DPA’s Plan 2000:
Making It Happen for Clients

I am excited to report on DPA’s Plan 2000, the plan made possible by a successful 1998 General Assembly. DPA asked for $2.9 million and received approximately $2.3 million for each year of the biennium. This is a 26% increase over the next two years. It will raise DPA’s funding per case to almost $200 from its present $161 (figure includes Trial and Post-Trial). This will hopefully vault DPA from dead last among public defender agencies nationwide in terms of funding per case to perhaps somewhere in the bottom third. This increase will allow us to create a structure at the trial level that will enable us to manage effectively the delivery of trial level services in all 120 counties. With five additional full-time offices being authorized, DPA will be in a position to ask the 2000 General Assembly for funding to cover 20 additional counties from then existing field offices, taking us to 90+ counties. More resources, better supervision, a better structure—all changes which will result in better representation of the 100,000+ clients we represent each year. Here are the highlights of Plan 2000:

In November, 1996, shortly after I became Public Advocate, the Children’s Law Center at Chase Law School issued a report, later converted into a law review article, that was sharply critical of the representation being provided juveniles in Kentucky by public defenders. DPA was criticized for having lawyers untrained in juvenile representation, particularly in contract counties, for placing inexperienced lawyers into juvenile court, and most seriously indirectly for the fact that many juveniles were going unrepresented in juvenile court across the Commonwealth. This became a cornerstone of our efforts before the 1998 General Assembly. I am pleased to report that the funding that was received will enable DPA to take significant steps toward enhancing the level of representation being provided juveniles in this Commonwealth, by, among other things:

• Extending the full-time delivery method to 72 counties by 2000. Opening five new offices, and extending full-time services to an additional 10 counties from existing offices, will allow trained full-time lawyers to represent juveniles in most of the cases in the state.
• 6 new juvenile lawyers in existing offices. These new lawyers will be placed in Paducah, Hazard, Covington, Hop-kinsville, Richmond, and Elizabethtown. Not only will this allow specially trained lawyers to begin practicing in these offices; it will also reduce the caseloads in some of our highest caseload offices, further enhancing the representation in these offices.
• 2 juvenile social workers. These social workers will be MSW’s and will be placed in Elizabethtown and Hopkinsville. Their caseload will be regional. This will allow lawyers to gain access to the expertise of social workers in presenting dispositional alternatives to juvenile courts.
• 1 juvenile trainer. The Assistant Training Director will have as his/her special assignment the training of DPA full-time and contract lawyers in this highly specialized area of the law.
• Every DPA office should have a person whose special expertise is in the area of juvenile law.
• Juvenile Post-Disposition Branch funded. This Branch was created as a result of a consent decree between then CHR/now DJJ and a group of plaintiffs. Funding of the consent decree was passed through to DPA. As a result of the Governor’s budget, money for the JPDB is now directly given to DPA, thereby guaranteeing the continuation of the JPDB. This will give the JPDB added flexibility to deliver services both within the consent decree and contemplated in Chapter 31.
• 2 juvenile appellate lawyers to be placed in the Juvenile Post-Disposition Branch. These lawyers will be handling all youthful offender cases in the Court of Appeals and Supreme Court, as well as cases at the trial level on appeal from juvenile court to circuit court.

When I became Public Advocate in October of 1996, one of my primary goals was to increase the full-time method of delivery at the trial level in Kentucky. At that time, 47 counties were covered by full-time offices, while 73 counties utilized the contract method of delivery. Also at that time, full-time Commonwealth’s Attorneys were covering 64 counties in Kentucky, with 56 counties using part-time Commonwealth’s Attorneys.

Soon I announced my goal of covering 85% of the caseload with the full-time delivery method. It was and is my belief that the primary method of delivery in Kentucky should be the full-time method. "Contracts for defense services…should be no more than a ‘component’ of the legal representation plan. It is assumed that contracts should not be the primary provider…The role of primary provider…is reserved for the public defender office, which is considered to be the most effective means of protection of the delivery of quality legal representation." ABA Standards for Criminal Justice: Providing Defense Services, 3^rd Edition (1992) (Commentary to Standard 5-3.1). The role of contract public defender is a significant one: covering 15% of the counties where a full-time office is not feasible, and covering conflicts of interest.

The 1998 General Assembly has made this goal achievable in the next biennium. By July of 2000, 85% of the caseload will be covered by a full-time lawyer. The full-time public defender office will be the primary component of the Kentucky public defender system at the trial level. And contract public defenders will continue to play a significant role in what is intended to be a seamless delivery system. Here are the details:

• The Owensboro Office will open in January of 1999 covering Daviess County.
• The Columbia Office will open in January of 1999 covering Taylor, Green, Adair, Washington, Marion, Clinton, Casey and Cumberland Counties.
• The Paintsville Office will open in January of 1999 covering Johnson, Martin, Lawrence, and Magoffin Counties.
• The Bowling Green Office will open in July of 1999 covering Warren County.
• The Maysville Office will open in January of 1999 covering Bracken, Mason, and Fleming Counties.
• Existing Offices will be expanded in the following ways in the fall of 1999:

• Henderson will cover Union & Webster Counties;
• Madisonville will cover Muhlenberg Counties;
• Elizabethtown will cover Nelson, Hart, and Larue Counties;
• Frankfort will cover Scott and Anderson Counties;
• The new office in Bell County, now scheduled to open in July of 1998, will cover Harlan County.

Two of our oldest offices in Kentucky are located in Louisville and Lexington. Together, these offices handle approximately 40% of the caseload. For decades, attorneys in these offices have suffered from low salaries and high caseloads. Recently, the Louisville Office had attorneys carrying over 800 cases per year, while Lexington attorneys carried over 600 cases per year.

