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Editor’s note: This story and the accompanying graphics have been corrected and updated to reflect the fact that the budget and staffing data for the district attorney’s offices in Bucks and Montgomery counties include each county’s detective bureau.
Bucks County residents who earn no more than $320 a week qualify for food stamps, public medical insurance and federal assistance to heat their homes.
What they don’t qualify for is free legal representation against criminal charges.
The county’s income cutoff to obtain a public defender is $285 a week for a one-person household, an amount that hasn’t changed in almost two years.
The figure is a little larger in Montgomery County, where the income cutoff is just under $348 a week.
While “the assistance of counsel” is constitutionally guaranteed under the Sixth Amendment of the U.S. Constitution, exercising the right can be influenced by financial factors the Founding Fathers probably didn’t anticipate.
Pennsylvania is the only state where county government shoulders the entire burden of funding and administering criminal legal defense services for the poor. It is also the only state that lacks oversight and uniform quality standards for indigent criminal representation, leaving funding decisions and income guidelines to the county.
As a result, many defendants who don’t qualify for public defenders can pay higher costs and fees and are less likely to have restitution reduced, according to criminal defense lawyers. And many cannot afford fee-based programs like house arrest that can keep them from going to jail.
The situation can be so dire that a number of Bucks County private defense lawyers say they often advise defendants to stay in jail if they can’t afford private lawyers or don’t qualify for public defenders. In jail, they receive free legal representation, many lawyers said.
Bucks County’s income cutoff for a public defender is roughly 125 percent of the federal poverty level, county administrator Stephen Heckman said. The income limit is $14,820 for a single-person household, a level that has been in effect since October 2015. The office doesn’t keep records of applicants who are rejected because they don’t meet income requirements, but it has never turned down someone who did meet those qualifications, Chief Public Defender Christina King said.
Montgomery County uses 150 percent of the current year’s federal poverty level to qualify for a defender. This year, that is $18,090 for a single-person household. However, a county spokeswoman said exceptions can be made when a low-income defendant faces a serious charge.
“Sadly, in many ways, it’s a two-tier system. Like many other things in life, the underprivileged don’t have access to the same goods and services that well-to-do individuals do,” said Newtown Township criminal defense lawyer Louis Busico. “You have the clash of two competing interests: the fundamental right to counsel and the free market system of supply and demand.”
Quality of defense
Getting a public defender may not be the end of the struggle, either.
Last year, the Pennsylvania Supreme Court decided that public defender clients have the right to sue counties to force them to provide adequate funding for public defenders. The ruling involved a 2012 lawsuit by the Luzerne County public defender’s office and the Pennsylvania chapter of the American Civil Liberties Union on behalf of more than 300 criminal defendants, who alleged that chronic county under-funding overwhelmed the public defender’s office and resulted in “sub-Constitutional representation.”
“We’re not talking about a Cadillac; we’re talking about a Ford Escort. We’re talking basic,” said Mary Catherine Roper, deputy legal director of the Pennsylvania ACLU. “It’s basic that your lawyer can meet with you. It’s basic to have someone interview witnesses. It’s basic that your lawyer be able to evaluate your plea.”
Staff shortages may lead public defenders to negotiate less advantageous plea bargains to reduce caseloads, a situation the Supreme Court noted in its ruling.
Public defenders also often appear before judges with little advance information about their client’s case, Roper said. They may not get the court paperwork until the night before a preliminary hearing or meet a client for the first time until the hearing. The circumstances leave public defenders in a poor position to evaluate whether a plea offer is in the client’s best interest, Roper explained.
“You are never going to a preliminary hearing cold on a paid case,” Roper said. “I don’t care how good a trial lawyer you are, if you have done nothing but read the police report and have a six-minute conversation with your client, there is only a limited amount you can do. You lose opportunities to exonerate the client or figure out a plea deal.”
A 2011 Pennsylvania task force and advisory committee that examined defense services for the poor found a major reason for the “overuse” of plea bargains is that public defenders often lack the resources to mount an adequate criminal defense.
“There is a high risk that factually innocent defendants will be convicted, legally established defenses will be ignored and substantive constitutional rights will be violated,” the task force reported.
Montgomery County’s Chief Public Defender Dean Beer blames lack of funding on the reluctance of state and local politicians to appear “soft” on crime.
“It doesn’t get you votes to fund indigent criminal defense,” he said. “It’s like everything else. No one likes a lawyer until they need one. No one thinks their family is going to need a public defender or indigent defense until they do.”
Defender vs. district attorney
In Bucks County, the DA’s 2016 budget was $6 million. That included $1.74 million for the detective bureau, which included 17 detectives, plus support staff. There were 34 full-time attorneys in the DA’s office and 23 full-time attorneys in the public defender’s office.
In Montgomery County, the DA’s office had 145 staff members in 2016, including 71 who worked for the county detective bureau. The DA’s office had 48 full-time attorneys, explained Kate Delano, communications director for the DA’s office. The detective bureau accounts for significantly more than half the DA’s budget, she said. The public defender’s office had 33 full-time attorneys last year.
