsel. The advisory committee
therefore applauds the Pennsylvania Supreme Court’s amendment to the Rules of
Juvenile Court Procedure, which establishes a presumption of indigency for juveniles and
requires the court to appoint counsel before the commencement of a hearing if the
juvenile appears at the hearing without counsel. The Comment to the Rule further states
that the resources of the juvenile’s guardian191 are not to be considered in determining the
juvenile’s indigency.
The advisory committee recommends that the powers of the statewide agency
include setting eligibility standards, in order to minimize the “justice by geography”
anomalies that arise when each county sets its own, but eligibility standards should be
flexible enough to accommodate local variations in the cost of living.

Collection of Fees from Defendants
Some of the indigent defense statutes of other states include various provisions
that require persons who have received indigent defense services to make payments to

190

For FPG amounts, see U.S. Department of Health & Human Services, Centers for Medicare & Medicaid
Services. 2010 Poverty Guidelines: All States (except Alaska and Hawaii) and D.C. http://www.cms.gov/
MedicaidEligibility/Downloads/POV10Combo.pdf (updated January 23, 2009).
191
Pa. R.J.C.P. 151. The term “guardian” includes parents. Pa.R.J.C.P. 120.

-65-

reimburse the state for all or part of the cost of their representation.192 These provisions
apply to persons whom a judge determines are capable of paying for representation
without undue hardship or those whose financial situation improves within a stated period
of time after free counsel is provided. If the client fails to pay the fee, the remedy is
usually a civil action against the defendant, with amounts collected payable either to the
state’s general fund or a fund set aside for indigent defense.
The advisory committee advises against adopting such provisions. A recent
report on the unfairness of user fees charged to defendants by the criminal justice
systems in the fifteen states that have the highest number of prisoners194 recommends that
“[p]ublic defender fees should be eliminated, to reduce pressures that can lead to
conviction of the innocent, over-incarceration, and violations of the Constitution.” These
detriments arise mainly because fees for indigent counsel may discourage the exercise of
the right to counsel.195 Defender and other user fees can accumulate to a debt of hundreds
or thousands of dollars and lead to a cycle of debt that indigent defendants cannot
extricate themselves from, especially when their cases are referred to private collection
agencies, and their fees are added to the underlying debt. Failure to pay may lead to
reimprisonment and can hinder the defendant’s reentry into society, as when the unpaid
debt becomes grounds for suspending driving privileges. Fee collection also diverts
probation and parole officers from their functions of promoting public safety and
rehabilitation.196 The PD or other segments of the criminal justice system may become
dependent on fees and fines on indigent defendants to maintain their operations, leading
to “improper incentives for judges to impose and aggressively collect fines and fees.”197
More fundamentally, collecting from defendants who have used free counsel undermines
the core principle that the accused is entitled to counsel when he or she is unable to afford
it. At the same time, applications for free counsel should be subject to criminal penalties
for false statements on the same basis as other applications to state authorities.198
193

FACILITATING THE ATTORNEY-CLIENT RELATIONSHIP
Principle 4 addresses the facilities necessary to assure open and confidential
exchange of information between attorney and client:
192

See, e.g., Colo. Rev. Stat. §§ 21-1-106, 21-2-106; Conn. Rev. Stat. §§ 51-297, 51-298; Ind. Code
§§ 33-40-3-6 — 33-40-3-9; Ky. Rev. Stat. Ann. § 31.211; Mass. Gen. Laws ch. 211D, § 21/2; Minn. Stat.
§ 611.35; N.M. Stat. § 31-16-7; Or. Rev. Stat. §§ 151.485, 151.487; Va. Code § 19.2-163.4:1; W. Va. Code
§ 29-21-16; Wis. Stat. §§ 977.06, 977.07, 977.075, 977.076, 977.077. All statutes were retrieved through
FindLaw in 2010.
193
Alicia Bannon, Mitali Nagrecha, and Rebekah Diller, “Criminal Justice Debt: A Barrier to Reentry”
(New York: New York University School of Law, Brennan Center for Justice, 2001).
194
Pennsylvania and New York do not currently charge public defender fees, but the other thirteen states
do. Ibid., 12.
195
Ibid.
196
Ibid., 1, 2.
197
Ibid., 25-28.
198
See 18 Pa.C.S. §§ 4903 and 4904.

-66-

Defense counsel are provided sufficient time and a confidential
space within which to meet with the client. Counsel should interview the
client as soon as practical before the preliminary examination or the trial
date. Counsel should have confidential access to the client for the full
exchange of legal, procedural, and factual information between counsel
and client. To ensure confidential communications, private meeting space
should be available in jails, prisons, courthouses, and other places where
defendants must confer with counsel.199
Confidentiality between attorney and client is among the most basic principles of
legal practice, as noted in the Pennsylvania Rules of Professional Conduct:
A fundamental principle in the client-lawyer relationship is that, in
the absence of the client’s informed consent, the lawyer must not reveal
information relating to the representation. . . . This contributes to the trust
that is the hallmark of the client-lawyer relationship. The client is thereby
encouraged to seek legal assistance and to communicate fully and frankly
with the lawyer even as to embarrassing or legally damaging subject
matter.200
Conditions that facilitate consultation between attorney and client assist the
American legal system by enabling the attorney to fully understand the client’s view of
the underlying facts, thereby enabling the attorney to prepare the most responsive
possible defense. The attorney can more readily determine whether the client’s guilt is
clear or contestable and whether appropriate legal defenses (such as self-defense,
diminished capacity, or insanity) may apply, or procedural defects that implicate
fundamental rights (such as illegal search and seizure) may render evidence against the
client inadmissible. Once a person has been determined eligible for indigent
representation, the attorney or other interviewer should obtain the critical information
from the client about the facts of the case, any defenses, the names of the witnesses, and
all other relevant circumstances. This intake process should be completed before critical
proceedings against the defendant take place.
While the SR 42 Survey of PDs did not focus on questions pertaining to private
space to talk to clients, advisory committee members expressed concern that adequate
space was often not available for PDs and court-appointed counsel. The Racial and
Gender Bias Report noted problems in this regard:
[The Spangenberg Group] observed that defense attorneys had a
difficult time meeting professional standards of confidentiality because of
a shortage of private spaces in jails, prisons, and courthouses where they

199
200

ABA Ten Principles, 2.
Pa.R.P.C. 1.6, cmt. [2].

-67-

met with clients. In some courthouses, for example, defense attorneys
were forced to meet clients in areas where their conversations were fully
audible to prosecutors and law enforcement officers.201

EXCESSIVE CASELOADS
Principle 5 addresses the key issue of limits on attorney workloads:
Defense counsel’s workload is controlled to permit the
rendering of quality representation. Counsel’s workload, including
appointed and other work, should never be so large as to interfere with the
rendering of quality representation or lead to the breach of ethical
obligations, and counsel is obligated to decline appointments above such
levels. National caseload standards should in no event be exceeded, but
the concept of workload (i.e., caseload adjusted by factors such as case
complexity, support services, and an attorney’s nonrepresentational duties)
is a more accurate measurement.202
Caseloads for PDs and other defenders should be low enough to allow for a quality
defense. No lawyer can provide an accused with adequate representation without the time
and resources needed to devote to his or her cases.
Principle 5 follows from binding ethical standards for legal practice. Rule 1.3 of
the Pennsylvania Rules of Professional Conduct states: “A lawyer shall act with
reasonable diligence and promptness in representing a client.” Comment [2] adds: “A
lawyer’s work must be controlled so that each matter can be handled competently.” A
lawyer who takes so many cases that he or she cannot handle all of them with “reasonable
diligence and promptness” commits an ethical violation.203
A thorough preparation of a criminal defense requires activities well beyond the
perusal of a police report. Counsel must participate in the arraignment and the
preliminary hearing, because important rights can be lost if they are not asserted early.
Counsel must interview the defendant and any witnesses who may know about the
circumstances of the alleged offense. The attorney or an investigator on his or her behalf
may need to inspect the crime scene and collect and evaluate physical evidence. If the
investigation may have violated the constitutional rights of the accused, the defense must
move to exclude the evidence produced in consequence of the violation. In complex
cases, a competent defense may require consultation with forensic or psychological
experts and development of their testimony. In cases that raise novel legal issues, these
201

Racial and Gender Bias Report, 186.
ABA Ten Principles, 2.
203
See also Pa. R.P.C. 1.1 (requiring and defining competent representation) and 5.1 (defining the
responsibility of a supervisory lawyer to ensure that a subordinate lawyer observes ethical practice).
202

-68-

must be researched, briefed, and argued. A trial requires meticulous preparation and
makes great demands on the attorney while it is taking place and afterwards, when the
attorney is called upon to preserve rights for appeal. How much work is required depends
heavily on the facts of each case, but an attorney who attempts to juggle too many cases
will be unable to meet the requirements of competent, zealous, and ethical representation
in many of those cases.

National Standards
It is impossible to determine with mathematical precision how many cases an
individual PD can handle, since cases vary greatly in the time they require to complete.
The only study to suggest national maximum caseload numbers for use by defenders was
a 1973 study done by the National Advisory Commission (NAC) on Criminal Justice
Standards and Goals. In its report, the NAC recommended a maximum annual caseload
per attorney in a PD office of 150 felonies, 400 misdemeanors, 200 juvenile court cases,
200 mental health cases, or 25 appeals.204 An ABA Committee studying the criminal
justice system proposed reducing the standard for misdemeanors to 300 cases in view of
case law extending the right to free counsel to misdemeanors punishable by
imprisonment.205 Another ABA report observed that the NAC standards “have proven
resilient over time, and provide a rough measure of caseloads.”206
The NLADA-affiliated American Council of Chief Defenders (ACCD)
commented that the PD and assigned counsel caseloads should not exceed the NAC
recommended levels, but cautioned that the standards should not be applied
mechanically.
[NAC] caseload limits reflect the maximum caseloads for full-time
defense attorneys, practicing with adequate support staff, who are
providing representation in cases of average complexity in each case type
specified.
Notwithstanding their general suitability, the NAC standards
should be carefully evaluated by individual public defense organizations,
and consideration should be given to adjusting the caseload limits to
account for the many variables which can affect local practice. The NAC
standards, for example, weight all felonies the same, regardless of
seriousness. . . . Similarly, the NAC standards do not account for

204

Justice Denied, 66. “The standards are disjunctive, so if a PD is assigned to more than one category, the
percentage of the maximum caseload for each category should be assessed and the combined total should
not exceed 100%.” Ibid., n. 102.
205
ABA Standards for Criminal Justice: Providing Defense Services, 3rd ed. (Washington, D.C.: ABA,
1992), 72; Argersinger v. Hamlin, 407 U.S. 25 (1972).
206
ABA Standards: Providing Defense Services, 72.

-69-

differences in urban and rural jurisdictions, and instances where attorneys
must travel significant distances to and between courts, confinement
facilities and clients.207
The ACCD further observed that “in many jurisdictions, maximum caseload levels
should be lower than those suggested by the NAC.”208 In agreement with other indigent
defense advocates, ACCD noted that criminal defense has become more complicated and
cases often take longer to process than in 1973.209
Justice Denied further elaborates on the increasing demands of contemporary
criminal practice as they affect attorney workloads:
As a result of the “tough on crime” policy decisions, criminal cases
have become more time-consuming and costly to defend. The greater the
potential consequences of a conviction, the more time and effort a criminal
defense attorney needs to expend to avoid a conviction or to mitigate its
consequences. A recent empirical workload study of the Colorado state
PD found a significant increase in just the past six years in the time it
takes PDs to handle their caseloads due to a variety of factors, such as the
creation of new crimes, enhanced penalties, and additional collateral
consequences applicable upon conviction.210
With the emergence of science and technology and new criminal
laws, many cases have become more complex, requiring specialized
training and greater time to defend. Consider, for instance, the use of DNA
and other forensic evidence, computer- or internet-based crimes, and the
creation of sexually violent predator laws. . . . Such complex cases are a
significant burden on a defender’s time, requiring not only specialized
knowledge but often also the review of thousands of pages of discovery
and the use of experts.211
Leading indigent defense expert Norman Lefstein cites these considerations to
argue that the NAC guidelines should not be taken as definitive, particularly emphasizing
the lack of empirical support for them and their “troubling” failure to distinguish between
different kinds of felonies. Professor Lefstein concluded that the NAC standards were
useful only as “an absolutely outer limit on caseloads that defense lawyers for the
indigent should be permitted to handle.”212 On the other hand, Timothy Clawges, the PD
of Cumberland County characterized the NAC guidelines as “about right.”213 As will be
207

American Council of Chief Defenders Statement on Caseloads and Workloads Resolution. (n.p.:
NLADA, Aug. 24, 2007), 1, 5 http://www.nlada.org/DMS/Documents/1189179200.71/EDITEDFINAL
VERSIONACCDCASELOADSTATEMENTsept6.pdf.
208
Ibid., 6.
209
Ibid., 6-12; Justice Denied, 66.
210
Justice Denied, 71.
211
Ibid., 76.
212
Norman Lefstein, e-mail to Commission staff, November 30, 2010.
213
Telephone conversation with Commission staff, March 18, 2011.

-70-

detailed below, in some counties attorney staff is numerically insufficient to handle
caseloads under NAC standards, plus the office must handle a substantial number of
cases for which recommended workloads have not been formulated, usually because they
are types of cases that did not exist when the NAC study was done.

Obligation to Refuse Work
As Principle 5 states, attorneys have an obligation to decline to take additional
cases where acceptance of the work “interfere with the rendering of quality representation
or lead to the breach of ethical obligations.” The ethical obligations of PDs faced with
excessive caseloads were addressed in ABA Formal Opinion 06-441, which has received
a great deal of attention in the PD community.214 In this opinion, the committee
emphasizes that attorneys defending indigent clients are under the same duties of
professional ethics that apply to other attorneys. Along with such professional obligations
as those mandating that lawyers “keep abreast of changes in the law; adequately
investigate, analyze, and prepare cases; act promptly on behalf of clients; communicate
effectively on behalf of and with clients; . . . and, if a lawyer is not experienced with or
knowledgeable about a specific area of law, either associate with counsel who is
knowledgeable in the area or educate herself about the area,” there is also a duty to
“control workload so each matter can be handled competently.” 215
In a PD office setting, the determination of whether an attorney’s workload is
reasonable is to be determined in the context of such factors as “case complexity, the
availability of support services, the lawyer’s experience and ability, and the lawyer’s
nonrepresentational duties” and is to be made, in the first instance, by the supervisor and
then by the chief PD. If a PD or other indigent defense attorney is faced with an
excessive workload, his or her first recourse is to attempt to get relief or assistance
through the attorney’s immediate supervisors until relief or assistance is obtained. This
may include transferring the attorney’s cases or nonrepresentational responsibilities to
other staff, supporting his or her petition to the court to withdraw from cases, and
supplying any available resources to assist him or her. If no relief is forthcoming from
within the office’s chain of command or it is not sufficient to bring the caseload down to
a level that the lawyer considers reasonable in his or her independent professional
judgment, the attorney should petition the court to withdraw from cases, whereupon the
court must determine whether the request for reduced workload is reasonable. If the court
denies the petition to withdraw, the attorney must obey the order, while taking all
reasonable steps to ensure that every “client receives competent and diligent
representation.” The supervisor is under a corresponding duty to ensure that the caseload
of each lawyer in the staff is reasonable under this standard, and “[i]f the supervisor
knows that a subordinate’s workload renders the lawyer unable to provide competent and
diligent representation and the supervisor fails to take reasonable remedial action . . . , the

214
215

ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 06-441 (2006).
Ibid., 3, 4, 6.

-71-

supervisor himself is responsible for the subordinate’s violation of the Rules of
Professional Conduct.”216 The ABA has adopted guidelines that further elaborate on the
duties limned in Formal Opinion 06-441.217
In State ex rel. Missouri Public Defender Commission v. Pratte,218 the Missouri
Supreme Court outlined some of the responses that could be used to address a crisis
brought about by excessive caseloads. The Missouri statute authorizes a county PD to
declare “limited availability” of the system if predetermined caseload limits are exceeded
for three consecutive months. At that point, the presiding judge of the court, the PD, and
the prosecutor must take measures to respond. The court outlined the following measures
available under Missouri law:
•

The prosecutor’s agreement to limit the cases in which the state seeks
incarceration

•

Determining cases or categories of cases in which private attorneys are to be
appointed

•

A determination by the judges not to appoint any counsel in certain cases
(which would result in the cases not being available for trial or disposition)

•

Absent a resolution through an agreement by prosecutors and the judge, the
PD may make the office unavailable for any appointments until the caseload
falls below the state commission’s standard219

The court discussed the possibility of appointing counsel and requiring them to work
without pay, but deferred as premature any ruling on whether that remedy could be
mandated. A New Hampshire case has held that the state Supreme Court could require
the legislature to provide reasonable compensation for court-appointed counsel.220

Capital Cases
Special burdens are placed on defense attorneys by cases where the death penalty
is sought. Defense of capital cases has become a specialized area within criminal
practice, and additional experience and training qualifications are required in
Pennsylvania221 and other states. The ABA has developed a 136-page set of standards
216

Ibid., 4-8.
ABA/SCLAID, “Eight Guidelines of Public Defense Related to Excessive Workloads” (ABA,
August
2009)
http://www.americanbar.org/content/dam/aba/migrated/legalservices/sclaid/defender/
downloads/eight_guidelines_of_public_defense.authcheckdam.pdf. These guidelines were adopted by the
House of Delegates of the ABA on August 3, 2009, and therefore constitute formal ABA policy.
218
298 S.W. 3d 870 (Mo. 2009).
219
Ibid., 29, 30. Failure to timely commence the proceeding may result in dismissal of the case due to the
defendant’s right to a speedy trial. Ibid., n. 36.
220
Justice Denied, 134, citing Smith v. State of New Hampshire, 394 A.2d 834 (N.H. 1978).
221
Pa. R.C.P. 801.
217

-72-

governing capital defense that claims to “embody the current consensus about what is
required to provide effective defense representation in capital cases.”222 They embody a
stringent view of the responsibilities inherent in capital defense. “[B]ecause of the
extraordinary complexity and demands of capital cases, a significantly greater degree of
skill and experience on the part of defense counsel is required than in a noncapital
case.”223 “Due to the extraordinary and irrevocable nature of the penalty, at every stage of
the proceedings counsel must make extraordinary efforts on behalf of the accused.”224
The guidelines reflect the concern that has been expressed by the U.S. Supreme Court
and elsewhere in the legal community regarding the poor quality of capital representation
and the dramatic effect the quality of representation has on the probability that the
defendant will actually be executed, as well as recognition of the instances of wrongful
conviction in capital cases.225
The ABA Standards require a capital case to be handled by at least two attorneys,
an investigator and a mitigation specialist. (The mitigation specialist gathers and presents
evidence that is relevant to determining whether the death penalty is warranted,
particularly the accused’s upbringing and his or her mental condition.) A single capital
case exhausted the annual budget of the Venango County PD in three months.