That is about to change. DPA asked the General Assembly for $600,000 additional for these two offices for each year of the biennium. The General Assembly responded by increasing the funding levels for the offices by $500,000 for each year of the biennium. This will enable the following to occur:

• $300,000 additional each year of the biennium to the Louisville Office to achieve salaries equal to their state counterparts and to decrease the heavy caseload.
• $200,000 additional each year of the biennium to the Lexington Office to achieve salaries equal to their state counterparts, to hire two additional attorneys thereby lowering their case-loads, to hire an investigator, and to provide computer technology to their attorneys.

The contract counties in Kentucky have a per-case funding level of $109. That is about to change. First, 20 of the contract counties, including Warren and Daviess Counties which have heavy caseloads and a very low per-case funding level, will be converted to full-time. Those counties which remain contract counties will receive a 5% increase overall each year of the biennium. The details are as follows:

• 5% increase overall each year of the biennium.
• Substantial per-case funding equity. Existing contracts will be adjusted in order to attempt to achieve equity between contract counties.
• Contractors will be reviewed annually by the contract manager.
• Performance and training standards will be placed in the contracts.

Capital litigation in Kentucky continues to be one of the primary sources of funding problems for DPA. A capital case can dominate resources in a full-time office, which are not funded for the occasional capital case. Capital cases in a contract county outstrip the resources provided to the contractor, and can serve to shutdown the contractor’s private practice. Capital cases can dominate the time of the Appellate Branch lawyer. And recently capital cases have far outrun the sparse resources devoted to capital post-conviction. Indeed, since July of 1997, the Capital Post-Conviction Branch has had virtually no funding, having lost a Byrne Grant which had funded the majority of staff in that branch. While capital punishment will continue to cause unique and even intractable problems for DPA, significant changes will occur over the next two years that will improve the delivery of capital services, including:

• 2 new regional capital conflict lawyers. The Capital Trial Branch now has 6 lawyers. These 2 new lawyers will not be placed in CTB, but will be placed in the field in order to facilitate the handling of conflict cases. DPA will be devoting 8 attorneys exclusively to the trial of capital cases.
• The Capital Post-Conviction Branch has been funded in the Governor’s Budget and affirmed by the General Assembly budget.
• Alternative Sentencing Workers will have their job duties expanded to include 50% of their time working as mitigation specialists.
• The capital cap will be raised from $12,500 to $20,000. When I became Public Advocate, this figure was $5000. At $20,000, which will occur in January of 2000, Kentucky will go a long way to funding the time of private lawyers who serve as pubic defenders defending a capital case.
• The DPA Death Penalty Manual will be a joint project of the Trial and Post-Trial Divisions.

Conflicts of interest have always been a difficult management problem in Kentucky, irrespective of the delivery method. Conflicts have been persistent in the capital post-conviction arena. At the trial level, conflicts of interest are covered by contracts in individual field offices. Contractors often trade off conflicts of interest with another defender where there are insufficient numbers locally to handle the conflict. During the past year, the willingness of private lawyers to be involved in handling field office conflicts has been reduced, causing serious problems particularly in the field. As a result, 3 full-time conflict lawyers have been hired and placed in Pikeville, Hazard, and Eddyville. This experiment has proven to be a success. As a result, additional attention will be paid to conflicts of interest in the biennium:

• 6 additional conflict lawyers, two to each of the three regions, will be hired.
• A 3% increase in the money made available to conflict contracts in the field offices.
• Conflict contractors will be reviewed annually.
• A Capital Post-Conviction Conflict entity will be created.

DPA has been planning for the biennium over the past year. Many of the details you see above were decided upon during the spring of 1998. Other details of the next year are as follows:

• DPA commits to building a culture of professionalism and excellence throughout the system.
• DPA commits to improving management and supervision of the delivery of services through:

• A 1999 Defender Leadership Institute;
• Continued Quarterly Managers meetings which are also attended by DPA’s future leaders;
• Continued training of existing leaders through the GSC leadership track.
• A commitment to continue to try to move decisions down to the level where the decision should be made. (A good example of this is the way full-time conflict attorneys were created—out of the real need, and out of excellent planning by effected managers.)

• DPA commits to increasing revenue generated by the DUI fee, the administrative fee, and recoupment in order to put ourselves in the black by July 2000. At present, DPA is spending more than $600,000 than it is taking in in revenue. Henderson, CTB, Louisville, Lexington, Madisonville, Covington, Bell County, three appellate attorneys, and 3 trial attorneys are among the programs now being funded by revenue. This revenue increase will be accomplished by:

• Increasing the rate of imposition by judges;
• Increasing the collection rate through the civil judgment process;
• Increasing particularly the rate of imposition in Jefferson County;
• The increase in the administrative fee from $40-$50 beginning July 15, 1998.

• The creation and utilization of standards throughout the DPA, including trials and post-trials.

It promises to be a very exciting two years for the Kentucky public defender system. There will be a lot of change. Change creates conflict and opportunity. There will be growing pains. However, at the end of the biennium, DPA will be poised to create the public defender system for the 21^st Century. Change will not end then, however. DPA continues to face staggering caseloads, the problems associated with capital punishment, low salaries, problems created by insufficient numbers of support personnel. Those problems will be tackled during strategic planning in the spring of 1999. Then we will create a plan to solve those problems. It will be exciting to face the 2000 General Assembly and truly ask for a budget that will enable us meet the obligations and requirements of Chapter 31 and the Sixth Amendment. We should all pledge now to do everything we can to ensure success in the 2000 General Assembly.

Ernie Lewis, Public Advocate.
 

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