No quick or easy remedy for Philadelphia’s profitable forfeiture machine

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Pennsylvania’s Controlled Substances Forfeiture Act allow all seized assets to go directly to the offices of prosecutors. The ACLU-PA found that prosecutors overwhelmingly target disadvantaged individuals without the means to fight the forfeiture in court. Photo from Occupy.com.

In a class action challenge to Philadelphia’s forfeiture practices, a federal district court ruled on February 23 that people who have lost property through forfeiture will have to file separate lawsuits to be compensated, even if the court finds some of Philadelphia’s practices unconstitutional. The ruling underscored one key message: that relief for the victims of this deeply broken system is still a long way off.

The lawsuit, Sourovelis v. City of Philadelphia, was filed by the Institute for Justice (a Washington, DC-based property rights group) with the assistance of local civil rights hero David Rudovsky in the summer of 2014. It was filed at the same time that ACLU-PA was forming a broad-based Coalition for Forfeiture Reform to push for statewide legislative change to Pennsylvania’s civil forfeiture laws. On both groups’ agenda was removing the direct financial incentive for prosecutors’ offices to aggressively pursue forfeiture.

Under Pennsylvania’s Controlled Substances Forfeiture Act, 100 percent of the proceeds from forfeiture go directly to the offices of the prosecutors who make decisions about what property to go after for forfeiture, who to target, and how ruthlessly to litigate forfeiture cases. In every county examined by the ACLU-PA, prosecutors disproportionately targeted people of color for forfeiture, taking mostly small amounts of cash where owners had little incentive to fight the forfeiture in court.

Senate and House bills would have removed this pecuniary incentive to use forfeiture overzealously and target people who can’t fight back by diverting forfeiture proceeds to a general fund instead. But in 2016, these bills were gutted at the urging of the Pennsylvania District Attorneys Association to remove all of the major reform components.

The current statute specifies that prosecutors are supposed to use forfeited property for drug enforcement, community-based drug- and crime-fighting programs, or relocation and protection of witnesses in criminal cases. However, the Sourovelis complaint alleges that, in Philadelphia, forfeiture proceeds are split between the police and District Attorney’s office and used in part to pay prosecutors’ salaries. The lawsuit makes the somewhat novel claim that the prosecutors’ financial stake in the outcome of forfeiture cases denies property owners due process.

In May 2015, the trial court rejected the City’s bid to throw out this due process claim, ruling that it couldn’t decide the claim without first resolving a factual dispute between the parties about whether the DA’s office actually used its forfeiture proceeds as contemplated by statute or used it for salaries.

In its February 23 ruling, the court made clear that even if the court ultimately sides with the plaintiffs and rules that the Philadelphia DA’s stake in the outcome of forfeiture cases is unconstitutional, the court will not order the return of all class members’ forfeited property. Rather, anyone who has lost property in Philadelphia to forfeiture would then have to file an individual lawsuit to determine what relief they’re entitled to.

With meaningful legislative reform seemingly off the table in Harrisburg and the federal trial court sending a signal that the Sourovelis lawsuit will not provide a quick or easy remedy for the victims of Philadelphia’s profitable forfeiture machine, it looks like Pennsylvanians will remain vulnerable to forfeiture abuse for a while longer.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

The ACLU is updating its police body camera recommendations to clarify public release guidelines and improve accountability. Photo by Ryan Johnson.

“In Pennsylvania, Black students were four and a half times more likely to be arrested than White students. This rate is two and a half times greater than the national rate for Black students. While Black students made up only 15% of student enrollment, they were 40% of the students arrested in Pennsylvania — a total of 2,074 Black students were arrested in 2013–14. In contrast, White students made up 69% of public students, but received 41% of student arrests.”

  • From ACLU National: “We’re Updating Our Police Body Camera Recommendations for Even Better Accountability and Civil Liberties Protections”

“We have also added language stipulating that police departments cannot use ‘investigative privilege’ as a basis for withholding footage where the suspect is a police officer (who likely is the one who recorded the video and has been allowed to see it). As we argue at greater length here, the rationale for such a privilege (tipping off suspects) does not apply when the suspect is a police officer. We do allow that redaction, subject to limitations, can be used in such situations.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

Seth Williams will not seek reelection as Philadelphia’s District Attorney, citing “regrettable mistakes” in personal life

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

Seth Williams is out.

