Philadelphia City Council this morning unanimously voted to enact Bill 150001: a new transparency measure dealing with how the Mayor’s Office funds the legal defense of low-income people. Passing 150001, Council made its consent necessary before the City awards certain legal defense contracts worth more than $100,000. The Bill also requires that the City make the terms of those contracts publicly available.
Before 2014, the Mayor’s Office negotiated these contracts in-house with little or no input or oversight by either Council or the public. Legislation passed last February imposed new financial reporting requirements on these contracts, but it contained some caveats. 150001 squashed those caveats.
Philadelphia is the only Pennsylvania jurisdiction that subcontracts indigent defense work out rather than handling it internally. Pennsylvania is the only state aside from Utah that does not subsidize indigent defense.
When the District Attorney prosecutes people who can’t afford legal representation, the City most often appoints attorneys from a roster at one of the three non-profit firms that act as Philadelphia’s public defender’s office.
Defenders at these three firms sometimes encounter conflicts-of-interest that compromise their ability to objectively argue their appointed case. Those are called “conflict counsel cases.” The City almost always contracts conflict counsel cases to private firms.
This happens to between 23,000 and 27,000 cases a year, according to a document pulled from the e-Contract Philly website.
|Time Period||Jul. ’08 – Jun. ’09||Jul. ’09 – Jun. ’10||Jul. ’10 – Jun. ’11|
|Conflict Counsel Cases||23,494||27,272||22,441|
Councilman Dennis O’Brien, who co-sponsored the legislation discussed above, in testimony last week explained that 150001
revokes the exemption of reviewing contracts entered into with the City—with the Philadelphia Defender’s Association, Child Support Center, and Community Legal Services only to the extent that those contracts, in whole or in part, are related to legal representation of individuals in matters requiring the use of conflict counsel.
O’Brien proposed this new tweak after he heard of negotiations between the Mayor’s Office and the Philadelphia Defender’s Association to create a new section of the Defender’s Association that would handle all conflict counsel cases.
Previous measures proposed by O’Brien in this vein returned unsigned from the Mayor’s Office, though they were enacted anyway. Testifying in front of City Council last week, Philadelphia Director of Public Safety Michael Resnick opposed 150001. He argued that if the City trusts the work these three non-profits do
without coming to Council and having those contract reviewed, because these are impeccable organizations and they provide top quality representation, very ethical, then why should we do it for a very small portion of the work that none of them have even done yet?
Conflict counsel cases represent only a fraction of all cases disposed in Philadelphia Municipal Court. So why then is O’Brien driving Council and the Mayor’s Office so hard on this issue?
O’Brien and others believe this lack of disclosure contribute to larger, systemic problems with the way Philadelphia handles public defense, and that these problem hurt both the attorneys who provide indigent defense and their clients.
First of all, the “compensation for contract and conflict counsel in Philadelphia is lower than in the other [Pennsylvania] counties, and thus utterly inadequate,” according to a 2011 report to the Pennsylvania General Assembly. The Pennsylvania Supreme Court that same year conducted a state-level assessment and found that the low fees these appointed lawyers receive discourages the
effective preparation of a case. Many poor people are represented by inexperienced lawyers setting out to build a practice or by lawyers who turn to [these] court cases as a last resort. Due to low compensation rates, both public defenders and assigned counsel have little incentive to develop an expertise in the defense of criminal cases.
Rather than allowing them to bill by the hour, the City pays conflict counsel attorneys a flat rate per-case. This means attorneys effectively make more money the less time they spend defending indigent people.
For this post, the Sixth Amendment Center (6AC) Executive Director David Carroll provided preliminary results from another study of indigent defense in Philadelphia by his organization.
According to 6AC’s study, which was funded by the Department of Justice, the City pays private appointed counsel about $50 an hour to defend indigent people. Compare that figure to the $80 an hour an attorney would make for this type of work in Kansas, the $75 an hour an attorney in North Dakota would, the $84 an hour they would make in South Dakota, etc.
Damien Sammons takes conflict counsel appointments in Philadelphia and spoke today at City Hall alongside five of his colleagues in favor of 150001. Sammons told the story of one case he took, which lasted two years. “I got a little over $2,000 from the court appointment system for a case that most attorneys would value at $20,000,” he said.
6AC also raises an issue with the checks-and-balances of public defense in this city. “Fearing the loss of income by not pleasing the judge overseeing their compensation,” the report argues that defenders in Philadelphia and elsewhere
often take on more cases than they can ethically handle… In Philadelphia, judges qualify attorneys to cases, oversee how much the attorneys are paid and determine if a request for an expert witness or an investigator has merit and will be funded.
Furthermore, the quality of legal representation these defendants receive is to a large extent contingent on luck. 19 in 20 Philadelphians who face murder charges cannot afford to provide their own legal defense, and one in five low-income Philadelphians are chosen randomly to receive counsel from the Philadelphia Defender’s Association. The other four are assigned counsel.
The outcome of that draw can mean the difference between conviction and exoneration. It can also mean the difference between 10 years and a life sentence.
Economists analyzed 3,173 capital cases tried in Philadelphia between 1994 and 2005. “Compared to private appointed counsel,” the study found, “public defenders reduce the murder conviction rate by 19%. They reduce the probability that their clients receive a life sentence by 24%.”
Rather than try to convince Harrisburg or Washington that Philadelphia needs money to provide proper legal counsel for low-income people, the Mayor’s Office has elected to fix this problem by creating a single firm and pay it even less than what the three non-profit organizations make now to handle all conflict counsel cases.
Two local attorneys almost took a $9.5 million contract from the City to set up the firm that would handle that work last year, but negotiations broke down. The Mayor’s Office issued a second request-for-proposals this past Thanksgiving.