The State of Indigent Defense Receives National Attention

We have long known that the promise of Gideon has been sullied by the reality of inadequate funding. Indeed, one of the themes that I presented to the legislature during this past session was that Kentucky was at approximately $166 per case - the lowest funded public defender system in the country. Kentucky remains with the majority of states with the promise of Gideon left unfulfilled.

There have been several developments during the past few months that offer the hope that this problem will receive nationwide attention.

The most hopeful sign has come from the top. Attorney General Janet Reno has focused a great deal of attention on the problem with indigent defense during the past year. At the ABA Annual Conference in San Francisco, she stated "for fifteen years as a prosecutor I became convinced that to achieve justice for defendants if we are going to do that we have to have adequate funding, adequate training and adequate resources for indigent defendants. To give people confidence in the justice system we had to have adequate funding, adequate training and adequate resources for indigent defense."

General Reno followed this up with convening leaders from NLADA and other indigent defense professionals. They first met on September 18, 1997 to discuss "what steps we can take to help improve the quality and the availability of indigent legal defense services." Later, on December 19, 1997, she wrote the President of NACDL, Mr. Gerald Lefcourt, to invite him to the table to attend a meeting on January 27, 1998. The purpose of this meeting was to discuss two issues: "the provision of adequate defense for the indigent and joint prosecution defense training."

Many of you saw this spring that General Reno wrote an editorial that was reprinted across the country entitled "Legal Services for Poor Needs Renewed Vigilance." This editorial has recently been reprinted in Indigent Defense, one of NLADA's publications. This article celebrates the 35^th anniversary of Gideon v. Wainwright. She notes in the article that in Gideon itself, the court stated that "any person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him . . . this seems to be an obvious truth." She goes on to say: "what is less obvious is that the right to counsel is critical, not only to the defendants and defense lawyers, but to all of us. The right to an attorney helps guarantee that any outcome, be it guilt or innocence is just and definitive . . . Unfortunately, the promise of Gideon is not completely fulfilled. Indigent defendants do not invariably receive effective assistance of counsel. We have all heard the stories no matter how infrequent of a criminal defense attorney not adequately defending his or her client. Sometimes it is caused by lack of resources. Sometimes it stems from the absence of a structure in the state to provide adequately for the indigent but such failings inevitably erode the community sense of justice and the aspiration of our system to equal justice under the law."
 

I thought of General Reno's comments and attention paid to this issue when I recently read The Crisis in Indigent Criminal Defense, by Paul Drecksel, 44 Arkansas Law Review 363 (1991). In this article, Mr. Drecksel concludes, "indigent defense systems are plagued by gross underfunding and a lack of mandatory standards." (363, 364). The effects of this system

are many. The system of underfunding results in inadequate investigation, inexperienced attorneys, attorneys with little training, attorneys with little supervision, staggering and ever-increasing caseloads, late entry into cases, lack of representation of misdemeanants, and a dangerous trend toward the use of contact defense systems.

I particularly was interested in Mr. Drecksel's description of the contract defense system as being caused by the serious lack of funding. I will in another article focus on the NACDL and NLADA's recent attention paid to "low-bid criminal defense contracting." For purposes of this article, however, it is interesting to note that Mr. Drecksel sees the trend toward the use of contracts as part of the problem of gross levels of underfunding. Mr. Drecksel states "virtually everyone agrees however that contract defense systems are also less likely to provide effective assistance of counsel . . . contract defense systems may not adequately monitor and evaluate attorney performance, much less provide for internal training of new attorneys." (381,382). He concludes that contract systems have "fewer suppression hearings, jury trials, and appeals as well as more guilty pleas and client complaints." (382). In Kentucky, the problem is not only one of contract public defender systems. Underfunding reaches into the systems in all 120 counties. While the recent legislature funded the conversion of 20 additional counties to full-time, we will at the end of the biennium still have 48 of 120 counties being covered by contract defense systems. In those systems, we will have inadequate funding, high caseloads, and many of the other problems noted by Mr. Drecksel. The same is true of our full-time systems where we will have low salaries and heavy caseloads.