Public Defender Caseloads in Pennsylvania
Pennsylvania’s IDS is unable to generate complete and reliable data, and this
failure hampers policy analysis of the system’s overall performance. The determination
of caseload is simple in principle: count the number of cases and divide that number by
the number of attorneys that handle the cases. But there are problems affecting both the
numerator and the denominator.
There are wide differences in how PD offices count cases. Different cases require
widely different time requirements; a capital murder case may require thousands of hours
of attorney time, while a summary offense may be resolved in less than an hour. It is
therefore necessary to enumerate cases in different categories. Where a given offense
gives rise to felony and misdemeanor charges, different offices categorize the case in
different ways. In Pennsylvania, first degree misdemeanors can carry a sentence of up to
five years and second degree misdemeanors up to two. Imprisonment for one year is the
line of differentiation between felonies and misdemeanors in most states and the federal
government.226 Some offices therefore count first and second degree misdemeanors as
222

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases
(revised February 2003), 2. ABA guidelines are “evidence of what reasonably diligent attorneys would do,”
but are not “inexorable commands with which all defense attorneys must fully comply.” Bobby v. Van
Hook, 558 U.S. ___, 130 S.Ct. 13, 17 (2009) (internal quotations omitted).
223
ABA Death Penalty Guidelines, 2.
224
Ibid., 4.
225
Ibid., 8, 9, 13. The Death Penalty Information Center claims that since 1971, 138 American defendants
who were sentenced to death were later exonerated. DPIC, The Innocence List http://www.deathpenalty
info.org/innocence-list-those-freed-death-row (last modified October 28, 2010).
226
E-mail from Wieslaw Niemoczynski to Nathan Schenker, March 15, 2011.

-73-

felonies. A juvenile delinquency case may involve a series of different hearings and
incidents relating to one minor. If there is a major incident perpetrated by a minor already
adjudicated delinquent, does that give rise to a new case or is it added to the minor’s
existing case? Does a probation or parole violation by a convicted person begin a new
case or is it the same case as the underlying offense?
There are also substantial problems with arriving at a count of the denominator,
the number of attorneys. Those responsible for forwarding caseload statistics may not
know whether the attorney in a given matter is a PD, an assigned counsel, or a private
attorney, especially when a part-time PD represents the defendant. There is no consistent
way of counting part-time attorneys. Some attorneys are counted as part-time even
though they put in 40 hours per week on PD work. The office may count all part-time
attorneys at 0.5 FTE, while others may attempt a more exact enumeration based on hours
worked. Some offices attempt to break down the proportion of attorney time devoted to
different kinds of cases, while others do not.
Many county PD offices across Pennsylvania have caseloads high enough that
even experienced defense lawyers would have difficulty in providing an adequate and
ethically compliant defense for all clients.
Defense counsel for indigents in Pennsylvania struggle with heavy
caseloads, partly because county criminal case filings have increased
without commensurate increases in staffing. In Bucks County, for
example, the PD’s caseload in 1980 was 4,173 cases. In 2000, the same
number of attorneys handled an estimated 8,000 cases. Similarly, in
Monroe County, [Michael] Muth [(then chief PD of Monroe County)]
testified at the Wilkes-Barre public hearing that the PD office’s caseload
rose from 1,984 cases in 1998 to 2,782 in 2000, a 39 percent increase in
three years. During that period, the staff size remained the same. 227
These staggering caseloads create numerous difficulties for counsel, which can
lead to inadequate representation of some clients. The Racial and Gender Bias Report
notes that such overcommitment may result in:
•

Poor attorney-client contact, as attorneys fail to meet personally with their
clients to receive and communicate vital information;

•

Inadequate preparation, as attorneys, for example, fail to conduct
interviews or investigations, file no motions or file the same boilerplate
motions in every case, fail to act in a timely manner on important
information, fail to pursue issues, or “cut corners” in their work . . .228

The advisory committee notes that these difficulties may increase the number of
meritorious claims of ineffectiveness of counsel.
227
228

Racial and Gender Bias Report, 188.
Ibid.

-74-

Excessive Caseloads in Particular Counties
Commission staff performed two surveys to determine caseloads in the reporting
counties. However, much of the data proved unusable because of the many kinds of cases
that are not reported, varying definitions of what constitutes a case, and lack of
standardization for differentiating full- from part-time attorneys. As Chapter Four
recounts, the advisory committee and staff did a basic caseload survey in March 2011,
which provided the data used in this section.
The numerical data from the various responses indicated that some PD offices
throughout the Commonwealth struggle with clearly excessive workloads. Table 3
applies the NAC caseload caps to reported cases from the county to determine the
number of attorneys needed to handle the cases in those categories where caseload caps
have been formulated. The right hand column lists the cases in categories where NAC
caps do not apply. In the counties listed in Table 3, the data indicate that the number of
attorneys is not sufficient to provide adequate representation for NAC cases, plus the
workload includes hundreds or thousands of other cases, and the responsibility for
representing defendants in those cases must be considered in determining a reasonable
complement.
Echoing the view expressed by Michael Muth above, Timothy L. Clawges, the
PD of Cumberland County, observed that over the last 20 years, “there has been an
unrelenting and consistent trend toward increasing the day to day workload of PDs” and
that the system seems oblivious to this trend. He cited the following examples:
•

Increased volume and complexity of legislation. For instance, Megan’s Law
cases require attorneys to deal with new issues ranging from residency to the
psychiatric condition of the client.

•

Increasing alternative outcomes of cases. A DUI defendant may qualify for
disposition under ARD, treatment court, recidivism risk reduction incentive,
or other intermediate treatment alternatives, which requires attorneys to
master the prerequisites for each alternative and to counsel clients about
which alternative they wish to pursue.

•

Collateral consequences counseling. Since the U.S. Supreme Court held in
Padilla v. Kentucky229 that failure to counsel a client on the effect of a guilty
plea on the client’s immigration status may constitute ineffective assistance,
attorneys have had to familiarize themselves with immigration law and

229

__ U.S. __, 130 S. Ct. 1473 (2010). The reach of an attorney’s professional obligations under Padilla is
unclear. Collateral consequences that may require disclosure may include adoption and child custody
rights, eligibility for a professional license or a driver’s license, and voting rights. Thomas Esparza,
“Defense Counsel’s Duty to Warn about . . . Everything? ‘Padilla’ Ruling by U.S. Supreme Court
Extending Far beyond Deportation,” Lawyer’s Weekly USA, Nov. 8, 2010, available at
http://www.tomesparza.com/2010/11/15/defense-counsels-duty-to-warn-about-everything-padilla-rulingbyu-s-supreme-court-extending-far-beyond-deportation-cases/.

-75-

Table 3
CASES AND ATTORNEY WORKFORCE IN SELECTED COUNTIES (2010)
_____________________________________________________________________________________
Number
Attorneys
of staff
required
attorneys
for cases
Number of cases
(FTE
under NAC
Number of
not covered
homicides
by NAC standards
County
equivalent)
standards1
_____________________________________________________________________________________
Centre

7

10.1

1.5

1.8

7

13.3

3 capital

1191: child support (799);
state parole (128); county
probation or parole (264)

23

28.9

3 capital;
20 non-capital

1260: county probation and
parole (1000); state parole
(100); PFA contempt (100);
dependency (60)

Lancaster

23.5

29.7

1 non-capital2

2577: probation or parole
(1718); PFA (259); other
summary, bench warrant,
extradition, fugitive, fines
and costs (600)

Luzerne

16.5

25.0

2 capital,
1 non-capital

1308: contempt (34);
extradition (41); PFA (102);
probation (1070); state parole
(26); summary appeal (6);
termination of parental rights
(19); Megan’s Law (3);
misc. (7)

Monroe

7.5

9.7

2

1517: juvenile dependency
(389); fugitive (41);
summary (47); support
contempt (258); PFA (782)

29.5

36.1

Clinton

Cumberland

Dauphin

Montgomery

532: county probation and
parole (287); state parole (57);
child support (35); child
custody or guardian (62);
protection from abuse (PFA)
(29); other contempt (51);
extradition (11)
581: domestic relations
contempt (225); probation
and parole (278); summary
offenses (78)

8 non-capital

5377: county probation and
parole (4238); state parole
(802); indirect criminal
contempt (85); non-support
contempt (252)
_____________________________________________________________________________________
1. The standards recommend a cap of 150 cases per year per attorney for felonies, 300 for
misdemeanors, 200 for juvenile matters, 200 for mental health cases, and 25 for appeals. There are no
NAC standards for other cases. Thus an office with a caseload of 600 felony cases, 900 misdemeanors,
600 juvenile cases, 400 mental health cases, and 100 appeals would require an FTE of 16 attorneys (viz.,
4 + 3 + 3 + 2 + 4).
2. The 2010 number was unusually low from 2004 through 2010, the Lancaster County PD
represented homicide defendants in 33 cases of which 15 were capital. E-mail from James Karl, Chief
PD, Lancaster County, to Commission staff, June 9, 2011.
SOURCE: March 2011 Basic Caseload Survey.

-76-

determine the citizenship status of their clients. Other “collateral
consequences” that give rise to similar obligations include eligibility for
public housing and other public assistance and firearm privileges.
•

Increase in forms required of PDs. The guilty plea colloquy form in
Cumberland County is two pages long, and the attorney must review it with
each client line by line. This takes between five and ten minutes for each
client, and up to 25 clients may be pled in a given day.

•

Police officers are hired at a greater rate than PDs, prosecutors or other legal
professionals (including probation officers and support staff). Since arrests
seem to be proportional to the number of police, the caseload for professionals
rises.

The problem is not that these requirements are undesirable in themselves, but that they
are simply piled on top of the existing workload with no provision for increasing staff
and other resources to meet them.230
Pennsylvania caseloads may be more demanding than those of other states
because of the heavy punishments prescribed for misdemeanors. Traditionally, a
misdemeanor was defined as an offense that carried a term of imprisonment of one year
or less.231 Under this terminology, the grading system prescribed by 18 Pa.C.S. § 1104
properly labels only misdemeanors of the third degree; misdemeanors of the first and
second degree are then actually felonies, and some PDs classify them as such.
NAC standards further assume that PD offices have adequate staff support.232
Some PD offices operate with minimal assistance. Another stress on the PD office is the
requirement for attorneys to appear at different hearings. In Monroe County, PDs appear
before six trial judges, ten magisterial district judges, two juvenile masters, a children and
youth master, and mental health hearing officers. The county’s chief PD reports that “at
any given time, the PD office is overrun with obligations due to the caseload. Triage is
more often the norm than the exception.”233
Two chief PDs said they disposed of high caseloads through a cooperative
arrangement with the DA. While such a system assures rapid disposition of cases and
minimal immediate costs, there is a high risk that factually innocent defendants will be
convicted, legally established defenses will be ignored, and substantive constitutional
rights will be violated. At the same time, it seems unfair to blame county PDs for failure
to provide zealous representation when resources and staff are only sufficient to support a
practice of plea bargaining almost every case.

230

Timothy L. Clawges, telephone conversation with Commission staff, March 24, 2011.
Bryan A. Garner, ed., Black’s Law Dictionary, 8th ed., s.v., “Misdemeanor.”
232
Staff support would include staff in positions such as investigators, social workers, administrators,
secretaries, paralegals, law clerks, etc.
233
Wieslaw T. Niemoczynski, e-mail to Commission staff, March 15, 2011.
231

-77-

Court-Appointed Counsel Caseloads
Ethical standards require the use of conflict counsel when the PD office has a
conflict, as when there are two or more codefendants, each of whom is likely to mitigate
his or her punishment by implicating another codefendant. Since an attorney who would
attempt to represent more than one codefendant would likely have to argue inconsistent
accounts of the underlying events and would be pressured into preferring one client at the
expense of others, representing multiple codefendants constitutes a conflict of interest.
For this reason such representation is prohibited by Rule 1.7 of the Pennsylvania Rules of
Professional Conduct.234 Counsel may also be appointed for highly specialized cases or
when the PD office does not have sufficient resources to handle the case. Several
counties rely heavily on court-appointed counsel in juvenile delinquency cases, capital
murder, and other cases requiring special expertise.
Staff also attempted to collect data on the numbers of cases handled by
court-appointed counsel, but abandoned the attempt because the data was unreliable.
Court clerks responsible for entering data from the counties did not know what kind of
attorney handled a particular case. This is especially difficult where a part-time PD
represents a client, because the clerk will often be unaware of whether the attorney is
appearing in his or her capacity as a PD or a private attorney. Staff was unable to find
data on the number of court-appointed and conflict counsel handling those cases. Neither
is there any data currently available on the number of private cases
court-appointed and conflict counsel handle in addition to their indigent defense cases.

SELECTION OF COUNSEL
Principle 6 defines the standard for assigning defenders to cases:
Defense counsel’s ability, training, and experience match the
complexity of the case. Counsel should never be assigned a case that
234

Pa.R.P.C. 1.7 (a) provides as follows:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if
the representation involves a concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will
be materially limited by the lawyer's responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.
Paragraph (b), which provides for client waivers of conflicts of interest, does not apply because
waiver is prohibited when the representation involves “the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding before a tribunal.”
Pa.R.P.C. 1.7 (b)(3). Pa.R.P.C. 1.7, cmt. [23] notes that “the potential for conflict of interest in representing
multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more
than one co-defendant.”

-78-

counsel lacks the experience or training to handle competently, and
counsel is obligated to refuse appointment if unable to provide ethical,
high quality representation.235
This principle echoes the ABA Criminal Justice Standards:
Lawyers licensed to practice law in the jurisdiction, experienced and
active in trial practice, and familiar with the practice and procedure of the
criminal courts should be encouraged to submit their names for inclusion
on the roster of attorneys from which assignments are made. Each
jurisdiction should adopt specific qualification standards for attorney
eligibility, and the private bar should be encouraged to become qualified
pursuant to such standards.236
In view of the complexity of criminal law, its practice requires skills beyond those
required for licensure as an attorney, including “familiarity with the practice and
procedure of the criminal courts and knowledge of the art of criminal defense.”237
Inexperienced attorneys wishing to become assigned counsel can become qualified to
represent clients by participating in a structured program that may include serving an
apprenticeship with experienced criminal attorneys, observing a variety of proceedings,
conducting proceedings under the mentor’s supervision, attending training sessions, and
beginning full participation with minor misdemeanor cases.238 Highly professional PD
offices conduct similarly structured programs to develop the professional skills of the
attorneys they employ. More stringent eligibility standards apply to representing the
accused in a capital case. Attorneys who are assigned cases that they are not qualified to
handle have “an absolute duty to decline” the appointment.239
In Pennsylvania counsel are often not matched by competence to cases, and the
structure of the assignment systems creates perverse incentives that undermine effective
representation.
[The Spangenberg Group (TSG)] found that all counties except
Philadelphia lacked a formal screening process for making court
appointments. In most of the counties visited by TSG, appointments were
made through an informal word-of-mouth network among judges and
court administrators. TSG observed other problems that compounded this
deficiency, including the absence of minimum standards of experience and
performance; allegations of favoritism in the appointment process; and
inadequate supervision and training of assigned counsel. Most counties
pay assigned counsel a flat fee (per year in most counties and per case in
235

ABA Ten Principles, 3.
ABA Standards for Criminal Justice: Providing Defense Services, 3rd ed. (Washington, D.C.: ABA,
1992), Standard 5-2.2 (Eligibility to serve), 32.
237
Ibid., 34.
238
Ibid., 35.
239
Ibid.
236

-79-

Philadelphia), creating a disincentive for counsel to devote time to a
particular case. As a result, attorneys are not taking the time to visit clients
in jail, file motions, conduct effective investigations, or respond to mail
from clients.240
The SR 42 Survey shows that Pennsylvania counties use a variety of systems for
appointing counsel. The 13 counties responding to the relevant questions in the survey
reported that the responsibility for appointing counsel is spread among judges, court
administrators and the PD. In five counties, a judge is solely responsible for appointing
counsel; in four counties a judge appoints counsel upon the recommendation of the court
administrator; in three the court administrator appoints counsel; and in one the
appointment process is handled by the PD office. With varying systems of appointing
counsel, it is difficult to ensure that adequate, let alone effective, assistance of counsel is
being provided to all indigent defendants. The appointment of counsel by judges does not
follow Standard 5-1.3 of the ABA’s Criminal Justice Standards, which directs that “[t]he
selection of lawyers for specific cases should not be made by the judiciary or elected
officials, but should be arranged for by administrators or the defender or assigned counsel
programs.”241 This aspect of a proper IDS structure is thus closely related to the principle
of independence from improper outside influence (Principle 1).
The survey revealed some problematic responses from counties with regard to the
training and other eligibility requirements for selection as assigned counsel. Most
counties responded that the attorney need only hold a license to practice law or
membership in the local bar. Some mentioned the need for experience without specifying
more, and some stated they require qualification under Pa. R. Crim. P. 801 for capital
cases. One county reported having no such requirements. In counties without such
requirements or with minimal requirements, there is no assurance that the attorney has
any substantial background in criminal law and practice. Even an experienced and skilled
attorney whose practice has consisted almost entirely of conveying real property or
minimizing the tax consequences of business transactions may be of limited assistance in
a criminal trial.

