90.5 WESA's An-Li Herring reports on underspending at the Allegheny County public defender's office.

The Allegheny County public defender’s office underspent its budget for the sixth consecutive year in 2018.

The office, which represents criminal defendants who cannot afford a lawyer, finished the year with almost $560,000 unspent – about 6 percent of the $9.8 million allotted to it.

County officials see such surpluses as proof of good management. But to Vic Walczak, legal director of the Pennsylvania chapter of the American Civil Liberties Union, the pattern is “profoundly disappointing and distressing.”

Walczak led a 1996 class-action lawsuit alleging that clients of the office received constitutionally inadequate representation. In a settlement, the county agreed to fund indigent defense at higher levels. But while the office’s budget has increased, the fact that it runs lean means that for the past half-decade, actual expenditures have remained largely flat once inflation is taken into account.

“This is an agency that’s never been viewed as having adequate resources to begin with to provide constitutionally necessary defense,” Walczak said, “and here they’re not even spending what they get.”

Since its current chief, Elliot Howsie, took over in March 2012, the office has usually run about 4 percent under budget.

It may sound odd for a government agency to be criticized for repeatedly staying under budget. Indeed, Howsie said greater efficiency has allowed his office to improve outcomes for clients while keeping costs down.

“The tools, the training, the resources that our attorneys need to effectively represent our clients – we have it,” Howsie said. “And our budget has increased steadily every year to continue to do that. We’ve done an exceptional job with that, and our outcomes support that.”

Government agencies rarely spend exactly what their budgets envision, and spending can vary widely from year to year. A spokeswoman noted that, in 2018, a number of Allegheny County agencies ran surpluses greater than the 4-percent surplus the public defender's office typically ran between 2013 and 2018.

But over the years, underspending at the public defender's office has been unusually consistent. Since 2013, other county units have run a typical surplus of roughly 1 percent. And the public defender’s courtroom adversary, the Allegheny County District Attorney’s office, typically spends roughly all the money allocated to it each year.

County data show that, from 2013 to 2018, the public defender’s office ran a median surplus of about $406,000. During the six years before Howsie took over, the median surplus was about $6,800.

Howsie, who is running to be judge on the Allegheny County Common Pleas Court, said staff turnover is the main reason his office stays under budget. In January, he said attorneys who resign or retire from his office are often replaced by lower-paid, entry-level lawyers – saving between $200,000 to $300,000 a year.

The office is budgeted to have 75 trial defenders, but according to Howsie, three to five attorney positions are usually vacant at any given time. He noted that since he became chief, the staff overall has grown and promotions have become more common.

But while Howsie said staff turnover is a major reason he has a surplus, one former public defender said things work the other way around: Howsie's underspending is a reason for the turnover.

Lawyer Joe Otte said he left the defender's office last summer due to low pay and the fact that he had to juggle too many cases.

“That was a problem for me personally, but also for a lot of my colleagues,” Otte said. “A lot of public defenders are struggling to make ends meet, and they’re looking to the private sector as a potential way to get out of the public defender’s office.”

Otte, whose complaints date back to last year, said the agency needs more attorneys to keep individual caseloads more manageable.

“It’s sort of the worst thing that can happen to you as an attorney – but you’re doing triage,” said Otte, who said that at times he was assigned more than 80 cases.

In those circumstances, he said, a defender has little choice but to prioritize clients who face the stiffest sentences.

“I’m not going to pretend like that’s right. But it’s the reality of the job,” he said.

Howsie's judicial campaign has sounded a much different note, posting video testimonials in which three supervising attorneys in the office hail the candidate's stewardship of the office. The campaign directed 90.5 WESA to the testimonials after publication of this story.

In the past, the managers recalled, the office suffered from severely limited resources as well as poor leadership. Trial Division Deputy Director Stacey Steiner said she once was assigned 153 cases that were slated to go to trial.

'You can never have sufficient resources'

Howsie holds that his lean spending hasn’t diminished the quality of his staff’s work. At his January campaign kick-off, he highlighted steps his office has taken to reduce the local jail population.

He said that once he became chief defender, his office started to represent clients at the earliest stages of the criminal-justice process. Defenders, he noted, had never before gotten involved in preliminary arraignments, proceedings which can be critical to getting people out of jail before trial. Those interventions, he said, have reduced the number of defendants awaiting trial from behind bars by 18 percent.

Howsie said the office also reduces incarceration by helping clients to end probation early. While many inmates end up in jail for violating the terms of their probation, Howsie said lawyers in his office terminate probation for 50 to 100 people each month.

