Kansas public defenders are overworked and understaffed, according to current standards

Public Board of Indigent Defense Services didn't get the $11 million it requested from the state of Kansas to help it hire new employees and retain current staff.

The agency has gotten more funding in recent years, but the pay still lags behind comparable positions in law. Simultaneously, a national study suggest public defenders are assigned about three times as many cases as they could reasonably handle.

High caseloads, as well as the difficulty attracting and retaining attorneys, has led to other states releasing defendants when no public attorney is available.

Origins of public defender caseloads

In 1973, the National Advisory Commission Justice Standards established that public defenders should be able to work up to 150 felony cases, 400 misdemeanors per year or 200 juvenile cases per year. The NACJS accounted for nearly 400 standards in criminal justice information systems, recruitment of minorities, community policing, speedy trials and offender rehabilitation.

Most of the recommendations like ending plea bargaining, pushing for every state to criminalize handgun possession and capping maximum sentences for most crimes to five years, didn't get implemented. But the caseloads for public defenders have been surprisingly sticky and were the main contributor to public defense workloads for 50 years.

"The old standards were problematic for a variety of cases. They were 150 felonies, which could be murder cases or could be low-level thefts and they were kind of counted the same," said Heather Cessna, executive director of the Kansas Board of Indigent Defense Services.

The standards didn't come from a methodology or assessment, and was just one of 400 recommendations proposed by the NACJS. Caseloads weren't even on the agenda, and were calculated as an afterthought according to Stephen Hanlon, an attorney that studied caseloads in partnership with the American Bar Association.

And the 50-year-old standards weren't updated to account for the time needed to review things like body cameras and advances in forensic science. But over the past several years, state's have been measuring their caseloads on a new standard.

Kansas has 30% of public defenders needed in the court system

In September 2023, the American Bar Association released a national study on the workloads of public defenders after several state-level assessments had been released. In Kansas, it projected that the state only had about 30% of the needed public defenders necessary to give constitutionally protected defense to its clients.

It also found the state employed less than a third of the legal assistants, a fifth of the investigators and administrative specialists and needed 133 more mental health and social workers — the state currently employs just one. Kansas isn't far off from most states, which are usually heavily deficient in the number of attorneys employed in public defense.

The standards the ABA assessed public defender caseloads with was more nuanced than the NACJS standards, breaking down the amount of time that would be needed based on the severity of the cases from low level probation violations to felonies carrying life sentences.

Kansas BIDS only covers felony offences and contracts out private attorneys for lower-level crimes.

"A lot of the deficit is in the lower level of case type because that's where people are taking pleas very early, no investigation is happening. The difference between what ought to be happening and what is happening tends to be the largest at the volume-case processing court," said Malia Brink, deputy director of the ABA's national workload study.

Too few prospective attorneys are attending law school

The ABA report says Kansas would need to hire 277 additional attorneys on top the 123 already employed. It's unlikely Kansas could meet that demand without drastically restructuring the entire public defense structure.

In 2022, public defense entities had a turnover rate of about 20%, meaning nearly one in five public defenders left that year. In 2023, with a pay raise that included a one-time $4 million investment from the state and a 5% bump for all statewide employees, the Board of Indigent Defense Services more than halved the attorney turnover rate.

"I think we've made some significant strides. I think it's just not enough. It kind of turns into a drop in the bucket," Cessna said.

Comparable employees like prosecutors are hired at the county level, so they can be more nimble when responding to the current market. Also, public defense is competing with a relatively small number of law school graduates.

The two law schools in Kansas, the University of Kansas and Washburn University, had a combine 228 incoming students in 2022. The number of first-year law students nationwide drastically declined after peaking in 2010 at 52,000 students. Since then the number hovered around 38,000.

Public defenders paid far less than prosecutors in same jurisdictions

The studies on public defender pay, workload and well-being often mention that they're underpaid compared to the attorneys at the other side of the courtroom. Public defenders are paid about 28% less than their prosecutor counterparts in the same jurisdiction.

Jonathon Noble, chief public defender with the Northeast Conflicts Office who previously worked as a prosecutor, said it's hard to compare the two jobs on the workload given to them. A prosecutor's job is to "put on a show" while the defense attorney has to poke holes in the state's case.

"Putting that case together, getting everybody there who's supposed to be there to testify, that is very difficult and very stressful. You do have a lot of interaction with victims in the case. But you don't have the interaction to the same degree that a defense attorney has with their client where you really have to walk through every single stage of the proceeding," Noble said.

