The Advocate
Volume 22, No. 4, 
July 2000


2000 General Assembly Funds:
Significant Part of Blue Ribbon Group Recommendations
by Ernie Lewis, Public Advocate

 
The 2000 General Assembly has gone home. What they did for indigent defense, however, was dramatic and will have an impact for many years. The net effect will be a substantial improvement in the quality of the public defender system and the representation rendered to poor people accused of crime in Kentucky. Ernie Lewis, Public Advocate

What has happened during the last four years is familiar to most of our readers but bears repeating. Four years ago, the Kentucky public defender system languished as the worst funded public defender system in the country. This was the case irrespective of the particular benchmark, including cost-per-capita, cost-per-case, and defender salaries. The 1998 General Assembly took a stab at the problem, increasing the General Fund for DPA by $2.3 each year of the biennium. This allowed the Department of Public Advocacy (DPA) to implement Plan 2000. Plan 2000 included as its primary feature the enhancement of juvenile representation through several measures. First, 5 new full-time offices were opened during 1998-2000 in Paintsville, Columbia, Maysville, Owensboro, and Bowling Green. In 1996, 47 counties were covered by a full-time office, while 73 counties were covered by part-time, contract lawyers. By the end of 2000, 82 counties will be covered by full-time offices, while only 38 counties will be covered by part-time, contract lawyers. DPA was thus able to keep pace with Commonwealth’s Attorneys, who also continued during the last 4 years to move increasingly toward a full-time prosecutorial system. Juvenile enhancement also included the hiring of a second trainer whose focus has been on improving the quality of juvenile representation. Jeff Sherr was hired to fill this position, and he along with others has spearheaded the Gault Initiative which has gone a long way toward improving the quality of justice juveniles are receiving at the hands of Kentucky public defenders.

While much progress was made by the 1998 General Assembly, the systemic underfunding of Kentucky’s indigent defense delivery system continued. Shortly after the 1998 General Assembly left town, the Public Advocate and the Public Advocacy Commission began to talk about tackling the fundamental issue of chronic underfunding.

In the spring of 1999, the Blue Ribbon Group on Improving Indigent Defense in the 21st Century (BRG) was formed to address this very problem. The membership was impressive, built from a broad spectrum of Kentucky’s criminal justice and leadership community. The co-chairs were Mike Bowling, former chair of the House Judiciary Committee, and Robert F. Stephens, at first the Chief Justice of the Kentucky Supreme Court later named the Secretary of the Kentucky Justice Cabinet. They were joined by the new Chief Justice, Joseph Lambert, two Republican and Democratic leaders of the Senate, David Williams and Larry Saunders, several Democratic and Republican Leaders of the House, Harry Moberly, Kathy Stein, and Jeff Hoover, two Bar Leaders, Dick Clay and Don Stepner, the current and former Public Protection and Regulation Cabinet Secretaries, Ron McCloud and Laura Douglas, the Dean of Law Professors, Robert Lawson, and many other prominent Kentuckians including former Congressman Scotty Baesler, former Rep. Jim Lovell, Commonwealth’s Attorney Phil Patton, District Judge Denise M. Clayton, Appalachian Research and Defense Fund Executive Director and Bar Leader John Rosenberg, current and former Public Advocacy Commission members Bob Ewald and Bob Carran, and prominent businessman Richard Dawahare. The BRG had at its disposal the top indigent defense consultant in the country, the The Spangenberg Group headed by Bob Spangenberg.

The Blue Ribbon Group met throughout the spring of 1999, and issued its report on June 1, 1999. The basic findings of the BRG were stated in Findings #5-7 as follows: "The Department of Public Advocacy Ranks at, or Near, the Bottom of Public Defender Agencies Nationwide in Indigent Defense Cost-Per-Capita & Cost-Per-Case. The Department of Public Advocacy per Attorney Caseload Far Exceeds National Caseload Standards. The Department of Public Advocacy Ranks At, or Near, the Bottom of Public Defender Salaries Nationwide for Attorneys at All Experience Levels. All Components of the Criminal Justice System Should be Adequately Funded Particularly Public Defense. Overall the Department of Public Advocacy is Under-Funded." The Blue Ribbon Group recommended stated in Recommendation #12 that "$11.7 Million Additional Funding for Each of the 2 Years Is Reasonable and Necessary to Meet DPA’s Documented Funding Needs as Described in PD 21."