CONTINUITY OF REPRESENTATION
Principle 7 prescribes that only one attorney should represent a client in any one
matter:
The same attorney continuously represents the client until
completion of the case. Often referred to as “vertical representation,”
[sic] the same attorney should continuously represent the client from

240
241

Racial and Gender Bias Report, 189.
Spangenberg Group, “A Statewide Evaluation of Public Defender Services in Pennsylvania,” 62.

-80-

initial assignment through the trial and sentencing. The attorney assigned
for the direct appeal should represent the client throughout the direct
appeal.242
This principle reflects the importance to effective representation that clients be
represented by the same PD through the entire proceeding, from arraignment through trial
and sentencing. (The principle is similar to continuity of care in the medical setting.)
Otherwise, the client and attorney will fail to develop a “close and confidential attorney
client relationship” that is characteristic of privately retained clients.243 Trust between
client and attorney, so vitally important in criminal representation, is impeded when a
client is passed along from one attorney to another. Because appellate practice requires a
significantly different skill set from trial practice, it is generally not detrimental to the
client’s interests if a lawyer other than the trial counsel handles the appeal.
The principle of continuity is widely ignored in Pennsylvania:
In many counties that [the Spangenberg Group] visited, PDs
employ a horizontal or zone representation system for cases other than
homicides. Under this system, attorneys are assigned to courtrooms first
and clients second. Therefore, an individual client may be represented by
several different PDs before a case is resolved. This system has several
disadvantages, all of which adversely affect the quality of representation:
it hinders the development of attorney-client rapport; it creates gaps in
representation that could leave a client without assistance of counsel at
critical stages in a case; it allows attorneys to avoid responsibility for case
preparation and planning; it creates the potential for important information
to be lost as a case passes from one attorney to the next; it results in the
loss of investigation time; and it undermines clients’ respect for and trust
in both the attorneys and the system as their cases are rotated among
different counsel at various stages.244
Despite these disadvantages, horizontal representation is still widely used by PD offices
in Pennsylvania. A statewide office could mandate, or at least encourage, the use of
vertical representation, depending on its feasibility.

RESOURCES
Principle 8 of the ABA Principles deals with the resources available to the IDS,
both absolutely and in comparison to prosecutors:
242

ABA Ten Principles, 3.
“Gideon’s Broken Promise,” 18.
244
Racial and Gender Bias Report, 189.
243

-81-

There is parity between defense counsel and the prosecution
with respect to resources and defense counsel is included as an equal
partner in the justice system. There should be parity of workload,
salaries and other resources (such as benefits, technology, facilities, legal
research, support staff, paralegals, investigators, and access to forensic
services and experts) between prosecution and public defense. Assigned
counsel should be paid a reasonable fee in addition to actual overhead and
expenses. Contracts with private attorneys for public defense services
should never be let primarily on the basis of cost; they should specify
performance requirements and the anticipated workload, provide an
overflow or funding mechanism for excess, unusual, or complex cases,
and separately fund expert, investigative, and other litigation support
services. No part of the justice system should be expanded or the workload
increased without consideration of the impact that expansion will have on
the balance and on the other components of the justice system. Public
defense should participate as an equal partner in improving the justice
system. This principle assumes that the prosecutor is adequately funded
and supported in all respects, so that securing parity will mean that
defense counsel is able to provide quality legal representation.245
Pennsylvania’s IDS fails to meet this standard:
In Pennsylvania . . . the rapidly increasing caseload for PDs has not been
accompanied by a corresponding increase in resources for indigent
defense. As a result, PDs have had neither the material resources nor the
time to prepare cases adequately with the assistance of support services.
Although many PDs are zealous advocates for their clients, there is a wide
disparity from county to county in the resources they have available to
them. Significantly, there is a marked difference between the resources
available to the prosecution and to indigent defense attorneys in terms of
salaries, technology, support staff, investigators, and other critical
resources.246

Statewide Resources
The Pennsylvania District Attorneys Association (PDAA) has vastly greater
resources than PDAPA, its counterpart for the PDs. For its fiscal year July 1, 2009
through June 30, 2010, PDAPA had revenues of $35,728 and ended the FY with assets
valued at $31,054. For calendar year 2008, the PDAA reported revenues of $446,253 and
net assets valued at $908,279, including a stately headquarters building on Front Street in

245
246

ABA Ten Principles, 3.
Racial and Gender Bias Report,185.

-82-

Harrisburg.247 (The “headquarters” of PDAPA is the post office box of its current
president.) The greater resources of the DAs permit them to lobby for their interests with
the General Assembly more effectively than the PDs can.248

Current Spending Levels
Again, as there is no statewide office charged with the ongoing responsibility of
collecting comprehensive information, data on current spending for indigent defense is
incomplete. The only numbers that are somewhat reliable are those for the expenditures
by PD offices; there is virtually no data on spending for indigent representation outside
the PD offices.249 Consequently, no reliable estimate can be made for the total amount
local taxpayers across the Commonwealth pay for indigent representation.
Virtually all indigent defense outlays250 take place at the county level, making the
task of determining overall indigent defense spending in the Commonwealth exceedingly
difficult. To make matters more complicated, not all indigent defense expenses within
each county come from a single office budget such as county PD offices. Indigent
defense spending is comprised of two primary segments: county PD office and assigned
counsel expenditures.251 The latter usually falls within the county court administrator
budget, but in several counties, some of the assigned counsel expenditures are included in
the PD office budget.252 The SR 42 Survey did not ask for overall expenses for assigned
counsel, and AOPC does not collect information on the compensation paid to them.253
The only data readily available to this study was expenditures by the various PD offices
in 23 responding counties for 2008. Table 4 shows the county populations, PD actual
expenditures and expenses per capita for those counties.
Per capita spending for PD offices expenditures ranges from $2.74 in Columbia
County to $24.63 in Philadelphia. On average, counties with larger population tend to
spend more per capita on indigent defense than smaller counties. For purposes of this cost
247

In addition, the educational arm of the PDAA, the Pennsylvania District Attorneys Institute, is a tax
exempt § 501(c)(3) organization that received $1,767,117 in contributions and grants in calendar year 2009.
The PDAPA spent $62,124 from its own funds for educational expenses in FY 2009-10 and suffered a loss
of $27,844 over that period.
248
Remarks by Harry J. Cancelmi and Wieslaw T. Niemoczynski at SR 42 advisory committee meeting,
October 12, 2011. Monetary amounts are from Federal income tax forms of the respective organizations
supplied by Mr. Niemoczynski.
249
See Table 1, 57, which shows that many indigent defense cases are handled outside the PD offices.
250
Of the 23 counties that provided budget data for 2008, twelve reported that all funding originated from
the county. Another nine reported that over 95 percent of their funding was county based with the
remaining funds originating from other sources such as state grants, state DPW reimbursements (since
terminated), federal grants, or other funding. The remaining two counties reported 92.5 percent and
93.3 percent of their funding from the county, with the remaining amount from unspecified other sources.
251
Assigned counsel includes court appointed and conflict counsel.
252
Counties where some assigned counsel expenditures are included in the PD budget include Columbia,
Dauphin, Elk, Huntingdon, Jefferson, Lawrence, Pike, Potter, and Tioga. This may be true of other counties
as well.
253
Phone call with Richard Pierce, Judicial Programs Administrator, AOPC, January 4, 2011.

-83-

Table 4
AVAILABLE COUNTY PD BUDGET AND
SPENDING-PER-CAPITA IN PENNSYLVANIA (2008)
________________________________________________________________________
PD expenditures
PD expenses
County
(in thousands
per capita
County
population1
of dollars)
(dollars)
________________________________________________________________________
Philadelphia

1,447,395

$35,654

$24.63

Large counties (population greater than 200,000) not including Philadelphia:
Allegheny
Berks
Chester
Cumberland
Dauphin
Erie
Lancaster
Lehigh
York
Washington
Average large counties

1,215,103
403,595
491,489
229,361
256,562
279,175
502,370
339,989
424,583
206,407

7,204
2,801
3,219
897
2,996
1,286
3,089
1,360
1,599
681

5.93
6.94
6.55
3.91
11.68
4.61
6.15
4.00
3.77
3.30

434,863

2,513

5.78

Small counties (population less than or equal to 200,000)
Cambria
Columbia
Elk
Franklin
Huntingdon
Jefferson
Lawrence
Lycoming
Pike
Potter
Somerset
Tioga

144,319
65,004
32,268
143,495
45,543
45,105
90,272
116,670
59,664
16,720
77,454
40,574

480
178
119
648
293
250
506
523
410
145
240
155

3.32
2.74
3.40
4.51
6.43
5.54
5.60
4.48
6.87
8.67
3.10
3.82

Average small counties
73,091
328
4.49
________________________________________________________________________
1. Population data is from the United State Census Bureau’s 2008 population
estimate.
SOURCE: SR 42 Survey, 2009 and United States Census Bureau, QuickFacts
from the US Census Bureau, http://quickfacts.census.gov/qfd/states/42000.html (accessed
April 19, 2010).

-84-

estimate, the counties were divided into those with populations greater than 200,000
(large counties) and those with less (small counties). Since Philadelphia’s per capita
spending was over twice as much as that of the next highest spending county (Dauphin),
it was treated as a separate class. Not including Philadelphia, the average per capita
spending for large counties was $5.78 for the large counties and $4.49 for the small
counties.
To approximate the PD expenditures in the 44 counties that did not provide
budget data, those counties were also divided into large counties and small counties. The
estimated 2008 total population of the seven large non-reporting counties (3,131,077)
was multiplied by $5.78 and the population of the 37 small non-reporting counties
(2,643,085) was multiplied by $4.49. The two resulting products, $18.1 million and $11.9
million, respectively, were added to obtain an estimated cost of $30.0 million for PD
services in the 44 non-reporting counties. Adding this amount to the expenditures
reported by the 23 reporting counties in Table 4, Pennsylvania PD offices spent about
$94.7 million for PD services in 2008.
Since no recent statewide expenditure data on assigned counsel exists, this report
uses the figures in the Racial and Gender Bias Report,254 adjusted for inflation, to
estimate assigned counsel expenditures for 2008. According to that report, in 2000
Pennsylvania spent about $16.9 million on assigned counsel at an estimated cost of $0.85
per person in the counties other than Philadelphia, and $5.15 in Philadelphia.255 Adjusting
for inflation, in 2009 Pennsylvania spent about $21.7 million on assigned counsel with an
estimated cost of $1.06 per person in counties other than Philadelphia, and $6.42 in
Philadelphia.256 The per capita cost for assigned counsel outside Philadelphia may be
low, perhaps drastically so. Given the lack of collected data, it is not possible to
determine to what extent the assigned counsel cost is below the PD amount because
assigned counsel may perform a relatively small proportion of indigent defense
services,257 or because amounts paid to non-PD counsel are not reported, or because some
of these legal services are donated.
Table 5 summarizes the estimated cost of indigent defense in Pennsylvania in
2008, arriving at a total of $115.9 million (or $117.4 million in 2010 dollars).

254

Racial and Gender Bias Report, 173, 178-79. The figures in that report are as of 2000.
It is assumed that all assigned counsel expenses utilized in the Racial and Gender Bias Report for its
estimation of statewide assigned counsel expenditures occurred outside of the county PD budgets. Several
of the JGSC surveys noted that some court appointed, conflict or outside counsel compensation was
included within the county PD budget.
256
Between 2000 and 2008, the Consumer Price Index, a common measure of inflation, increased roughly
25.0 percent. SOURCE: United States Department of Labor. Bureau of Labor Statistics. “Inflation
Calculator.” http://data.bls.gov/cgi-bin/cpicalc.pl?cost1=100&year1=2002&year2=2009 (accessed January
5, 2011).
257
But see Table 1, which indicates that the proportion of indigent defense service provided by PDs may be
as low as 47.5%.
255

-85-

Table 5
ESTIMATED COST OF INDIGENT DEFENSE IN PENNSYLVANIA 20081
________________________________________________________________________
County
PD
Assigned
offices
counsel
Total
________________________________________________________________________
Expenditures (millions of dollars)
All counties (except Philadelphia)
Philadelphia
All counties

$59.1
35.6
94.7

$11.7
9.9
21.6

$70.5
45.4
115.9

Cost-per-capita
All counties (excluding Philadelphia)
5.37
1.06
6.43
Philadelphia
24.63
6.42
31.05
All counties
7.61
1.72
9.33
________________________________________________________________________
1. All figures within this table are estimates. The PD office figures are
approximated using only SR 42 Survey data from 23 of the 67 counties. The assigned
counsel data are inflation adjusted estimated values found in the Racial and Gender Bias
Report, 173, 181. That Report’s estimates of assigned counsel expenditures were based
on 2000 data from 30 counties.
SOURCE: SR 42 Survey, 2009; United States Census Bureau, QuickFacts from
the
US
Census
Bureau,
accessed
April
19,
2010,
http://quickfacts.census.gov/qfd/states/42000.html; and United States Department of
Labor, Bureau of Labor Statistics, Inflation Calculator, accessed January 5, 2011,
http://data.bls.gov/cgi-bin/cpicalc.pl?cost1=100&year1=2002&year2=2009.

-86-

The Racial and Gender Bias Report estimated total indigent defense expenditures
in 2000 at over $79 million, or $6.44 per person.258 Adjusting the per capita amount for
population and inflation, the latter amount is roughly equivalent to $103.5 million as of
2010.259 The Spangenberg Group estimated Pennsylvania’s total spending on indigent
defense as of 2008 at slightly over $95.4 million, or $7.66 per person as of 2008
corresponding to $98.5 million as of 2010.260 (TSG’s expenditure report for 2005
estimated indigent defense expenditures for Pennsylvania at over $100.7 million, or
$8.12 per person.)261
The Spangenberg Group estimated the national expenditure at $5.337 billion as of
2008. Adjusted for inflation and using the 2010 total U.S. Census enumeration (308.7
million) the national per capita expenditure is $17.51 per person, which would
correspond to $222.4 million for Pennsylvania.
262

Comparison of PD and DA Budgets
Comparing the budget of prosecutors against that of PDs is plainly a necessary
step in determining the resource allocation between them. A representative of the DAs on
the advisory committee cautioned that the two offices have such different objectives that
a simple equivalence is misleading. The majority of the advisory committee agreed that
the goal should not be to increase the PD’s budget so that it is as large as the DA’s,
because the DA has responsibility for the entire criminal docket. The DA handles cases
that do not affect the PD, such as those where no defendant is charged or the defendant
retains private counsel. On the other hand, PDs handle civil matters outside the DA’s
purview, but the DA will normally have a larger caseload than the PD. Furthermore, the
disclosure of investigative material mandated by Brady v. Maryland assures that the PD
will have access to much of the important product of the DA’s investigation. But if the
DA’s budget is disproportionately larger than the PD’s, the PD office may not have
sufficient resources to fairly negotiate dispositions with the DA or confront the DA in
court.
Due to the way each PD and DA submitted budget data to Commission staff, it
was very difficult to directly compare budgets within a particular county. In the few
counties where a direct comparison could be made, most DA office budgets were roughly

258

Racial and Gender Bias Report, 182.
The current population of Pennsylvania is 12.7 million, and $6.44 in 2000 is equivalent to $8.15 in
2010, applying the CPI Inflation Calculator provided by the Bureau of Labor Statistics. See
http://data.bls.gov/cgi-bin/cpicalc.pl?cost1=100.00&year1=2008&year2=2009.
260
Spangenberg Project, “State, County and Local Expenditures for Indigent Defense Services, Fiscal Year
2008” (ABA, Nov. 2010). $7.66 (2008) ≈ $7.76 (2010) x 12.7 million.
261
Spangenberg Group, “State and County Expenditures for Indigent Defense Services in Fiscal Year
2005” (SG, Dec. 2006), 27, [36]. This paper extrapolated the 2005 estimate from the 2000 estimated
expenditure (published in 2002) by assuming an annual increase of 5%. Ibid., [38].
262
Spangenberg Project, “Expenditures FY 2008,” 7.
259

-87-

two to three times greater than the PD office budgets in the county. Advisory committee
members believe that the PD budget should be more nearly equivalent to the DA budget
to provide resource equality between defense counsel and the prosecution.
Nationally, funding and resources for indigent defense “lags well behind that
provided for prosecutors.” A survey of comparative resources in Tennessee conducted by
The Spangenberg Group found that prosecutors received well over twice as much funding
as indigent defense. A commission in California found that indigent defense was
underfunded by $300 million in that state, and the disparity between prosecution and
indigent defense increased by over 20% between FY 2003-04 and FY 2006-07.263

