Public defender: Kansas faces crisis point on 60th anniversary of landmark U.S. Supreme Court case

TOPEKA — A top public defender in Kansas says the state is at a crisis point on the 60th anniversary of a landmark U.S. Supreme Court case that guarantees legal representation for those who can’t afford to hire an attorney.

Heather Cessna, executive director of the Kansas State Board of Indigents’ Defense Services, described the state’s shortage of public defenders as a natural disaster that is years in the making.

“We sort of saw this avalanche coming, and we’re trying to give warning of it,” Cessna said. “Unfortunately, this is really a problem that probably we needed to have started working on 10 years ago in order to try to head off. So we got a late start on it. And now we’re in the middle of it.”

Cessna said the governor and Legislature have made investments in the public defense system, but there is still a need for better funding.

“We’re definitely having trouble finding enough attorneys to be able to staff cases in a timely manner in compliance with the Sixth Amendment,” Cessna said.

On March 18, 1963, the U.S. Supreme Court in Gideon v. Wainwright ruled that under the Sixth Amendment, states are required to provide attorneys for people with felony charges who couldn’t afford to retain counsel. The Sixth Amendment guarantees the right to a public trial without unnecessary delay, the right to an attorney, and the right to an impartial jury.

National public defender standards stipulate attorneys should have a minimum of 20 hours to work a low-level case, and up to 200 to 300 hours per higher-level case to meet constitutional standards for adequate legal counsel.

“It isn’t rocket science, on a certain level,” Cessna said. “We either need more attorneys or we need fewer cases. And the more attorneys part of it, we need more funding to support it.”

BIDS handles about 85% of adult felony criminal cases in Kansas. The board’s attorneys were only able to spend an average of 11 hours per case during the 2022 fiscal year.

“They have to triage cases and steal time — either from other cases or from their evenings or weekends or holidays — in order to be able to provide that effective assistance of counseling in each individual case,” Cessna said. “And the problem with that is you’re not always going to be able to steal from one area of your life, to take that time to put into your cases for a sustained period of time.”

Cessna said the agency needs more funding in the upcoming fiscal year to help lessen these excessive caseloads, which lead to high turnovers rates.

House lawmakers recommended a BIDS request to expand public defender offices, potentially increasing services in Wyandotte, Crawford, Cherokee and Labette. The request is expected to be discussed at the end of the session.

Another BIDS budget request includes $13.1 million for staffing position funding. Cessna said the $13.1 million was about half of what the agency needed to help lessen excessive caseloads.

As the Legislature enters the final three weeks of the regular session, Cessna said getting the desired funding is looking like an uphill battle.

“In the meantime, we are daily dealing with clients who are in various ways sort of suffering from the effects of where we are now, and that’s frustrating,” Cessna said. “We all want to do our best job for our clients that we can, and so when those systemic things get in the way of that it’s frustrating.”

In a January news conference, Kansas Supreme Court Chief Justice Marla Luckert said the shortage of court-appointed attorneys is especially dire in rural areas.

“Even in our urban areas, the people willing to take those appointments is dwindling,” Luckert said. “In part that’s because of the needs of the Board of Indigents’ Defense Services and their budget issues. So we already start with that as a problem, but certainly in the rural areas is also a manpower issue.”

Kansas has a ratio of about two attorneys per 535 residents in urban areas, and a ratio of one attorney per 808 residents in rural areas. Five rural counties have only one practicing attorney in the area, and Wichita and Hodgeman counties have no attorneys at all. Eleven rural counties in the state have only two practicing attorneys in the area, according to 2022 statistics. 

Kansas legal officials have created a committee to study the shortage of attorneys in rural areas. 

Jennifer Roth, an appellate public defender and co-chairwoman of the Kansas State Board of Indigents’ Defense Services Legislative Committee, said despite a severe workforce shortage, Kansas’ public defense system has improved in recent years. Roth has been an attorney for 25 years and said she saw a change for the better.

“To be a public defender in this state is so much better and hopeful than before,” Roth said.

Roth planned to celebrate the 60th anniversary of Gideon v. Wainwright by organizing a concert at White Schoolhouse in Lawrence. Fifteen musicians were scheduled to perform Saturday night.

“We’re going to celebrate,” Roth said. “This is the 60th anniversary of this case that changed the landscape of  criminal law. Let’s have a good time and celebrate that and celebrate the people who do that work.”