Seth Williams will not run for reelection as Philadelphia’s District Attorney. Today, from a press conference report in The Inquirer, some remarkable statements: “‘I have made regrettable mistakes in my personal life and personal financial life that cast an unnecessary shadow’ over the work of the District Attorney’s Office, Williams said Friday. He said his decisions to accept gift and not report them brought ‘shame’ and ‘embarrassment’ to the office. ‘For this, I will always hold deep regret in my heart,’ Williams said. He has previously said that friends helped him during a rough financial period during and after his divorce, and has stressed that he took no official action in return for the gifts.”

R. Seth Williams was sworn in as Philly’s DA in January 2010, and was re-elected in 2014. Williams has been in hot water since at least August, when he admitted in financial disclosures that he’d taken $160,500 in undisclosed gifts — some of which came from defense attorneys in cases he was prosecuting. The gifts included $45,000 in home repairs, as well as sideline passes to Eagles games, vacation gifts, cash, and gift cards. The FBI probed the gifts, and continues to probe similar financial questions surrounding his nonprofit organization. Williams settled with the Ethics Board to pay a $62,000 fine, but the gifts have continued to plague him.

So has his record. While Philly media have understandably focused on Williams’ ethical violations in recent months, his term as DA has incited derision, particularly from those who expected Williams to bring progressive reforms to a DA’s office that has historically and notoriously been “tough on crime” — and even deadly.

After running on a platform of eliminating the death penalty in Philadelphia, for instance, Williams changed course and sued Governor Tom Wolf after the commonwealth’s chief executive initiated a death penalty moratorium. That’s just one example of Williams’ questionable actions. His office also offered a boilerplate re-sentencing option for men and women serving juvenile life without parole sentences that inspired a federal judge to lash out and accuse Williams of bringing “a lack of due diligence” to an important issue that affected hundreds of prisoners. Williams also refused, for three years, to drop the murder case of a man who had been exonerated by DNA evidence, and it took a jury to eventually set that man free. Williams has overseen headline-making and blatantly unfair civil forfeiturepractices; failed to take potential wrongful conviction cases seriously; and even failed to dismiss prosecutors wrapped up in the so-called “porngate” scandal.

Williams may, in the future, argue that his financial dealings brought about the end of his run as DA. But finances weren’t the only aspect of his tenure that was disconcerting. His judgement was, too.

ALSO MAKING HEADLINES

This week, HB 27, passed out of the House Judiciary Committee. This bill prohibits public agencies from identifying a police officer who has discharged his firearm or used force for 30 days after the incident. It also threatens criminal charges for any official who violates this gag order. There was no press about the bill this week, and ACLU-PA did not issue a public statement. But we did issue a memo to the House Judiciary Committee. It reads, in part: “Unfortunately, the supporters of HB 27 fail to recognize or to respect the very real concerns raised by communities concerned about unfairness in policing. Our police officers are public employees with a great deal of power, including the power to use force. This power must be coupled with the responsibility to be transparent and accountable to the public.”

Read the entire memo here.

And one more thing before we get to this week’s links…

The United States Court of Appeals for the Third Circuit held yesterday that those whose death sentences are overturned can no longer be held in solitary. The case was argued by Harrisburg and Pittsburgh-based attorneys, involves Pa. Department of Corrections practices, and involves two Pennsylvania plaintiffs who “had their death sentences vacated but were nevertheless detained in solitary confinement.”

Read the opinion here.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Some municipalities view Gov. Tom Wolf’s proposed $25 per capita fee to use state police as a bargain compared to the cost of establishing a local department. Photo from The Morning Call.
  • From The Morning Call: “To some municipalities, Wolf’s proposed state police fee sounds like a bargain”

“The governor’s fee for the township’s 31,432 residents would equate to $785,800. That’s still far below the $4 million to $5 million experts estimated in 2012 would be needed to start and maintain a police department. Neighboring Upper Macungie Township’s relatively new police force took up $4.2 million of its overall budget in 2016.” And related, from The Tribune-Review in September: “Money from increased fees and gas taxes that drivers have been paying since 2013 on the promise to fix Pennsylvania’s crumbling roads and bridges is increasingly being diverted to support the state police, budget figures show. Many government officials, legislators and construction industry members said the practice needs to stop, especially as the nation’s highest gas tax — ushered in by the 2013 transportation funding overhaul known as Act 89 — generates billions in new revenue for roads.”

