Inquirer Editorial: Appointed lawyers aren't paid enough to do job

As it hits the half-century mark, the historic 1963 U.S. Supreme Court ruling that every criminal defendant has a right to a lawyer casts a harsh spotlight on Philadelphia's thrift-shop system of paying counsel appointed to represent defendants facing the death penalty.

City courts - with backing by the Pennsylvania Supreme Court - dramatically boosted fees for lawyers in capital cases a year ago, but Philadelphia remains far behind other major cities in providing adequate resources to assure these defendants' rights.

Meanwhile, city prosecutors under District Attorney Seth Williams continue to pursue death-penalty cases, while Pennsylvania remains an outlier among more progressive neighbors like New Jersey, New York, and Maryland, where the death penalty has been scrapped.

That leaves civil-rights lawyers who have challenged the traditionally low fees in death-penalty cases with only one recourse - to push for greater reforms.

On Tuesday, the city-based Atlantic Center for Capital Representation asked Philadelphia Judge Benjamin Lerner to replace the city's flat-fee system for counsel with a more reasonable $90 an hour rate - one that Lerner himself suggested last year. The judge has good reason to act now, inasmuch as he concluded that the city's decades-old practice of paying defense lawyers as little as $2,000 for a murder trial was "grossly inadequate," and "unacceptably increases the risk" that their clients would get a shoddy defense.

Even with flat-fee payments that can bump up to $10,000 - with the addition of a $400 daily rate that kicks in after the first week of a trial - the Atlantic Center's executive director, Marc Bookman, says the city continues to try to assure justice in these life-and-death cases "on the cheap."

A flat-fee system, in particular, "remains highly problematic, even unconstitutional" in the view of veteran Philadelphia attorney and Ivy League law professor Lawrence J. Fox, who filed a statement in the case that said legal ethicists take a dim view of flat fees due to the risk that defense lawyers might take shortcuts.

Scrapping the flat-fee payments could boost court expenses for appointed counsel in capital cases. But the stakes couldn't be higher, since indigent defendants with lawyers who are paid too little to mount an effective defense are that much more likely to be sent to death row.

That basic lack of fairness should be an affront especially to those Pennsylvanians who back capital punishment, but say their support is based on an assurance that the system is fair. In reality, the state's death-penalty apparatus is as flawed as it is in many states. It's prone to punish the poor and minorities - who are disproportionately poor - more harshly, and risks seeing the innocent executed before being exonerated.

As for the cost, shortchanging court-appointed counsel only contributes to a system in which costly legal appeals drag on for years and years as death-row inmates challenge the fairness of their convictions. It makes far more sense for the Philadelphia courts to increase an investment in just verdicts at the outset, which is just what Lerner can do by ordering a fee system that doesn't scrimp on justice.