Free the PD? Report urges Allegheny County to join move toward more independent public defenders.

For three years between 2010 and 2013, Maria Maneos watched her son navigate the Montgomery County public defense system as he battled drug addiction. At the time, she saw the entire structure as an opaque maze — a system more focused on churning out plea deals and rushing through cases than offering holistic support to clients like her son.

“I felt like I was ashamed and I didn’t want to be ashamed,” Maneos said. “What I wanted was to understand what was happening. Why should I feel so alienated and not be a part of a solution of some sort?”

A decade later, Maneos sits on Montgomery County’s independent public defender advisory board. The county established the board in 2022 in response to public outcry over the firing of its chief and vice chief public defenders .

A report released Thursday by the Allegheny Lawyers Initiative for Justice [ALIJ] calls on Allegheny County to make a similar move toward establishing independence for the public defender’s office.

As with most counties in Pennsylvania, the Allegheny County executive appoints the chief defender and oversees the public defender’s office. New County Executive Sara Innamorato in January chose Lena Bryan-Henderson, a longtime assistant public defender and a member of ALIJ, for the post.

The office’s budgetary and hiring decisions must also go through the administration, and public defenders must historically get county approval before providing media comments.

Nationally, around 80% of criminal defendants cannot afford to hire an attorney, and most of those rely on public defenders.

The American Bar Association identified independence as the first principle of a public defense delivery system in its August 2023 report . The association urges that public defense providers and attorneys should be independent of political influence and judicial authority. In practice, that can mean receiving funding through philanthropic grants or continued funding by the county or state but with an independent oversight board, like in Montgomery County.

“There’s a lot of lives that are impacted by this system,” said ALIJ President Rob Perkins, who co-authored the ALIJ report. At its most extreme, that impact has included wrongful convictions. More commonly, Perkins said, youth in the system who are charged with their first low-level felony offense may be pushed to take guilty pleas because public defense lawyers lack resources.

“That’s going to follow them around for the rest of their life,” Perkins said.

“The way the system works is that the volume is just so unrelenting that if you’re an overwhelmed attorney — and it could be a public defender or a private lawyer — you don’t have the time to leave no stone unturned.”

How a lack of independence impacts indigent clients

It took an American Civil Liberties Union lawsuit to introduce new standards and improve the quality of legal representation in Allegheny’s public defender’s office. The ACLU argued in a class action lawsuit filed in 1996 that the office provided grossly inadequate representation to its clients. The case reached a settlement in 1998.

A decade later, the ACLU concluded an investigation into continued systemic problems in the public defender office. Andrew Capone – a former Allegheny County public defender who now works for the Public Defender Association of Pennsylvania — said many of the problems highlighted in the lawsuit, such as  high caseloads, inadequate training, poor salaries and “a litany of problems associated with our representation,” existed because the office lacked independence.

The report led to the office hiring more attorneys and a training director, implementing new caseload standards and building out a management structure. “But it took a third party [the ACLU] to serve as the catalyst for that change just because the county wouldn’t have had the motivation to do it on its own,” Capone said.

In Allegheny County, the chief defender does not have sole discretion over the public defender’s office budget, which is now $13.5 million. Every year, County Council votes on a proposed budget that’s been submitted by the executive, and the public defender’s office “lives within the confines of that budget,” said Matt Dugan, the county’s chief defender from 2020 to 2023. If, for example, the office wanted to create new training programs, increase funding for expert witnesses or hire more social workers, they would need the county’s approval.

Dugan said that he felt largely supported by the county administration, but lacked “wiggle room” when it came to hiring more attorneys, investigators and social workers.

Allegheny County’s public defender’s office has just five social workers alongside its 90 lawyers, while national standards suggest it should have 30 social workers, according to the ALIJ report. For indigent clients, this may mean they are less likely to get help with the problems that led to their arrests.

“If you do not address the underlying issue that caused your clients to come into contact with the criminal legal system, then you are just banging your head off against the wall,” Capone said. “You’re not going to help your clients, you’re not going to help the community, you’re not going to help the victims of crimes, you’re not going to help anyone. All you’re doing is just cycling people through a criminal legal system.”

