ACLU of Pennsylvania Urges County to Hire More Public Defenders

Sixth Amendment guarantees criminal defendants right to attorney at critical stages in court

A view of the defendant's table in a courtroom on March 16, 2009. (Robyn Beck/AFP via Getty Images)

When charged with a crime in the United States, the Sixth Amendment guarantees that defendants who cannot afford an attorney will get a free public defender. But in Luzerne County Pennsylvania, the office of public defender is so understaffed that it has been turning away hundreds of indigent people who were seeking representation for lower-level offenses.

The office of public defender has been unable to fill eight of its 28 budgeted attorney positions because the starting salary for new attorneys is not competitive in the Luzerne County legal market, Chief Public Defender Steven Greenwald said in a November budget presentation to county council. Some 500 people have had their applications for representation turned away, he said.

The starting rate for a Luzerne County assistant public defender is $51,083.

The American Civil Liberties Union of Pennsylvania (ACLU of Pennsylvania) this week sent a letter to the Luzerne County Council Members arguing that the council of being in dereliction of its duty to fund indigent defense services in the county.

“Over the past several years, council has failed to pass a budget with enough funding to allow the [office of public defender] to attract and hire the number of attorneys it needs to provide effective representation to its clients,” the letter says, adding that current attorneys have taken on untenable caseloads, with some handling more than 400 cases a year.

“Council can resolve the present crisis by passing a 2023 budget that provides the [office of public defender] with increased funding, sufficient to raise attorney salaries to competitive levels,” the letter says. It also demands the county immediately allocate funds to ensure defendants whose cases were turned away due to understaffing, are provided with competent counsel. The county should also provide funding for courts to appoint private counsel if the caseload continues to be unmanageable.

“Failure to immediately address these issues puts the county at risk of costly litigation,” the letter says.

Salary Negotiations

It is worth noting that two awkwardly timed funding issues are currently happening in Luzerne County.

First, the 2023 county budget must be approved by Dec. 15. If the deadline is missed, the county must use the 2022 budget going into 2023, Tim McGinley, Luzerne County council member told The Epoch Times.

Second, at the end of the year, a collective bargaining agreement ends between the county and the union representing county assistant public defenders and assistant district attorneys. It is time for a new contract which will address salary rates. This is expected to be settled in early January.

“They are negotiating. We have received no information as far as where they are with that,” McGinley said.

It means the county budget must be approved before the county knows the cost of the attorneys.

“Once that budget is passed, when the collective bargaining rate comes in. If there’s a big difference in compensation, the budget will have to be adjusted,” McGinley said. “I believe council is in agreement that we would like to find a solution for this that will allow the public defender’s office to work in a more efficient fashion for the constituents they serve.”

Right to Public Defender

Ari Shapell, legal fellow and attorney at ACLU of Pennsylvania, says underfunding the public defender’s office is a problem in counties throughout the state because of the way Pennsylvania has structured indigent defense.

The Constitution gave the funding responsibility to states.

“The state has delegated that responsibility to the counties through the Public Defender Act, which is a statute they passed a few years ago. The real Constitutional responsibility remains with the state,” Shapell told The Epoch Times. “All of the funding and administrative responsibilities for indigent defense services are delegated to the counties.”

“In most states, funding comes from the state. Much of the administrative and oversight responsibility comes from the state as well. Here, the state just says, ‘Good luck. Pay for these services. And please make sure that you do a good job. We’re not going to really be checking with you much.’ And you end up with a lot of diversity in the amount of funding and the amount of oversight that that each county provides for indigent defense.”

Access to a defender is an important right, Shapell said.

“The state has immense power over each of us. The state has the power to arrest you and lock you up in the cage and punish you how it sees fit. The state even has the ability to kill you if you are accused of a capital crime,” Shapell said. “That’s an immense amount of power, and both the Sixth Amendment to the U.S. Constitution and our Pennsylvania Constitution enshrined the right to counsel to protect us from that power of the state, and make sure that the that we’re not convicted and punished without having a fair trial or fair adjudication of the charges against us.”