  • From ACLU-PA: “State Senate Bill Will Force Counties to Violate the Constitution”

“This legislation creates a no-win situation for counties and cities that want to welcome immigrants and that know they have obligations under the constitution,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “If this bill becomes law, people will be held in jail when they should not be held. We are prepared to challenge illegal detentions when they occur.”

  • From ACLU National: “Flying Home From Abroad, a Border Agent Stopped and Questioned Me … About My Work for the ACLU”

“It didn’t happen during the Bush years when I traveled to meet with and represent Afghan and Iraqi survivors of U.S. military torture, to Guantanamo as an observer at the military commissions there, or to attend meetings and give talks abroad about U.S. human rights abuses in the national security context. It didn’t happen during the Obama years when my work included challenges to unlawful targeted killing, anti-Muslim discrimination, unfair watchlisting, illegal spying, and other U.S. government abuses at home and abroad. Over all those years, government officials made their views known about this work — often in opposition, sometimes in support. But no government agent ever asked the chilling question I was asked this time: Do you understand why someone might have a different perspective about you?”

“The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

Will Pennsylvania make police body camera footage impossible to obtain?

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

Any new iteration like SB 976 of 2016 would limit citizens’ ability to obtain body camera footage. Photo from WESA.

Pennsylvania’s state legislature is again considering policies that govern police body cameras. In the fall, the state Senate passed Senate Bill 976 — an attempt to standardize policies for “recordings by law enforcement officers.” But the session ended before the House could consider it for a vote. There are now indications that some version of SB 976 could come up again for consideration.

At a glance, last session’s bill looks reasonable. It would let police officers record inside a private home when a body camera has been activated, and it would clear up confusion over whether officers are required to inform everyone in a public place that they’re being recorded when a body camera is turned on. But there’s a problem: The bill would also make it nearly impossible for citizens to acquire the kind of footage that has exposed disturbing police overreach, lead to dropped civilian charges, and forced criminal proceedings against police officers in other states.

Under this previous proposal — introduced by Senator Stewart Greenleaf, along with two former cops, Senator Randy Vulakovich and Representative Dom Costa — body camera footage would be withheld under the state’s Right-To-Know Law if an agency made the decision that the footage was part of an ongoing investigation. Such a rule could render most relevant footage inaccessible, since one imagines that most of the sought after footage will connect to incidents that have already begun to receive scrutiny. The old bill would also allow agencies to charge $250 for the right to appeal a decision to withhold footage.

And it would also deny any request made by anyone who can’t identify every individual in the video.

On that last part: The argument to support a requestor identifying individuals in a police video revolves around protecting the privacy of crime witnesses and onlookers. Why shouldn’t policy be written, the argument goes, to protect the rights of those who don’t want to be identified? It turns out that there’s an answer to this question that doesn’t involve making footage impossible to obtain.

Companies such as Taser International — which provides body cameras and video evidence infrastructure to several Pennsylvania police departments — offer a monthly subscription plan that includes automated redaction, and in fact uses as a selling point how remarkably easy it is to redact video for records requests. Just a reminder to the legislators who will be mulling over a new version of this legislation in the new session: The RTKL’s redaction section states that agencies “may not deny access to the record if the information which is not subject to access is able to be redacted.”

ACLU-PA’s Communications Director, Andy Hoover, told The Legal Intelligencer in October that SB 976’s public access rules amount to a “byzantine process.” As many smart people like Hoover have written before, it’s a good idea to establish consistent policy around police body camera use. But shielding body camera footage from public view won’t help to increase transparency, and it won’t force police to “document how officers conduct themselves,” as Senator Greenleaf told the Intelligencer that body camera footage might do.

On the contrary, if legislation like the old bill becomes law, it would make police transparency in Pennsylvania akin to body camera footage: all but impossible to obtain.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Wait times for prisoner mental health treatment have not improved, says Vic Walczak, ACLU-PA’s legal director. Photo from The Inquirer.
  • From The Philadelphia Inquirer: “A year after ACLU settlement, little change in delays for court-ordered mental-health treatment”

“In a bid to reduce the amount of time spent waiting in jail by mentally ill individuals declared incompetent to stand trial, the Jan. 27, 2016, settlement required the state to create 60 new treatment spots within 120 days and an additional 60 spots within 180 days. Plus, within 90 days of the agreement, the state was supposed to make $1 million available for supportive housing in Philadelphia, the settlement said. Spent on housing vouchers, that money was expected to provide 50 to 80 beds. Given the DHS’s lack of transparency, it’s unclear exactly how much of that has been done.”

