The Department of Public Advocacy (DPA) is a statewide entity responsible for overseeing the delivery of indigent defense services in Kentucky's 120 counties. A 12-member Public Advocacy Commission assists the DPA with budgetary and certain supervisory responsibilities and conducts public education about the purpose of the public advocacy system. The Department of Public Advocacy with its history of strong leadership and sound structure is one that is poised for excellence. Unfortunately, the agency has been plagued with under-funding for many years, making it impossible to fulfill its potential as a legal services provider.

After several efforts to study and document the effects of chronic under-funding (including several studies conducted by The Spangenberg Group) and relatively little official response to remedy the situation, in 1998, Public Advocate Erwin W. Lewis spearheaded the formation of a Blue Ribbon Group to develop a strategy for improvement. The Kentucky Blue Ribbon Group on Improving Indigent Defense in the 21^st Century consists of more than 20 distinguished members representing all three branches of government, the bar and key officials of criminal justice agencies across the state (the membership of the group appears in Appendix A of this report). The Group adopted a clear-cut mission statement:

To address the chronic problems of the Kentucky public defender system and propose solutions in light of national information and standards, in order to create a strategy for ensuring an appropriately funded indigent defense system for the 21^st century.

To assist the Group in its mission, the DPA contracted with The Spangenberg Group (TSG) of West Newton, Massachusetts, to assist the members by providing detailed information from other states regarding many of the issues that were placed on the table by the Blue Ribbon Group. The Spangenberg Group is a nationally recognized criminal justice research and consulting firm specializing in the delivery of indigent defense services. During the past 15 years, The Spangenberg Group has worked with task forces and commissions in more than half of the states in the country. The Spangenberg Group was retained on this project through a federal Edward G. Byrne Memorial grant awarded to DPA by the Kentucky Justice Cabinet.

The Blue Ribbon Group met on three occasions. The first meeting was held in Frankfort at the Kentucky Bar Association Headquarters on March 5, 1999. The second meeting was held in the same place on April 23, 1999, at which time the Blue Ribbon Group voted on a number of recommendations. The final meeting was held on May 25, 1999, when the Group endorsed this report and the recommendations contained in the final chapter.

TSG selected 19 states¹ for comparison with Kentucky. The states were selected on the basis of six criteria:
 

1. States in close proximity to Kentucky;
2. States with fully state-funded indigent defense systems;
3. States organized and administered at the statewide level;
4. States with regional public defender offices;
5. States that have the death penalty; and/or
6. States that collect reliable data at the statewide level.

A number of key indicia were gathered from the 19 states for comparison with Kentucky, including:

• the total statewide number of indigent defense cases handled in fiscal year 1998;
• a breakdown of the statewide indigent defense caseload by case type;
• the total statewide expenditure for indigent defense including public defender programs, court-appointed counsel and contract defenders in fiscal year 1998;
• the portion of each state’s indigent defense expenditure provided by the state;
• the indigent defense expenditure provided by counties; and
• the total amount of money generated for indigent defense programs through additional, non-general fund revenue sources in fiscal year 1998.

Public defenders in Kentucky carry caseloads that far exceed national caseload standards. High caseloads take an immediate toll on attorney morale and performance, calling into question the level of advocacy provided on behalf of clients. High employee turnover, and its accompanying perpetual state of hiring and training, has become a fact of life in several of the DPA offices.

The goal of the DPA for many years has been to have regional offices providing public defender representation in all parts of the state. The under-funding of the DPA has stymied this goal; thus, regional offices operate in only 73 of the state’s 120 counties. In 47 counties, representation is provided by attorneys who are under contract with the DPA.

One of the ways in which Kentucky has attempted to deal with the under-funding of indigent defense services is to rely on various alternative revenue sources such as administrative fees, assessments and recoupment in order to avoid providing a greater general fund appropriation to the DPA. Currently the DPA receives supplemental funding from a $52.50 administrative fee assessed on all indigent persons who are assigned a public defender or court-appointed attorney. It also receives 25% of the $200 service fee assessed against all individuals convicted of drunk driving. Counties are required to assess 12.5 cents per capita to contribute toward a fund established to pay for expert witnesses and other necessary costs associated with providing indigent defense services. Recoupment collections ordered by the court are returned to the county in which they were ordered to help supplement the county assessment.

The percentage of alternative revenue funds Kentucky raises and dedicates to indigent defense ranks among the highest in the nation. In FY 1998, 15.2% of all funds for indigent defense came from these alternative revenue sources. While this effort is laudatory, it is important to recognize that supplemental alternative revenue is not a replacement for adequate general funding. Indigent populations by definition do not have adequate funds to self-finance government provided services, and there will always be a percentage of indigent defendants who simply cannot afford to pay administrative fees or other court costs. We believe that Kentucky has achieved an impressive rate of alternative revenue, but that the Commonwealth must be realistic in recognizing this source of funds is strictly limited.

The Spangenberg Group views the DPA as a well-managed program that has made impressive strides despite its funding struggles. The DPA has recognized the importance of maintaining healthy and positive relationships with all three branches of government and has worked cooperatively with each agency in Kentucky’s criminal justice system. This has occurred with a clear understanding of the agency’s primary responsibility to the clients they represent following court appointment.

