To understand the state of indigent defense in Kentucky and the needs of the Department of Public Advocacy, it is important to place the DPA within the national framework of the delivery of public defender services throughout the country. Kentucky has had a long history of guaranteeing counsel to those unable to afford it², and, since its creation in 1972, the Department of Public Advocacy has been continually recognized as a statewide public defender program with strong leadership and a number of important figures known to the national public defender community. In its infancy, the Department of Public Advocacy was seen as one of the better statewide public defender systems in the county. Unfortunately, that perception is no longer wholly accurate today and the failure of the DPA to live up to its ideal is the result of a long history of under-funding.

Despite the best efforts of past and present Public Advocates and Public Advocacy Commission leadership, the Department of Public Advocacy has never been a fully-funded state public defender system. The original legislation creating the DPA contemplated that when the state took over the funding for public defense in Kentucky, most counties would continue to contribute and supplement the state funds made available for their counties. Not surprisingly, like many other states in the country that have shifted from state to county funding, no counties in Kentucky have provided substantial county funds to support the public advocacy program (with the exception of Boyd, Jefferson and Fayette Counties). This is obviously due in large part to the fact that the legislation creating the state funded program did not mandate (except for Jefferson County) the counties to contribute after 1972.

For some time, Kentucky has relied extensively on alternative revenue sources to supplement state funding of various agencies and now assesses over 50 different fees against people passing through the state's justice system. Upon the recommendation of the 1993 Governor’s Task Force on the Delivery and Funding of Quality Public Defender Services, any indigent person who is assigned a public defender or court-appointed counsel in a criminal case is now assessed a $52.50 administrative fee unless they are unable to afford it. Revenue collected from this fee is placed in a special trust and agency account for use by the DPA. In FY 1998, the DPA received $691,651 from this alternative revenue source.

The DPA also receives 25% of the $200 service fee assessed against individuals convicted of drunk driving. Additionally, Kentucky requires each county to appropriate 12.5 cents per capita of the county population to a fund established to cover expert witness fees and other comparable expenses associated with providing indigent defense services. Kentucky courts also assess recoupment charges against indigent defendants. While revenue from the administrative and DUI fees are returned to the DPA, recoupment collections are returned to the county indigent defense system (defender or contract) in which the recoupment was ordered.

Kentucky is among the most successful of all the states in the collection of alternative sources of revenue. Kentucky collects more revenue from defendants than any other state. Kentucky collects more on the administrative fee per capita than any other state.

Unfortunately, the supplemental monies available from the alternative revenue sources have not solved the funding needs of the DPA. Additionally, alternative revenue sources can never be adequately budgeted for. The result is that indigent defense in Kentucky remains in a crisis. Kentucky now ranks among the worst in the nation in the following three public defender services key indicators: indigent cost-per-capita; indigent defense cost-per-case; and, public defender salaries. DPA employees are underpaid compared to Commonwealth Attorneys, and the low salaries have led to high turnover rates. The DPA continues to experience the effects of chronic under-funding. The expenditure history of the DPA since 1981 is detailed on Table 2.1.
 

This table sets out total expenditures for DPA except those for the Protection and Advocacy Division from FY 1981-1998. Figures for FY 1999 and FY 2000 are projected expenditures. The increase from FY 1991-1998 for general fund and agency funds totaled $6,937,300. Of this increase, $3,606,400 was from increased revenue. During that seven year period, the increase of general funds was less than $480,000 per year.

The rest of this report details methodology, our findings and recommendations.

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^2. As early as 1948, in Gholson v. Commonwealth, 212 S.W.2d 537 (Ky. 1948), in a decision predating Gideon v. Wainwright, 372 U.S. 335 (1963), the Kentucky Supreme Court held that “common justice demands” that all persons charged with felonies, including those too poor to hire their own lawyers, are entitled to counsel.  Twenty-four years later in Bradshaw v. Ball, 487 S.W.2d 294 (Ky. 1972), the Kentucky Supreme Court once again broke new ground, striking down as unconstitutional the widespread practice by state trial courts of compelling private attorneys to represent indigent defendants without compensation.  In the wake of Bradshaw, the Kentucky Legislature overwhelmingly passed legislation, now codified as KRS Chapter 31, establishing the Office of the Public Defender- subsequently renamed the Department of Public Advocacy- and charging it with the responsibility of representing all persons in Kentucky charged with a “serious crime”.
Above and beyond the requirements imposed by Section 11 of the Kentucky Constitution, and by the Sixth and Fourteenth Amendments to the United States Constitution, KRS Chapter 31 seeks to make good on the promise of Gholson by ensuring that all indigent persons in Kentucky charged with or detained for “a serious crime” have the right to appointed counsel “to the same extent as a person having his own counsel is so entitled.”  KRS Chapter 31 defines “serious crimes” to include felonies, misdemeanors or offenses where the defendant faces the possibility of either confinement or a fine of not less than $500.  KRS 31.110(1)(a).  KRS Chapter 31 further guarantees the right to appointed counsel in at least two other situations: 1) to juveniles facing delinquency petitions stemming from conduct that, “but for the age of the [child], would otherwise be a serious crime” and juveniles accused of certain status offenses; and 2) to individuals in “[a]ny legal action which could result in the detainment of a defendant,” including involuntary civil commitments under KRS Chapter 202A of the state’s mental health laws, and civil contempt proceedings as discussed in Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993).   KRS 31.110(4)(a)-(d). The DPA also handles appellate and post-conviction cases.