The Blue Ribbon Group report was presented to the Kentucky Criminal Justice Council in its June 1999 meeting. The Criminal Justice Council decided for policy reasons not to make a specific finding on the Blue Ribbon Group’s budgetary recommendation. However, the Criminal Justice Council voted to support recommendations 1-11, which were the foundation of the $11.7 million budgetary recommendation. Thereafter, the BRG Report was disseminated widely.

In August of 1999, the Public Advocate and several members of the Blue Ribbon Group presented the report to Governor Paul Patton, Budget Director Jim Ramseay, the Secretary of the Governor’s Executive Cabinet, Crit Luallen, and other members of his staff.

In January 2000, Governor Patton presented his Executive Budget to the 2000 General Assembly. The budget included improving the Kentucky public defender system as one of the Governor’s priorities. Included in his recommended budget was $10 million additional General Fund dollars for indigent defense. This budget was based fundamentally on the Blue Ribbon Group. This budget represented a commitment to fund the Blue Ribbon Group fully over a four-year period of time.

The General Assembly fully adopted the Governor’s budget for Kentucky public defenders. Beginning July 1, 2000, DPA will have $4 million to spend on indigent defense during the first year of the biennium, and $6 million during the second year. This $10 million infusion of funds will allow Kentucky to move off the bottom of indigent defense funding into the middle. More importantly, it will enable Kentucky to ensure that poor citizens accused of crime will be given the justice that is their due.

How will justice be improved with this increase in funding?
 
 

Salaries Will Be Improved

The 2000 budget includes $1.2 million for the first year and $2.6 million for the second year of the biennium to improve the salaries of public defenders. The original budget request based upon the recommendation of the Blue Ribbon Group was for a 30% increase in the salary of each defender. DPA requested 15% increase each year of the biennium. The press widely reported that the General Assembly funded 15% salary raises. Unfortunately that is not the case. DPA is working with The Governor's Office of Policy & Management (GOPM) and the Personnel Cabinet to determine how much the salary raises will be. It is clear that the starting salaries for defenders will be increased from $23,388 to $28,000+ during the first year and $30,000+ during the second year. This will allow DPA to pay more reasonable salaries, and should assist in the recruiting and retention of new lawyers.

Unfortunately, I cannot report that the Blue Ribbon Group’s Recommendation #4 that "Salary Parity is the Goal" has been achieved. It is reported that prosecutors in Assistant Commonwealth Attorney's funded by the Unified Prosecutorial System will have starting salaries of been funded at approximately $32,500 for the starting salaries of their new full-time prosecutors. Public Defenders will start Attorneys at $28,000 in 2000-2001 and $30,000 in 2001-2002.

Further, loan forgiveness remains as an unmet need. The Blue Ribbon Group recommended in Recommendation #5 that "Loan Forgiveness Programs Should Be Made Available to Prosecutors and Defenders." Defenders and prosecutors worked together on this effort. While a bill was introduced that would have effectuated loan forgiveness for both prosecutors and defenders, we were unable to get the bill to move through the General Assembly. That remains a serious unmet need for both defenders and prosecutors.

The Full-Time System Has Advanced

The Blue Ribbon Group Recommendation #3 was that the "Full-Time System Should be Completed." The 2000 General Assembly made great strides in fully funding this recommendation. An additional 26 counties will transition from being covered by part-time contract lawyers to full-time by the end of the biennium.

The primary way the full-time system will grow during the biennium will be through the expansion of existing offices into surrounding counties. This will be accomplished in the following way:

Two new offices are scheduled to open in April 2001. An office will open in Bullitt County in order to cover Bullitt and Nelson Counties. Spencer County will be moved into the Bullitt Office at that time. An office will also be opened in Murray in April of 2001 to cover Marshall, Calloway and Graves County. The four river counties, Fulton, Hickman, Ballard, and Carlisle, will be divided between the Paducah and Murray Offices.

By the end of this next biennium, DPA will have 27 field offices covering 108 counties. These offices will be actively supervised by directing attorneys. Additionally, they will be managed by 5 regional managers plus the Louisville Office’s Executive Director, Dan Goyette. Private lawyers will have a vital role covering conflicts of interest in the 27 field offices. In addition, 12 counties will continue to be covered by part-time contract lawyers.

Caseloads will be Reduced

Blue Ribbon Group Rrecommendation #6 was that "Full-Time Trial Staff Should Be Increased to Bring Caseloads Per Attorney Closer to the National Standards. The Figure Should Be No More Than 350 in Rural Areas and 450 in Urban Areas." DPA asked for 35 additional lawyers in order to be able to achieve this goal.

