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In Kansas And Beyond, Poor Defendants Are Hurt By Lack Of Public Defenders

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Carlos Moreno/KCUR.org
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In Kansas and Missouri, government-funded public defender agencies have struggled to keep up with caseloads.

In Kansas and Missouri, public defenders have struggled for years with low pay and high caseloads.

In Kansas, about 85% of adults charged with felonies can’t afford their own lawyers. So they get assigned to public defenders — government-funded attorneys appointed to defend people deemed too poor to pay for their own.

Public defenders are paid less than prosecutors and private attorneys, and bear caseloads that far surpass recommended limits. As a result, public defenders don’t have as much time to spend on each individual case. And people who rely on them — most of whom are poor and many of whom are people of color — are treated differently from defendants who can afford more expensive lawyers.

It’s an experience that public defenders in Missouri and Kansas have shared. Both states’ defender agencies have struggled to find funding to hire staff and pay private attorneys who sometimes serve as public defenders.

Missouri lawmakers passed a budget this month that includes almost $4 million for the state to hire new defendants and clear a backlog of criminal cases.

Meanwhile, Kansas Governor Laura Kelly signed a bill this month that funds a new case management system and additional staff positions for the public defender agency, the State Board of Indigents’ Defense Services. Another bill, increasing the hourly pay for assigned counsel — private attorneys who contract as public defenders — is still waiting on her desk.

Heather Cessna, executive director of the Board of Indigents’ Defense Services, agency, spoke with KCUR’s Nomin Ujiyediin about the agency’s challenges, and the impact they have on defendants.

Nomin Ujiyediin: What is funding like for public defenders in Kansas?

Heather Cessna: We are significantly underfunded for the amount of cases that we have. We have throughout the entire state, 123-and-a-half public defender positions compared to 355 criminal prosecutor positions. Our caseload averages were 205 adult felonies per attorney per year, which basically leaves you about 10 hours per case. Ten hours to spend on a case from start to finish isn't hardly enough to get you through the number of hearings and trial dates that you have, let alone to actually investigate and sufficiently defend the case.

Ujiyediin: Public defenders across the country are dealing with a high workload, a lack of funding and losing attorneys to the private sector. How do these issues affect the experiences of people who are charged with crimes? Are there groups that are disproportionately affected by this issue.

Cessna: At least in Kansas, 85% of adult felony cases in the state require and qualify for appointed counsel. So that is a huge portion of our criminal legal system that is made up of marginalized communities. Oftentimes these are people who are poor. And it also includes increased representation of people of color and other minorities. And one of the problems with that becomes that if we don't have sufficient funding to support the defense that they need, when they do become a part of the system, then that just self-perpetuates problems going forward.

If you've ended up pleading (guilty) in order to get out of jail, because you're looking at a prolonged wait in order to get your case before the court, because of a lack of criminal defense attorneys who are available and able to take your case, then if you're taking a plea to a felony, that's going to affect whether or not you can get a job going forward, that's going to affect whether or not you can apply for loans, apply for housing. These are parts of the system that then perpetuate the problems for those communities going forward. It's a systemic problem — not funding public defense when it has so many down-the-line consequences for the communities that end up in our criminal legal system.

Ujiyediin: Why is public defender funding important?

Cessna: First of all, we're constitutionally required. The Sixth Amendment and Gideon vs. Wainwright, which is a 1963 Supreme Court case, held that states are required to fund an attorney if a person cannot afford one for their defense. So in order for us to have a criminal legal system that actually works, you have to have parity of resources between both the prosecution and the defense. Because you really can't have a justice system without fully funded and resourced public defense.

Ujiyediin: So for the past year, and really across several years now, we’ve seen communities in the US grapple with justice and equality. I’m wondering what you think people can do to help if they’re interested in this issue?

Cessna: One of the most basic things is to hold your elected representatives to account for their votes on funding public defense. It is important for the state legislatures who control those purse strings to hear from their constituents. There's also simple things that people can do: watching what is happening in your local court system is a massively enlightening experience. One of the interesting things that we've had in Kansas has been the additional advocacy of many of our prosecutors who were willing to step up and come out and talk to the legislature from their perspective about the importance of public defense. So talking to your prosecutors would be helpful.

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