After working as a court-appointed lawyer on a death penalty case during his tenure with the Pennsylvania Capital Defense Resource Center in the 1990s, Robert Dunham learned that his time, at least by one judge's standards, was not particularly valuable.

For the hundreds of hours he spent working on the case, not including time put in both by a fellow attorney and by three mental health experts he tapped as part of his defense strategy, a Philadelphia County judge agreed to award him only $1,500 on the $11,000 reimbursement request he'd filed with the court.

"When I calculated the value, it was less than I would've gotten if I'd spent that time flipping burgers at McDonald's," he told Law360.

The lack of funding for court-appointed attorneys and public defenders is a familiar story across the United States, but it's an issue that experts say is particularly pronounced in Pennsylvania and is expected to factor prominently into arguments the state's Supreme Court is set to hear on Wednesday over whether the death penalty should be declared unconstitutional.

The case in Pennsylvania comes before the high court following a petition from two death row inmates, Jermont Cox and Kevin Marinelli, who argue that the death penalty as applied in Pennsylvania runs afoul of state constitutional protections against cruel punishments.

The justices have previously upheld the constitutionality of the death penalty, but the current appeal comes in the wake of a report released by a non-partisan state legislative commission in June 2018 outlining serious flaws in Pennsylvania's administration of capital punishment, including not only problems with funding for court-appointed counsel but also racial disparities in sentencing decisions.

A decision striking down the death penalty would put Pennsylvania in line with a growing number of states that have, through a combination of legislative and judicial action, ended capital punishment in recent years citing concerns similar to those raised in the commission's report last year.

Last year, for example, the high court in Washington state struck down the death penalty there after ruling that capital punishment had been "imposed in an arbitrary and racially biased manner."

The federal government, however, is taking a different tack as it announced at the end of July that it was planning to carry out its first executions in nearly 20 years.

Dunham, who now serves as executive director of the Death Penalty Information Center in Washington, D.C., said the commission's findings in Pennsylvania are just the latest in a yearslong string of reports from the American Bar Association and other entities that have identified problems with capital punishment in the state.

"Although the conclusions that the commission reached in its report are not new, they are extraordinarily significant because they indicate that, despite years of information suggesting that the death penalty system in Pennsylvania is in shambles, nothing has been done to correct it," he said.

While 441 death sentences have been handed down by Pennsylvania juries since capital punishment was reinstated in the 1970s, a total of 270 — more than half — have ended up being overturned either on appeal or as a result of other post-conviction proceedings.

The most frequently cited reason for the reversals: ineffective assistance of counsel.

Dunham blamed the high rate of such findings on what he said was Pennsylvania's "Balkanized" system of funding for court-appointed counsel.

"For much of the period in which Pennsylvania has had the death penalty, it has been the only state in the country that provided no state funding for indigent capital defense at any level of the proceedings," he said.

Instead of providing funding on the state level, it's left up to individual counties in Pennsylvania to apportion funding for indigent capital defense services. Of all the states where the death penalty remains on the books, only South Dakota has a similar system for funding court-appointed capital defenders.

To show the impact of adequately resourced legal representation on capital cases, Dunham pointed to outcomes in homicide cases handled by Philadelphia's public defender system.

The Defender Association of Philadelphia, which has its own budget and does not rely on judges to approve fees and costs for defense counsel, has been allowed to handle 20% of all homicide cases in the city since 1993.

And while Dunham said that 90 death sentences had been returned in homicide cases in Philadelphia in that time, he said none had been handed to defendants represented by the Defender Association.

"If counsel didn't make a difference, then you would've expected 20% of those death sentences to have come in public defender cases," he said.

David Rudovsky, a civil rights attorney with Kairys Rudovsky Messing Feinberg & Lin LLP in Philadelphia, said the comparison between poorly and adequately funded legal counsel helped to prove an old adage.

"You get what you pay for," he said.

Dunham said it would take an outlay of millions of dollars a year to provide thorough representation to the 137 people with active death sentences in Pennsylvania.

In addition to funding problems for indigent capital defense, the commission's report pointed to findings that death sentences in Pennsylvania have been predominantly handed down to poor and minority defendants, and were also more likely to come in cases where the victim was white.

In all, Cox and Marinelli, the petitioners in the high court case, say that the seemingly arbitrary factors at play in who is sentenced to death in Pennsylvania mean the justices should declare the penalty unconstitutionally cruel.

"Pennsylvania administers a system of capital punishment that is replete with error, a national outlier in its design, and a mirror for the inequities and prejudices that plague American society," the pair said in a brief filed in February.

Notably, Philadelphia's reform-minded district attorney, Larry Krasner, has sided with Cox and Marinelli in pushing to have the death penalty struck down in Pennsylvania.

"We have a system in which wealthy, white defendants can buy their way out of the system and evade consequences for years or decades, while poor black defendants sit on Pennsylvania's death row for an average of 17 years — on the taxpayers' dime — before their death sentences are overturned," Krasner said in a statement in July announcing his support for ending capital punishment.

"Anyone who claims to believe in the sanctity of life, truth, or justice cannot seriously defend the application of the death penalty in Pennsylvania," he added at the time.

Kransner is a formal respondent in the appeal, as it was his office that prosecuted Cox in the 1990s.

Gov. Tom Wolf, meanwhile, issued a moratorium on the use of the death penalty in Pennsylvania just a month after taking office in January 2015 until the Legislature had an opportunity to read and respond to concerns raised in the commission's report.

Those lined up in opposition to Cox and Marinelli's challenge, including Attorney General Josh Shapiro and the Pennsylvania District Attorneys Association, say that it should be left up to the Legislature to fix any problems with the state's death penalty.

Shapiro, whose office was responsible for prosecuting Marinelli, argued in a brief in July that the courts had no basis to intervene in matters best left to the Legislature.

"The General Assembly is addressing myriad concerns … regarding capital punishment," Shapiro's brief said. "It is the proper role of that body to determine whether the people want the death penalty to continue to be an option for jurors, and to decide what changes may be needed going forward."

The PDAA agreed in an amicus brief that the commission's findings could not be the basis for judicial action, and that the report needed to be "properly vetted by the legislative body which commissioned it."

The only problem, experts say, is that the Legislature has taken no action to respond to any of the recommendations offered up as part of the commission's report last year.

Marc Bookman, the co-director of the Philadelphia-based Atlantic Center for Capital Representation, said the only concrete proposal offered up by the General Assembly was a $500,000 pool of money to allow each of Pennsylvania's 67 counties to seek reimbursement for capital defense costs.

"It gives you a sense of the Legislature's insincerity in trying to fix a system like this," he said.

That failure to take action makes the state's system of capital punishment fair game for intervention by the courts, according to Rudovsky.

"The court has made it clear that a lot of things are legislative prerogative, but if they fail to take that prerogative then the courts have the power to intervene," he said.

--Editing by Kelly Duncan.

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