Public defenders office decries budget proposal
By Brandon Ortiz
BORTIZ@HERALD-LEADER.COM
The state's chief public defender says Gov. Steve Beshear's proposed budget cuts may force public defenders to withdraw from some cases, potentially placing thousands of cases in limbo.
Public Advocate Ernie Lewis says that's the "doomsday scenario" if a proposed budget cut of 3.3 percent, or $1.3 million, is passed by the General Assembly.
Commonwealth and county prosecutors also are facing budget cuts, and they too say they have little room to tighten their budgets.
Lewis says the budget proposal will prevent the Department of Public Advocacy from filling about 46 vacancies and 14 other positions DPA wants to create. As caseloads rise -- they've gone up 52 percent since 2000 -- public defenders will struggle to keep up, he says.
DPA's budget is currently about $38 million a year.
Lewis says he can't ethically ask public defenders to take on more cases. He fears that lawyers will be overstretched and will provide inadequate representation to the indigent.
The government is constitutionally required to ensure an accused person has adequate representation, Lewis said.
"I don't see how we can do that with the present budget," Lewis said.
This is not the first time Lewis has predicted a doomsday scenario. Back when then-Gov. Paul Patton was considering budget cuts for DPA in 2003, Lewis made the same prediction.
It never materialized.
"I suspect that Ernie Lewis is doing his typical crying wolf," said Fayette Commonwealth's Attorney Ray Larson, a frequent critic of Lewis. "He makes it every time he talks."
Larson noted that Lewis' budget request included funding for social workers for each DPA office. The social workers were requested to interview defendants and make probation recommendations regarding substance abuse and education.
"If they need so many lawyers, then why are they asking for social workers?" Larson said. "I thought we were a court system, not a social services agency."
Larson's office may also face cuts, but he does not know yet to what extent. The Prosecutors Advisory Council will meet next week to discuss the budget proposal.
Larson said personnel accounts for about 98 percent of his costs.
"When we have those kind of cuts, typically we have to figure out some way to figure out how to avoid losing people," Larson said.
Fayette County Attorney Larry Roberts said his office will have to find ways to generate more revenue. The office also is responsible for child support enforcement.
"I'm not going to fire anybody if I can help it," he said.
Public defenders in circuit and district courts handled an average of 436 cases last fiscal year, according to DPA. But that figure includes about 30 lawyers the DPA wasn't able to hire because it didn't have the money, so the real average is somewhat higher, Lewis said.
Overall, public defenders handled 148,518 cases at all levels, including appeals courts.
Lewis said those caseloads are well above what's recommended by the National Council of Chief Defenders. It recommends caseloads of no more than 252 misdemeanor, 35 felony and 28 juvenile cases per attorney.
Nonetheless, caseloads are down from 488.4 in fiscal 2004. And funding and pay for public defenders have increased significantly in the last 10 years.
The DPA employs about 350 lawyers, including 19 in Lexington.
The Fayette County public defenders' office fared relatively well in Beshear's budget request. The office is $1 million over budget after DPA hired five new lawyers. It was granted emergency funding for this year.
But the office would not be able to expand under the budget proposal.
Lewis said public defenders, like any other attorneys, risk disbarment if they take on more cases than they can handle. An opinion released in 2006 by the American Bar Association supports Lewis' contention.
"There are obviously real ethical concerns if your workload will not allow you to do your job," University of Kentucky law professor William Fortune said. "It is a principle of ethics that you do not take on work you cannot do."
But whether attorneys have the authority to withdraw from cases is less clear. They'd have to make that case to a judge, who could deny the request.
And if the DPA refuses to accept cases, Lewis could be held in contempt of court, he acknowledged.
Lewis said he wants to avoid disrupting the court system, and will refuse cases only as a last resort. Prosecutors may have to be more amenable to plea deals, Lewis said.
Former Public Advocate Allison Connelly, now a UK law professor, says it's only a matter of time before public defenders begin to refuse cases. She's surprised it hasn't already happened in Kentucky.
"Public defenders have never known how to say no," she said.
""If they need so many lawyers, then why are they asking for social workers?" Larson said. "I thought we were a court system, not a social services agency.""
Because you'd prefer to just throw people in overcrowded jails without assessment of other options...?
Posted by: Malletman | February 03, 2008 at 11:44 PM