Kansas must fix its broken public defender system. The Constitution demands justice

Kansas faces a public defender crisis.

Just like their colleagues in Missouri, Kansas public defenders are overworked, underpaid, often underqualified and inexperienced. The state’s system unconstitutionally denies tens of thousands of suspects a competent defense each year.

Lawmakers must address the system’s funding and structural issues as quickly as possible.

That isn’t just our conclusion. In December, Gov. Laura Kelly’s Commission on Racial Equity and Justice issued a little-noticed report on the crushing failures of the Kansas justice system. The lack of spending on the public defender’s office was a key concern.

“Added funding for public defender’s offices will help to alleviate high turnover, subpar representation, heavy caseloads and public defender’s offices struggling to operate due to lack of revenue,” the commission found.

In a report issued last year, the Kansas State Board of Indigents’ Defense Service said “our clients’ statutory speedy trial rights have been indefinitely suspended, their constitutional right to confront witnesses...largely curtailed.”

The statistics are staggering, and disturbing.

Eighty-five percent of all adults charged with felonies in Kansas need a lawyer paid by the public. Last year, roughly 11,500 of those suspects were represented by traditional public defenders, lawyers who are state employees.

Their workload is ridiculously high. Heather Cessna, the head of the state indigent defense board, recently told a state House committee that public defenders take, on average, 205 cases per year — fully one-third more than the recommended maximum for a defense lawyer.

The excessive caseload means long hours for low pay, adding to turnover. But it also means defendants get less representation than they should: A trial-level public defender in Kansas spends just 10 hours on a typical case in a year, Cessna said.

“Unfortunately, our public defense system is very much in crisis,” she told the committee.

Wyandotte, Douglas counties on their own

But the Kansas problem is even worse than it seems, because fewer than half of felony suspects are represented by any public defender at all. The rest— some 15,000 adult defendants last year — are represented by “assigned counsel,” private attorneys who agree to work for $80 an hour, an abysmally low rate.

These private lawyers often work in solo practices or small offices. Many lack criminal experience and investigative resources. And because they aren’t under the direct supervision of the state, the quality of their representation can be spotty.

Consider this: Wyandotte and Douglas counties have no Kansas public defender offices. Indigent defendants rely on privately hired lawyers, at $80 an hour. That’s an appalling shortcoming in Kansas.

Kansas should establish a fully-funded public defender’s office in major counties that lack one, including Wyandotte and Douglas, before the end of the year. “Having organized offices rather than contract attorneys … allows for training, mentorship and professional development,” the governor’s task force concluded, correctly.

The task force also recommends funding public defenders offices on a par with prosecutors. We’ve made that recommendation in Missouri, and repeat it for Kansas. Prosecutors already have advantages over defense lawyers, including virtually unlimited resources for investigation and the ability to decline cases.

The current outlook is poor. In fiscal year 2020, Kansas spent $32.3 million on indigent defense services; Kelly’s new budget raises that to $38.2 million by fiscal year 2022.

It isn’t even close to enough. The Board of Indigents’ Defense Service is asking for at least $11 million to hire more lawyers and staff, which should be a starting point. Public defenders should be paid more, and there should be more of them.

“There is no way to sugarcoat the fact that Kansas is going to have to spend more money on its public defense system,” Cessna told the House committee. And it will get worse before it gets better, because COVID-19 has caused a backlog of cases that will flood back into the courtroom once the pandemic eases.

It’s beyond discouraging that this is an issue in our region. The Constitution — which lawmakers profess to support — requires a full defense for suspects who can’t afford a lawyer. It isn’t optional, or a place to cut spending in tough times (no matter what prosecutors or judges may say or believe.)

We urge Gov. Kelly and members of the Legislature to address this crisis quickly, before a court steps in and does the job for them.

This story was originally published February 11, 2021 at 5:00 AM.