ACLU calls on Luzerne County to address public defender’s office staffing shortages

Representatives of the American Civil Liberties Union Foundation emailed a letter to Luzerne County Council members Monday expressing their “grave concern with the ongoing deterioration of indigent defense services” in the county.

“The situation is reminiscent of a decade ago. The failure to adequately resource the Office of Public Defender in the late 2000s contributed to the ‘Kids for Cash’ scandal and led directly to an ACLU of Pennsylvania lawsuit that forced changes to the Office of Public Defender at significant cost to the county,” the letter said.

A council failure to adequately fund the public defender’s office in the county’s 2023 budget “could invite a reprise,” its letter said.

Due to attorney vacancies, county Chief Public Defender Steven Greenwald said in September he had to stop providing representation for nonincarcerated, income-eligible individuals charged with misdemeanors. He said the office would continue to provide defense for indigent citizens charged with felonies and also inmates facing misdemeanors.

County Court of Common Pleas President Judge Michael T. Vough said in October the situation could not be ignored because the county is legally required to provide representation to indigent people charged with misdemeanors. Council agreed to transfer funds from the public defender’s office so the court could retain outside contracted attorneys to provide the mandated defense.

But Vough said Monday the plan to hire outside attorneys never got off the ground because the unionized assistant public defenders, represented by Teamsters Local 401, sent a letter saying the union would file a grievance over the use of others to perform public defenders’s office work.

Vough said he was trying to help with a temporary solution but was powerless to act due to the collective bargaining agreement and threatened grievance.

As a result, Vough said county judges have been forced to expressly “appoint” the public defenders office to handle hundreds of misdemeanor cases. The public defender’s office keeps filing motions to vacate each of these orders, and Vough said judges have denied all requests to vacate.

Understanding the pressures on assistant public defenders, Vough said judges are attempting to grant continuances if they are requested.

During his budget presentation last month, Greenwald had implored county council to support a new yet-to-be presented union contract that will allow him to attract and retain attorneys, citing staff caseloads far above acceptable standards and the need to pull resources from a juvenile unit created during the ‘Kids for Cash’ scandal.

The union contract covering attorneys in both the public defender’s and district attorney’s office expires the end of this month. Greenwald proposed a significant starting salary increase and the addition of progressive step increases that will allow lawyers to better project how their compensation will rise in subsequent contracts.

Greenwald had said his office has eight of 28 attorney positions open, with most departing lawyers citing compensation as a reason for leaving. The starting pay for attorneys in his office is $51,083 for full-timers and $34,165 for part-timers. He mentioned several other counties that pay assistant public defenders in the $60,000 range to start and are not struggling with vacancies.

Each attorney in his office is handling more than 400 cases on average, Greenwald had said. He has individual attorneys juggling more than 300 felonies annually, or double the most current recommended standard of 150 per year, he had said. Similar excessive caseloads are placed on attorneys handling mental health hearings and appeals.

Greenwald could not be reached for comment on the ACLU letter Monday.

Council cannot vote on a new contract because it hasn’t been presented yet. County Acting Manager Brian Swetz said he anticipates a new union contract will come before council in early 2023.

Council is set to approve the 2023 budget Dec. 13.

ACLU arguments

Monday’s ACLU letter says council has a constitutional and statutory duty to fund the public defender’s office “at a level that ensures that indigent people accused of crimes in the county receive effective representation at all critical stages of their criminal cases.”

It asserts council has failed for several years to fund the office “at a level that permits full staffing.” That leaves the remaining dedicated assistant public defenders with “overwhelming caseloads that prevent them from providing consistently effective representation,” the letter says.

The letter describes overworked assistant public defenders “struggling to find the time to communicate with their clients, prepare their cases, or advocate for their clients.”

Their inability to withdraw from cases is “pushing the county’s indigent defense system to a breaking point,” it said.

Underfunding of the public defender’s office is “not a new problem,” it said. In May 2010, Al Flora was appointed chief public defender when the office “already was riddled with problems stemming from understaffing and underfunding,” later prompting the ACLU to represent Flora and several indigent defendants in a suit against the county, it said.

Council’s “consistent failure” to adequately fund the office over the last two decades has had “disastrous consequences for low-income children and adults accused of crimes in the county” and for county taxpayers who have had to pay to clean up “messes,” it said.

The ACLU is calling on council to pass a 2023 budget that provides sufficient increased funding for the public defender’s office to increase attorney salaries to “competitive levels.”

It also presses council to provide funding for the courts to appoint private counsel if public defender’s caseloads remain unmanageable.

However, council had approved a budget transfer needed for outside counsel at Greenwald’s request, not knowing the option would be opposed by the union.

Failure to immediately address the issues puts the county at risk of costly litigation, the letter said.

“We acknowledge that financial constraints are real for Luzerne and most governmental bodies, but while many items the county funds are legally discretionary, funding the constitutional right to effective counsel is mandatory and non-negotiable,” the letter said.