Recently, an email from a disgruntled staffer at the District Attorney’s Office leaked to the other team: Philly’s Defender Association, the city-funded nonprofit that represents accused criminals who can’t afford a private lawyer. The email included salaries of District Attorney staffers — and the numbers left some defenders in shock.
“It appears that DAs with comparable experience are making anywhere from 10 percent to 50 percent more than their public-defender counterparts,” says CB Kirschner, a defender. “Someone once said that in a just society we’d pay the people who prosecute criminals equally with the people who defend them. What does it say about a society that weighs the scale so heavily in favor of the prosecution?”
The timing of the email was somewhat ironic: This Monday, March 18, marks the 50th anniversary of Gideon v. Wainwright, the Supreme Court decision affirming poor defendants’ right to free counsel. And while Philly’s Defender Association is considered to be among the nation’s best, defenders say years of salary freezes, growing case loads and the city’s failure to achieve promised parity among defenders and prosecutors is putting a strain on that institution.
Meanwhile, Philly’s system of appointing private counsel to those not represented by the Defender Association — a program administered with scant funding and little oversight — has been uneven. Now, the city is weighing whether a new Office of Conflict Counsel could better manage such cases. But critics say that, without a massive funding infusion, such an endeavor is fated to fail.
Samuel Stretton, a private attorney who’s been active in efforts to reform the system, puts it bluntly: “The legacy of Gideon has been severely tarnished in Pennsylvania. … Gideon doesn’t exist anymore.”
Pennsylvania is one of only two states that provides no funding for indigent defense, notes Mary Catherine Roper, of the American Civil Liberties Union of Pennsylvania. “The system really has no sort of statewide supervision or standards, or even statewide funding standards.” As a result, a task force appointed by a joint committee of the state legislature concluded in 2011, the mandate of Gideon “has been ignored by the General Assembly, and largely because of that neglect, is not being fulfilled in Pennsylvania.”
Philly’s defendants fare better because the city has an independent defenders’ office, with 240 lawyers handling adult and juvenile criminal cases, mental-health civil-commitment hearings and child-advocacy cases. All told, they’re assigned 70 percent of Philly’s indigent-defense cases — about 60,000 new cases each year.
Chief Defender Ellen Greenlee says intensive training and extensive supervision make it possible for defenders to adequately handle their case loads. But, she concedes, “There really is a crisis in indigent defense. … We are not the favored children.” That is, spending on a tough-on-crime DA is more politically palatable than funding defense of alleged criminals.
Last year, things came to a head, according to several defenders: Lawyers who hadn’t seen raises in years were leaving the office in droves, and there was no funding to replace them. The Defender Association stopped staffing three courtrooms for several months — and, though Greenlee doesn’t like the term “boycott,” the resulting pressure on the city did lead to restored funding for 10 vacant positions. Now, Greenlee says the association is fully staffed.
But that’s relative: Defenders staffing a single courtroom could still work on 20, 25 or even 30 misdemeanor cases a day, or 10 non-jury felony cases.
One defender said it’s possible to have 50 major felony cases open at any one time. “The investigation that’s needed is much greater than we’re often able to bring to it. When you’ve got 50-something cases … some of those cases that are further down the line, you’re not getting to them.”
Kirschner says defenders put in long hours and pride themselves on their work — but admits it could be better. “Our clients get frustrated because they only have five minutes with an attorney to discuss an offer,” she says. Later, they complain, “‘I was confused. … I didn’t take this offer because I didn’t have enough time to discuss it.’”
“Do things get missed? Of course,” she says. “When you have that many cases, a witness is not going to be called who should be, a bench warrant is going to be issued when a client is in custody.”
Yet the defenders tends to perform better than the private lawyers the courts appoint in the 30 percent of indigent-defense cases the Association can’t take. An analysis of Philly homicide cases by the RAND Corporation found defenders had conviction rates 19 percent lower than their court-appointed counterparts. Defenders’ clients were 62 percent less likely to receive life sentences. And in 20 years of trying homicides, Greenlee notes, no Defender Association client has been sentenced to death.
There’s a reason for that, says Stretton: For homicide cases, private lawyers are paid $10,000, which he says doesn’t come close to covering their costs. “The last homicide I tried, I think my hourly rate turned out to be $1.50.” Lawyers have to juggle these cases with private clients just to stay afloat. A report by Common Pleas Court Judge Ben Lerner last year found appointed counsel’s pay to be “grossly inadequate” in capital cases. Other felony cases pay just $650. Stretton and others have negotiated and filed numerous suits over the past two decades to raise those fees, but, he says, many lawyers just won’t take court-appointed clients anymore. Getting expert witnesses, likewise, has become a problem, as payments often comes late and at cut rates. “I’ve had a lot of experts, top psychiatrists and pathologists, who won’t come in anymore,” Stretton says.
All this may change, given that the courts handed administration of this crumbling system over to the city last July. But will it be for the better?
Deputy Mayor Everett Gillison — a former public defender himself — is investigating reforming the system by way of a new Conflict Counsel Office to manage some cases now being handled by private lawyers. He isn’t sure what the office would look like, but hopes it would include crucial support services like social workers and investigators. The city issued a request for proposals in January.
Reactions have been mixed.
David Rudovsky, a private lawyer and president of the Defender Association board, says, “it’s positive, in the sense that they recognize the current system is not working.” But he worries about what will replace it. The Philly Bar Association is skeptical, fearing, says Roper, that a conflict office run by a for-profit entity is “doomed to corner-cutting.”
Gillison doesn’t know what the office’s budget would be. The city’s current spending on private appointed counsel, around $10 million, is “my starting place.”
That wouldn’t be enough, according to Stretton, who has threatened to sue yet again if necessary. “The last thing I want is for this office to collapse or run out of money,” he says.
Of course, Gillison says, with this hypothetical new office — as with public defenders and with any branch of government — the funding is just never enough. “I would love to be able to give everyone what they think they’re worth — and the budget would be about a trillion dollars.”
Wage parity is now a priority, he says — but it will have to be negotiated among the DA, city solicitors and defenders. Gillison hopes to reach a compromise soon. Defenders say that, if he doesn’t, the attrition will worsen.
“We have this total brain drain going on,” says one defender. “It affects our organization’s ability to represent people.”