For the first time ever, Pennsylvania lawmakers have set aside state funds to represent poor criminal defendants facing the death penalty.
The only problem, according to criminal justice advocates? It’s not nearly enough money.
In June, tucked into a piece of budget legislation known as the fiscal code, lawmakers approved a $500,000 allocation to reimburse counties for costs of indigent criminal defense in capital cases.
The money will be distributed through a grant program administered by the Pennsylvania Commission on Crime and Delinquency.
Drew Crompton, a top lawyer for Senate Republicans, said this year’s allocation is “in the spirit” of a 2018 recommendation from the Joint State Government Commission, which found in a study of Pennsylvania’s death penalty that the state didn’t provide sufficient resources for poor, or indigent, defendants.
While the $500,000 grant program might not cover all costs related to indigent defense in capital cases, Crompton said, it could lead to larger investments in the future.
“I don’t think we were looking to offset every dollar of capital cases,” Crompton told the Capital-Star on Monday. “We’re just going to have to see how the program works.”
Under the sixth amendment of the U.S. Constitution, anyone charged with a crime is entitled to a lawyer. If a defendant is too poor to hire one, a court will assign a public defender to their case.
Pennsylvania is the only state in the country that doesn’t allocate general funds for indigent defense, according to a 2011 study by the Joint State Government Commission. Those costs are borne entirely by the state’s 67 counties, which each maintain their own public defender’s office.
The system “is particularly burdensome to the poorer counties, which must contend with the dual handicap of scant resources and high crime rates,” the report reads.
Last year, an investigation by Keystone Crossroads found that those problems had hardly improved. In addition to wide spending disparities among counties, reporters found that the caseload for public defenders had risen, even as crime has fallen across the state.
Phyllis Subin, a former public defender who now heads the Pennsylvania Coalition for Justice in Philadelphia, has long called on Pennsylvania to direct state funds to indigent defense. A $500,000 earmark for capital murder cases, she says, isn’t nearly enough to ensure fair representation for the state’s poor defendants.
“It’s a small and … an unrealistic appropriation,” Subin said. “This is pretty much a drop in the bucket of what’s really needed in terms of appropriate and systemic change.”
Marc Bookman, a lawyer and director of the Atlantic Center for Capital Representation, an anti-death penalty legal aid group based in Philadelphia, put it another way.
“Imagine there’s a terrible drought across Pennsylvania and the Legislature decides to address the problem by opening up a lemonade stand in Harrisburg,” Bookman said. “That’s what they’ve done here to address the state-wide problem with capital punishment.”
Both advocates argue that a reimbursement program won’t encourage counties to invest more in indigent defense, since they’ll only be able to claim money they’ve already spent. Counties also can’t count on grants if demand for the funds exceeds supply.
Crompton said there’s no guarantee that a county will recoup the money it spends on a capital defense case. But he thinks the grant fund “will allow counties some freedom” in crafting defense strategies.
While it’s hard to say how much the average capital punishment case costs in Pennsylvania, cases in which prosecutors seek the death penalty are generally among the most expensive to litigate, according to Vic Walczak, legal director for the ACLU of Pennsylvania, which opposes the death penalty.
Defendants facing the death penalty need two lawyers, Walczak said: one to lead them through the trial, and another to represent them during sentencing.
The cases are also subject to multiple rounds of costly appeals. What’s more, prosecutors and defense attorneys often enlist multiple expert witnesses to testify in court.
Walczak said public defenders have to consider the cost of these witnesses as they build their cases. For that reason, he’d prefer a program that offsets defense costs throughout the duration of a case, as opposed to one that offers reimbursements after the fact.
In Northampton County, taxpayers have spent $80,000 litigating charges against Dekota Baptiste, an indigent defendant who was convicted of first-degree murder in May, the Morning Call reported Monday.
Prosecutors seeking the death penalty have paid more than $25,000 for expert witnesses, including a psychiatrist and a forensic pathologist.
The county public defender’s office, meanwhile, has spent $50,000 representing Baptiste. That covered two court-appointed lawyers, a private investigator, and a ballistics analyst, among other expert witnesses.
Despite the mounting costs, the Baptiste case is so far the cheapest death penalty case that Northampton County has litigated this decade, according to a Morning Call analysis of county court records.
Since 2011, the costs in four separate capital murder cases have totaled between $90,000 and $143,000.
Even if prosecutors secure a death sentence for Baptiste, there’s little chance that Gov. Tom Wolf will sign off on it. Wolf, a Democrat, declared a moratorium on executions when he took office in 2015.
The last execution in Pennsylvania was in 1999, according to the Death Penalty Information Center, a Washington, D.C.-based nonprofit.
Nonetheless, Pennsylvania prosecutors sought the death penalty in 33 capital cases last year, Walczak said.
The Joint State Government Commission estimated in 2018 that 80 percent of defendants facing the death penalty are indigent. Given the cost of their cases, Walczak fears the General Assembly’s allocation may only cover defense costs for a small handful of them.
“$500,000 is better than zero dollars, which is where [funding] has been,” Walczak said. “But it doesn’t come close to even covering funding for capital defense.”