Public defenders are “uniquely positioned” to provide aid and services to clients that could be criminalized by other government agencies, Capone said. Defenders have a duty of confidentiality to their clients and the responsibility of advocating for their needs, which allows clients to ask for help without being put at risk.

But in reality,  experts and reform advocates say, public defenders face restrictions in how much they can publicly advocate for their clients — or systemic issues — because their office is tethered to the county.

“Pennsylvania’s model is antiquated,” said Shanda Sibley, a law professor at Temple University who led the report recommending an independent advisory board in Montgomery County. “This model creates really high variance in the quality of defense services, in the quality of public defender’s offices. And it creates a situation where public defenders are really very susceptible to other, more politically connected actors interfering in what they do.”

Muzzled and compromised?

Even with some improvements, public defenders remain limited in their ability to speak out.

“The Sixth Amendment is being squeezed to death,” public defender Andy Howard said during a May 2023 Jail Oversight Board [JOB] meeting, referring to changing limitations in attorney-client visitations at the Allegheny County Jail which he said compromised defendants’ rights to counsel. “The result of the warden’s weaponized policy making and enforcement is that our clients’ cases suffer, their rights are weakened, court appearances need to be postponed, sheriffs have to do additional transports, judges aren’t clearing cases, tax dollars are being wasted, and court fees are piling up, and it cannot continue,” City Paper reported .

Howard’s public comments at the 2023 meeting, and those of Art Ettinger, another public defender, resulted in backlash from former Executive Rich Fitzgerald’s administration, according to the ALIJ report. The administration “made it very clear” that county employees — which includes public defenders — should not raise issues at public meetings but instead use internal mechanisms to resolve them, Capone said.

Under Innamorato, Howard is now the county’s chief deputy public defender.

The upshot, said Capone: “If you try to resolve all those issues behind closed doors, then the public doesn’t have an opportunity to weigh in on those issues.”

The majority of public defender clients are housed in the county jail, Capone said, which heightens the conflict of interest, both in appearance and in practice. Advocating for clients who require medical attention, mental health or substance use treatment becomes difficult when avenues like the JOB — which was established to monitor and resolve exactly those issues — and the media are closed off to public defenders.

When public defenders aren’t able to fully and transparently advocate for their clients, they risk their relationship of trust with the public, according to Temple University law professor Jules Epstein.

“It is very important for a Public Defender’s Office to be, and to be seen to be, independent,” Epstein said. “The people public defenders represent are people who are often very poor and disenfranchised and sadly sometimes see the public defender as part of the government or part of the system and not really their lawyers.”

Capone said that he has had clients ask him, “Who pays your salary?”

His response: “It’s the same people who are issuing a paycheck to public defenders that are issuing a paycheck to the district attorney’s [prosecutors]. Our public defenders are phenomenal attorneys and they put their clients first, but the appearance of that impropriety still exists.”

Philadelphia: A nonprofit public defender

Sixty-one years ago, the U.S. Supreme Court ruled in Gideon vs. Wainwright that each state is responsible for furnishing indigent defense. The structure of public defense was left to individual states to decide.

Pennsylvania’s Public Defender Act , created five years after in 1968, passed that responsibility down to each county, with the exception of Philadelphia, which had an existing non-profit Public Defender Association. For every other county in Pennsylvania, the public defender’s dependence on county leadership is baked into the law.

“The question is: Why did Pennsylvania choose to allocate that responsibility to the individual county instead of assuming it for itself?” Capone said.

State oversight could grant some independence to the public defense system, Capone said, because the public defender’s office would answer to the state, while the district attorney’s officers would answer to their county governments. Additionally, the state would have more resources to better fund public defense.

Philadelphia’s Chief Defender Keisha Hudson agrees: Even the Philadelphia Defender Association, Pennsylvania’s only independent non-profit public defender, relies on Philadelphia government for funding.

If Pennsylvania were to reimagine its public defense system, advocates, experts and attorneys pointed to Philadelphia as a model for independence. Katie Daly, secretary of Montgomery County’s independent advisory board, called it the “gold standard.”

Philadelphia’s Defender Association is led by a 30-member board of directors that oversees hiring. The city recommends 10 of those members, 10 are affiliated with community organizations and the remainder work in criminal defense and civil rights.