Access to Research
Defense attorneys must have access to legal research resources, especially
information on changes to the law, to enable them to provide their clients with quality
representation.
Every defender office should be located in a place convenient to
the courts and be furnished in a manner appropriate to the dignity of the
legal profession. A library of sufficient size, considering the needs of the
office and the accessibility of other libraries, and other necessary facilities
and equipment should be provided.264
The Racial and Gender Bias Report noted serious deficiencies in this regard:
Most counties in the sample suffer from inadequate legal research
facilities. Not surprisingly, PDs in those counties engage in very little or
no legal research. Few PD offices have their own law libraries; if there is a
library, its holdings are generally meager and outdated. Except in
Philadelphia, PDs and assigned counsel generally have no access to new
developments in the law. The lack of adequate computer resources
exacerbates difficulties in conducting research.265

Salaries
Public Defenders
In order to attract and retain quality defense attorneys, PD offices must be able to
offer salaries competitive with those earned by prosecutors. While there was vigorous
debate in the advisory committee over how comparable the prosecutorial and the public

263

Justice Denied, 61.
ABA Standards: Providing Defense Services (Standard 5-4.3), 58.
265
Racial and Gender Bias Report, 187.
264

-88-

defense functions are, both positions require broadly similar skills. Both must have
familiarity with court procedures and practice, a solid grasp of Pennsylvania and federal
statutes and precedents, and skills in advocacy and negotiation.
Nationally, prosecutors receive considerably more pay than indigent defense
lawyers.
[T]hroughout the country, PD salaries are often significantly below
those of prosecutors. For instance, when salaries were frozen in Virginia
in 2006, over 27% of the attorneys in the PD system resigned, and many
turned to higher paying jobs at prosecutor offices or to private law
practice. . . . In Westchester County, New York, . . . DAs’ salaries were
approximately $6,000 to $21,000 higher than PDs’ salaries. In Missouri,
the salaries of PD trial attorneys in 2005 ranged between approximately
$34,000 and $54,000. In contrast, prosecutors’ salaries were reported to
range from $40,000 to up to $100,000 or more. PD salaries are so low that
some attorneys are forced to work second jobs, and the cumulative
turnover of PDs between 2001 and 2005 was an astounding 100%!
Although Missouri’s assistant PDs have since received a four percent
salary increase, most have large law school debts and are still struggling.
As one PD put it, “[i]f you want to raise a family, buy a house and a car,
that’s not going to happen.”266
The situation in Pennsylvania is similar.
Salaries for PDs are seriously inadequate, especially when
contrasted with the salaries of lawyers in DA’s offices. In Centre County,
for example, the DA makes $116,000 per year and the chief PD makes
$57,000. Even in counties where starting attorneys in the two offices begin
at the same salary, severe salary disparities are evident as DAs and PDs
move into more senior ranks. PDs find it difficult to pay back their student
loans; that fact, coupled with the general inadequacy of resources, has a
demoralizing effect upon many young PDs. They leave their jobs as a
result, creating a serious attrition problem for most PD offices, including
Philadelphia’s.267
Chief DA salaries are set by The County Code at $1,000 below that of a judge of
the court of common pleas in the same judicial district. As of 2008, a full-time chief DA
earns between $150,000 and $160,000 in 2008 under this provision.268 Of the PDs who
responded to the survey, 16 were full-time and earned an average salary of $77,676
266

Justice Denied, 63.
Racial and Gender Bias Report, 187.
268
The act of August 9, 1955 (P.L. 323, No 130), (The County Code), § 1401(j); 16 P.S. § 1401(j). This
provision was amended by the act of July 14, 2005 (P.L. 312, No. 57). According the data provided via
e-mail on May 17, 2010, to the Commission by the AOPC, judges of the Court of Common Pleas across the
state earned between $161,850 and $165,105 in 2009.
267

-89-

annually with a salary range of $54,000 to $117,000. Ten of the eleven part-time
chief PDs made an average of $57,300 with a range of $37,940 to $85,761. The average
full-time chief DA earns roughly 40% more than a full-time PD.
The salary differences do not end with the chief PDs and DAs. Of the nine
counties269 for which DA salary data was reported, four had one or more supervisory
DAs. These counties had 22 supervisory DAs earning an average of $82,767, with a range
of $69,800 to $92,279. Comparing the PD salaries for the same nine counties, four of the
counties reported they had a total of 15 supervisory PDs, earning an average of $69,215,
with a range of $51,997 to $102,234. Supervisory DAs in this survey on average earn
about 19.7 percent more than supervisory PDs.270 However, assistant PD and assistant
DA salaries were similar in these nine counties.271
The limited data comparing DA and PD salaries indicates that chief and
supervisory PDs have significantly lower salaries than prosecutors at corresponding
grades. This discrepancy can hinder county PD offices from retaining qualified,
experienced upper level PDs.
Contract and Court-Appointed Counsel
Of the 15 court administrators who responded to the relevant portion the SR 42
Survey, five reported that they have contract counsel on salary to handle cases the PD
cannot handle, mostly due to conflicts of interest. The salaries for these positions ranged
from $20,000 to around $35,000. Only one county indicated that it provided these
attorneys with a stipend for other staff.272
Most of the responding court administrators reported that court-appointed counsel
are generally paid at a rate of $50 to $100 per hour. Some responders reported that the
rate of pay depends on the type of case, while others use a single rate. This pay includes
money to help defray overhead expenses, but in some counties, the rates paid may not
adequately cover such expenses.
Because of the low response rate to the court administrator surveys, it is not
possible to ascertain if these salaries and hourly rates are representative of all counties
that use contract counsel.

269

Chester, Dauphin, Elk, Erie, Lawrence, McKean, Potter, Tioga, and York.
SR 42 Survey.
271
It was difficult to compare part-time assistant PD and part-time assistant DA salaries in the nine counties
because most counties did not provide estimates on annual salaries of part-time attorneys, so no such
comparison was completed. For the nine counties that reported DA salaries, there were 49 full-time
assistant DAs earning an average of $49,892 versus 57 full-time assistant PDs making an average of
$50,889, which indicates a salary difference of $997 in favor of the PDs. This may reflect a real salary
differential, but could arise from factors not included in the survey results, such as experience.
272
The Berks County court administrator stated that conflict counsel and independent contractors are paid
$30,900 annually (without health benefits) and receive a secretarial stipend of $583.33 per month.
270

-90-

Support
Comprehensive preparation for criminal defense requires access to social workers,
independent investigators, and secretarial staff. Both nationally and in Pennsylvania,
many indigent defense lawyers must make do without sufficient—or in some cases
any—assistance from such staff. Only 14 of the 27 PDs responding to the SR 42 Survey
had any investigators in 2008, only three had any social workers, and only 11 had a
paralegal, law clerk or both.273 Three of the counties did not have any staff besides chief
and assistant PDs.274
Investigators
Among the most important requisites for a professional criminal defense is
investigative staff to assist defense counsel in gathering the facts about the alleged crime.
“Adequate investigation is the most basic of criminal defense requirements, and often the
key to effective representation.”275
Indigent defense attorneys often do not have the time or ability to
track down witnesses, travel to distant locations, interview difficult
witnesses, or survey crime scenes. Further, if attorneys perform their own
investigations, they risk needing to become witnesses in their clients’
cases in order to either introduce evidence or impeach the testimony of
others.276
In Pennsylvania, indigent defense is hampered by the lack of adequate
investigative assistance.
Most court-assigned lawyers and many PDs do not make use of
investigators and therefore do not conduct independent investigations of
cases. In counties that do employ investigators, they may spend most of
their time on such matters as indigency screening and serving subpoenas.
Exacerbating the defense attorney’s inability to prepare an adequate
defense without independent investigation is the ability of DAs to draw
upon such resources.277

273

Of the three counties reporting a social worker on the PD’s staff, Philadelphia had 70 social workers,
and Allegheny and Franklin each had one social worker.
274
Columbia County indicated that it only had a chief PD and two assistant PDs on staff; Huntingdon
County reported one chief PD and one assistant PD; and Elk County had only one PD, who worked
part-time.
275
Backus and Marcus, “Right to Counsel,” 1097.
276
Justice Denied, 93-94. The roles of witness and advocate are generally incompatible. For instance, a jury
would be understandably skeptical of the impartiality of the testimony of a witness who is simultaneously
representing a party to the case, and the client’s interests may be injured if the attorney’s truthful testimony
is rejected by the jury for that reason. See Pa.R.P.C. 3.8 and Comments thereto.
277
Racial and Gender Bias Report, 185-186.

-91-

Fourteen of the 27 responding PD offices have at least one investigator on staff, but many
counties with investigators reported that their investigative staff is not sufficient. For
counties reporting investigators on staff, the average annual caseload per investigator was
1,731, of which 1,144 consisted of felonies, misdemeanors, and juvenile delinquency
cases. Such highly excessive caseloads preclude the investigators from offering
meaningful assistance in a majority of the cases.
Experts
Access to experts can be essential to effective legal representation of the accused.
“National standards also have long recognized that indigent defense counsel must be
provided with necessary resources such as . . . forensic services and experts.”278 “The
outcome of a criminal case can hinge on retaining an appropriate expert or conducting a
thorough fact investigation.”279
Defenders who seek the assistance of experts in defending their
clients face many of the same hurdles they do in securing help with
investigation. While the prosecution frequently has at its disposal an
assortment of government personnel such as crime investigation and
laboratory professionals, psychiatrists, scientists, and doctors, defenders
must rely on the state’s witnesses or seek funds to compensate an
independent expert of their own. Reliance on the state’s expert witnesses
raises questions of independence.280
In some Pennsylvania counties, indigent defenders may forego the use of experts
due to budgetary pressures:
The lack of resources also prevents defense counsel from hiring
experts. [The Spangenberg Group] cited cases illustrating the dearth of
expert assistance: ‘In Warren County, an attorney could recall only one
case in which he had an expert witness. A lawyer in one county told us
that as a pharmacist’s son he felt competent to testify on pathology. In Erie
County we were informed that a case that might require a psychologist and
forensic expert might exhaust the whole budget. . . . In Clarion County, in
the prior six months, a total of one expert had been used.’281
Social Workers and Administrative Staff
Secretaries and social workers required for effective performance of PD functions
are often not afforded PDs in Pennsylvania, due to inadequate funding:

278

“Gideon’s Broken Promise,” 10.
Justice Denied, 93.
280
Backus and Marcus, “Right to Counsel,” 1099.
281
Racial and Gender Bias Report, 185.
279

-92-

Aside from Philadelphia, PD offices in the sample counties
suffered from inadequate support services from social workers and
secretarial staff. Some rural counties did not have access to even a
part-time social worker. The lack of sufficient secretarial assistance is a
serious impediment to legal representation, because attorneys must devote
their time to administrative and clerical tasks rather than legal work, and
they may also “cut corners” by, for example, cutting down on motion
practice.282
Only three of the PDs responding to the SR 42 Survey reported social workers on staff.283
Technology
Technology assists PD offices in such important functions as communication,
legal research, and case management, including determination of conflicts of interest. PD
offices are generally found to be trailing prosecutors’ offices in the use, knowledge, and
upgrading of technologies.284
Inadequacy of technology in defender offices is a national problem.
Some PD offices . . . do not have sufficient management
information systems and technical support, leaving them unable to
compile relevant statistical data regarding their caseloads. While the
inability to collect and report on caseloads and cost data is undoubtedly
due to underfunding, it also becomes a cause of under-funding. Without
accurate empirical data, the programs cannot demonstrate to governmental
funding sources its [sic] cost-efficiency and need for additional
appropriations.285
As recently as 2003, widespread use of information technology had yet to become
the norm across much of our Commonwealth:
Technological shortcomings plagued PD offices in all of the
sample counties except Centre County. Nearly all the counties reported
having no computers, or few computers; PDs in the remaining counties
often had out-of-date computers that in some cases had been donated by
DA’s offices. Most counties did not have computerized case management
or tracking systems, despite having unwieldy caseloads and using

282

Ibid., 186.
The counties that indicated they had PD social workers include Philadelphia with 70 social workers, and
Allegheny and Franklin Counties having one social worker each.
284
Backus and Marcus, “Right to Counsel,” 1101-02.
285
Justice Denied, 97-98.
283

-93-

horizontal representation systems that make proper file tracking and
management critical. PDs had to rely on paper filing systems that were
both labor-intensive and difficult to maintain.286
There is a “lack of systematic methods for reporting, collecting, and maintaining data on
indigent defense systems. Information on caseloads is particularly inadequate; many
smaller counties do not even estimate PD caseloads, and other counties are not able to
categorize the data that is gathered according to the type of case.”287
Of the counties that responded to the SR 42 Survey, only 44 percent use a
computer for scheduling, 56 percent for accounting, 59 percent for caseload management,
74 percent for case tracking, and 78 percent to record client information. A PD on the
advisory committee reported that his office computers were hand-me-downs from the
DA’s office.

Overuse of Plea Bargaining
In Pennsylvania, as elsewhere in the United States, many cases are pled out before
they reach the trial stage. When the prosecution and defense agree on the facts in the
case, a full trial is usually unnecessary, and even where the facts may be less clear cut, a
plea bargain may be mutually advantageous. The defendant benefits by receiving a lesser
sentence than if the case had gone to trial, while the public sees at least rough justice
done without the heavy expense of a trial. Where defenders have competent and
well-supported attorneys, investigators, and forensic experts to investigate the facts
surrounding the real or alleged offense, plea bargaining can thus comport with the
adversary system and yield just results. However, when the plea bargain is entered into
largely because the defender lacks the staff or other resources to mount a defense, despite
inconsistent evidence regarding the commission of the offense, the applicability of
possibly meritorious defenses, or evidence tainted by unconstitutional police practices,
the avoidance of a trial may be contrary to sound public policy and substantial justice.
Staff spoke with both the DA and PD in one rural county in separate phone calls.
The PD office’s only staff is a part-time chief PD and one part-time assistant (who
doubles as paralegal and secretary). The PD office is run out of the chief PD’s private
office, and the paralegal is the only staff person for the private practice and the PD office.
According to AOPC data for 2008, this PD office handled 196 criminal cases including
64 non-murder felonies, 131 misdemeanors, and one ungraded case. The response to the
SR 42 Survey from the county for that year reported an additional estimated 30 probation
and parole revocation cases, five protection from abuse hearings, five appeals, and 140
other cases. In total, this part-time PD handled about 376 cases in 2008 with help from
only a part-time assistant.

286

Racial and Gender Bias Report, 186.
“Gideon’s Broken Promise,” 28 (citing testimony by SR 42 advisory committee member
Lisette McCormick).
287

-94-

In that county, both the DA and PD have been in their positions for many years
and each spoke highly of the other. The PD and DA said that they both perform their jobs
adequately and are committed to seeking justice for the accused and the victims. They
arrive at plea arrangements for virtually every indigent defense case. The PD observed
that he could not remember the last time he had a case go to trial. All plea bargains had to
be approved by the president judge, whose entire legal career had taken place within the
county.
The major cause of the overuse of plea bargains is generally the unavailability of
the resources and support structure needed to implement an adequate criminal defense
system, not the shortcomings of individual lawyers. While a collaborative system assures
rapid disposition of cases and minimal immediate costs, there is a high risk that factually
innocent defendants will be convicted, legally established defenses will be ignored, and
substantive constitutional rights will be violated.

TRAINING
The legal profession, like other professional fields, requires that practitioners
attend continuing education classes in order to maintain their licenses. While state bar
associations recognize the importance of continual training and require members to
attend classes, training for PDs is often neglected in Pennsylvania counties. The advisory
committee discussed several instances where newly hired assistant PDs were not
adequately prepared to provide criminal defense. Experienced general practice attorneys
who are court-appointed to represent indigent defendants, but lack criminal defense
training or experience, are likewise at a loss when faced with a criminal case.
Without proper training, indigent defense lawyers cannot provide effective
defense. “Criminal justice is not a static field; it continually evolves and requires
continual training.”288 The effects of lack of training can be most acute in rural PD offices
where relatively few lawyers have criminal defense experience.
Accordingly, Principle 9 deals with training requirements:
Defense counsel are provided with and required to attend
continuing legal education. Counsel and staff providing defense services
should have systematic and comprehensive training appropriate to their
areas of practice and at least equal to that received by prosecutors.289

288

David Carroll, director of research and evaluation, NLADA, presentation to SR 42 advisory committee,
September 15, 2009.
289
ABA Ten Principles, 3.

-95-

Training is another area where the Pennsylvania IDS has been sorely lacking:
Few offices . . . offered significant legal training opportunities to
attorneys. Aside from Philadelphia, which has a rigorous training program
for new attorneys and provides regular training to senior attorneys, none of
the county PD offices visited by the Spangenberg Group has a formal
training or mentoring program. Further, most offices other than
Philadelphia also lack formal evaluation and supervision procedures.
Aside from mandatory CLE requirements, indigent defense counsel
generally do not participate in professional development courses, and
when they do they often must pay all or part of the cost themselves. Given
the lack of training and supervision, attorneys often perform inadequately
or “burn out” and move on to other, more lucrative practices.290
Instituting a permanent training program in a PD office as a core function is only
the first part of the task. Training programs must transmit management’s policies, so that
the PD office can serve its function effectively and efficiently. It is through a consistent
and well developed training system that the leadership of a PD office can change its
culture to instill the values and practices needed to conduct effective indigent defense.
Training provides the support and the development to enable the staff to produce
genuinely professional representation.291

SUPERVISION AND ACCOUNTABILITY
Supervision and accountability are essential to the successful functioning of a PD
office. Attorneys need to know how well their job performance meets courtroom
expectations and also how effectively they are meeting professional standards. Principle
10 prescribes practices to institutionalize accountability:
Defense counsel is supervised and systematically reviewed for
quality and efficiency according to nationally and locally adopted
standards. The defender office (both professional and support staff),
assigned counsel, or contract defenders should be supervised and
periodically evaluated for competence and efficiency.292
Accountability infrastructure is especially necessary given all of the pressures that
push the system toward laxity in professional standards.

