Heather Cessna, executive director of the Kansas State Board of Indigents’ Defense, said lack of state funding, high case loads, significant attorney turnover, modest wages raise constitutional questions. (Noah Taborda/Kansas Reflector)
TOPEKA — Criminal defense attorneys taking on challenging work of the Kansas State Board of Indigents’ Defense are struggling under weight of insufficient state funding and the burdens of withering caseloads, modest wages and high turnover.
Kansas’ indigent defense program provides staff public defenders or appointed private defense attorneys to deal with 85% of all adult felony cases Kansas. Pressure to come to terms with attorney demand-and-supply imbalances has grown as administrators of the program shared statistical evidence of difficulties providing sound legal counsel for about 25,000 impoverished defendants annually.
Heather Cessna, executive director of the Board of Indigents’ Defense, said on the Kansas Reflector podcast that breakdowns in the system didn’t serve interests of crime victims, posed ethical issues for lawyers and raised constitutional complexities. Other states are facing comparable obstacles to delivering on the promise of representing poor criminal defendants.
The Kansas Legislature raised salaries of attorneys appointed to pick up cases the Board of Indigents’ Defense staff lawyers couldn’t get to, but that one-year budget provision is set to expire. An argument can be made for adopting a comprehensive approach for bringing the public defender system in line with reasonable expectations, Cessna said.
She said people who cherished the U.S. Constitution and the Kansas Constitution should be concerned about financial integrity of the public-defender system.
“Not to sound too overly pessimistic, but it comes down to the ultimate end of the criminal justice system,” Cessna said. “Our appointed counsel and our public defenders are an integral part of that criminal justice system in Kansas. Without sufficient funding and sufficient attorneys to meet those caseload needs, that system will fail.”
She said Kansas taxpayers could be part of the budget solution or end up paying for consequences of indifference, including wrongful convictions that could stem from an insufficiently funded legal system for defendants. In the past few years, she said, Kansas has paid out millions of dollars in compensation to defendants incorrectly convicted of murder. It’s plausible there are more of those cases on the horizon, she said.
“The Legislature is starting to understand the complexities of the problem and the amount of additional funding that we’re in need of,” Cessna said. “I’m optimistic, cautiously optimistic, I would say, for where we’re going with some of these issues.”
The Board of Indigents’ Defense serves clients with staff public defense lawyers and by hiring attorneys to take on defense cases. They work out of 11 trial offices in Kansas and six specialty offices dealing that concentrate on capital murder trials and cases on appeal.
Cessna said the board needed to retain experienced staff and build a larger pipeline of attorneys eager to work as public defenders. Recruiting those people to grow the staff wouldn’t be such a hurdle if salaries came closer to amounts paid prosecutors with comparable years of experience. Twelve percent of attorneys working for the Board of Indigents’ Defense left in 2021, she said. Some are poached by prosecution offices offering substantive raises, she said.
In addition, Cessna said, compensation of part-time appointed defense attorneys needed to be increased so those people weren’t “losing their shirts” on the cases. The current rate for outside defense counsel is $100 per hour, but without legislative action that would fall back to $80 per hour. She’d like the rate to be reset at $120 an hour. For comparison sake, she said, a private attorney hired by a defendant in a complex case might cost $400 per hour.
“They’re doing this partially as an attempt to provide some pro bono services, but we also have to be able to compensate them so that they can keep their lights on and keep taking cases,” Cessna said.
Cessna said the staff attorneys with the Board of Indigents’ Defense averaged about 13 hours per attorney per case, which would be considered below appropriate standards for effective assistance of counsel. She said some public defender offices were temporarily refusing cases.
Appointed defense lawyers are being paid for windshield time to drive from the Kansas City area to handle cases in Junction City or to drive from southcentral Kansas communities to help cover cases in Wichita.
“One of the first conversations I had when I came into this position two years ago was with one of our line defenders in one of our regional offices,” Cessna said. “She started off the conversation and said, ‘Look, I’m concerned I’m going to lose my law license.’ We’re all capable of making mistakes.”
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