‘Funding parity’ a dead end for helping public defenders
Aproposed Allegheny County Council ordinance that would require “funding parity” between the District Attorney’s office and the Public Defender’s office articulates a fundamental principle of justice: That neither side in a criminal case can have a systemic advantage.
The ordinance itself, however, is vaguely worded, and is unlikely to effect substantial change. Given the way criminal courts operate, “parity” isn’t a very useful way to allocate funding. Council should reject the ordinance and consider an alternative way to elevate the Public Defender’s office: amending the county charter to make Chief Public Defender an elected official.
Nationwide, criminal justice offices are understaffed and underfunded. Just this month, a RAND Corporation study argued that the 1973 maximum caseload standard for public defenders — 150 felonies or 400 misdemeanors per year — is far too high, especially given modern technology and the amount of information a competent defender must sift through. The study proposed a maximum of 150 low-level misdemeanors and annual felony caseloads of 59 for low-level felonies, dropping to seven or eight when the defendants could receive a life-without-parole sentence.
But caseloads are also challenging prosecutors, with individual attorneys responsible for hundreds of cases annually. This doesn’t just hurt the state’s ability to prosecute effectively; it also hurts defendants.
Overburdened prosecutor’s offices, reported an article in the Northwestern University Law Review, resulted in “longer sentences for less culpable offenders, longer delays in the dismissal of charges against the innocent, fewer disclosures of exculpatory evidence by prosecutors, and more guilty pleas by innocent defendants in exchange for sentences of time served and release from jail.”
Overworked attorneys on both sides have a mutual incentive to seek quick plea bargains, and even innocent defendants may have reason to accept them. In Allegheny County, more than 95% of convictions of defendants represented by public defenders are guilty pleas.
The County Council ordinance, meanwhile, rests on the assumption that the way the county funds indigent defense favors the prosecution. But that is a contestable claim. While the 2023 budget allotted about 53% as much to the PD’s office as to the DA’s office, public defenders represent fewer than half of the county’s defendants. Of course, public defenders also have the particular challenge of investigating and responding to the government’s case.
Balancing these arguments is difficult, and the ordinance, set for a Tuesday afternoon vote, wouldn’t settle the problem. It stipulates that future budgets must “afford each office equal ability” to prosecute and to defend. This sets up an annual political, and perhaps legal, battle over the meaning of “equal ability.” The language could be twisted by a future court or council to require dollar-for-dollar funding equality, which wouldn’t make sense at all.
An innovative approach, which has been the norm for decades in places as disparate as San Francisco and Florida, would be to elect a Chief Public Defender. This would elevate the stature and political importance of the office, give it far more bureaucratic independence and accentuate the fact that the lead defender also represents the people by ensuring the constitutional right to an effective defense is provided.
Allegheny County doesn’t need statements of principle masquerading as laws. It needs real reform.