Pennsylvania’s Indigent Defense Crisis Goes to Court

Earlier this month, the American Civil Liberties Union of Pennsylvania filed a class action lawsuit in state court challenging the state’s indigent defense system under the U.S. and Pennsylvania constitutions. Pennsylvania’s defender system primarily operates through county funding, and many counties, the organization argues, “lack either the capacity or the political will to adequately fund or supervise these services.” 

The allegations in the lawsuit, Warren v. Commonwealth, suggest a system in crisis: people detained for months without ever speaking to a lawyer, overworked defenders failing to do even basic investigations, and individuals pressured to plead guilty without counsel so that they can be released. The plaintiffs assert, among other things, violations of their right to counsel under the U.S. Constitution’s 6th and 14th Amendments and Article I, Section 9, of the Pennsylvania Constitution, which provides that “in all criminal prosecutions the accused hath a right to be heard by himself and his counsel.”

Pennsylvania is far from the only state struggling to meet its constitutional obligations to provide representation to those who can’t otherwise afford it. Across the country, public defense systems face stark funding shortfalls and excessive caseloads. Stephen Bright, a storied death penalty lawyer and former head of the Southern Center for Human Rights put it this way: “No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel.”

The challenge is largely political. Adequate criminal defense requires substantial government expenditures — and poor criminal defendants are not exactly politically popular. That’s led advocates to turn to litigation, and in recent decades lawsuits in states including California, Connecticut, Massachusetts, Nevada, and New York have led to settlements oriented toward reform. 

A few points to think about. First, these lawsuits have almost always been in state court, even when they’ve raised exclusively federal claims. That’s largely a story of a federal court doctrine called Younger abstention, named for a 1971 case, Younger v. Harris, which generally bars federal courts from interfering with ongoing state criminal proceedings, even when they raise constitutional questions. State courts have been far more open to lawsuits challenging state indigent defense systems, typically relying on their inherent powers to enforce constitutional rights or on supervisory powers to ensure fair judicial proceedings.

When it comes to Pennsylvania, the state supreme court has already established much of the legal framework likely to come up in this case. Back in 2016, the court ruled in Kuren v. Luzerne County that a class of indigent criminal defendants could bring claims alleging “prospective, systemic violations of the right to counsel due to underfunding.” Warren accepts this invitation with a lawsuit challenging the indigent funding system statewide.

Yet Kuren also declined to separately analyze the plaintiffs’ state constitutional claim, explaining that the rights to counsel under the state and U.S. constitutions are “jurisprudentially coextensive.” As State Court Report readers may recall, this kind of “lockstepping” is quite common in state constitutional law — but when it comes to indigent defense litigation, there is good reason for courts and litigants to give the state constitution a closer look.

To begin with, Sixth Amendment rights may be vulnerable under today’s conservative Supreme Court supermajority. In 2019, Justice Clarence Thomas issued a dissent in a Sixth Amendment case, Garza v. Idaho, joined by Justice Neil Gorsuch, in which he argued that the “the original meaning of the Sixth Amendment” provides only for the right of criminal defendants to use counsel, not to have their representation paid for by the government. While it’s hard to see there being five votes on the Court to overrule Gideon v. Wainwright (although I might have said the same thing five years ago about Roe v. Wade . . . ), it’s quite easy to imagine the Court chipping away at its meaning. 

There are also structural reasons why federal constitutional law is likely to be under-protective when it comes to the right to counsel. Indigent defense is a classic example of a complex system with broad variation across states in how it’s structured and implemented. As Rutgers Law School professor Robert Williams has argued, the Supreme Court has often imposed a “federalism discount” in how its defined federal constitutional rights under these circumstances, reflecting a hesitance to mandate a single national rule across divergent state circumstances. State constitutions can allow courts to offer more targeted — and rights-protective — interventions.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.