But Hudson hopes to see funding for public defense — including in Philadelphia — come from the state rather than city or county governments.

“Whether or not you can truly say that we are independent is a question,” Hudson said. “I have full authority to run the office in the ways that I need to … but 90% of our funding comes from the city of Philadelphia” which also performs county functions.

Hudson pointed to neighboring states like Ohio that ensure a “layer of separation” between public defense and local jurisdiction through robust state funding. “When the funding is so tied to that local level as it is here throughout Pennsylvania, I think it does have a bit of a chilling effect,” Hudson said.

In February, Gov. Josh Shapiro proposed $7.5 million for public defense, to be divvied up across 66 public defender offices. The funding means Pennsylvania will no longer be one of just two states to not help to fund its public defenders. But Allegheny County would receive just under $125,000 , while Philadelphia would get a little over $140,000 — a drop in the bucket compared to what is needed to sustain an effective public defense office, Hudson said.

Statewide funding models

The issue of independence has been raised in other states — even ones that take a statewide approach. In 2012, New Mexico amended its state constitution to remove executive control of the public defender. Oversight of the public defender was transferred to the judicial branch, which removed the conflict of interest with prosecutors who are governed by the executive branch.

But many of the problems with its public defense services — largely related to funding and caseloads — remained, according to an analysis by Irene Oritseweyinmi Joe, a law professor at UC Davis. “Underfunding is a symptom of a structure in which the public defender institution is dependent on other state actors who may not prioritize its needs,” Joe writes. New Mexico’s public defender was still under a government agency and had in some ways even fewer avenues to resolve its issues.

Montgomery County: From firings to an independent board

In Montgomery County, former chief defender Dean Beer and Hudson, who then served as vice chief defender before taking her role in Philadelphia, were fired in 2020 after filing an amicus brief with the Pennsylvania Supreme Court over the county court system’s management of bail hearings. Montgomery County paid Beer and Hudson $310,000 in a settlement over their wrongful termination.

Hudson said their termination had a “silver lining”: It spotlighted the importance of independence from local judiciary and executive branches.

A Temple University report recommended an independent advisory board in Montgomery County, and it was formed in late 2022.

“The question that Montgomery County faced is, absent some sort of change to Pennsylvania state law or the Pennsylvania constitution, we have the structure where the public defender is going to continue to be part of the county: How can we try and create independence?” Paul Heaton, chair of the advisory board said.

Epstein, who participated in the Temple report, stressed the importance of independent public defense for indigent clients.

“Public defenders sometimes have to challenge the status quo and that means speaking truth to power — and that can be very uncomfortable or difficult when the people you’re speaking truth to are the people who hold the purse strings for your office,” Epstein said.

The board serves as “a layer of protection,” Epstein said. It’s empowered to hold regular public meetings, raise issues related to public defense and make recommendations, but cannot exert direct executive control over the public defender’s office.

Montgomery county’s new chief public defender, Christine Lora, was interviewed and recommended by the board before her appointment, and  is a non-voting member of the board.

Outlook for Allegheny County — why now?

Perkins believes that the time for change is now. Inammorato’s recent ascent signals a positive turning point for progressive issues, Perkins said.

“Our office has tremendous respect for Rob Perkins and his expertise and passion for the topic,” the county executive’s spokesperson Abigail Gardner wrote in an email to PublicSource. “We look forward to reading the report and understanding the recommendations it sets forth.”

Chief Defender Bryan-Henderson was not available for an interview by the time of publication.

In addition to its call for independence from the county executive, the ALIJ report recommends:

• Additional training and supervision for attorneys
• Adequate compensation for attorneys
• Independence from judicial authority
• A parity of resources between public defenders and prosecutors
• Defense counsel presence at initial bail hearings
• The same attorney representing a defendant throughout their case
• Reduced workloads for defenders
• A stronger holistic model that uses a client-centered approach.

Capone said that in order to have independent public defenders in rural parts of Pennsylvania, new funding structures might need to emerge. But Allegheny County’s relative size, he said, makes change here “very feasible.”

Miranda Jeyaretnam is an editorial intern at PublicSource and can be reached at miranda@publicsource.org .

This story was fact-checked by Rich Lord.

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