In the May 1998 issue of The Champion, Laura Lafay wrote an article on "Indigent Defense in Virginia, Poorest in Nation." Interestingly, Ms. Lafay, a reporter for the Virginia Pilot calls Virginia's defense system the poorest in the nation. The Spangenberg Group has consistently reported that Kentucky at $166 per case is the

lowest funded cost-per-case in the nation. However, in Virginia, only one third of the counties have public defender offices. The remaining counties pay on a cost-per-case fee basis. At the present time, a complex major felony case has a fee cap of $575. This will be raised to $845 beginning in July. Other felonies will be raised from $305 to $318. Misdemeanors pay $132 per case.

In Kentucky, the only way that we have avoided the problem present in Virginia is the abolition of the assigned counsel system back in the early 80's. Since then, Kentucky has provided services through the full-time and contract method. In FY96, in the contract method, which then involved 73 counties, 24,127 cases were represented at an average cost-per-case of $109.00. In the eighteen full-time offices covering the remaining 47 counties, 72,357 cases were represented at $132 per case. While private lawyers were not representing clients on an individual cost-per-case basis, one can readily see that at $109 per case, Kentucky's lawyers are simply not being compensated enough to guarantee the effective assistance of counsel.

Mississippi has long had one of the poorest public defender systems in the country. They have now converted to a statewide, state funded defender system. There will be district defenders in each of the "circuit districts." This system will be modeled on the district attorney's system. Mississippi has completely scrapped their contract system. Interestingly, the full-time system will only be involved in what would be circuit court in Kentucky. Counties in Mississippi will continue to fund misdemeanor and juvenile public defender systems.
 

Recently, Kentucky's Chief Justice, Robert Stephens, has in the context of the Wayne Turner case asked the KBA to look into whether and why innocent people are pleading guilty. I have written the KBA offering the resources of the Department of Public Advocacy to help answer this question. I asserted in my letter to KBA President Bobby Elliott that one place to look

for the answer to this question is in resources. Resources effect the plea of an innocent man in several ways. First of all, when a defender has too many cases, one of the unintended consequences of that is that people will be pleading guilty who perhaps might should have been fighting their case through another method. An even more serious problem is that of the unrepresented people in Kentucky. The Children's Law Center's study noted that a significant number of children were going unrepresented in Kentucky's juvenile courts. That same experience is taking place in district courts across the Commonwealth every day. When a person does not have a lawyer, juveniles will often plead delinquent and adults will often plead guilty without having their case examined by a lawyer. It is hoped that an examination into the plea of guilty problem will result in a focus upon Kentucky's resource starvation.
 

In December of 1997, The Spangenberg Group conducted a review of DPA, its funding needs for the coming biennium and its Plan 1998-2000. Here is an excerpt from its report dated January, 1998:

Kentucky's public defender system received a good boost from the 1998 General Assembly. DPA asked for 2.9 million dollars and we received 2.3 million dollars. This will allow 20 additional counties to convert to full-time by the end of 2000. It will result in the cost-per-case moving from $166 (including post-trial cases) to almost $200 per case. It is not enough, however. We will still be representing people for approximately $200 per case, that is if caseloads do not continue to rise. We will still have defenders in Louisville with caseloads of 700+. We will still have many of our other offices with between 400 and 650 cases per attorney. We will still have indigent misdemeanants and juveniles going unrepresented.

We need to stay alert now that the Attorney General of the United States and others are focusing on this problem. Where the solution lies is unknown. It may rest partly in some federal funding of indigent defense. It may rest in an additional role by the KBA. Wherever the solution lies, however, we must continue to assert our clients' rights to have a conflict free attorney who has a caseload that is reasonable enough for him or her to zealously represent their client.
 

Ernie Lewis, Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Tel: (5020 564-8006, ext. 108
Fax: (502) 564-7890
E-mail: elewis@mail.pa.state.ky.us
 

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