“Pennsylvania has a problem. According to a recently released report initiated by the state House, ‘The Commonwealth’s rates of expulsion and out-of-school suspension are higher than the national average. Further, studies have shown that excessively punitive discipline for misbehavior can result in long-term consequences for the children involved, especially the youngest ones… Policies relating to expulsion and out-of-school suspension are those in need of the most scrutiny.” On October 28, Pennsylvania’s Joint State Government Commission, the research service for the state legislature, released Discipline Policies in Pennsylvania’s Public Schools. The study, a year in the making, was developed at the request of the PA House (House Resolution 540).”

“The system was developed to help law enforcement fight drug dealers, and Lebanon County District Attorney Dave Arnold said it’s a “critical” tool for cutting off their ability and financial motivation to sell drugs. But some people who lose property, like Elizabeth Young, may not be involved in drug selling at all. If people try to rescue their property, critics say they enter a complex and confusing legal process with the deck stacked against them. Since it isn’t a criminal case, there are few legal protections, no right to an attorney, and no presumption of innocence. And critics say police departments are making a profit in the process.”

“Much of the increase in the prison population has been driven by the war on drugs. Some legislators acknowledge that mass incarceration has not solved the problem. [ACLU-PA Communications Director Andrew Hoover] says now they need to do something about it. ‘There hasn’t been the kind of restructuring of sentencing that’s necessary to fulfill that promise, to make drugs more of a public-health issue than a criminal issue,’ he added.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

Is the commonwealth doing enough?

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

Philadelphia’s Eastern State Penitentiary has been closed since 1971. Pennsylvania’s prison secretary wants to close two more prisons.

(Excerpt from Andy Hoover’s Closing prisons isn’t a good thing or a bad thing. It’s a thing.)

Last Friday, Department of Corrections Secretary John Wetzel announced that the DOC will close two state prisons. He identified five finalists for closure.

Closing prisons is a good thing if it’s happening for the right reasons. Governor Tom Wolf said the closures would save the commonwealth money during a time when strains on the state budget are significant. Wetzel said transferring the inmates from closed prisons would be manageable.

But what happens when the department puts the same amount of people into a smaller space? A prison is like a small town of a few thousand people. Any time the population increases significantly in a short amount of time, it has the potential to strain resources and services.

We and our allies have raised concerns about the impact on the living conditions of inmates. John Hargreaves of the Pennsylvania Prison Society told PennLive, “When they run out of space, the dayrooms and the gyms are filled up with beds,” he said. “Those are the places the inmates go to get out and let out steam.” Since 2009, the population of Pennsylvania’s state prisons has decreased by 7.6 percent, from a peak of 52,000 to its present population of 48,000. The decrease amounts to roughly the population of two prisons..

Which sounds good. But is the commonwealth really doing enough to lower prison populations?

Other states have been more serious about ending mass incarceration than Pennsylvania has. Mississippi decreased its population 17 percent in two years by reforming its parole system. In Pennsylvania, the legislature and then-Governor Tom Corbett repealed our early release program in 2012.

Sometime this month, the Justice Reinvestment Initiative, a project initiated by the commonwealth’s three branches of government to analyze data on the criminal justice system and to offer recommendations for a more efficient system, will release its final report. At a meeting last month, researchers for the project stated that, if every recommendation is implemented, our state prison population will drop one percent by 2022. That hardly qualifies as bold thinking.

Closing prisons is not a good thing or a bad thing. It’s just a thing. In our work on mass incarceration, the closing of prisons has never been an end unto itself. It’s a result of the goal we seek, and the goal we seek is a common-sense approach to sentencing and parole policy. If that’s why two state prisons are closing, that’s great. If the DOC does not carefully monitor conditions for the same amount of people in fewer spaces, then they can expect to hear from us and our allies again.

Read the full article here.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Terrell Thomas lost his brother to gun violence. Photo from PublicSource.

  • From Public Source: “The ‘new Pittsburgh’ takes root on the Hilltop. But gun violence remains.”

“Everybody wants to hide behind this mask that we’re doing the best we can,” said Carrington, founder of Voices Against Violence and a resident of Beltzhoover. “You’re full of shit. We’re not doing anything.”