Furthermore, TSG believes that this administration has a sense of the urgency of managing the agency’s funds on behalf of the public in an efficient and professional manner.

Among the many examples that illustrate this are the following:

1. The Public Advocate has regionalized the delivery of trial services across the state;
2. A substantial improvement has been made in defender education;
3. The DPA has, as in years past, been highly successful in the securement of federal funds, particularly regarding Byrne grants;
4. Serious attempts have been made by management to urge the increased collection of additional revenue through letters, telephone calls and visits to staff and judges;
5. Substantially improved computerized management information and case-tracking systems are now in place; and
6. The Public Advocate and the Deputy Public Advocate have spent hundreds of hours on the road visiting with key leaders in government and the criminal justice system, and explaining in a clear and responsive way the needs of the agency.

Findings:
 

#1 – The Department of Public Advocacy is a Solid, Efficient, and Well-Managed Program.

#2 – The Department of Public Advocacy Has Implemented an Impressive Plan for the 1998- 2000 Biennium.

#3 – The Department of Public Advocacy is Effective in Indigent Defense Cost Recovery Compared to Other States.

#4 – 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.

#5 – The Department of Public Advocacy Per Attorney Caseload Far Exceeds National Caseload Standards.

#6 – The Department of Public Advocacy Ranks At, or Near, the Bottom of Public Defender Salaries Nationwide for Attorneys at All Experience Levels.

#7 – All Components of the Criminal Justice System Should be Adequately Funded Particularly Public Defense. Overall the Department of Public Advocacy is Under-Funded.

#8 – The Department of Public Advocacy is Experiencing Other Effects of Chronic Under-Funding.

#9 – Without Additional General Fund Revenues, a Deficit will Occur in the General Fund Account On or Before July 1, 2000.

#10 – The Appellate Branch is Limited in its Ability to Handle the Workload in the Court of Appeals and the Supreme Court.

#11 – The DPA Post-Conviction Branch is Unable to Provide Representation to Hundreds of Inmates Who Have the Right to Counsel in Kentucky.

#12 – 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.

#13 – Compensation for Private Bar Members Who are Appointed to Conflict Cases is Among the Lowest in the Country.

#14 – Department of Public Advocacy Representation in Capital Cases Must Occur at the Trial, Direct Appeal, State Post-Conviction and Federal Habeas Corpus Level. As the Numbers of Death Penalty Case Findings Occur and Previous Cases Work Their Way Through the Four Stage Process, Additional DPA Resources Are Needed.

Recommendations:
 

#1 – Indigent Defense is a Necessary Function of Government, and an Essential and Co-Equal Partner in the Criminal Justice System.

#2 – The Kentucky Public Defender System Cannot Play its Necessary Role for Courts, Clients, and the Public in this Criminal Justice System Without a Significant Increase in Funding.

#3 – The Full-Time System should be completed.

#4 – Higher Salaries Should Be Paid to Defenders and Prosecutors; Salary Parity is the Goal.

#5 – Loan Forgiveness Programs Should Be Made Available to Prosecutors and Defenders.

#6 – 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.

#7 – The Department of Public Advocacy and the Court of Justice Must Increase their Efforts to Collect Reasonable Fees from Public Defender Clients, Including Considering the Use of Private Collection Organizations.

#8 – Prosecutor and Defender Increases Should be Considered when a Judicial Position is Added.

#9 – It is Important that Public Defender Counsel be Available to Children in Juvenile Court Proceedings.

#10 – It is Imperative that Kentucky Reasonably Fund Indigent Capital Defense both at the Trial and Post-Trial Levels.

#11 – Public Defender Services are Constitutionally Mandated while Resources are Scarce. It is Important for all Eligible Persons who want to be Represented by a Lawyer, but only those who are Eligible to be Appointed a Public Defender. The Court of Justice, and Especially AOC and DPA are Encouraged to Work Cooperatively to Ensure Appropriate Public Defender Appointments.

#12 – The $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 PD21.

If the DPA’s level of funding is not increased to that recommended by the Blue Ribbon Group, there are a number of likely consequences.

• The statewide full-time plan will fail and a large number of counties will continue to be served by part-time contract attorneys unable to assist the judges in keeping the docket moving and not providing required counsel to some juvenile delinquents and misdemeanants.

• An even larger number of lawyers and support staff will leave the program and seek other employment due to the woefully inadequate salaries available.

• Full-time public defender caseloads will increase to the breaking point, particularly in cities such as Louisville.

• DPA will not be able to provide representation to all indigent defendants in the state and will have to develop policies regarding courts that they cannot serve.

• Cases will have to be retried because of the inadequacy of counsel or the lack of counsel completely.

• The community will be frustrated, as well as all of the criminal justice agencies, because public defenders cannot perform their required tasks adequately.

• Without substantial additional funding, there is a likely risk that the Commonwealth of Kentucky could not adequately defend a statewide systemic lawsuit due to the inadequate resources and overwhelming caseload.

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Footnotes:

^1.   The states selected were Colorado, Connecticut, Delaware, Florida, Indiana, Iowa, Kansas, Massachusetts, Minnesota, Missouri, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Tennessee, Virginia, West Virginia and Wisconsin