Improving Kansans’ access to public defenders will be costly — but it’s our Constitutional duty

November 19, 2020 3:55 am

“In Kansas, 53% of those detained in our county jails are not serving a post-conviction sentence, nor are they being held to answer to a motion to revoke their probation. These inmates are simply awaiting disposition of a current charge against them,” according to the Kansas Supreme Court’s 2020 Pretrial Justice Task Force report. (Darrin Klimek/Getty Images)

The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Steve Leben served as a judge on the Kansas Court of Appeals from 2007 until this June, and as a trial judge in Johnson County from 1993 to 2007.

Constitutional rights aren’t secure to any of us if they aren’t available to all of us. So one of the most critical roles in our criminal justice system is that of defense attorneys: They make sure that the rights we all share are protected.

Many defendants, though presumed innocent, remain locked up until they can go to trial. Nationally, 34% of those who are charged with a crime end up unable to afford bail and stay in jail until they either agree to a plea bargain or have a trial. In Kansas, we have more pretrial detainees than convicted defendants in our local jails.

Two recent reports document the need for major improvements in the funding and operations of Kansas’ criminal-justice system. Given the impressive work that has gone into these reports, Gov. Laura Kelly and the Kansas Legislature should give them careful consideration when the next legislative session begins in January.

The first of the two reports comes from the Kansas Board of Indigents’ Defense Services, the board that oversees the state-funded defense provided to defendants charged with felony offenses who can’t afford representation. The U.S. Constitution requires that adequate legal representation be provided to an indigent defendant at state expense.

In early October, at a legislative budget committee session, Heather Cessna, executive director of the Board of Indigents’ Defense Services, presented a 96-page report outlining significant problems and a series of solutions — all with substantial price tags attached. The first of three phases of suggested improvements would cost $16 million.

This month, Kansas Court of Appeals Chief Judge Karen Arnold-Burger released the 84-page report of a pretrial justice task force commissioned by the Kansas Supreme Court. The task force, chaired by Judge Arnold-Burger, looked at everything that takes place from the time a crime is committed until the trial of the person charged. Because 85% of those charged with felonies in Kansas state courts are unable to afford counsel, the task force also looked at the legal representation provided to indigent defendants.

What are the major problems? That starts with resources — having enough attorneys, investigators and equipment. There are so few attorneys that, on average, an attorney can spend only 10 hours per year on each case they are assigned. That’s not close to enough for felony defense work. The attorneys are paid less than prosecutors or private practice attorneys, too. So it’s not surprising that turnover is high; public defenders are an overworked and underpaid group.

To be sure, Kelly and the Legislature face significant budget challenges. While revenue shortfalls have been less than initially anticipated, next year’s budget shortfall still is expected to be $152 million. That means there will be little money available to address pressing needs — and COVID-19 has left needs throughout the state budget.

But if our goal is to provide a fair justice system, we need to work on these problems. A poor person who is locked up pending trial needs good legal help to investigate the case, figure out whether there’s a defense, and proceed to trial or plea bargain. The presumption of innocence is meaningless if that’s not provided.

Yet the understaffing of both attorneys and investigators undoubtedly means that the representation provided is at best slower than it should be. And it may be significantly worse than that.

The example of Missouri, which has an even greater problem than we do with its public-defender system, shows the potential impact. One man arrested for a robbery spent 13 months in pretrial detention before understaffed public defenders got around to investigating his case. When they did, they quickly found evidence that he couldn’t have committed the crime — and the prosecutor dropped the charge. But the man who spent 13 months in jail doesn’t get that time back. And even if he had not been in pretrial detention, his life would have been disrupted while the charges were pending.

The Kansas Supreme Court’s task force looked at ways to reduce the number of defendants who are kept in jail pending trial, itself a costly expense for the county where the charge is pending. The task force suggested that increasing the number of investigators in public-defender offices would help provide information needed to safely release more defendants before trial.

And both of the reports suggested focusing, even before trial, on resources that could help defendants stay out of trouble (such as mental health and drug treatment). That also requires attorney time and resources.

The reports described here provide excellent suggestions for improving the defense provided to Kansas criminal defendants who aren’t able to afford one. Our system works best when a vigorous defense is provided. For indigent defendants, we have a constitutional duty to provide it.

Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. For information, including how to submit your own commentary, click here.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Steve Leben
Steve Leben

Steve Leben is a visiting professor at the University of Missouri–Kansas City School of Law, where he teaches criminal law, appellate advocacy and statutory interpretation. He served as a judge on the Kansas Court of Appeals from 2007 until June 2020, and as a trial judge in Johnson County from 1993 to 2007.