“The accused guards coerced the incarcerated women into the sex acts by giving them extra privileges or threatening to take away privileges or throw them in the restricted housing unit, the suit says. When they were free, the guards manipulated them into having sex by threatening to have their probation revoked, the suit says. Two of the women say they tried to report the abuse to other guards and prison officials. Rather than help them, the guards harassed and berated them and actively helped the abusive guards conceal the assaults, the suit says.”

Read the second amended complaint of the lawsuit here.

  • From The Inquirer: “Shooting of deliveryman results in largest police settlement in city history”

“Hanvey and Farrell told investigators they approached Holland because they saw him walking past a Chinese restaurant on 51st Street and asked a witness on the street where the gunshots she’d heard had come from. They said the woman had pointed toward Holland and said the shots came from where he was walking. But the woman later told police investigators she had only pointed toward the Chinese restaurant, and didn’t mention a man at all.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

A Pittsburgh-area school is bringing more guns — and more police — into the classroom

By Matt Stroud, Criminal Justice Researcer/Writer, ACLU of Pennsylvania

Gateway School District plans to arm its 13-member security team. Photo from Steven Lane of The Associated Press.

After the December 2012 mass murder of 20 six- and seven year-old children, and six adults at Sandy Hook Elementary in Newtown, Massachusetts, school boards across the country began taking the advice of people like Wayne LaPierre and Asa Hutchinson, who called for an armed guard in every American school. Pennsylvania was no different. Of Pennsylvania’s 500 school districts, WPXI reported in 2014 that the number of districts with armed guards had risen from 118 to 141 between 2012 and 2014.

But while the number of armed Pennsylvania districts was on the rise, those districts typically armed singular administrators, or small numbers of school resource officers — cops, often with arrest powers, on contract with local law enforcement. This week, Gateway School District, in Pittsburgh’s east suburbs, got court approval for something different: it’s own 13-member, armed police force.

“We believe it’s our duty to do everything within our power to adequately protect the students, the teachers and the staff of the Gateway School District,” said Gateway school board member Chad Stubenbort in an interview with WPXI this week.

As ACLU-PA spelled out in its report, “Beyond Zero Tolerance: Discipline and Policing in Pennsylvania Public Schools,” bringing a law enforcement mentality into schools is a dubious practice — one that has proven to sacrifice fairness, due process, and preventative problem solving in an academic environment. Inserting firearms into the mix only exacerbates the problems with this mentality.

Despite such arguments — and others, which you can delve into on ACLU-PA’s “Police In Schools” landing page — Gateway decided to go forward with its plan. And Allegheny County Common Pleas Court President Judge Jeffrey A. Manning approved its petition to do so.

“It seems to me the only proper thing for the court to do here is to sign the order and let you proceed,” Judge Manning said during a hearing on the matter this week. “Obviously, having no protection for children in schools is definitely not better.”

That’s one way to think about it. There are others.

In written testimony submitted to the Pennsylvania House Select Committee on School Safety, and later reproduced in “Beyond Zero Tolerance,” Dr. Wayde Killmeyer, superintendent of Clairton City School District, explained: “[O]ur students come to us hungry, tired, from homes that are chaotic and where education is not a high priority,” he wrote. “Dealing with these human needs has to be a higher priority than putting an armed guard in our halls.”

He continued: “Although safety has to be one of our top priorities, a show of force is not necessarily the best way of dealing with it in our community.”

IN OTHER NEWS…

Cecilia Coleman and her son, Joseph Hall. Hall was sentenced to prison in 2008 for a crime he says he did not commit. Photo from Sarah Huny Young at Pittsburgh City Paper.
  • From The Morning Call: “After 18 months in jail, mentally ill man finally gets court-ordered treatment”

“Norristown is one of two state hospitals with secure facilities in which incompetent defendants can get the psychiatric help they need to regain their grip on reality, a requirement for their cases to proceed. But Norristown and Torrance State Hospital in the west both face bottlenecks, as demand far outpaces the number of beds they have, and the state has been unwilling to add to that inventory.”

  • From Pittsburgh City Paper: “City Paper reviews the decade-old case of a convicted murderer maintaining his innocence: ‘Things don’t add up in this case.’”

