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Pennsylvania’s inadequate funding of public defenders is unconstitutional, ACLU suit claims


Pennsylvania’s inadequate funding of public defenders is unconstitutional, ACLU suit claims

Jun 13, 2024 | 5:52 pm ET
By Peter Hall
Pennsylvania’s inadequate funding of public defenders is unconstitutional, ACLU suit claims
(Getty Images)

Pennsylvania’s public defenders are so underfunded and overburdened that the commonwealth violates the constitutional rights of more than 100,000 criminal defendants every year, the state chapter of American Civil Liberties Union claims in a lawsuit filed Thursday.

For decades, Pennsylvania has left counties to pay for attorneys to defend people facing criminal charges who can’t afford to pay for a lawyer themselves. The result is an inconsistent patchwork in which public defenders are forced to contend with unmanageable caseloads that leave them unable to properly represent clients, the lawsuit says. 

The suit was filed in Commonwealth Court on behalf of 17 people, many of whom have been jailed while awaiting trial for six months or longer, claiming public defenders have failed to properly represent them and that the state has neglected its constitutional duty to provide representation.

“The inconsistent and insufficient funding of indigent defense in Pennsylvania makes us less safe,” ACLU of Pennsylvania Executive Director Mike Lee said in a news release about the lawsuit. Lee added that with the exception of Philadelphia, Pennsylvania is tied with Mississippi for the lowest funded state public defender system on a per-resident basis.

The U.S. and Pennsylvania constitutions both provide the right to counsel for anyone charged with a crime and facing jail time, ACLU of Pennsylvania Legal Director Witold Walczak said. 

“That right means more than a warm body with a law degree at your side; it requires an effective professional who has the time and resources to prepare a defense,” Walczak said. “Pennsylvania’s grossly under-funded system leads to overwhelming caseloads that make effective representation practically impossible, even for the most dedicated lawyers.”

The 152-page suit details the experiences of the plaintiffs and others in criminal cases where they lacked timely and adequate representation from public defenders. Most have only spoken to their attorneys once or twice and one plaintiff claims he only met his attorney because they happened to walk past while he was cutting grass outside the jail, the suit claims.

In one example, a Northampton County man sat in jail for nearly three months on charges of driving an unregistered vehicle without proof of insurance until a public defender argued for a reduction in his bail.

The suit, which is a proposed class-action on behalf of the 17 plaintiffs and others in similar situations, names Gov. Josh Shapiro, state Senate Pro Tempore Kim Ward, and House Speaker Joanna McClinton as defendants. A spokesperson for Ward said she has not received a copy of the suit and would need time to review it before commenting. 

Spokesperson Nicole Reigelman noted that McClinton began her career as a public defender, and “knows firsthand the value that indigent defense plays in the judicial system.”

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

The current state budget included $7.5 million for indigent defense, the first time the state has provided funding for public defenders. In his February 2023 budget address, Shapiro noted that Pennsylvania is one of only two states that didn’t provide funding for public defenders, which he called a “shameful distinction.”


The suit notes that amount falls far short of providing adequate funding. It also states that every county in Pennsylvania, with the exception of Philadelphia, falls below the national average of $19.82 per resident spent on indigent defense.

Pennsylvania counties spent a total of $125 million on their public defender’s offices in 2020, while similarly-sized Michigan is budgeted to spend $319 million in 2024. Massachusetts, which is considerably smaller, budgeted $331 million.

And because counties are limited in their ability to generate tax revenue, they could not provide adequate funding without significant tax increases. The suit notes that the same factors that limit revenues, such as high unemployment, poverty and limited higher education, are also indicators of higher crime rates. 

The ACLU also argues that Pennsylvania agencies have been warning for decades that the state’s delegation of funding for public defenders to the counties results in the systemic denial of counsel to criminal defendants. 

A state Supreme Court study in 2003 found that sparse resources and “exploding and unmanageable caseloads” allow public defenders little time, training or assistance in communicating with clients in a meaningful way or to conduct pre-trial investigations, secure expert testimony or otherwise prepare for hearings and trials.

The report recommended that Pennsylvania institute a statewide system for funding and overseeing indigent defense. The state failed to act on the recommendation. Nearly a decade later, a legislative commission reached a similar conclusion. And in 2020 the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness warned that the underfunding of indigent defense services cost the state hundreds of thousands of dollars a year to incarcerate and retry defendants due to failure of public defenders to represent them effectively.

In connection with the funding for public defenders as part of the 2023-24 budget, the General Assembly created the Indigent Defense Advisory Committee.

“As one of its first official acts, one of the Committee’s two proposed standards recognized that “[t]he responsibility to provide indigent defense representation rests with the state; accordingly, there should be adequate state funding and oversight of Indigent Defense Providers,” the lawsuit notes.