290

Racial and Gender Bias Report, 186.
Phyllis Subin, presentation to SR 42 advisory committee, September 15, 2009.
292
ABA Ten Principles, 4.
291

-96-

The challenges facing defenders, including overwhelming
caseloads, lack of supervision and training, inadequate compensation and
resources, and political pressure, all raise significant ethical issues for
defense attorneys, prosecutors, and judges. Although professional
standards for defenders are clear, systemic deficiencies push defenders to
compromise their efforts on behalf of clients. These questionable
compromises undermine ethical standards and, in turn, contribute to the
denigration of the legal profession and the criminal justice system. Judges,
prosecutors, lawyer disciplinary bodies, and defenders themselves are
loathe to call attention to these ethical failings.293
Supervision and accountability are the first defense against lapses in ethics, and
they also are the first bulwarks of effective assistance. Phyllis Subin pointed out how
accountability procedures can clarify expectations and contribute to employee morale.
“To those who are doing top-notch work, you’re saying, ‘That’s top-notch work and
we’re recognizing it by putting it into standards.’ To those who aren’t doing top-notch
work, ‘You’ve got to step up to the table because we’re changing the culture and the
expectations.’”294 Even when attorney qualifications are matched to case assignments,
monitoring and evaluation are necessary to ensure a high quality of representation.295
In Pennsylvania the system’s inability to provide supervision and accountability
“has resulted in a deterioration of professional standards for indigent representation.”296
Pennsylvania’s indigent defense system is characterized by a lack
of state standards, supervision, and accountability. The Commonwealth
maintains no binding workload standards for indigent defense providers;
no uniform standards for representation of indigent defendants; no written
indigency guidelines; no standards for eligibility and compensation of
assigned counsel; and no guidelines for approving requests for
investigators and psychologists.297
In a number of Pennsylvania counties, the PD office is staffed by a single attorney who
has no direct supervisor and no accountability to standards. For those offices, only a
statewide accountability structure can give genuine assurance that professional
standards will be maintained.
The problems that can arise from inadequate supervision and accountability are
known to attorneys working in indigent defense. Conflict attorneys interviewed for an
evaluation report “universally” complained about the number of ineffective assistance of
counsel claims. Complaints noted by conflict attorneys were that:

293

Backus and Marcus, “Right to Counsel,” 1080.
Phyllis Subin, presentation to SR42 advisory committee, September 15, 2009.
295
Backus and Marcus, “Right to Counsel,” 1091.
296
Racial and Gender Bias Report, 184
297
Ibid.
294

-97-

•

Two-thirds of one attorney’s caseload was in the area of ineffective assistance
of counsel

•

Many PD offices did little to no pretrial litigation

•

Potential alibi witnesses were not contacted

•

There was little trial preparation

•

No jail contact was made with incarcerated clients.298

PART-TIME PUBLIC DEFENDERS
The Ten Principles do not address whether PD offices should employ part-time
attorneys, but in its standards relating to PDs and other defender organizations, the ABA
has advocated an entirely full-time attorney staff.
Standard 5-4.2. Restrictions on Private Practice
Defense organizations should be staffed with full-time attorneys.
All such attorneys should be prohibited from engaging in the private
practice of law.299
The work of defenders is exceedingly demanding, normally
requiring that they devote as much effort to their cases as time permits.
Where part-time law practice is permitted, defenders are tempted to
increase their total income by devoting their energies to private practice at
the expense of their nonpaying clients. Even more important, the expertise
required of defense counsel is less likely to be developed if an attorney
maintains a private practice involving civil cases. A prohibition of private
practice by full-time personnel also assists in countering any tendency for
those responsible for financing to maintain low salary structures on the
assumption that defenders can supplement their salaries through private
practice. Where part-time defenders continue to be used, clear and uniform
standards should exist for the scope and performance of duties, limits on
private practice, and the avoidance of conflicts of interest.300

298

Spangenberg Group, A Statewide Evaluation of Public Defender Services in Pennsylvania, 61.
ABA Standards for Criminal Justice: Providing Defense Services, 3d ed. 1992, 56.
300
Ibid., 57. The National Right to Counsel Committee recommends employing full-time staff “whenever
practicable.” Justice Denied, 194-95.
299

-98-

These standards further recommend regionalization of defense services in rural areas with
low caseloads, since that is preferable to using part-time attorneys.301 “The trend in recent
years, particularly in jurisdictions with statewide defender systems, has been toward
requiring full-time attorneys who are precluded from the private practice of law.”302
In Pennsylvania, the use of part-time PDs continues outside the large metropolitan
areas.
[I]n several mid-sized and rural counties, both the chief PD and
some assistant PDs work part-time while maintaining private law
practices. This situation, at a minimum, creates the appearance that the
part-time defenders attend more closely to paying, private cases than to the
cases of indigent defendants.303
Because part-time attorneys are tempted to devote their time and energy to paying
clients, the advisory committee recommends that the IDS employ full-time attorneys to
the greatest practicable extent. The executive director and the attorneys employed by the
office of indigent defense should be required to be full-time employees. Chief PDs should
also be required to be full-time employees, unless the statewide office determines that it
is not feasible to require a full-time commitment in the particular county. Assistant PDs
should be full-time to the maximum extent feasible as determined by the statewide office.
Full-time PDs should be prohibited from engaging in private practice, but that restriction
should not apply to assigned counsel and contract counsel.

FAILURE OF THE
LUZERNE COUNTY JUDICIAL SYSTEM
Nowhere is the lack of resources, personnel, and funding available to meet the
needs of indigent defense felt more keenly than in juvenile justice. Like other indigent
defense, the defense of indigent juveniles receives no funding from the Commonwealth.
The Luzerne County judicial scandal, popularly known as “Kids for Cash.,” brought the
deficiencies of the juvenile justice system of that county into sharp relief, and some of
those shortcomings actually or potentially affect indigent defense more generally.
Most obviously, the scandal illustrated the baneful effects of judicial interference
in indigent defense. Luzerne County President Judge Michael Conahan, one of the
perpetrators of the criminal scheme, “ran the courthouse as a personal sovereignty” and

301

ABA Standards, 57-58. “[I]n some jurisdictions, there may be especially rural areas in which full-time
defenders may not make much sense.” Justice Denied, 195.
302
Ibid., 58.
303
Racial and Gender Bias Report, 190.

-99-

“personally assign[ed] cases.”304 As the Interbranch Commission formed to report on the
scandal observed, “Where judges appoint counsel that appear before them on a specific
case there is an inherent potential conflict between the financial interests of the attorney
in obtaining future appointments and the zealous representation of the juvenile.”305 (Of
course, the same consideration applies to counsel representing an adult defendant.)
In September 2009, Luzerne County President Judge Mark A. Ciarvarella, Jr. and
Senior Judge Michael T. Conahan were indicted as a result of what could be the most
egregious case of judicial misconduct in Pennsylvania history. The 48-count indictment
filed by the U.S. Attorney stemmed from an investigation into the judges’ actions over
five years. The indictment included charges of racketeering, fraud, money laundering,
extortion, bribery, and federal tax violations.
Judge Ciavarella was accused of sentencing hundreds of juvenile defendants to
two privately owned residential detention facilities, Pennsylvania Child Care and
Western Pennsylvania Child Care, in exchange for payments to Judge Conahan and
Judge Ciavarella from the operators of the facilities. Former President Judge Conahan
was accused of using his budget power as president judge to stifle investment in the
county owned juvenile center to benefit the development of the two facilities. The
indictment stated that the scheme resulted in more than $2.8 million paid to the judges as
kickbacks from the operators of the juvenile detention centers.306 In exchange for these
kickbacks, Conahan signed an agreement in January 2002 for the county to pay
$1.3 million annually to the detention centers and to guarantee that juveniles would be
assigned to placement there. The county detention center was closed, while a contract
worth $58 million was awarded to Pennsylvania Child Care in 2004.307
Children and youth with no history of criminal violations were churned through
Ciavarella’s courtroom with frightening speed. His “zero-tolerance” policy toward
juvenile delinquency was expressed through harsh penalties doled out with seeming
disregard for the seriousness of the crime the youths were charged with.308 A youth
who posted a fake MySpace page about a school principal was sentenced to 90 days of
out-of-home placement. The detention centers served as a “Dickensian debtors’ prison”
when an eleven year old boy was sentenced to placement for failing to pay several
hundred dollars in fines and restitution.309 Judge Ciavarella’s strict sentencing policy was
lauded by community leaders, school officials, and some parents.310
The scheme came to light because the Juvenile Law Center (JLC) investigated
allegations of judicial misconduct in 2007. Data uncovered by JLC showed that between
304

Interbranch Commission on Juvenile Justice, Report (Interbranch Commission Report) (ICJJ:
Philadelphia, May 2010), 13.
305
Ibid., 51.
306
United States v. Conahan, Indictment (M.D. Pa. Case No. 09-CR-272, filed Sept. 9, 2009)
http://media.theweekender.com/documents/INDICTMENT.pdf.
307
Interbranch Commission Report, 9.
308
Ibid., 33.
309
Ibid., 37.
310
Ibid., 35.

-100-

2005 and 2008, approximately 50 percent of juveniles appearing before Judge Ciavarella
did so without legal representation, and 60 percent of these youths were remanded to
out-of-home placements. In 2005 and 2006, approximately 500 youths appeared without
counsel and 250 were sent to out-of-home placements.311 At 24.5 percent, the Luzerne
County rate of juveniles remanded to placement was more than double the corresponding
rate for the Commonwealth. Based in part on this discrepancy, in April 2008 JLC
petitioned the Pennsylvania Supreme Court on behalf of 2,500 youths who had been
adjudicated before Judge Ciavarella.312 The petition alleged that Judge Ciavarella failed
to advise the juvenile defendants of their right to legal representation and allowed them to
waive legal representation without a colloquy to establish on the record that the waiver
was “knowing, intelligent, and voluntary.”313
Sixteen days after the filing of the federal indictment, the Pennsylvania Supreme
Court granted JLC’s petition and assumed jurisdiction over the matter under its King’s
Bench power.314 The Court appointed Senior Judge Arthur E. Grim of Berks County as
special master to review all of Ciavarella’s cases where unrepresented juveniles had been
committed to the two juvenile detention facilities, in order to “determine whether the
alleged travesty of juvenile justice in Luzerne County occurred, and if it did, to identify
the affected juveniles and rectify the situation as fairly and swiftly as possible.”315 Judge
Grim’s investigation, concluded 120 days after his appointment, identified 1,866 cases in
which juveniles appeared without counsel before Ciavarella between 2003 and 2008.316
On October 29, 2009, the Supreme Court accepted Judge Grim’s recommendations and
directed that the charges against all juveniles appearing before Ciavarella while the
kickback scheme was in operation be vacated and their records expunged.317
Judge Ciavarella was found guilty in U.S. District Court of racketeering and
conspiracy charges on February 19, 2011.318 On August 12, 2011, he was sentenced by
Judge Edwin Kosik to 28 years in prison.319 Judge Conahan plead guilty to racketeering
charges on April 30, 2011, and was sentenced to 17½ years in Federal prison.320

311

Terrie Morgan-Besecker, “How Juvie Scandal Was Uncovered,” Times Leader (Wilkes-Barre/
Scranton), October 31, 2009, http://www.timesleader.com/news/How_juvie_scandal_was_uncovered_1031-2009.html, accessed through Juvenile Law Center, “Luzerne County ‘Kids for Cash’ Scandal: News
Center,” Feb. 11, 2011, http://jlc.org/luzerne_news_center/.
312
http://jlc.org/news/25/luzernelawsuit/
313
Interbranch Commission Report, 8.
314
Ibid., 10.
315
Ibid.
316
Ibid.
317
Ibid., 12.
318
Dave Janoski and Michael R. Sisak, “Ciavarella Guilty of Racketeering,” Citizensvoice.com, February
19, 2011, http://citizensvoice.com/news/ciavarella-guilty-of-racketeering-1.1107236? localLinksEnabled=
false#axzz1bQ2oWLoo.
319
“Ciavarella Sentenced to 28 Years in Prison,” Times-Leader (Wilkes-Barre/Scranton), August 12, 2011,
http://www.timesleader.com/news/Ciavarella-sentencing-long-line-long-wait.html
320
Jennifer Learn-Andes, “Officials, Victims Are at Ease over Conahan’s Guilty Plea,” Times Leader
(Wilkes-Barre/Scranton), April 30, 2011, http://www.timesleader.com/news/Officials__victims_are_at_
ease_over_Conahan_rsquo_s_guilty_plea_04-29-2010.html.

-101-

The JLC described the full nature and extent of the scandal:
The conspiracy lasted from 2003 to 2008, involving as many as
6,500 juvenile cases and as many as 4,000 individual children. Over 50%
of the children who appeared before Ciavarella did not have an attorney
and 50 to 60% of these unrepresented children were placed outside their
homes. Many of these children were sent to one or both of the two
facilities involved in the alleged kickback scheme. The vast majority of
children were charged with low-level misdemeanor offenses.321
In the wake of these developments, Act 32 of 2009 established the Interbranch
Commission on Juvenile Justice and mandated that it conduct a non-criminal review of
the juvenile justice system in Luzerne County. Through a series of meetings and public
hearings, the Commission investigated and analyzed the practices, procedures, and rules
regarding the judges, attorneys, and public officials involved with the county’s juvenile
justice system, including the appointment of defense counsel representing juvenile
defendants. The Commission issued its report on May 27, 2010.
The Interbranch Commission found that the acquiescence to Judge Ciavarella's
unconstitutional courtroom practices evidenced a broad institutional failure:
Whether because of intimidation, incompetence, inexperience,
indifference, or corruption, every source of check and balance on this
abuse of power failed to one degree or another, some more than others: the
Board of Judges, prosecutors and defense attorneys, probation officers,
police, school officials, the Judicial Conduct Board, the Disciplinary
Board, community leadership, the electoral process, court administration,
county government, the procedural protections afforded by statute and
rules of court, and appellate review.322
Examples of this institutional failure were that two assistant district attorneys
testified that they and other assistant prosecutors assumed that Judge Ciavarella's use of
written, pre-signed waiver forms in lieu of on-the-record colloquies was “acceptable.”323
(The failure to hold a colloquy was a clear violation of Pennsylvania Rule of Juvenile
Court Procedure 152.) On the public defender's side, the retired chief PD said that
because of lack of time and resources, he deemphasized representation of juvenile
defendants. He added that when Judge Ciavarella was hearing juvenile delinquency
cases, it took “approximately no more than four hours a week” of one assistant public
defender’s time to cover juvenile court.324

321

Juvenile Law Center, “Luzerne County ‘Kids-for-Cash’ Juvenile Court Scandal,” http://jlc.org/luzerne/
(accessed Feb. 8, 2011).
322
Interbranch Commission Report, 60.
323
Ibid., 32.
324
Ibid., 34.

-102-

The Commission found that excessive caseloads and inadequate funding, training,
and supervision of assistant PDs allowed the scandal to continue. PDs, and
court-appointed and private counsel ignored their ethical obligation to report violations of
children’s rights. One assistant PD voiced concern, but no further action was taken by the
chief PD until after the scandal became public. Even after Ciarvarella and Conahan were
replaced in juvenile courts and early attempts at reform were made, a full time attorney
assigned to juvenile cases in Luzerne County was responsible for 800 to 1,000 cases per
year, far in excess of the American Council of Chief Defenders’ standard of 200, or
indeed of any reasonable amount.325
The report made 43 recommendations in 20 different policy areas that cover the
scope of the juvenile justice system across the Commonwealth, including six affecting
juvenile defense practice. The Commission recommended a state-based funding stream
for juvenile indigent defense. The Commission also supported a training and resource
unit to be known as the Pennsylvania Center for Juvenile Defense Excellence to support
appellate services for juveniles, training, and the development of clinical programs.
Finally, the report suggested four reforms to ensure access by juveniles to defense
counsel: deeming all juveniles as indigent for purposes of appointment of counsel;
restricting the right of juveniles to waive counsel and requiring stand-by counsel in cases
of valid waiver; implementing an appointment system that avoids the appearance of
impropriety; and establishing performance guidelines that encourage competent and
effective representation of juveniles.326
Many of the factors uncovered by the Interbranch Commission apply to indigent
defense in general, especially where the two systems overlap and the PD is called upon to
defend the children of needy families. While the culture of corruption that developed
under Judge Conahan and Judge Ciavarella is not at all representative of Pennsylvania’s
courts of common pleas or its juvenile justice system,327 the Kids for Cash scandal
showed how failure to maintain professional independence of defense attorneys from
interference by the judiciary can create systemic injustice. It also showed that
Pennsylvania’s overly localized IDS can lead to inadequate supervision and training,
which in turn can lead to a shocking deterioration in professional standards.

