State’s indigent defense director says budget issues are undermining justice system
TOPEKA — Criminal defense attorneys who take on the difficult work of the Kansas State Indigent Defense Board are struggling under the weight of insufficient state funding and the burden of a dwindling caseload, low salaries and high turnover.
The Kansas Indigent Defense Program provides public defenders or private defense attorneys appointed to handle 85% of all adult felony cases in Kansas. Pressure to address imbalances between the demand and supply of lawyers grew as program administrators shared statistical evidence of the difficulties in providing sound legal advice to approximately 25,000 impoverished defendants each year.
Heather Cessna, executive director of the Board of Indigents’ Defense, said on the Kansas Reflector podcast that system outages do not serve the interests of victims of crime, pose ethical challenges for attorneys and raise constitutional complexities. Other States Face Similar Obstacles to keep its promise to represent poor criminal defendants.
The Kansas Legislature has raised salaries for attorneys appointed to take on cases that defense staff attorneys on the Indigent Council have been unable to access, but that one-year budget provision is about to end. expire. An argument can be made for taking a comprehensive approach to bringing the public defender system into line with reasonable expectations, said Cesna.
She said people who cherish the US Constitution and the Kansas Constitution should be concerned about the financial integrity of the public defense system.
“I don’t want to sound too pessimistic, but this comes down to the ultimate end of the criminal justice system,” Cessna said. “Our duty counsel and public defenders are an integral part of this criminal justice system in Kansas. Without sufficient funding and enough lawyers to meet these needs, this system will fail.
She said Kansas taxpayers could be part of the budget solution or end up paying the consequences of indifference, including wrongful convictions that could stem from an underfunded justice system for defendants. In recent years, she said, Kansas has paid millions of dollars in compensation to defendants wrongfully convicted of murder. It is plausible that there are more such cases on the horizon, she said.
“The Legislature is beginning to understand the complexity of the problem and the amount of additional funding we need,” Cessna said. “I’m optimistic, cautiously optimistic I would say, about the direction we’re taking with some of these issues.”
The Indigent Defense Board serves its clients with public defense attorneys and by hiring attorneys to take on defense cases. They work from 11 Kansas trial offices and six specialty offices that focus on capital murder trials and appellate cases.
Cessna said the board needed to retain experienced staff and build more attorneys willing to work as public defenders. Recruiting these people to augment the staff would not be such an obstacle if the salaries approached the amounts paid to prosecutors with comparable years of experience. Twelve percent of lawyers working for the Indigent Defense Board left in 2021, she said. Some are poached by prosecutors offering substantial raises, she said.
In addition, Cessna said, compensation for defense attorneys appointed on a part-time basis needed to be increased so those individuals would not “lose their shirts” in cases. The current rate for outside defense counsel is $100 an hour, but without legislation it would be $80 an hour. She would like the rate reset to $120 per hour. By comparison, she said, a private attorney hired by a defendant in a complex case can cost $400 an hour.
“They’re doing this partly to try to provide pro bono service, but we also need to be able to compensate them so they can keep their lights on and keep taking cases,” Cessna said.
Cessna said staff attorneys at the Indigent Defense Commission average about 13 hours per attorney per case, which would be considered below appropriate standards for effective attorney assistance. She said some public defender offices are temporarily refusing cases.
Named defense attorneys are paid for windshield time to drive from the Kansas City area to handle cases in Junction City or to drive from south-central Kansas communities to help cover cases in Wichita.
“One of the first conversations I had when I came into this role two years ago was with one of our line defenders in one of our regional offices,” Cessna said. “She started the conversation and said, ‘Look, I’m worried about losing my law degree. We are all capable of making mistakes.