Public defenders often are have a less-than stellar reputation. A study in Criminology, Criminal Justice, Law and Society reported that about 83% of people said court-appointed attorneys are more concerned with quickly resolving cases than their privately retained peers, and only about half of respondents said public defenders fight zealously for their clients.

The incentives seem like opposites between privately retained and publicly appointed counsel. Overburdened public defenders may want to resolve cases quickly rather than drag out the process, while by-the-hour private attorneys may maximize their time on a case.

"There is a perception that public defenders are not real attorneys, and that your job is to manufacture pleas to get the case over with as quickly as possible," Noble said.

Noble said there might be some truth to that sentiment when public defenders are as overburdened as they historically have been. But, there are also bad prosecutors and private attorneys as well.

"It's just like anything else, there's good and there's bad," Noble said.

But ultimately, only a defendant can decide to take a plea, and when doing so must affirm to the court that they are satisfied with their counsel.

"The public defender does not decide whether to accept a plea. The public defender describes the plea agreement to the person charged. The public defender may recommend either accepting or declining a plea agreement based on criminal law, the person’s criminal history, provisions of the plea agreement, and other relevant factors," said Lisa Taylor, public information director of the Kansas Office of Judicial Administration.

Are public defense systems meeting Sixth Amendment standards?

The Sixth Amendment guarantees the right to a public trial of anyone committed of a crime, and the Supreme Court guaranteed that people must be provided legal representation in court in Gideon v. Wainwright. And the representation must be "appropriately sufficient."

"It's not a high bar," Cessna said. "It's not like you're hiring the best law firm on the face of the earth and they're putting 16 associates and three partners on this case level of criminal defense, you're talking the minimum that is required in order to meet the Sixth Amendment requirements."

Brink said when there are so many cases to deal with, public defenders aren't spending as much time investigating the case and conducting legal research to adequately help their clients.

"A lot of what gets taken away from clients when attorneys don't have time is the ability to do all the things that would go into the attorney being able to demonstrate that not only that they know you, but they know your case," Brink said.

When public defense systems are found to be so overburdened that they can no longer adequately represent their clients to Sixth Amendment standards, they stop taking cases. In that case, jails will start releasing lower-level offenders who are in jail for things like methamphetamine possession while retaining more serious cases.

In 2021 the American Civil Liberties Union said the state is at risk of being sued for providing inadequate representation.

Some attorneys cite recent improvements but problems persist

The pay increase and implementation of modern caseload standards have had an impact on wellbeing for Kansas's public defenders. The percent of public defenders who said the lack of pay or promotions as the primary source for dissatisfaction fell from 45% to 28% — but workload and lack of attorneys rose from 17% to 28%.

But things seem to be improving, with 46% of attorneys saying things have improved over the past year, 36% saying it was the same and 18% reporting a decrease in workplace well-being. Moreover, only 9.8% said they don't feel supported by the BIDS administration.

Still, only 40% of public defenders said they feel they have enough time to provide optimal representation, even with BIDS directing offices to abide by modern workload standards.

"When I took over here, they already started complying with the preliminary findings of the workload studies," Noble said. "So I try to keep everyone around a case weigh of about 100 or 120 (hours per case), which is still higher than the results of the national average. It's just not feasible based on the amount of people that we have, or can have, to really abide by those."

With the extreme high number of attorneys needed to represent defendants, another way to reduce demand on public defenders is to reimagine what crimes get prosecuted.

"There are cases that you could say, maybe what we should do is actually have a citation level case that gets cleared if they, for example, are willing to meet with a caseworker rather than spend 30 to 60 days in jail," Brink said. "The other thing that the caseload studies show is that sentencing drives time."

In other words, when the state seeks more severe punishments then defendants will seek more comprehensive, complicated and time-consuming ways of litigating their case.

"You can look not at total decriminalization, but also sentencing reform to bring some of that down," Brink said.

The problems in public defense amount to problems in the entire criminal justice system. About 85% of adult felonies in the state are represented by court-appointed attorneys.

"The situation in public defense does reflect something about the overall quality of justice we're able to produce right now," Brink said. "There is a real myth of equitable justice, and I think the caseload studies really are showing those gaps."

This article originally appeared on Topeka Capital-Journal: Kansas Public Defense has fewer than one-third of needed attorneys