325

Ibid., 48, 49.
Ibid., 48-51.
327
Ibid., 7.
326

-103-

-104-

CHAPTER SIX
CONCLUSION

The experience of the advisory committee members with responsibility for
providing indigent defense, the data from the surveys done pursuant to this study and data
on Pennsylvania’s IDS gathered in the course of national studies indicate that the
Pennsylvania IDS fails to meet most of the criteria defined in the Ten Principles. Little
has changed in that regard since the Supreme Court’s Racial and Gender Bias Report
made similar findings in 2003.
. . . Pennsylvania is generally not fulfilling its obligation to provide
adequate, independent defense counsel to indigent persons. Contributing
factors include the Commonwealth’s failure to provide sufficient funding
and other resources, along with a lack of statewide professional standards
and oversight. In addition, efforts to improve the indigent defense system
have been impeded by the lack of reliable, uniform statewide data
collection.328 [Emphasis added]
The research director of the NLADA agrees that many of Pennsylvania’s county
IDSs suffer from a wide range of deficiencies:
Across much of [Pennsylvania], defendants count themselves
among one of several hundred who are all vying for the attention of a
single lawyer—a lawyer who lacks the time or resources to adequately
advocate on their behalf. Pennsylvania neglects to provide any type of
meaningful supervision or accountability for the work of these public
defense lawyers and refuse [sic] to make available on-going training to
keep attorneys abreast of ever-evolving criminal justice sciences. And,
public attorneys are often beholden to the trial judge and/or the county
administration for their pay check, creating a direct conflict between the
lawyer’s own personal financial well-being and his ethical duty to
advocate solely on behalf of his client.
People in need of defender services have little ability to redress
such constitutional violations alone. Often in Pennsylvania, it is the same
overwhelmed, untrained, unqualified and financially-conflicted lawyer
who failed to adequately advocate for a client at trial who is also
appointed to represent that same client on direct appeal (the court
procedure to review the fairness of the trial and raise issue with—among
other things—whether or not the trial lawyer did a good job). Chances are
328

Racial and Gender Bias Report, 164-65.

-105-

low that such lawyers will raise concerns about the quality of their own
lax work or conflicted financial interests. Unfortunately, the next
opportunity to question the attorney’s effectiveness occurs during what is
known as a post-conviction proceeding—a court procedure in which a
defendant no longer has a constitutional right to the assistance of
counsel.329
Measured Pennsylvania’s IDS against the Ten Principles, the advisory committee
for this study reaches the following evaluation:

PENNSYLVANIA
IDS PERFORMANCE

ABA PRINCIPLE

1. The public defense function, including In many counties, the IDS is subject to
interference from the judiciary, the county
the selection, funding, and payment
commissioners, or both.
of defense counsel, is independent.

2A. Where the caseload is sufficiently
high, the IDS consists of both a
defender office and the active
participation of the public bar.

The private bar is meaningfully involved in
the provision of indigent defense, but the
quality of representation is not monitored
and attorneys are significantly underpaid.

2B. There should be state funding and a
statewide structure responsible for
ensuring uniform quality statewide.

There is no direct state funding, nor is there
a statewide administrative structure for
ensuring uniform quality of representation
or reasonably consistent eligibility
standards.

3. Clients are screened for eligibility,
and defense counsel is assigned and
notified of appointment, as soon as
feasible after clients’ arrest,
detention, or request for counsel.

In some counties, representation begins
before the preliminary hearing (as it
should), but in other counties, that hearing
is the first time the attorney meets with the
client.

4. Defense counsel is provided sufficient
time and a confidential space within
which to meet with the client.

Compliance unknown, due to lack of data.
However, in some counties problems with
providing adequate space have been
identified.

329

David Carroll, et al. “Judicial Underpinnings,” 1, 2.

-106-

PENNSYLVANIA
IDS PERFORMANCE

ABA PRINCIPLE

5. Defense counsel’s workload is
controlled to permit rendering of
quality representation.

In many if not most counties, attorney
workloads substantially exceed
recommended limits, which do not include
several types of cases that did not exist
when those limits were formulated.

6. Defense counsel’s ability, training,
and experience match the complexity
of the case.

Counties use a variety of systems for
assigning counsel to cases. In many
counties, an attorney license and
membership in the county bar are the only
requirements for a noncapital case.
In many counties, PDs are assigned to
courtrooms rather than clients, and it is
common for several attorneys to handle a
case throughout the entire criminal process.

7. The same attorney continuously
represents the client until the
completion of the case.

8. There is parity between defense
counsel and the prosecution with
respect to resources, and defense
counsel is included as an equal partner
in the justice system.

In most counties, the resources available to
the DA are much greater than those of the
PD and the DA has more political influence
than the defense bar.

9. Defense counsel is provided with and
required to attend continuing legal
education.

Aside from mandatory CLE requirements,
indigent defense counsel generally do not
participate in professional development
courses, and when they do they often must
pay all or part of the cost themselves.

10. Defense counsel is supervised and
systematically reviewed for quality
and efficiency according to nationally
and locally adopted standards.

The system’s inability to provide
supervision and accountability has resulted
in a deterioration of professional standards.

-107-

In general, the Defender Association of Philadelphia measures up to these
standards much better than IDSs elsewhere in the Commonwealth. There is a
considerable variation in the performance of the other county IDSs in Pennsylvania, but
the Commonwealth as a whole meets only one of these principles in part: meaningful
involvement of the private bar (Principle 2). (Continuing legal education (Principle 9) is
“required,” but often is “provided” only at the attorney’s expense.) The advisory
committee therefore is constrained to conclude that Pennsylvania still fails to fulfill its
obligation to provide adequate, independent defense counsel to indigent persons.
The SR 42 advisory committee emphasizes that the responsibility for providing an
adequate indigent criminal defense system is not discretionary, but is mandated by the
U.S. Constitution and the Constitution of Pennsylvania. It is also mandated by the norms
of civilization itself. No polity can consider itself truly compassionate and respectful of
human rights if it casually allows its citizens to suffer lengthy prison sentences based
largely on the poverty of the accused as measured by his or her inability to afford a
private attorney. But that is what Pennsylvania does by its failure to provide any state
support to indigent defense. An accused defendant or juvenile delinquent who is either
not provided with counsel at all or with a lawyer who is too overburdened by a high
caseload to pay significant attention to a particular case will be unable to establish
innocence or a legally valid defense to the charges. Not only does our unbalanced
criminal justice system increase the likelihood that the indigent defendant or alleged
delinquent will be penalized despite his or her innocence, but there is a greater risk that
the actual perpetrator will be free to commit other offenses.
The consequence of a more balanced adversary system will be dispositions that
more accurately reflect the facts of the incident in question and the law applicable to
those facts. This is likely to result in a net reduction in jail time, but even if the need for
harsh sentences is granted, society does not benefit if the disposition is based on an
account of the facts and the law that may be distorted by shortchanging the resources
available to the defense. The Commonwealth pays for this, both in the enormous costs of
inappropriately excessive prison sentences and in the consequences to the families of
defendants serving unjust or excessive jail sentences.
The advisory committee is fully mindful of the dire fiscal situation facing the
Commonwealth. But every other state in the Nation has funded some support for its IDS,
and it would appear that Pennsylvania can find a way to do likewise.

-108-

DRAFT INDIGENT DEFENSE STATUTE

FEATURES OF PROPOSAL
The draft statute presented here represents what the advisory committee considers
the most advanced ideas on structuring a state indigent defense system, adapted to
longstanding Pennsylvania practice. This proposal establishes a central Office of Indigent
Defense with broad powers to establish standards that county PD offices are required to
follow and which will help assure that Pennsylvania’s indigent defense system meets
professional standards. This office, through its executive director, carries out policies
established by a State Board of Indigent Defense that includes a diverse representation of
the affected stakeholders. The Office of Indigent Defense is an independent agency
within the executive branch. The day to day operations of the office are managed by an
executive director appointed by the board.
To ensure adequate compensation, the statewide office is empowered to set
compensation standards for county PDs. The office is also tasked with developing
workload standards to assure that indigent defense staff can provide effective
representation. Several divisions and officers within the Office of Indigent Defense are
mandated in order to ensure that the most vital functions are carried out efficiently: a
capital case division, under a director; an appellate and postconviction review division,
under a director; a director of juvenile defense services; an information management and
technology officer; and a director of training and professional development.
County PDs retain many of their local responsibilities, as under the current
system. In order to ensure maximum independence from local political pressure, the chief
PD is appointed by the statewide office and paid by the Commonwealth. The rest of the
PD staff remain county employees. Besides the cost of the chief PD, the cost of appeals,
PCRA proceedings, and capital cases is shifted from the counties to the Commonwealth.
The proposed statute provides for participation by contract counsel and assigned counsel
and the assignment of such counsel to cases by the PD under state guidelines.
Representation for Philadelphia cases is provided for in accordance with the plan
described on page 64.

-109-

OFFICE STRUCTURE
The draft statute provides for an independent board to provide broad policy advice
(like a non-profit board of directors) and an executive director to manage the operations
of the Office of Indigent Defense. The office will establish a statewide communications
system to work with and supervise the chief county defenders, and resource and
information centers and libraries to support the office’s execution of its duties relating to
legal representation, training, and policy advocacy.
The office’s statutorily mandated structure establishes clear areas of
representation and office work responsibilities through the following divisions, which
will operate under the executive director’s management authority:
•

Capital case division, under a director

•

Appellate and postconviction review division, under a director

•

Director of juvenile defense services

•

Information management and technology officer

•

Director of training and professional development

Across the country division director positions that are not mandated by statute are
disappearing under the impact of severe budget cuts, prohibitions against filling empty
positions, mandatory furloughs, and low bid contracts that contract out operations to
moneymaking, unsupervised, contract law firms providing low quality legal
representation on the cheap. Mandating these positions in the statute, as they have under
reform legislation in Louisiana and Montana,330 will to some degree insulate these
positions from such threats.
The divisions so established need well qualified, efficient leadership to manage
and supervise their responsibilities. As this report argues, capital case and appellate
representation require skills somewhat different from regular trial practice, and
postconviction representation can be better administered from the central office to avoid
potential conflicts of interest. The proposed director of juvenile defense services follows
the Louisiana reform statute331 and the joint recommendation of NLADA and the
National Juvenile Defender Center (NJDC) in recognizing the representation of children
as a specialized area of law “different from, but equally as important as, the

330

La. Rev. Stat. §§ 15:153 (director of training), 15:154 (director of juvenile defender services), and
15:156 (information management and technology officer); Mont. Code § 47-1-201(3).
331
La. Rev. Stat. § 15:154.

-110-

representation of adults in criminal proceedings.”332 In addition, the IDS must have
effective technological support for its statewide data collection, communications
operations, and resource and information centers. Technology support is particularly
important because of the severe and fundamental shortcomings Pennsylvania’s IDS faces
in data collection. Finally, the position of director of training and professional
development is mandated because it is these functions that build the foundation for
effective representation.

COSTS AND IMPLEMENTATION PLAN
To forecast the impact of the institution of a statewide Office of Indigent Defense
Services, it will be necessary to distinguish new costs, costs presently borne by the
counties that will be assumed by the state, and those that will remain with the counties.
Under this plan, the Commonwealth will pay for the meeting expenses of a volunteer
board, the staff of the OIDS, the salaries of the chief PD in all counties except
Philadelphia, capital representation, and appellate representation for criminal cases.
Because of the severe fiscal situation facing the Commonwealth, it not be feasible
to institute the Office of Indigent Defense all at once, but rather in stages over four or
more fiscal years. The list of the operational budget categories attendant on a possible
implementation plan is included as Appendix B. Preparation of a budget proved to be
beyond the abilities and expertise of the staff and the advisory committee, but it is hoped
that Appendix B would serve as a foundation upon which the Office’s budget could be
developed. Presumably the board and the executive director will exercise their
managerial authority to tailor the program to fit within the resources available to them.

332

NJDC and NLADA, “Ten Core Principles for Providing Quality Delinquency Representation through
Public Defense Delivery Systems” (2nd ed.) (Washington, D.C.: NJDC and NLADA, July 2008).

-111-

DRAFT INDIGENT DEFENSE STATUTE
TITLE 42: JUDICIARY AND JUDICIAL PROCEDURE
CHAPTER 88
DEFENSE OF THE INDIGENT
SUBCHAPTER A
GENERAL PROVISIONS
§ 8801. Short title of chapter.
This subchapter shall be known and may be cited as the Indigent Defense Act.
§ 8802. Purposes of chapter.
The purposes of this chapter are as follows:
(1) To provide a statewide administrative structure that will enable
provision of effective assistance of counsel to indigent criminal defendants and
children charged with delinquent conduct who are entitled to assistance of counsel
at public expense under the Sixth or Fourteenth Amendments to the United States
Constitution and section 9 of Article I of the Constitution of Pennsylvania.
(2) To ensure that the indigent defense system is free from undue political
interference and conflicts of interest.
(3) To provide that indigent defense services are delivered by qualified
and competent attorneys in a manner that meets constitutional standards for
representation and is consistent throughout this Commonwealth.
(4) To maintain the operational independence of the provider of indigent
defense services in a city of the first class.
§ 8803. Definitions.
The following words and phrases when used in this chapter shall have the
meanings given to them by this section unless the context clearly indicates otherwise:
“Assigned counsel.” An attorney who provides indigent defense services by
appointment to represent a particular defendant or child. The term does not include a
public defender or other employee of the office of indigent defense or a county public
defender office.
“Assistant public defender.” A public defender other than the chief public
defender.
“Board.” The state board of indigent defense established by section 8812
(relating to state board of indigent defense).
“Chief public defender.” The public defender who is responsible for
supervising a county public defender office.
“Conflict counsel.” Assigned counsel or contract counsel who are retained to
provide indigent defense to avoid a conflict of interest.
“Contract counsel.” An attorney who provides indigent defense services under a
periodic contract other than an employment contract. The term does not include a public
defender.

-112-

“County.” For a county in a judicial district comprising two counties using the
same public defender, the term refers to the judicial district.
“County public defender office.” A county office established to provide
indigent defense.
“Eligible matter.” Any of the following:
(1) A proceeding under a criminal charge which may result in
incarceration.
(2) A juvenile delinquency proceeding.
(3) A state habeas corpus proceeding.
(4) A criminal extradition proceeding.
(5) A probation or parole proceeding, including a revocation proceeding.
(6) A commitment proceeding under the act of October 20, 1966 (3rd Sp.
Sess., P.L.96, No.6), known as the Mental Health and Mental Retardation Act of
1966.
(7) A civil or criminal contempt proceeding which may result in the
deprivation of liberty.
(8) Any proceeding where indigent defense is required under the United
States Constitution, the Pennsylvania Constitution or other law.
“Executive director.” The executive director of the office of indigent defense.
“Guideline.” A rule established by the office of indigent defense with the
approval of the board.
“Indigent.” Unable to afford a private attorney without undue hardship.
“Indigent defendant.” An individual against whom an eligible matter has been
commenced who appears without an attorney in the eligible matter and is determined
under section 8834 (relating to determination of eligibility) to be indigent.
“Indigent defense.” Legal representation of an indigent individual at the public
expense under this chapter.
“Indigent defense attorney.” An attorney who provides or manages the
provision of indigent defense. The term includes all of the following:
(1) Attorneys employed by the office of indigent defense.
(2) Public defenders.
(3) Assigned counsel.
(4) Contract counsel.
“Indigent defense services.” Indigent defense provided pursuant to a contract or
other agreement between an attorney and the office of indigent defense, a county
government, the county public defender office or a person or entity other than an indigent
individual.
“Indigent defense system.” The system for providing indigent defense in this
Commonwealth as implemented by the office of indigent defense, the county public
defender offices, and attorneys and staff who provide indigent defense services.
“Office of indigent defense” or “office.” The office of indigent defense
established by section 8813 (relating to office of indigent defense).
“Postconviction proceedings.” Proceedings under 42 Pa.C.S. Ch. 95, Subch. B,
(relating to post conviction relief) and appeals from such proceedings.
“Private indigent defense attorney.” An indigent defense attorney who is not
under an employment contract with the office of indigent defense or the public defender.

-113-

“Public defender.” An attorney who provides indigent defense or manages the
provision of indigent defense as the chief public defender or an employee of a county
public defender office.
“Regulation.” A regulation promulgated by the office of indigent defense under
the act of July 31, 1968 (P.L.769, No.240), referred to as the Commonwealth Documents
Law, and the act of June 25, 1982, (P.L.633, No.181), known as the Regulatory Review
Act.
§ 8804. Rights and remedies.
This chapter does not affect rights or remedies otherwise available to persons
other than the indigent defendant and the attorney representing the indigent defendant.

SUBCHAPTER B
ADMINISTRATION OF INDIGENT DEFENSE
§ 8811. Administrative structure.
(a) Office of indigent defense.—The office of indigent defense is established as
an independent agency within the executive branch.
(b) State board of indigent defense.—The state board of indigent defense is
established and shall have the powers and duties provided in section 8812(d) (relating to
state board of indigent defense).
Comment:

Subsection (a)—“Independent agency” is defined in 42 Pa.C.S.

