Kansas public defense struggles to meet constitutional standards with lack of workers

Board of Indigents’ Defense Services needs more funding and staff, officials say

By: - January 20, 2023 12:57 pm
A judge's gavel on top of a pile of $100 bills

A Kansas BIDS official said the organization needs more funding to provide adequate levels of legal support. (Getty Images)

TOPEKA — Kansas public defense is at a crisis point, officials say, with overworked attorneys struggling to provide adequate services in the midst of a worker shortage.

Heather Cessna, executive director of the Kansas State Board of Indigents’ Defense Services, gave lawmakers an overview of the agency’s situation Thursday, during a House Judiciary Committee meeting.

Kansas doesn’t have enough criminal defense counsel to meet the volume of cases being charged by prosecutors. Cessna said the agency was drowning, grappling with a worker shortage, poor pay and long hours. 

BIDS provides defense counsel for people who are charged with felonies and cannot afford an attorney, handling about 85% of adult felony criminal cases in Kansas. During the 2022 fiscal year, the agency took on 24,609 cases, through either public defenders or assigned counsel. 

“Now that you have a better picture of the volume of cases that we cover and sort of the outsized role that our cases play in the criminal justice system, I think that’s important to help you have a better understanding of why the current crisis that we have is so concerning,” Cessna told lawmakers during the meeting.

National caseload standards stipulate that attorneys handle no more than 150 felonies per attorney per year, Cessna said. During the 2022 fiscal year, eight out of 11 trial-level public defender offices in the state substantially exceeded those national standards. The few that didn’t exceed standards either refused to take on cases or closed down for certain periods of time. 

National public defender studies say attorneys should have a minimum of 20 hours to work a low level case, and up to 200 to 300 hours per higher-level case to meet constitutional standards for adequate legal counsel. 

In Kansas, trial-level public defenders were only able to spend an average of 11 hours per case during the 2022 fiscal year. These cases spanned minor probation violations to first-degree murder, Cessna said, and represented a worrying lack of resources. 

“As a state, we’re struggling to live up to our constitutional obligation under the Sixth Amendment to provide counsel on every adult felony-level case that qualifies,” Cessna said. 

Counties that don’t have enough privately appointed legal help to accept BIDS cases include Crawford, Labette, Cherokee, Johnson, Douglas, Shawnee, Sedgwick and Riley, among others. 

Cessna said part of the workforce problem was low pay, COVID-19 case buildups, and many attorneys aging out of the system. BIDS lost one out of five public defenders because of poor pay during the 2022 fiscal year, she said. Kansas’ small number of rural attorneys was also an issue, Cessna said. 

In general, Kansas has a ratio of two attorneys per 535 residents in urban areas, and a ration of one attorney per 808 residents in rural areas. Five rural counties have only one practicing attorney in the area, and Wichita and Hodgeman counties have no attorneys at all. Eleven rural counties in the state have only two practicing attorneys in the area. Kansas legal officials have created a committee to study the problem, but some say more immediate action should be taken.

Rep. Bob Lewis, R-Garden City, said he had also noticed the issue

“I’ve talked with private attorneys, public defenders, prosecutors, and the way you’re describing the problem is accurate from our perspective,” Lewis said. “We also have a big problem because we’re in a rural area, and we’re not getting the new lawyers in.” 

To remedy the problem, BIDS asked for more funding in fiscal year 2024, hoping to implement a new pay scale, improve retention rates and fund more staff positions. In the organization’s FY 2024 budget requests, BIDS requested $600,000 for a pay scale plan, $13.1 million to fund staffing positions, and $3.7 million to create two new additional public defender offices. 

Gov. Laura Kelly didn’t include additional funding for public defenders in her budget recommendations or recommend increasing pay rates for legal counsel. 

Cessna asked lawmakers to start looking at potential legislation to help with the workforce shortage. 

“Obviously this is problematic because without some desperately needed assistance, our shortage of attorneys is only going to continue to get worse,” Cessna said.

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Rachel Mipro
Rachel Mipro

A graduate of Louisiana State University, Rachel Mipro has covered state government in Baton Rouge and New Orleans. She and her fellow team of journalists were 2022 Goldsmith Prize Semi-Finalists for their work featuring the rise of the KKK in northern Louisiana, following racially-motivated shootings in 1960. With her move to the Midwest, Rachel is now turning her focus toward issues within Kansas public policies.