On-staff social workers, he added, decrease the chance of re-arrest by linking clients to mental health treatment, drug and alcohol counseling, and other social services. Howsie noted that he has hired three new social workers in the last year and plans to hire a fourth.

In addition, Howsie said that while he has been chief, defenders have been more successful at winning not-guilty verdicts. And clients, he added, are more likely today than in the past to go to trial instead of accepting a plea deal.

“Because of ... the improvement to the quality of the service that we provide, our clients are more inclined to say, ‘I want to challenge ... the charges that have been filed against me,’” Howsie said.

According to the chief defender, such gains show that “the money that we do have, I use as well as possible.” And he said he has never denied an attorney’s request for expert witnesses or investigators.

Even so, said Mark Stanton, “I can only tell you, if I had unforeseen savings, I would reinvest it in different areas of [my] office.”

Stanton is the chief public defender for Cuyahoga County, Ohio, which has a population of roughly the same size as Allegheny County.

“The money can always be utilized," he said. "You can never have sufficient resources to prepare your cases properly.”

Stanton said he has observed an “astronomical” improvement in his office’s performance after he lobbied to increase its budget by $1.3 million starting in 2018. The Cleveland-based agency’s budget now totals $14.5 million.

Stanton said unused funds could pay for resources like attorney training, additional investigators, expert witnesses, and new technology. His office, for instance, hired a second expungement clerk to help clients seal their criminal records, and improve their job prospects, after it saved on other expenses last year.

The ACLU’s Walczak said he knows of one area in Allegheny County that could use more investment: language translation.

In the last two years, he said, his organization has received dozens of complaints from clients who spoke little to no English, but alleged the public defender’s office did not provide them with translators.

“If you can’t talk to your clients, you can’t provide effective representation,” Walczak said.

Howsie said his agency requests interpretation services for court proceedings, during which costs are covered by the court itself. And he said that interpreters sometimes provide assistance outside the courtroom, because they are paid in half-day increments and sometimes finish their shifts at the public defender’s office.

A county spokeswoman said the office spent about $6,000 on translation services outside court in 2018. But Walczak said, after filing a series of right-to-know requests with the county, he found that the agency spent far less in previous years. And he said defenders must have regular access to translators outside the courtroom, so clients can prepare for trial or negotiate plea deals.

'Really a need' for statewide system

Allegheny County’s public defender is unusually thrifty compared to those in Pennsylvania’s most populous counties. An analysis by 90.5 WESA found that, in the seven state counties with populations over 500,000, public defender’s systems usually deviate from their appropriated budget by only 1 or 2 percent.

Most of those offices have budgets half the size of Allegheny County’s or smaller. In dollar terms, they ran an average surplus from 2013 to 2017 of $70,000.

A notable exception is Philadelphia, whose roughly $40 million budget makes it the state’s highest-funded office. Even so, it overspent its budget by a median of about $776,000, or nearly 2 percent, from 2013 to 2017.

Stanton, the chief defender in Cuyahoga County, said Philadelphia is a national model due to the amount it allocates to public defense.

“I don’t care how zealous, committed, and highly dedicated the individual attorney and staff is,” he said. “If they don’t have the resources to … [handle] a case properly, it’s irrelevant.”

One advantage of Philadelphia’s system, Walczak said, is that the chief defender is picked by the board of the independent, non-profit Defender Association of Philadelphia . That structure aligns with the American Bar Association’s first principle of “a public defense delivery system,” which states that “the selection, funding and payment of defense counsel” should be independent.

But outside of Philadelphia, “Pennsylvania is known to have one of the worst indigent defense systems in the country,” Walczak said. Unlike the rest of the country, Pennsylvania provides no funding for public defense, instead leaving individual counties to foot the bill.

Walczak isn't the only person to sue a county for inadequate funding. When Al Flora served as chief defender in Luzerene County, he said his office suffered from such “gross and chronic underfunding” that it “led to widespread violations of poor criminal defendants’ constitutional right to adequate counsel.” Flora sued Luzerne County over the issue in 2012 and was fired the next year.

“When you look at all the problems associated with the offices,” he said, “that tells you that there’s really a need for a statewide public defender system.

“This archaic system that we have in Pennsylvania has to go."

*This story was updated at 2:55 p.m. on Thursday, Feb. 21, 2019, to include details from Howsie's new campaign webpage featuring public defender testimonials and to clarify that the office started to provide representation at preliminary arraignments, not preliminary hearings, after Howsie became chief.