§ 102.
§ 8812. State board of indigent defense.
(a) Structure and membership.—There shall be a state board of indigent
defense. The board shall consist of thirteen members selected as follows:
(1) The Chief Justice of the Pennsylvania Supreme Court shall appoint
three members, at least one of whom must be a former member of the judiciary of
this Commonwealth.
(2) The Governor shall appoint three members, comprising the following:
(i) one representative of the public defenders, appointed from a list of
three qualified individuals recommended by the Public Defenders
Association of Pennsylvania.
(ii) one advocate for current and former prison inmates, appointed
from a list of three qualified individuals recommended by the
Pennsylvania Prison Society.
(iii) one representative of county government, appointed from a list
of three qualified individuals recommended by the County Commissioners
Association of Pennsylvania.
(3) The President Pro Tempore of the Senate shall appoint three
members, including the following:

-114-

(i) one criminal defense attorney, appointed from a list of three
qualified individuals recommended by the Pennsylvania Association of
Criminal Defense Lawyers.
(ii) one attorney with experience defending juveniles in delinquency
proceedings, appointed from a list of three qualified individuals
recommended by the Juvenile Defender Association of Pennsylvania.
(4) The Speaker of the House of Representatives shall appoint three
members, including the following:
(i) one representative of the public defenders, appointed from a list of
three qualified individuals recommended by the Public Defenders
Association of Pennsylvania.
(ii) one criminal defense attorney, appointed from a list of three
qualified individuals recommended by the Pennsylvania Association of
Criminal Defense Lawyers.
(5) The members appointed under this subsection shall select a member
as the chair.
(b)
Qualifications.—Members of the board must be residents of this
Commonwealth and must have demonstrated an interest in maintaining a high quality,
independent indigent defense system. The composition of the board must include
representation from both genders and reflect the racial and ethnic diversity of the
Commonwealth. A member of the board must not be any of the following:
(1) an active member of the judiciary or a member of the judiciary on
senior status;
(2) the Attorney General or an employee of the Office of the Attorney
General;
(3) a district attorney or an employee of the office of a district attorney.
(c) Term of service.—
(1) Members shall serve for a term of four years, except that the initial
members shall serve terms of two, three, or four years as designated by their
respective appointing authorities, unless designated as chair under subsection
(a)(6), in which case the member shall serve a term of four years. The appointing
authority may reappoint a member but not more than once.
(2) If any member fails to complete his or her term, the appointing
authority for that member shall, as soon as possible, appoint a replacement to
complete that member’s term. Appointees under this paragraph may be
reappointed, but not more than once.
(d) Powers and duties.—The board shall direct the office of indigent defense in
the performance of its powers and duties under this chapter. Standards, procedures, rules
and regulations must be approved by the board in order to become effective. The board
shall appoint an executive director, who shall exercise the powers and duties provided by
section 8814(c) (relating to executive director).
Comment: Subsection (a)—Patterned after section 4(b) of the Health Care Cost
Containment Act (July 8, 1986 (P.L.408, No.89); 35 P.S. § 449.4(b).

-115-

Subsection (b)—The prohibitions on appointing active members of the judiciary
and prosecutors and their staffs are intended to ensure that members of the board will not
have a conflict of interests.
§ 8813. Office of indigent defense.
(a) Powers and duties.—Except as provided in section 8821 (relating to cities of
the first class), the office of indigent defense shall have the following powers and duties,
in addition to any other powers and duties provided by this chapter or other law:
(1) To ensure the delivery of competent and effective indigent defense in
accordance with the established principles for administering an effective indigent
defense system and to receive funds from the Commonwealth for that purpose.
(2) To contract with county public defender offices, non-profit defender
agencies, and private indigent defense attorneys for local indigent defense.
Contracts between contract counsel and a public defender for indigent defense
services must comply with guidelines established by the office.
(3) To set and implement statewide performance standards and
procedures for indigent defense attorneys.
(4) To set qualification standards for indigent defense attorneys and their
professional staffs and for their supervision and training. The board shall establish
qualifications that require indigent defense attorneys to receive the necessary legal
training, and that require that the experience level of attorneys match the cases
assigned to them.
(5) To establish caseload and workload standards for public defenders
and standards limiting the number of cases delegated to assigned counsel or
contract counsel. The office shall draft the standards so as to be consistent with
the provision of ethical services as defined by the Rules of Professional Conduct
and to take into account administrative responsibilities as well as direct client
representation.
(6) To monitor professional and managerial performance and to enforce
compliance by indigent defense attorneys with the standards and requirements
adopted under this section.
(7) To investigate county public defender offices that are suspected of
deficient performance, to assist such offices to improve their performance, and, if
necessary, to issue a public report including the findings and recommendations
arising from the investigation.
(8) To establish standards requiring that sufficient support services and
resources for indigent defense be provided, including access to independent
experts, investigators, social workers, paralegals, secretaries, technology, research
resources and training.
(9) To establish standards for eligibility for indigent defense and for
prompt assignment of indigent defense attorneys to indigent defendants.
However, the office, the board and the executive director are not required to
determine the eligibility of any applicant for indigent defense.
(10) To establish and implement standards and procedures ensuring the
independent, competent and efficient representation of clients whose cases present
conflicts of interest, in both trial and appellate courts.

-116-

(11) To establish a uniform and usable system of data collection to
effectively and accurately track and manage criminal and juvenile delinquency
proceedings.
(12) To develop statewide courses of instruction and practical training
programs for indigent defense attorneys, including preservice training for newly
hired indigent defense attorneys.
(13) To collect and disseminate resources for improving legal and
administrative practices for county public defender offices.
(14) To provide indigent defense for appeals and for postconviction
proceedings through the review division established under section 8816 (relating
to appellate and postconviction review division).
(15) To provide indigent defense in trials, appeals and postconviction
proceedings for capital cases.
(16) To review research and perform studies regarding improvements in
the operation of the indigent defense system and to implement or encourage
improvements based on the findings of the research and studies.
(17) To encourage and facilitate sustained media attention to the
advantages of a well-functioning indigent defense system and to recognize
effective local indigent defense attorneys and offices.
(18) To advocate for improvements in indigent defense to the public and
the General Assembly, including adult criminal and juvenile defense
representation and to advocate for adequate funding for the indigent defense
system.
(19) To actively seek and receive gifts, grants and donations that may be
available through the federal government or other sources to help fund the
indigent defense system.
(20) To maintain records and statistical data that reflect the operation and
administration of the office.
(21) To submit an annual report covering the operation of the office
together with recommendations to the Governor, the Attorney General and the
General Assembly for improvement of the indigent defense system in this
Commonwealth, including statistics regarding the delivery of indigent defense.
(22) To submit the office’s annual budget request for appropriations from
the Commonwealth. The request must be approved by the board
(23) To adopt rules and regulations and establish guidelines as necessary
to carry out the purposes of this chapter.
(b) Individual cases.—The office may not interfere with the discretion,
judgment or advocacy of a public defender or any other attorney in their handling of an
individual case, except as necessary to enforce compliance with qualification and
caseload standards.
§ 8814. Executive director.
(a) Appointment.—The board shall appoint the executive director of the office
of indigent defense. The executive director shall serve at the pleasure of the board.
(b) Qualifications.—The individual appointed as executive director must be an
attorney licensed to practice law in the United States with at least ten years experience as

-117-

a criminal defense attorney. If the individual is licensed as an attorney in a state other
than this Commonwealth, the individual must become licensed as an attorney in this
Commonwealth within one year of being employed by the board.
(c) Powers and duties.—The executive director shall be the head of the office,
hire the staff of the office and manage and oversee its day-to-day operations so as to carry
out the purposes of this chapter.
§ 8815. Capital case division.
(a) Establishment.—The executive director shall establish a capital case division
within the office and appoint the director of the division.
(b) Duties of division.—The capital case division shall have the following
powers and duties:
(1) To provide representation or assign counsel for indigent individuals
accepted for representation by a public defender office for pretrial proceedings,
trials, appeals, and postconviction proceedings for cases where the individual may
be subject to the death penalty.
(2) To assist the office in performing its powers and duties under this
chapter as they pertain to cases where an indigent individual may be subject to the
death penalty.
(c) Qualifications.—The director of the capital case division must meet the
qualifications required by general rules of court for serving as retained counsel on a
capital case.
(d) Duties of director.—The director of the capital case division shall oversee
and manage the capital case division under the executive director in the performance of
its duties and shall perform such other duties as are assigned by the executive director.
§ 8816. Appellate and postconviction review division.
(a) Establishment.—The executive director shall establish an appellate and
postconviction review division within the office and appoint the director of the division.
(b) Duties of division.—The appellate and postconviction review division shall
have the following powers and duties:
(1) To provide representation or assign counsel for indigent individuals
in appeals and postconviction proceedings.
(2) To assist the office in performing its powers and duties under this
chapter as they pertain to appeals and postconviction proceedings.
(c) Duties of director.—The director of the appellate division shall oversee and
manage the capital case division under the executive director in the performance of its
duties and shall perform such other duties as are assigned by the executive director.
§ 8817. Director of juvenile defense services.
(a) Appointment.—The executive director shall appoint a director of juvenile
defense services.
(b) Duties of director.—The director of juvenile defense services shall have the
following powers and duties:
(1) To collect and disseminate materials and provide and participate in
training programs relating to the defense of juvenile delinquency proceedings.

-118-

(2) To assist the office in performing its powers and duties under this
chapter as they pertain to the defense of juvenile delinquency proceedings.
(3) To perform such other duties as are assigned by the executive
director.
§ 8818. Information management and technology officer.
(a) Appointment.—The executive director shall appoint an information
management and technology officer.
(b) Duties of officer.—The information management and technology officer
shall have the following powers and duties:
(1) To oversee and manage the office of indigent defense, under the
executive director, with respect to information management and the use of
technology.
(2) To assist the executive director in establishing and supervising data
collection for the indigent defense system.
(3) To perform such other duties as are assigned by the executive
director.
§ 8819. Director of training and professional development.
(a) Appointment.—The executive director shall appoint a director of training
and professional development.
(b) Duties of director.—The director of training and professional development
shall have the following powers and duties:
(1) To oversee and manage, under the executive director, the provision of
such training and professional development to indigent defense attorneys, the staff
of the office of indigent defense and such other persons as will assist them in
providing indigent defense services or in otherwise advancing the purposes of this
chapter.
(2) To perform such other duties as are assigned by the executive
director.
§ 8820. Public defenders.
(a) Chief public defender.—The chief public defender shall administer the
operation of the county public defender office within the county where he or she resides,
under the supervision and control of the office of indigent defense and in compliance
with this chapter.
(b) Appointment and tenure.—A chief public defender commencing service
after the effective date of this chapter must be selected by the board. The board may
remove the chief public defender, but only for cause.
(c) Duties.—For cases adjudicated in the courts of the county, the county public
defender office shall represent or provide for the representation of individuals entitled to
indigent defense under subchapter C (relating to indigent defense), with such exceptions
and under such procedures as the office of indigent defense may establish. The duties of
the county public defender office with respect to contract counsel shall be performed
under guidelines established by the office of indigent defense.

-119-

§ 8821. Cities of the first class.
(a) Representation.—For cases arising in a city of the first class, the provider
shall represent or provide for the representation of individuals entitled to indigent defense
under subchapter C (relating to indigent defense). Notwithstanding any other provision in
this chapter, the standards governing the professional and managerial performance of the
provider shall be established by the provider in accordance with its indigent defense
service contract with the city.
(b) Capital cases.—The provider shall provide indigent defense services for not
more than 20 percent of the cases arising in the city of the first class in which the
individual is charged with murder of the first degree and the prosecution has demanded
that the sentence of death be imposed.
(c) Powers of office.—The provider shall have the following powers and duties,
with respect to the office of indigent defense:
(1) To enter into a contract with the office authorizing the office to pay
the provider to provide appellate representation for indigent defendants in cases
arising in the city of the first class.
(2) To establish standards for eligibility for indigent defense and for
prompt assignment of indigent defense attorneys to indigent defendants.
However, the office, the board and the executive director are not required to
determine the eligibility of any applicant for indigent defense.
(3) To assist the office in developing courses of instruction and practical
training programs for indigent defense attorneys, including preservice training for
newly hired indigent defense attorneys and to avail itself of such training and
programs developed by the office or developed jointly by the provider and the
office.
(4) To cooperate with and assist the office in furthering the purposes of
this chapter.
(5) To provide indigent defense for postconviction proceedings through
the appellate and postconviction review division established under section 8816
(relating to appellate and postconviction review division).
(6) To review research and perform studies regarding improvements in
the operation of the indigent defense system and to implement or encourage
improvements based on the findings of the research and studies.
(7) To advocate for improvements in indigent defense to the public and
the General Assembly, including adult criminal and juvenile defense
representation and to advocate for adequate funding for the indigent defense
system.
(8) To actively seek and receive gifts, grants and donations that may be
available through the federal government or other sources to help fund the
indigent defense system.
(9) To maintain records and statistical data that reflect the operation and
administration of the office.

-120-

(10) To submit an annual report covering the operation of the provider
together with recommendations to the Governor, the Attorney General and the
General Assembly for improvement of the indigent defense system in this
Commonwealth, including statistics regarding the delivery of indigent defense in
the city of the first class.
(11) To submit the provider’s annual budget request for appropriations
from the Commonwealth. The request must be approved by the board.
(d) Definition.—As used in this section, the term “provider” means the person
with whom the governing authority of a city of the first class contracts to provide
indigent defense services to indigent defendants for cases arising in a city of the first
class.
§ 8822. Compensation and full-time status.
(a) Compensation.—An indigent defense attorneys shall receive compensation
in accordance with standards established by the office of indigent defense or in
accordance with a contract made either between the attorney and the office of indigent
defense, or between the attorney and the county public defender office. A contract under
this section must provide for compensation in accordance with professional experience
and equivalent to the compensation paid to prosecuting attorneys. The office of indigent
defense shall pay the salaries of the chief public defenders.
(b) Full-time employees.—
(1) The executive director and the attorneys employed by the office of
indigent defense shall be full-time employees and may not engage in the private
practice of law.
(2) Chief public defenders shall be full-time employees, unless the office
of indigent defense determines that it is not feasible to require a full-time
commitment in the county. Assistant public defenders shall be hired on a full-time
basis to the maximum extent feasible as determined by the office of indigent
defense. A full-time public defender may not engage in the private practice of
law.
(3) Assigned counsel and contract counsel may engage in the private
practice of law.
SUBCHAPTER C
INDIGENT DEFENSE
§ 8831. Right to representation.
(a) General rule—An indigent defendant who appears without an attorney is
entitled to be represented by an attorney to the same extent as an individual having his or
her own attorney.
(b) Services.—An indigent defendant is entitled to the following services with
respect to an eligible matter:
(1) Legal advice and defense beginning at the earliest time when an
individual providing his or her own attorney would be entitled to be represented
by an attorney, and no later than the time of his or her initial appearance before a
court.

-121-

(2) Legal advice and defense continuing throughout all critical stages,
including all of the following:
(i) A pretrial identification procedure.
(ii) Preliminary hearing.
(iii) Proceedings on a plea of guilty or nolo contendere.
(iv) Any other proceeding where absence of legal representation
might derogate from an indigent defendant’s right to a fair trial.
(v) Trial, including a hearing on a pretrial or posttrial motion.
(vi) An appellate proceeding before the Pennsylvania Supreme
Court or the Superior Court.
(3) The necessary services and facilities for effective representation,
including a confidential space where the indigent defendant can meet with the
indigent defense attorney.
(4) Defrayal of the costs associated with criminal defense litigation.
(c) Postconviction proceedings.—An indigent defendant shall be represented in
a postconviction proceeding that the indigent defendant considers appropriate, unless the
court permits the public defender to withdraw from representing him or her on the
grounds that the claim for postconviction relief is without merit.
(d) Prior conduct.—An indigent defendant’s rights under this section are not
affected by having obtained similar services at his or her own expense, or by having
waived them, at an earlier stage of a proceeding.
(e) Duty of public defender.—The county public defender office shall represent
every indigent individual entitled to representation under this subchapter who is
otherwise not represented by an attorney. If the county public defender office cannot
provide effective representation due to excessive workload, as defined by the caseload
standards established by the office of indigent defense under section 8813(b)(5) (relating
to office of indigent defense), or due to a conflict of interest, the county public defender
office may designate cases to be handled by private indigent defense attorneys pursuant
to guidelines established by the office of indigent defense.
§ 8832. Representation before charge.
(a) Felonies.—The chief public defender or his or her designee may authorize the
representation of an indigent individual who is without an attorney if he or she is under
investigation for murder or a felony.
(b) Detainees.—A public defender may confer with any individual who is not
represented by an attorney and who is detained by a law enforcement officer.
§ 8833. Waiver of right to counsel.
An individual who has been informed of his or her right to indigent defense may
waive that right only in a transcribed proceeding. In order for the waiver to be valid, the
court must find that the waiver is intelligent, knowing and voluntary. In considering the
validity of the waiver, the court shall consider the individual’s age, education and
familiarity with English, the complexity of the crime, potential collateral consequences of
the waiver and any other relevant circumstances.

-122-

§ 8834. Determination of eligibility.
(a) Application.—An individual who claims to be entitled to indigent defense
must apply to the county public defender office.
(b) Responsibility.—Eligibility for indigent defense shall be determined by the
county public defender office or by another designated agency, with the approval of and
under standards set by the office of indigent defense.
(c) Time of determination.—The determination of whether an individual
covered by section 8831 (relating to right to representation) is indigent shall take place as
soon as possible after he or she is detained by a law enforcement officer or is formally
charged with having committed a serious crime.
(d) Factors considered.—In determining whether an individual is indigent, the
county public defender office shall consider his or her income, property owned, the cost
of defending the charge, outstanding obligations and the number and ages of dependents,
and any other relevant factors. Release on bail does not necessarily prevent an individual
from qualifying as indigent. In each case, the individual shall, subject to the penalties for
perjury, certify in writing or by other record material factors relating to his or her ability
to pay, in such manner as the board shall prescribe.
(e) Minors.—A minor who is charged with an eligible matter is eligible for
indigent defense, regardless of whether the minor or any relative of the minor is indigent.
§ 8835. Payment of costs, expenses and attorney fees.
(a) Expenses of the office.—Expenses incurred by the office of indigent defense
under this subchapter shall be defrayed from funds appropriated for this purpose from the
general fund, including expenses incurred under section 8815 (relating to capital case
division), section 8816 (relating to appellate and postconviction review division) and the
salaries of the chief public defenders.
(b) Attorney fees.—Except as otherwise provided under subsection (a), the
expenses of indigent defense services shall be defrayed by the county governments.
(c) Regulations.—The office of indigent defense shall establish standards
prescribing the allocation of expenses under this section.

