An increasingly significant part of the Department of Public Advocacy's (DPA’s) funding is the three sources of revenue paid by our indigent clients: recoupment, the DUI fee, and the administrative fee. While many persons have problems with funding DPA through these sources, they are part of our current reality.

Until 1994, the only fund available to DPA was KRS 31.120, which allowed for the Judge to assess recoupment or a partial fee, of persons appointed a public defender. By statute, this recoupment must go back to the counties to provide public defender services. In contract counties, where parttime lawyers deliver services, recoupment monies are sent back to the local public defenders to increase the amount of money given by the state or the county.

In 1994, two additional fees were established to help fund the public defender system. These fees were established as a result of the crisis in public defender funding which had been recognized by the Governor's Task Force and recommended to the General Assembly. As a result of these recommendations, in 1994, KRS 31.051(2) and KRS 189A.050 were passed. The administrative fee (KRS 31.051(2)) mandated the judicial assessment of a $40 fee to all clients who had been appointed a public defender. This fee is mandatory although waivable by the judge. KRS 189A.050 required that 25% of the DUI service fee go to the Department of Public Advocacy.

In 1996/1997, these fees provided almost 16% of the Department of Public Advocacy's budget. As you will see from the attached, in 1997/1997, $903,000.00 was recouped from indigents as a result of KRS 31.120. As a result of KRS 31.051(2), the administrative fee; $666,000.00 was brought in. The DUI service fee brought in $1,040,000.00 for the provision of services. Together, over two and a half million dollars was available to the Department from assessments to indigents accused of crimes.

It is important to understand what the Department does with this funding. First, all recoupment must be returned to the county to provide services locally (KRS 31.051(1)). The remaining monies support many of the services provided by the Department, including: offices in Covington, Henderson, Madisonville, Elizabethtown; significant support to the Fayette and Jefferson County Public Defender Offices; the Capital Post-Conviction Branch; contracts to private lawyers who represent capital clients; three appellate lawyers; trial lawyers in Somerset, London, and Pikeville; conflicts in both contract and field office counties; technology; The Advocate, and lastly training. Without the money provided by these three revenue sources, the DPA could not continue to provide its present level of services.

The heart of the collection of revenue is the decision by district and circuit court judges to assess fees, particularly the administrative fee of KRS 31.051(2). The biggest problem is that the collection rate is much too low. KRS 31.051(2) states that "any person provided counsel under the provisions of this chapter shall be assessed at the time of appointment a nonrefundable $40 administrative fee." Clearly, this fee is waivable by statute; however, as can be seen by the figures, in 1997, the collection rate for the Department was approximately 14 percent. The Department believes that the assessment and collection rate should be much higher than 14%. If it were, many of the most acute needs of the Department could be alleviated.

An additional problem is the disparity between counties. It can readily be seen that while some counties are collecting the administrative fee on a consistent basis, other counties are not. This includes some counties who are benefitting a great deal from the provision of revenue.

The final problem is that in some counties recoupment is collected while the administrative fee is not. KRS 31.051(3) states that the administrative fee is in addition to any other contribution or recoupment and "shall be collected in accordance with that section."

The Department has numerous acute needs. In short, the Department continues to be revenue -starved. The Department receives only 2.7% of the total criminal justice budget. In 1996/1997 prosecutors in this Commonwealth received approximately 53 million dollars while the Department of Public Advocacy received only 17 million dollars (including the revenue from the two fees and recoupment). DPA received funding at a rate of $163 per case, which is the lowest per case funding in the nation.

As a result, the Department has been criticized for failing to provide adequate services in juvenile court across the Commonwealth. The Department is proposing to the 1998-2000 Legislature an additional five full-time offices and other trial and appellate staff to enhance the delivery services in juvenile court as well as to other indigents. The Department also is asking for increased financial support for Jefferson and Fayette County Public Defender systems where the

highest caseloads prevail, as well as full funding for the capital post-conviction branch, which was recently defunded. The Department is asking these needs to be met through general funding. If this does not occur, revenue must meet the needs of the Department. It is not unreasonable to believe that 50% of indigents accused of crimes can pay the $40 assessment fee (the DPA will be asking for a raise to $50).

I am asking all judges to look at what they can do to assist the Department of Public Advocacy in providing this vital public service. I am not asking any judge to assess an administrative fee of someone who cannot afford it. I am not asking a judge to refuse to waive these fees and I must emphasize that I am not asking any judge to put any indigent in jail for failing to pay the public defender fee or denying counsel to an indigent for failing to pay the public defender fee. What I am asking is for their cooperation and assistance in assessing our clients the modest sum of $40 per case in order to fund the DPA.

For your information, a listing of the two fees and recoupment by county follows.

The fairness and reliability of our public defender system is at stake.