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Rob Perkins: Fair defense funding is a must for criminal justice reform

Rob Perkins| Saturday, Jan. 7, 2023 11:00 a.m.

Opinion Printed in the Trib Live

Our local system for providing counsel to poor people facing criminal charges violates people’s constitutional rights. The most pressing problem is chronic underfunding. Attorney compensation in particular hasn’t increased in 17 years.

Predictably, unfair pay leads to underperformance. This should matter to all of us. When defense attorneys fail to do their job effectively, the criminal legal system malfunctions — and good people’s lives are ruined. Allegheny County President Judge Kim Berkeley Clark must act to improve this system.

As the Supreme Court recognized 60 years ago, the “assistance of counsel is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.” People facing criminal charges, such as drug possession or assault, have a constitutional right to effective counsel. If they cannot afford to hire an attorney, the state must pay the costs of defense.

The Public Defender’s office, which does consistently provide effective counsel, represents many indigent (poor) defendants, but cannot handle every case. The local courts, led by Clark, appoint and pay private attorneys to meet the excess demand. This court-supervised system is the focus here. Court-appointed attorneys handle about 1,800 cases annually. That means thousands of lives are impacted by the quality of court-appointed counsel.

An adequate defense is essential because our justice system is adversarial by design — prosecuting attorneys on one side of the aisle and defense attorneys on the other. Prosecutors, working with the police, seek to convict and punish those charged with crimes. Consistent with that role, prosecutors often focus on building a case against the accused rather than investigating other suspects who may be the true culprit.

Defense attorneys, in turn, serve as a counterbalance and check on government overreach by testing the government’s evidence and humanizing the accused.

The ideal is this: After these opposing sides present their cases vigorously, justice will prevail.

Without an effective defense, our adversarial system fails. Innocent people are imprisoned — a result that is not only inhumane, but also requires taxpayers to pay the $40,000-per-year incarceration tab.

Young people with promising futures are unfairly branded with felony convictions, which will impose permanent employment barriers among other collateral consequences.

Shockingly, the courts have not increased the fees paid to attorneys who defend poor people since 2006. — not even for inflation or cost of living (By comparison, during that same period, judges’ salaries jumped well over 50%.)

Allegheny County’s funding now lags far behind that of similar locales.

Here’s what that means in practice: Say an attorney devotes 50 hours of their time to successfully defending an innocent mother of two. The maximum compensation for that attorney is just $750 in most cases. This results in a financial loss for the attorney, who must pay the rent, staff and other expenses just to keep their office doors open.

Moreover, because attorneys are generally paid the same fee regardless of how many hours they devote to case preparations, the system creates perverse incentives — and attorneys may be forced to choose between their client’s legal interests and their own financial interests. That is, if the attorney puts in the work necessary to help the client get a fair outcome, he or she loses money. So the economically rational choice is to devote as little time as possible to the case. But if the attorney fails to put in the necessary work, the client has a worse outcome — and that innocent mother of two goes to prison.

As a result of these system failures, many experienced attorneys stop accepting appointments to represent poor people. Those attorneys who continue to do so are incentivized to devote minimal time to each case. Unsurprisingly, a Rand Corp. research study confirmed that inadequate defense funding systems (like ours) lead to worse client outcomes.

As the human rights attorney Bryan Stevenson famously noted, the American criminal legal system “treats you much better if you’re rich and guilty than if you’re poor and innocent.” That quote rings true here in Allegheny County, where oftentimes inexperienced attorneys are paid a fraction of the private market rate to represent poor defendants — many of whom are Black, come from marginalized communities, and/or suffer from mental health or addiction issues.

This failure to fund indigent defense sends a message to families directly impacted by the system: “You are not our priority.”

In fairness to Clark, she inherited this inequitable system. Now is the time to fix it.

Rob Perkins is president of Allegheny Lawyers Initiative for Justice, a coalition committed to local criminal justice reform

info@ali4j.orghttps://www.ali4j.org/