-123-

-124-

GLOSSARY OF ACRONYMS

The following is a list of acronyms or initialisms that appear at various places in
this report. Those that appear in only a limited segment of the report are omitted.
ABA

American Bar Association

ACLU

American Civil Liberties Union

AOPC

Administrative Office of Pennsylvania Courts

CCAP

County Commissioners Association of Pennsylvania

CPCMS

Common Pleas Court Management System

DA

District attorney

DAP

Defender Association of Philadelphia

FTE

Full-time equivalent

IDS

Indigent defense system

JCJC

Juvenile Court Judges’ Commission

NAC

National Advisory Commission on Criminal Justice Standards and Goals

NACDL

National Association of Criminal Defense Lawyers

NLADA

National Legal Aid and Defender Association

PACDL

Pennsylvania Association of Criminal Defense Lawyers

PCRA

Post Conviction Relief Act

PD

Public defender

PDAA

Pennsylvania District Attorneys Association

PDAPA

Public Defender Association of Pennsylvania

SCLAID

Standing Committee on Legal Aid and Indigent Defense (ABA)

-125-

-126-

BIBLIOGRAPHY

American Bar Association. ABA Standards for Criminal Justice: Providing Defense
Services. 3rd Ed. Washington D.C.: ABA, 1992.
———.

“State Commissions Project: Final Report.” American Bar Association. n.d.
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/statecomm
finalreport.pdf. Accessed August 18, 2010.

———.

“Ten Principles of a Public Defense Delivery System.” ABA. February 2002.
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprincipl
esbooklet.pdf.

–––––. Standing Committee on Legal Aid and Indigent Defendants (SCLAID). “Eight
Guidelines of Public Defense Related to Excessive Workloads.” ABA.
August 2009.
http://www.americanbar.org/content/dam/aba/migrated/legal
services/sclaid/defender/downloads/eight_guidelines_of_public_defense.authchec
kdam.pdf.
———.SCLAID.

“Gideon’s Broken Promise: America’s Continuing Quest for Equal
Justice.” Chicago: ABA, December 2004.

———.

SCLAID. “Primary Indigent Defense Delivery System at Trial Level.” American
Bar Association. 2005.
http://www.abanet.org/legalservices/sclaid/defender/
brokenpromise/.

American Civil Liberties Union (ACLU). “ACLU Agrees to Postpone Trial Over Lack of
Legal Defense for Montana’s Poor While Attorney General Seeks Legislative
Remedy.” May 7, 2004. http://www.aclu.org/racial-justice/aclu-agrees-postponetrial-over-lack-legal-defense-montanas-poor-while-attorney-gener.
———.

“ACLU Hails Montana’s Public Defense Bill as Leading National Trend.”
June 8, 2005. http://www.aclu.org/racial-justice_prisoners-rights_womensrights_immigrants-rights/aclu-hails-montanas-public-defense-b.

———.

“ACLU of Michigan Argues in Supreme Court that the Poor Have a Right to
Counsel.” April 25, 2005. http://www.aclu.org/racial-justice/aclu-michiganargues-supreme-court-poor-have-right-counsel.

_____. “In for a Penny: The Rise of America’s New Debtor’s Prisons.” New York.
ACLU, October 2010.

-127-

American Civil Liberties Union of Montana. “Public Defenders Office Scrutinized.”
http://www.aclumontana.org/index.php?option=com_myblog&show=PublicDefenders-Office-scrutinized.html&Itemid=44. Accessed May 13, 2010.
American Council of Chief Defenders. “American Council of Chief Defenders Statement
on Caseloads and Workloads.” n.p.: NLADA. August 24, 2007.
http://www.nlada.org/DMS/Documents/1189179200.71/EDITEDFINALVERSIO
NACCDCASELOADSTATEMENTsept6.pdf.
Bach, Amy. Ordinary Injustice: How America Holds Court. New York: Metropolitan
Books. 2009.
Backus, Mary Sue and Paul Marcus. “The Right to Counsel in Criminal Cases: A
National Crisis.” Hastings Law Journal (June 2006) 57: 1031–1130.
Baldas,

Tresa. “Michigan Faces Constitutional Case over Cash-Strapped
Public Defenders.” The National Law Journal. December 24, 2009.
http://www.nacdl.org/public.nsf/DefenseUpdates/Michigan052.

Bannon, Alicia, Mitali Nagrecha, and Rebekah Diller. “Criminal Justice Debt: A Barrier
to Reentry.” New York: New York University School of Law, Brennan Center for
Justice. 2001.
Beeman, Marea L. and Robert L. Spangenberg. “Toward a More Effective Right to
Assistance of Counsel.” Law and Contemporary Problems 58, No. 1. (Winter
1995): 31-49.
Bright, Stephen B. and Lauren Sudeall Lucas. “Overcoming Defiance of the Constitution:
The Need for a Federal Role in Protecting the Right to Counsel in Georgia.”
Washington, D.C.: American Constitution Society. September 2010.
Brown, Jason. “Calcasieu To Stop Taking Cases.” 2theadvocate. May 29, 2010.
http://www.2theadvocate.com/news/95165714.html.
Capital Facilities and Government Operations. “Summary Budget Brief – Post
Conviction Indigent Defense Fund.” Capital Facilities and Government
Operations. Utah. 2007. Accessed December 6, 2010.
———.

Appropriations Subcommittee. “Compendium of Budget Information for
the 2009 General Session, Utah State Legislature.” Utah. 2009. Accessed
December 6, 2010.

Carroll, David. “Pennsylvania’s Continuing Struggles to Meet Gideon’s Promise.”
NLADA, April 8, 2011. http://www.nlada.net/jseri/blog/pennsylvania%E2%80%
99s-continuing-struggles-meet-gideon%E2%80%99s-promise.

-128-

Carroll, David, Phyllis Mann, and Jon Mosher. “The Judicial Underpinnings of the
American Bar Association’s Ten Principles of a Public Defense Delivery System
and Their Use in Defining Non-Representation under United States v. Cronic, 466
U.S. 648 (1984).” NLADA, October 26, 2011.
http://nlada.net/sites/default/files/na_judicialunderpinningsofabatenprinciples_102
62011.pdf.
Committee for Public Counsel Services. Website. http://www.publiccounsel.net/.
Accessed August 9, 2010.
The Constitution Project,. National Right to Counsel Committee. Justice Denied:
America’s Continuing Neglect of our Constitutional Right to Counsel. The
Constitution Project and the National Legal Aid and Defender Association, 2009.
Cooper, Caroline S. “Assessment of the Initial Period of Operations of the Montana
Statewide Public Defender System.” BJA Criminal Courts Technical Assistance
Project. July 2009. http://publicdefender.mt.gov/meetings/docs/07302009/AU
DraftRecomm.pdf. Accessed: May 13, 2010.
Death Penalty Information Center. “The Innocence List.” http://www.deathpenalty
info.org/innocence-list-those-freed-death-row. Last modified, October 28, 2010.
Drake, Phil. “Public Defender: Cuts to Department Not Possible.” Montana
Policy Institute. March 16, 2010, http://www.montanapolicy.org/main/story.php?
story_id=46.
Georgia Public Defenders Standards Council Legislative Oversight Committee.
“Annual Report.” http://www.gpdsc.com/docs/2010%20Public%20Defenders
%20LegislativeOversightCommitteeReport.pdf. February 2010.
Georgia State Government. “Governor Sonny Perdue Signs Indigent Defense
Legislation.” May 22, 2003 http://gov.georgia.gov/00/press/detail/0,2668,
78006749_91290006_91665626,00.html.
Indiana

State Court Administration, Public Defender Commission. “About
the
Commission.” http://www.in.gov/judiciary/pdc/about.html.
Accessed
May 17, 2010.

Interbranch Commission on Juvenile Justice. “Juvenile Justice Report.” Interbranch
Commission on Juvenile Justice. Philadelphia: ICJJ, May 2010.
Janes, Jared and Jeremy Roebuck. “Texas Counties Take Different Approach to Common
Indigent Defense Problem.” The Monitor (TX). December 21, 2009.
http://www.nacdl.org/public.nsf/defenseupdates/texas057?opendocument.

-129-

Jones, Rick. “The New Frontier in Indigent Defense: Big Firms in State Trial Courts.”
The
Champion.
NACDL.http://www.criminaljustice.org/public.nsf/01c1e
7698280d20385256d0b00789923/cf5666f1ea26a303852576190065f43c?OpenDo
cument. Accessed August 18, 2010.
Louisiana Justice
History.php.

Coalition.

“History.”

http://www.lajusticecoalition.org/About/

Louisiana Public Defender Board. “Louisiana Public Defender Act.”
http://lpdb.la.gov/Serving%20The%20Public/Legislation/Louisiana%20Public%2
0Defender%20Act.php. Accessed September 8, 2010.
Lowe, Marina. “Utah Ranks First in the Nation when it comes to Literacy, Volunteerism,
Jell-O Consumption, and Birth Rates. Unfortunately, Utah’s Ranking Dips
Dramatically When It Comes to Providing for Indigent Defense.” The Defender
UACDL. Winter 2009. http://www.lajusticecoalition.org/About/History.php.
National Association of Criminal Defense Lawyers (NACDL). “The Reform Efforts in
Massachusetts.” n.d. 2. http://www.nacdl.org/public.nsf/defenseupdates/mass010.
Accessed August 9, 2010.
———.

“ACLU Lawsuit Against Montana.” http://www.nacdl.org/public.nsf/
defenseupdates/montana006. Accessed May 13, 2010.

———.

“Michigan Indigent Defense.” http://www.nacdl.org/public.nsf/DefenseUpdates/
Michigan1. Accessed May 14, 2010.

———.

“Oregon Indigent Defense.” http://www.nacdl.org/public.nsf/defenseupdates/
Oregon001. Accessed August 18, 2010.

———.

“Virginia’s Indigent Defense System.” http://www.nacdl.org/public.nsf/
defenseupdates/Virginia028. Accessed May 17, 2010.

———.

“Virginia’s Indigent Defense Still Failing.” http://www.nacdl.org/public.nsf/
DefenseUpdates/Virginia025. Accessed May 17, 2010.

National Legal Aid & Defender Association (NLADA). Evaluation of Trial-Level
Indigent Defense Systems in Michigan: A Race to the Bottom; Speed and Savings
over Due Process; A Constitutional Crisis. NLADA. June 2008.
National Juvenile Defense Center (NJDC) and NLADA. “Ten Core Principles for
Providing Quality Delinquency Representation through Public Defense Delivery
Systems” (2nd ed.). Washington, D.C.: NJDC and NLADA. July 2008.

-130-

O’Dell, Larry. “Va. Lawmakers May Again Impose Strict Fee Caps.”
HamptonRoads.com. March 4, 2010. http://hamptonroads.com/2010/03/
va-lawmakers-may-again-impose-strict-fee-caps.
Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Judicial
System. Final Report of the Pennsylvania Supreme Court Committee on Racial
and Gender Bias in the Judicial System. 2003
Spangenberg Group. “A Statewide Evaluation of Public Defender Services in
Pennsylvania.” West Newton, Mass.: SG, May 2002.
———.

“Statewide Indigent Defense Systems: 2006.” 2006.

———.

“State and County Expenditures for Indigent Defense Services in Fiscal Year
2005.” The Spangenberg Group. December 2006.

Texas Task Force on Indigent Defense. “FY2009 Task Force on Indigent Defense Annual
and Expenditure Report.” http://www.courts.state.tx.us/tfid/pdf/09AnnualReport
FINAL011110.pdf. Accessed May 14, 2010.
———.

“Who We Are and What We Do.”
are.asp. Accessed: May 14, 2010.

http://www.courts.state.tx.us/tfid/whowe

VLW Blog. “Fee Cap Waivers Survive Budget Crunch.” Virginia Lawyers
Weekly. March 16, 2010. http://valawyersweekly.com/vlwblog/2010/03/16/
fee-cap-waivers-survive-budget-crunch/.

-131-

-132-

APPENDIX A
SENATE RESOLUTION NO. 42 OF 2007
(PRINTER’S NO. 150)

-133-

-134-

-135-

-136-

-137-

-138-

-139-

-140-

APPENDIX B
OPERATIONAL COST CATEGORIES FOR
OFFICE OF INDIGENT DEFENSE SERVICES

The following is a tentative list of the operational budget categories that the advisory
committee recommends be funded to establish an effective statewide Office of Indigent
Defense Services:

FISCAL YEAR 1333
ESTABLISHMENT OF STATE BOARD OF INDIGENT DEFENSE
• Appointment of 13 board members
• In-state travel and meeting attendance costs
• Interview and selection of executive director and executive staff
STAFFING (Salary, benefits334 and travel)
• Executive director
• Office executive staff
o Director of training and development
o Director of appellate and postconviction review
o Director of capital case litigation
o Director of juvenile defense services
o Technology and information systems officer
• Other staff
o Administrative assistant to executive director
o Training staff coordinator (handles training program logistics and
qualification, reporting, and compliance management for the CLE office)
o Human resources and office manager
o Budget and contracts manager
o Accounting and finance manager
o Accounting staff (2)
o Administrative assistant for appeals and postconviction review
o Administrative assistant for capital case representation
o Administrative assistant for juvenile defense services
o LAN administrators (2)
333
334

Because of the time needed to begin operations, expenses for FY1 will be paid for only part of the year.
For all eligible personnel, benefits include retirement under the State Employee Retirement System.

-141-

o Information technology analyst
o Standards compliance officer for eastern, middle and western districts (3)
(These may be hired at the end of FY1 or at the beginning of FY2.)
EXECUTIVE OFFICE COSTS
• Office setup
o Rent
o Configuration and design
o Furniture, furnishings, and supplies
o Conference and meeting room
• Electronics
o Computers and Internet
o Landline and cell phones
• Training equipment
o Training rooms
o Visual aids (easels, whiteboards, PowerPoint)
o Recorders
o Microphones

FISCAL YEAR 2
RECURRING COSTS
• State Board
• Staff salary, benefits and travel
• Recurring office expenses
COUNTY CHIEF PUBLIC DEFENDERS
• Salary and benefits for full- or part-time positions335
• Computers and technology to communicate with state office and executive staff
NONCAPITAL APPELLATE AND POSTCONVICTION REPRESENTATION
• Contracts with existing public defender office appellate units (funding sufficient
to cover salary and benefits, paid through the local defender offices)
• Contracts with appellate specialists (on a per case fee basis for no more than 25
cases per attorney per year)
• Office staff (salary, benefits, and operational support)
o Three appellate lawyers
o Three juvenile appellate specialists

335

The Office shall determine whether a chief public defender shall be full-time or part-time during FY1,
and fund the position in FY2 pursuant to that decision.

-142-

(The most complicated, serious cases require appointment of a staff attorney
under the supervision of the division director, who should carry a reduced
caseload.)
CAPITAL CASE APPELLATE REPRESENTATION336
• Contracts with existing public defender office to support qualified capital
appellate public defenders and staff (funding sufficient to cover salary and
benefits, paid through the local defender offices)
• Contracts with capital appellate specialists
• Office staff: four capital appellate attorneys (under supervision of the capital case
division director or serve as lead counsel with a contract capital appellate
attorney)
TRAINING, EDUCATION, AND DEVELOPMENT PROGRAMS
• In-state training programs (lodging, CLE fees, honorariums for presenters, and
program materials)
• Out-of-state training programs (lodging, registration, and travel)
DEVELOPMENT OF TECHNOLOGY AND REFERENCES
• Software for data collection and report generation and interpretation
• Software for online activities (registration for training programs, billing for
contractors, CLE credits)
• Office website (building, securing, maintaining, and updating)
• Online library of reference and training materials
o model briefs, writs, petitions, and motions
o law review and other periodical articles

FISCAL YEAR 3
TRIAL AND POSTCONVICTION CAPITAL CASE REPRESENTATION
• Case requirements
o Capital-qualified attorneys
o Expert witnesses
o Investigators
o Travel costs for witnesses and staff
o Transcription and copying costs
• Contracts with public defender offices (salary and benefits for staff capital
attorneys, mitigation specialists, and capital investigators)
• Individual capital attorney, mitigation specialist, capital investigator contracts
336

Under applicable standards, all capital cases require two capital-qualified attorneys.

-143-

•

Office staff 337
o Capital trial attorneys (4)
o Trial mitigation specialists (2)
o Trial investigators (2)
o Postconviction attorneys (6)
o Postconviction mitigation specialists (2)
o Postconviction investigators (2)

CONTINUING COSTS
• Board members
• Executive, professional and support staff
• Recurring operational costs
• Training and professional development
• Unanticipated needs (e.g., repairs to office space due to water sprinklers going off
with a false alarm)

337

These professionals (18 FTEs) may be designated a statewide capital representation team, or the
attorneys may serve as lead counsel with a local individual attorney capital trial or postconviction
contractor. Mitigation and investigation may also be covered by contracting to expand the number
statewide of capital representation teams.

-144-