After Montgomery County, Should Public Defenders Fear Retribution When They’re Effective?

by MaryCatherine Roper

Too often, the use of cash bail keeps those who cannot afford to pay in jail, while wealthier individuals can buy their way to freedom. That’s not right.

After observing thousands of bail hearings in Philadelphia during 2018 and 2019, the ACLU of Pennsylvania and allies determined that bail judges were not adequately taking into account the ability of a person to afford cash bail before assigning that person cash bail. Failing to consider the ability of a person to pay criminalized poverty. It’s also in violation of the Pennsylvania Rules of Criminal Procedure.

First sending a letter to the First Judicial District — the court system in Philadelphia — raising concerns about bail hearings and the use of cash bail, the ACLU of Pennsylvania and allies then filed a complaint with the state Supreme Court, asking the court to ensure that the rules are followed in Philadelphia. If we’re successful, the result could reverberate across the commonwealth.

Needless to say, the statewide implications of the court’s decision caught the attention of plenty of stakeholders outside of Philadelphia who have an interest in reforming the criminal legal system.

In Montgomery County, Chief Public Defender Dean Beer and Deputy Chief Keisha Hudson filed a brief in support of the Philadelphia lawsuit and called into question the misuse of cash bail in Montgomery County, noting that because “the Office of the Public Defender represents indigent individuals facing criminal charges at all stages of their proceedings,” the defenders have “a substantial interest in this matter.”

We now know that in the days following their filing, Dean and Keisha were under immense pressure to rescind their brief; ultimately, they did just that. But for those who opposed the filing of the brief, it was not enough. Just weeks later, Dean and Keisha were abruptly fired.

In the days that followed, the response from advocates and stakeholders in the criminal legal system, legislators and community leaders, and public defenders from across the state and country was deafening as all expressed outrage at the firings.

A protest was organized outside the Montgomery County Commissioners meeting the next week, with county residents testifying before the commissioners, asking them to reinstate Dean and Keisha in the public defender’s office.

The firing of Dean and Keisha, two highly effective public servants, isn’t just a loss for Montgomery County. It’s a blow to indigent defense in Pennsylvania and a warning to public defenders everywhere. The job of public defenders is to defend and advocate for those who cannot afford private counsel. When public defenders are punished for doing just that, it has a chilling effect on others who might be pursuing similar policies or reforms. Pennsylvania is already far behind the rest of the country in funding indigent defense — indeed, it is the only state in the nation that leaves public defenders funding decisions entirely up to each county.

That’s why the ACLU of Pennsylvania has filed a lawsuit alleging that the firing of Dean and Keisha is a violation of the Sunshine Act, which mandates that actions taken by public agencies, such as the Montgomery County Board of Commissioners, be made in public — and the action must be preceded by an opportunity for public comment. In this case, the commissioners did neither.

The lawsuit asks the court to void the actions of the commissioners, which would #ReinstateKeishaAndDean and send a message to public defenders across the commonwealth and the nation that they need not be afraid of simply doing their jobs.

MaryCatherine Roper is the deputy legal director at ACLU of Pennsylvania.

We are the ACLU’s Pennsylvania affiliate, defending the Constitution and the Bill of Rights through litigation, advocacy, and community education and outreach.