By NOMIN UJIYEDIIN, Kansas News Service
TOPEKA — The state lost 13% of its public defenders over the past year.
That’s actually an improvement. Nearly a fourth of the state’s public defenders quit the year before.
But the turnover of those attorneys still represents a chronic problem for the State Board of Indigents’ Defense Services, the agency that provides lawyers to criminal defendants who can’t afford their own.
Maban Wright makes $66,000 as one of those public defenders, up from the $43,000 she earned at the agency 10 years ago.
“It can be emotionally exhausting,” she said. “People who are very kind and giving and softhearted have to develop a thicker skin pretty quickly to survive.”
She manages 50 to 60 clients at a time, working six or seven days a week. But Wright finds personal satisfaction in the long hours and hard work. For others, it wasn’t enough. The agency still has about a dozen unfilled attorney positions out of more than 120.
Heather Cessna, who heads the public defender agency, credits a small pay raise from the Legislature for slowing turnover in 2019. But, she says, the agency will need more money to fill jobs that have stayed open for years. And the lawyers who remain need better back-up — from support staff to information technology.
“We have a lot of things that are on fire in our agency,” Cessna said. “We need to stabilize what we have before we really start to move forward.”
Wright, based in Topeka, spends much of her time reviewing evidence. It takes longer than it used to, now that police wear body cams that record hours of footage. Plus, she often takes care of her clients in other ways.
“You’re representing a case, but you’re also representing a human being who may have no money,” Wright said. “You gotta get them out of jail. You gotta orchestrate all of their business for them. So it feels like a lot.”
Wright doesn’t keep track of how many hours she works on each case. It varies based on the type of charge, which can range from serial shoplifting to sex crimes against children.
Some states have established standards for the amount of time a defender should spend on each case. Attorneys surveyed in a 2017 study of public defender workloads in Louisiana recommended about 8 hours of work per case for misdemeanors to 70 hours for high-level felonies. Attorneys surveyed in a 2019 study of Texas public defenders recommended about 10 hours for misdemeanors to 30 hours for high-level felonies.
But Kansas public defenders don’t have the case management software that would allow for a study of workloads. The agency does keep track of the number of cases each attorney juggles simultaneously and completes over the course of a year.
The maximum number of concurrent cases varies by office, Cessna said, but it usually ranges between 55 to 65 per attorney. When every defender in an office hits that maximum, the office “shuts down” and stops taking new cases. Currently, one office in Wichita is shut down, with defenders handling 100 cases each. Offices in Topeka, Chanute and Independence have also stopped taking cases.
“You either need more attorneys or fewer cases, and we don’t get to determine how to have fewer cases,” she said. “All we can do is ask for more attorneys or shut down so those cases are not in those offices.”
When an office shuts down, cases go to private lawyers paid through state contracts. When those private practices get overwhelmed, cases go to a list of court-appointed attorneys who are paid an hourly rate of $80 — the maximum rate allowed by the state Legislature.
“Eighty dollars an hour is not enough for anybody to keep their lights on in their office and run a law practice and do criminal law extensively,” Cessna said.
On average, cases that go to private attorneys cost the state $282 more than cases handled by public defenders in fiscal year 2019. The extra cost totaled $4.3 million.
The solution, Cessna said, is encouraging staff attorneys to stay with the agency by increasing salary. In 2019, the median salary for a lawyer in Kansas was $83,000, according to the state Department of Labor.
More employees means fewer cases per attorney, less reliance on private lawyers, and more specialized knowledge of criminal law accumulating in the agency over time, Cessna said.
In late December, she requested an additional $500,000 from the state for the current fiscal year, to increase salaries for vacant positions in Topeka, Wichita and Salina. In the agency’s budget request for fiscal year 2021, Cessna asked the state Legislature for another half million for those positions, plus a 2.5% raise for all agency employees at a cost of $400,000. Other requests included $1.2 million to keep the hourly rate for private attorneys at $80, and $200,000 to improve the agency’s IT systems.
Over the long term, Cessna wants to hire more support staff, like investigators and paralegals, so defenders won’t have to spend so much of their time writing letters and making phone calls. She also wants to improve training for new defenders.
“It’s kind of like when you’re on a plane and they tell you when the oxygen masks fall, you have to put on your own mask first,” she said. “You can’t help people if you’re in crisis yourself. And that’s kind of where we’re at.”
Impact on clients
Experts say pay and working conditions for public defenders ultimately have the biggest impact on the lives of the people they represent.
But prosecutors tend to be paid more and have more salary increases as they gain experience, compared with public defenders.
“There’ll be a progressively wider gap that tends to develop between the public defender and the prosecutor as they move through their experience,” said Bonnie Hoffman, a former public defender and director of public defense reform and training at the National Association of Criminal Defense Lawyers.
That difference in pay leads to a difference in experience and skill levels between the prosecution and the defense, she said. In turn, a lack of experienced defenders leads to poorer outcomes for defendants.
“That certainly leads to a lot of consequences, increases the risks of wrongful convictions,” she said. “It increases the risk of excessive convictions.”
In Kansas, prosecutors typically work for county governments. Some are employed by the state attorney general’s office. A job board for the Kansas County and District Attorneys Association advertises jobs paying between $56,000 and $97,000 a year.
Prosecutors also have the advantage of collaborating with police, said Ernie Lewis, executive director of the National Association for Public Defense and a former public defender in Kentucky. Defense attorneys, meanwhile, have to hire their own investigators.
“Prosecutors don’t have to pay for their investigators,” he said. “When you add the prosecutors’ budget to the police budget and compare that to the defender budget, I bet in Kansas it’s pretty dramatic, the disparity there.”
For decades, the legal community has been aware of the low funding and high workloads for public defenders across the country, Lewis said, with organizations commissioning studies on the issue every few years. But there’s been little change, despite the fact that public defender offices require much less funding compared to most government agencies.
In the long term, he said, that leads to more and more people going to prison, which puts even more strain on a government’s finances.
“If you don’t fund your public defenders sufficiently,” Lewis said, “you’re going to get mass incarceration.”
Nomin Ujiyediin reports on criminal justice and social welfare for KCUR and the Kansas News Service. You can follow her on Twitter @NominUJ.