Delano said the detective bureau investigates all major cases in the county and supports all 49 police departments with a variety of services that include ballastics analysis and crime scene support. Delano said that office also is charged with investigating allegations that may not result in criminal charges.
Montgomery County DA Kevin Steele cited an investigation of 17 gang-related shootings in Pottstown that resulted in 47 arrests and the ongoing prosecution of actor Bill Cosby for alleged sex crimes as cases that require many staff hours and resources.
Beer said he tries to cap annual caseloads at 300 per public defender, including 100 felonies. “Our caseloads are full,” Beer said. “I’d like to get the caseload numbers down.”
In Bucks County, the annual budget for the DA’s office has been consistently double the public defender budget — and it has received larger annual funding increases. Since 2005, the office has had its budget increase by $2.7 million, while the public defender’s office budget rose $120,000, according to budget data.
During a typical trial term, Bucks County’s public defenders handle roughly 200 to 340 cases, roughly half the caseload of the DA’s office, according to the county. Four public defenders typically are assigned 50 to 85 clients during the term, said King, the chief public defender. The exception is capital cases, when up to three public defenders can be assigned to one client.
Bucks County assigns seven prosecutors to handle all the criminal cases not assigned to a specific prosecutor. During the August 2016 trial term, the prosecutors were responsible for 718 of 851 cases scheduled, plus any pre-assigned cases the seven had, according to Assistant District Attorney Karen Diaz.
The National Advisory Commission on Criminal Justice Standards and Goals recommends an annual caseload cap per-attorney that “should, in no event, exceed” 150 felonies, or 400 misdemeanors, or 200 juvenile delinquencies, or 200 mental health commitments, or 25 appeals.
And the 2011 Pennsylvania task force report recommended 12 changes, but state lawmakers haven’t taken any action, said Lawrence Feinberg, a senior staff attorney for the Joint State Government Commission. It’s the primary nonpartisan research organization serving the General Assembly.
In the 2013-14 legislative session, Sen. Stewart Greenleaf Jr., R-12, of Willow Grove, who chairs the Senate Judiciary Committee, introduced a bill to create a state center to oversee and manage criminal defense services for the poor and create statewide standards. He argues that better funding would benefit the court system by reducing backlogs that can lead to delays that end up costing more tax dollars.
In January, Greenleaf reintroduced Senate Bill 61, to create the center. In a memorandum to senators, he noted his proposed $1 million appropriation would spare counties from being sued under the Luzerne County decision for improperly funding public defender services.
“This appropriation is small in comparison to the costs of longer sentences and greater recidivism, which are the demonstrated consequences of inadequate legal representation,” Greenleaf said, adding the center would seek supplemental funding from federal and private sources.
Out of luck
Criminal defense lawyers like Jason Rubinstein, who practices in Middletown, say they often find themselves requesting multiple court continuances to buy clients time to get money for restitution or trial diversion programs. Judges are more inclined to be lenient with defendants who can pay most — or all — court costs, fees and restitution up front, Rubinstein and other attorneys said.
Among the biggest complaints private defense attorneys have with programs like accelerated rehabilitative disposition, or ARD, is that it requires higher fees from defendants with private attorneys. The requirement is based on the belief that a defendant who can afford a private attorney can afford higher payments to participate in ARD and other programs. ARD is a pretrial diversion program that allows those with no or very limited criminal records to avoid jail for non-violent offenses and qualify to have their records cleared if they complete the program.
In Montgomery County, public defender clients pay $500 to $800 in ARD-related court fees and fines, compared to $2,000 for private attorney defendants, according to a county spokeswoman.
ARD clients in Bucks County with a private attorney pay $1,000, while public defender clients pay $500. Bucks defendants who can pay costs and restitution in full before their trial date are also rewarded with a six-month probation period, rather than the typical year, attorney’s said.
Those seeking programs such as ARD can request a hearing before a judge to prove they can’t afford the fees and costs. If the judge agrees, they don’t have to pay the fees and restitution is waived. Bucks County Assistant District Attorney Antonetta Stancu, who oversees Bucks County’s ARD program, couldn’t provide data on the number of indigent requests that are sought or granted.
Rules assessing higher fees to those with private attorneys don’t consider the fact that many people who work live paycheck to paycheck, defense attorneys and advocates said.
“This kind of stuff bankrupts families,” said the ACLU’s Roper. “Given the likelihood you’ll have to (make a guilty) plea — the fees you will owe — it’s a life-destroying event for a person. You may never recover.”
With some cash-strapped clients, Rubinstein said he ends up trading legal representation for services like auto repairs or home improvement work.
One client last year was struggling to raise the upfront money to qualify for ARD, so Rubenstein said he didn’t charge her for every court appearance he made on her behalf. “If I had, she would have been completely out of luck,” he added.
Falls defense attorney Ron Elgart participates in a bar association program that refers criminal defendants with incomes just above public defender qualifications to private defense attorneys who will charge them reduced rates. Still, he said, some of those clients can’t afford to pay him.
“I get people referred to me, who after they pay the motel rent and get some food, have about $20 left over,” Elgart said. “And somehow, they don’t qualify for a PD (public defender).”
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