Public defender shortages

A new report by Paul Heaton, director of the Quattrone Center for the Fair Administration of Justice, shows that nearly every county in Pennsylvania has a shortage of public defenders.

Image is of the Delaware County courthouse, a Classical Revival/Neo-Classical style building made of white marble,with a six column portico and clock in the pediment, located in Media, Pennsylvania.
The Delaware County courthouse is seen, Thursday Oct. 15, 2020, in Media, Pennsylvania. (Image: AP Photo/Jacqueline Larma)

A new report by Paul Heaton, director of the Quattrone Center for the Fair Administration of Justice at Penn Carey Law, shows that nearly every county in Pennsylvania has a shortage of public defenders.

The study analyzed nearly 1 million criminal court dockets from 2016 to 2022 and found that there should be more than 1,200 full-time public defenders in the state, but instead there are 850, representing a 30% shortfall. Only six of the state’s 66 counties have enough public defenders to meet the caseload demands, even under generous assumptions about the amount of time public defenders devote to client work.

Penn Today talked with Heaton to hear how the report came about, what to make of the findings, and where the state should go from here to address the issue.

How did you come to look at this topic?

I co-direct the Quattrone Center, which focuses on preventing errors in the criminal justice system, such as wrongful convictions. When you look at specific cases of wrongful convictions, one thing you often see is some sort of problem on the criminal defense side. Perhaps the defense attorney didn’t fully investigate the evidence, didn’t interview witnesses who could have corroborated the alibi, etc. One reason that happens is because most people can’t afford their own attorney; the Constitution requires that, if you can’t afford your own attorney, the courts provide you with one. But the concern is that, when you talk to attorneys that represent those who cannot afford to pay for their own lawyer, they say, ‘Hey, we have huge caseloads, hundreds of cases at a time. We don’t have enough time and bandwidth to be able to do all the stuff we’re supposed to do.’ The idea that public defenders are overburdened with too many cases is one that’s been around for a long time, but most of the data on this is anecdotal. We thought, ‘OK, you say there are not enough attorneys? Can we actually measure that?’

Fortunately for us, a landmark study was published recently which provides expert-informed estimates of how much time would it take for a lawyer to be able to provide constitutionally adequate representation in a criminal case. For example, in a typical DUI case, if the lawyer spent one hour on the case, would that be enough, or does it take 100 hours? That report, which was produced by the RAND Corporation in conjunction with the National Center for State Courts and the American Bar Association, was the first serious effort in nearly 50 years to carefully assess how much time attorneys would need for particular types of criminal cases. We realized we could combine information from that study with some rich administrative data the Quattrone Center has assembled on criminal cases here in Pennsylvania to get some new insights.

What were you expecting when you started the research? Was this surprising to you?

I was expecting significant personnel shortfalls because we hear that commonly when we talk to public defenders, and you can observe the effects of huge caseloads in the courtroom. In Pennsylvania in particular there’s reason to expect shortfalls because, unlike nearly all other states that provide state funding for public defenders, Pennsylvania is unusual in that until just this past year we didn’t have any state funding; public defenders were all just locally funded. So, each county has to pay for indigent defense itself. Most experts would say that’s a very bad funding model because in poorer counties that don’t have a big tax base public defense is likely to get less priority than other services that are more visible or serve a broader swath of the community. So, we were expecting shortfalls, but for me one of the big questions going in was whether we’d find shortfalls everywhere. 

One interesting and surprising finding was that, yes, there are widespread deficiencies, but they’re not universal. There are some counties that appear to have enough lawyers, and that’s true both for bigger places like Allegheny, where Pittsburgh is, or smaller places like Pike County in the northeast. I don’t think it’s a foregone conclusion that things have to be underfunded. That’s a political choice we’ve made as a state and in many local jurisdictions.

What needs to happen to turn this around?

If people agree this is a problem—and I think the data suggest it should concern us a lot—there are really two paths. One is to have fewer criminal cases and think about alternatives to the criminal process. Are there concerns that we’re dealing with now through the criminal system that we could resolve in other ways? The second would be to provide more resources. I give this state credit for starting down this second path because as of this year we have for the first time provided some state funding for public defenders. But the amount is $7.5 million, which is not a lot relative to the need, at least according to our research. Pennsylvania could substantially expand the amount of state funding, and that’s certainly something we should consider.

It’s worth noting here that Pennsylvania spends $3 billion per year on our Department of Corrections, most of which goes to prisons. So that $7.5 million that we’re spending on indigent defense is less than one quarter of 1% of what we spend on corrections. It’s a very tiny amount relative to our correctional expenditures. Yet it turns out how much we choose to spend on public defense can have pretty big implications for those downstream expenses. For example, our previous research shows that just in Philadelphia the choice of whether to have murder cases handled by public defenders or less expensive private attorneys implicated about $200 million worth of correctional spending for Pennsylvania. No one thought when they were skimping on indigent defense that they were writing a $200 million check, but that’s what they were doing because we showed that you end up with much longer terms of incarceration and all the associated expenditures. I do think it’s worth asking: If we are going to spend billions of dollars on corrections, shouldn’t we be making sure this front-end part of the system—which is essential for ensuring we get the right people who are actually guilty—has enough resources to do its job?

What’s the most important thing for people to understand about what this report has uncovered?

If you read the Sixth Amendment and look at the case law around the right to counsel, it’s clear that people have a right to counsel in criminal matters, and the Constitution sets certain minimum requirements for how that needs to operate. Our data suggest that the level of resourcing in Pennsylvania is not universally but widely below the constitutionally minimum standard. For people who think it’s important for us to do what the Constitution says, that should be troubling. Moreover, while spending more on public defenders may feel like a fiscal cost, if we end up over-incarcerating or convicting innocent people because we’re not making the necessary up-front investments in representation, that’s also very costly, quite possibly much more so than if we just gave public defenders the resources they need.