“In the two years that followed, Strothers’ story would change drastically several times, even during testimony he gave under oath; ultimately, during the 2008 criminal trial, he said that Joseph Hall hadn’t been in his car at all that day, that no one had fired guns from his car, and that police had coerced those earlier statements to the contrary. But it was that first statement recorded by detectives on Dec. 20, 2006 (along with a second recording made two weeks later), that would form the bulk of the case against Joseph Hall.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

The Most Important Criminal Justice Reform Case You’ve Never Heard Of

By Mary Catherine Roper, Deputy Legal Director, ACLU of Pennsylvania

ID_PA_2

On Wednesday, the Supreme Court of Pennsylvania (SCOPA) heard argument in Kuren v. Luzerne County, which may be the most important case you’ve never heard of. The one question before SCOPA in Kuren is whether clients of an understaffed public defender office who know their lawyers do not have time to fight for them can ask any court to protect their rights.

Like many places around the country, public defender offices in Pennsylvania are chronically underfunded and understaffed. If you are one of the 80% of people charged with a crime who cannot afford to hire a lawyer, that means you will be represented by a lawyer who has so many cases that he or she has little or no time to talk with you, no time to hunt down documents or witnesses who can help with your defense, no time to argue for a reduction in your bail or your release without bail, and no time to consider your case on an individual basis. You will see your lawyer only for a few minutes at court before your case is called – or, if you can’t make bail, through a video link while your lawyer stands in a courtroom and you sit in jail.

In most counties in Pennsylvania, your local PD office is a “plea mill.” That means that your lawyer will have no chance to investigate your case, but will bring you a deal and tell you that’s the best you will get from the prosecutor. He or she will tell you that the sentence, if you lose at trial, will be much worse, and that you will wait a year – likely in jail – for that trial, during which time you will lose your job, your home, and custody of your children.

But unlike any other state in the country, Pennsylvania has NO statewide funding for or oversight of PD offices. The local county government decides how much funding to give its PD office. Now, if Luzerne County and the Pennsylvania Commonwealth Court have their way, no court can order them to provide more resources.

In April 2012, the ACLU-PA and Dechert LLP filed suit against Luzerne County on behalf of Al Flora, Jr., who was then the Chief Public Defender of Luzerne County, and indigent criminal defendants whom the overloaded PD could not represent.

Al Flora, Jr. |  ©Marco Calderon Photography

Al Flora, Jr. | ©Marco Calderon Photography


The ACLU presented the court with huge amounts of evidence that the Luzerne County PD office couldn’t keep up with all of the people who needed help. Most of the lawyers in the PD office worked without desks, computers or even phones. The administrative staff could not even keep track of files, much less help the lawyers with investigations or client communications. Two months after we filed suit, the trial judge ordered the county to allow Flora to hire more lawyers as a first step, and to come up with a plan to deal with the “crisis” in the PD office.

Luzerne County’s “plan” to deal with the crisis? Firing Al Flora and hiring a new Chief Public Defender who tried to stop the case from moving forward.

When the ACLU continued the suit on behalf of the indigent clients who rely on the PD office, the county argued that criminal defendants aren’t allowed to file suit to protect their right to adequate representation – that as long as they have a lawyer in name, they have to wait to be convicted, then appeal their case, then file a “post-conviction relief” petition claiming their lawyer didn’t do a good enough job. The trial court agreed and dismissed the claims. The Commonwealth Court agreed and affirmed. Now it is for the Pennsylvania Supreme Court to decide.

But the court will have some help. The United States Department of Justice filed a brief with the Pennsylvania Supreme Court saying that PD clients in Pennsylvania should be able to sue to improve the PD office, just as PD clients in many other states have done. The American Bar Association also chimed in, as did the National and Pennsylvania Associations of Criminal Defense Lawyers. And the Innocence Project, which has proven the innocence of hundreds of wrongly convicted people, filed a brief saying that inadequately prepared lawyers are “the biggest factor” leading to wrongful convictions.

Al Flora lobbied the county for additional funds for two years before resorting to filing suit. If the county can fire any chief public defender who is willing to sue, and can stop PD clients from suing, then there will be no protection for the rights of thousands of poor people in Pennsylvania who are charged with crimes.

We need the PA Supreme Court to get this one right.

Mary CatherineMary Catherine Roper is the deputy legal director at the ACLU of Pennsylvania, where she coordinates litigation on a broad range of civil liberties issues, including freedom of speech, religious liberty, racial and ethnic justice, equality for lesbians and gay men, student rights, privacy, prisoners’ rights, and police misconduct.