Public defenders try to solve the fuzzy math determining their budgets

For those Pennsylvanians both poor and accused of a crime, location is everything.

There is no guarantee of equity in the quality of defense a poor defendant can expect with a public defender by their side. That's because Pennsylvania provides no state funds to its counties’ defender offices – the only state in the nation that fails to do so.

As a result, the onus for filling the public defense coffers falls fully on individual counties.

Such an ad hoc funding system can lead to vastly different budgets for counties of comparable size and demographics. Lycoming and Mercer counties, for example, both have populations of roughly 116,000 people, according to 2010 census data.

But Lycoming’s Office of the Public Defender has an annual budget of around $724,000 – some 40 percent less than Mercer County's annual budget of $1,144,855, according to their 2017 budgets. 

Lycoming public defenders are expected to do as much as Mercer's, just with fewer resources: According to Pennsylvania’s Uniform Crime Reporting System, crime stats in 2016 for both counties were roughly the same. Mercer had a sizable lead in aggravated assaults (112 to 30) and burglaries (98 to 33), but Lycoming had more murders (40 to 1) and nearly four times as many instances of the sale and manufacture of opiates and cocaine (89 to 28). Lycoming also edged out Mercer in robberies (23 to 21), weapons charges (24 to 18), prostitution (5 to 2), and the “manufacture” and sale of marijuana (25 to 23). 

On top of that, the two counties also have roughly similar poverty rates – around 15 percent – and median incomes of roughly $44,000 a year, according to census data. These statistics indicate that the number of people arrested in each county who are unable to afford representation is likely similar.

Those poverty rates are about 2 percent higher than Pennsylvania’s as a collective; the median incomes of those two counties is about $10,000 less than the statewide average.

Jonathan Rapping, a MacArthur fellow and president of Gideon’s Promise, an Atlanta-based indigent defense group, laid out a few alternatives to Pennsylvania’s pay-what-you-may system.

“You could have a system where 100 percent of indigent defense came from the state,” Rapping said. “Probably more likely would be a system with a mix, where there’s a state contribution but there’s also a county contribution. And what that really does is say hopefully the state is making sure that every county meets some minimum threshold of funding needed to carry out its mission. But counties would not be precluded from contributing; in fact, they’d be required to contribute a certain amount.”

The latter option is more likely to appeal to Mercer County Chief Defender Raymond Bogaty. 

Bogaty said there is parity in salaries between the District Attorney’s office and the Public Defender’s office in his county, though there may be discrepancies in the resources available to each. Overall, though, localized funding seems to have worked well for his office. 

“I would think that a centralized funding system would not be to our advantage,” Bogaty said. “Because local needs are local needs; I don’t think a centralized funder would be able to take those into account adequately in this county because every county is somewhat different. Now, if you’re asking if we got a block amount of money or gross money to help subsidize the budget, that certainly would be helpful.”

Sounding a similar tone, Lycoming County’s First Assistant Public Defender Nicole Spring said her office is lucky to have a healthy relationship with their board of commissioners. When they need to contract an expert or hire an investigator, they find a receptive audience. 

“Our boss runs a real tight ship and we very, very, very rarely get denied anything we ask for,” Spring said. “I’ve been here for 31 years and, bottom line, it has been that way with every commissioners board that we’ve had. Every one.”

Spring agreed with Bogaty, however, that additional funding or even a statewide system tasked with handling time-consuming services, like those required in the Post Conviction Relief Act – an indirect appeal method – would free them up to handle indigent defense with more care.

But she has misgivings about a statewide system interfering with the symbiotic relationship her office has enjoyed with Lycoming County. 

“I am one of the few people across the state who has said, ‘Please don’t make me a state agency.’ I don’t want to have to compete with other counties for the funding source,” Spring said. “I feel like I’m a unicorn.”

Not all public defenders would express similar sentiments, based on a landmark case about the issue.

The state Supreme Court ruled last September that defender offices, and their indigent clients, can sue their respective counties for violating their constitutional right to a defense by underfunding them. The decision highlighted the issue and offered defender offices across the state a new avenue for possible recourse: the chance to secure more money through litigation.

The ruling reanimated an ongoing 2012 lawsuit filed by the Pennsylvania chapter of the ACLU against Luzerne County on behalf of public defenders and indigent defendants in the county. There’s no guarantee the public defender’s office will secure further funds through a legal victory but the very presence of a lawsuit has prompted Luzerne County to allocate more money for the office, now-Chief Defender Stephen Greenwald says.

The future of the case is still undetermined, but getting even this far was messy. The county's chief defender at the time was Al Flora, Jr., who was ousted a few years after first making his concerns known via his refusal to take on any more clients until his office was adequately funded. 

When asked about the case out of Luzerne, Spring laughed. “Yeah, we copied (the ruling) and sent it over to our director of administration and said: ‘Don’t mess with us! Don’t mess with us! We’ll sue ya!’”

There are efforts afoot in Harrisburg that would do something similar. Sen. Stewart Greenleaf (R-Montgomery) introduced a bill in January of this year that states Pennsylvania “should appropriate funds to comply with Gideon” – a reference to the landmark case, Gideon v. Wainwright, which held the Sixth Amendment guarantees the right to counsel – “and in so doing establish and provide for a center to support the delivery of services to indigent criminal defendants in this Commonwealth.”

That center would be The Pennsylvania Center for Effective Indigent Defense Legal Representation, a currently hypothetical board of directors that would be tasked with overseeing indigent defense in the state. 

Underfunding public defender offices, Rapping said, trickles down to the poor and accused. If public defenders’ caseloads get too big, they must prioritize which cases to apply themselves on and which to relegate to guilty pleas.

“Once you’ve made that determination, you approach the client sort of focused on getting them to take a plea, rather than working with them to figure out what makes the most sense to them with the information that they deserve to have to make that decision,” Rapping said. “So the processing of human beings, the processing of people through the system into jails and prisons, is a direct function of our failure to support public defenders.”