FRANKFORT, Ky. (Feb. 6, 2018) - Public Advocate Damon Preston appeared before the House Budget Review Subcommittee on Justice, Public Safety, and the Judiciary today to explain the needs of Kentucky public defenders in the next biennium. He asked that the subcommittee accept and endorse the additional Department of Public Advocacy (DPA) funding in Gov. Matt Bevin’s proposed budget.
Preston began his presentation by thanking the governor, State Budget Director John Chilton, Justice and Public Safety Secretary John Tilley, and others for their careful consideration of the department’s challenges and their support for increased defender funding during these very difficult fiscal times. He argued that the fact that the public defender budget was increased while so many other important agencies were cut demonstrates the dire condition of defender funding and Gov. Bevin’s commitment to improving public safety.
“The Department of Public Advocacy’s existing budget is insufficient for the work that we are court-ordered and ethically, statutorily, and constitutionally required to do,” Preston told the subcommittee members. "The governor’s budget proposal provides stability to continue our work and a little bit of progress towards serving the Commonwealth and our clients as they need to be served.”
According to the department’s Annual Litigation Report, the average trial attorney caseload in fiscal year 2017 included 459 new case assignments, a caseload volume 55 percent above national standards. Even at this excessive level, this reported average was artificially low, Preston explained, because it was based on DPA being fully staffed and DPA has not been adequately funded to maintain full staffing.
Although DPA is authorized by the Kentucky Personnel Cabinet to have up to 552 employees, the department has only 518 positions currently filled due to a hiring freeze caused by lack of funding, Preston explained. Twenty-six of the current vacancies are attorney positions in trial offices, leading to higher caseloads for attorneys remaining in those offices. The actual caseload, with vacancies taken into account, is above 500 new cases per attorney.
“These cases are not just names on a file, but real people whose liberty is at stake because they have been accused of, but not proven guilty of, a crime. In every case, the lawyer is required to ‘CLIN’ the case, meaning to ‘communicate’ with the client, ‘litigate’ in the courtroom, ‘investigate’ outside the courtroom, and ‘negotiate’ with the prosecutor. Would anyone hire a lawyer who was not dedicated to doing all four of these in every case?”
In his remarks, Preston included three first-hand accounts from DPA trial attorneys. The first was from an attorney who had been with DPA for just a year, who concluded that “there are just too many cases for one person. Cases aren’t going to be properly defended.” The second was from a more senior attorney trying to balance defending murder cases with also handling full dockets of more minor cases. She is able to do it only by working most weekends to catch up. The final account was from a dedicated public defender with ten years of experience who just submitted his resignation because his health and his family could no longer withstand the stresses of the heavy public defender caseload. Preston argued that all three examples demonstrate the critical need to address caseloads before the system fails entirely to function.
In recognition of this crisis of crushing caseloads, Gov. Bevin has proposed funding to stabilize the system and make progress on reducing caseloads. Preston explained that the governor’s recommendation includes $3.8 million in additional funding for the current fiscal year to address a deficit accumulated over the past two years, $1.6 million for each year of the next biennium to address recurring operational deficits, and nearly $4.6 million to fund 51 attorneys beyond what DPA has had funding to employ in the current biennium. According to Preston, most of the increase will fund attorney positions that are already authorized, but have not been funded in recent budgets. If approved, the new positions will be directed to the offices with the highest caseloads to have the largest impact.
Preston also praised and endorsed the governor’s recommendation that $791,100 be added to DPA to expand the nationally-recognized and award-winning Alternative Sentencing Worker (ASW) Program. ASWs develop individualized treatment plans to provide alternatives to incarceration for clients who would otherwise be sent to prison. The new funding would add 11 workers to DPA’s program. Five workers would be assigned to the offices that have the highest caseloads and only one ASW. The other six workers would be spread among DPA’s six geographic regions to focus on a new cooperative effort between the Department of Public Advocacy and the Department of Corrections (DOC). Through this new arrangement, ASWs will be informed by DOC’s probation and parole officers when a supervised person is at risk of having his or her sentence revoked due to a technical (non-criminal) violation. The ASWs would then be able to develop a structured plan with the goal of helping the client avoid revocation and remain in the community. As probation or parole revocations account for a large portion of prison admissions each year, this new DPA/DOC agreement will hopefully have a big impact reducing correctional costs and the prison population.
Although strongly recommending the governor’s budget proposal, Preston emphasized that it does not solve all of DPA’s challenges. Caseloads will still exceed national standards. Salaries are inadequate to attract and maintain quality attorneys and leaders. Private attorneys who contract with DPA are paid only for a couple of hours for cases that take much longer to complete. DPA technology resources have not kept up with advancements in digital evidence and case materials. Offices have insufficient support staff, resulting in DPA’s most expensive employees (attorneys) spending time on administrative tasks. DPA’s 35 offices serving 57 judicial circuits lead to conflicting dockets and inefficient time spent traveling. Preston said that he hoped the next budget proposal in two years would address some of these additional long-neglected needs.
Before concluding, Preston made one request beyond the governor’s proposal. Protection and Advocacy (P&A) is an independent division of DPA that fulfills the federal mandate that Kentucky maintain an organization that represents and advocates for persons with disabilities. In the Governor’s budget proposal, P&A is allotted about $250,000 less than what is needed to cover increased personnel costs in the next biennium. Preston asked that the subcommittee add this funding to prevent P&A from being at risk of losing or violating the terms of federal grants.