The 2000 General Assembly was not able to allot sufficient funding to achieve the goal. Full funding of recommendation Recommendation #6 will have to await 2002. However, I am happy to announce that 10 additional lawyers were funded to tackle the high caseload problem. These lawyers will begin April 2001. They will be assigned to those offices with the highest caseloads as shown by DPA’s caseload tracking system.

One Lawyer for Capital Trials

The Blue Ribbon Group Recommendation #10 was that it was "imperative that Kentucky Reasonably Fund Indigent Capital Defense both at the Trial and Post-Trial Levels." The DPA budget request was for $1.8 million for both the trial and post-trial levels to improve our representation of persons charged with or convicted of capital crimes. The major part of that plan was to regionalize the representation at the trial level, with teams of 2 lawyers and 1 mitigation specialist being placed in each of the 5 regions.

The 2000 budget will enable DPA to hire 1 additional capital trial lawyer. This lawyer will be placed in the Frankfort Capital Trial Branch.

One Lawyer for the Appeals Branch

When I became Public Advocate, the Appellate Branch consisted of only 8 ½ lawyers. At the same time, the Attorney General’s Criminal Appellate Division consisted of 26 lawyers. Today, 16 lawyers are doing appellate work for DPA, including 10 in the Appeals Branch, 4 in the Capital Appeals Branch, and 2 in the Juvenile Post-Dispositional Branch. There are also two appellate attorneys in the Jefferson County Public Defender Office. DPA requested 6 additional appellate lawyers in order to come closer to parity with the Attorney General’s Office. This request was in response to the Blue Ribbon Group’s Finding #10, "The Appellate Branch is Limited in its Ability to Handle the Workload in the court Court of Appeals and the Supreme Court."

This finding will need to be addressed in the 2002 General Assembly. However, the budget will allow us to get a start by funding one new Appellate Branch lawyer. By October 2000, DPA will have 17 lawyers devoted to appellate work.

$200,000 Additional Dollars will be Devoted to
Conflicts of Interest Cases

One of the difficult issues in public defender work where full-time offices are utilized is conflicts of interest. The Blue Ribbon Group recognized the problem in Finding #13, which reads "Compensation for Private Bar Members Who are Appointed to Conflict Cases is Among the Lowest in the Country." In the body of the report, the Blue Ribbon Group stated that "[t]o assure quality of counsel and sufficient number of conflict counsel, particularly in the rural areas of the state, increased funding for conflict counsel must occur."

The 2000 General Assembly has helped fund the solution to this problem by placing $200,000 in the first year and $100,000 in the second year of the biennium into our conflict budgets. This will allow private lawyers to be paid at a somewhat higher level. Conflicts of interest will remain a problem, however, until the Blue Ribbon Group is fully funded.

The Infrastructure of DPA Will Improve

Blue Ribbon Group Finding #12 recognizes that as "DPA Moves Toward a Fully Staffed Statewide Program, the Demands on the Law Operations Division (LOPS) Will Grow Dramatically. Currently, the Number of Staff at LOPS Will Need to be Expanded during the Implementation of PD21."

The 2000 General Assembly funded a significant part of this finding by funding 4 new positions. This will enable DPA to have the staff sufficient to support the accounting, library, technology, and other functions vital to running a statewide system.

Many Exciting Activities will Occur without New Funding

The primary activity of DPA is providing counsel to indigents accused of and convicted of crimes. However, DPA is also charged with doing other things, such as "conducting research into methods of improving the operation of the criminal justice system with regard to indigent defendants and other defendants in criminal cases." KRS 31.030(7).

2000-2002 promises to be an exciting time for DPA as we implement the 2000 budget, and as we make efforts to improve the criminal justice system. Included in our plans are the following:

There is Much Left to Accomplish in 2002

It will take four years to fund the recommendations of the Blue Ribbon Group. The 2000 General Assembly took a giant step toward full funding of those recommendations. It is estimated, however, that it will take an additional $6-7 million each year of the biennium to fund fully all of the BRG recommendations. The most significant needs remaining will be:

Conclusion

DPA is very grateful to the Governor Paul Patton, the 2000 General Assembly, the Blue Ribbon Group, the Criminal Justice Council, and the many members of the Judiciary, public defenders, Commission and Board members, and others who were supportive of our budget during the 2000 General Assembly. This budget will go far in meeting the recommendations of the Blue Ribbon Group, and the promise of Gideon.


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