Kentucky’s public defenders looking ahead after years of low pay, high caseloads
Public defender Deidre Bowen was in the middle of her first appearance of the day recently before Warren County Circuit Court Judge Steve Wilson. It was a relatively light docket, but court was delayed by over an hour. Bowen’s client can’t understand English well, so she asked for an interpreter and waited until another court appearance to sort out the case.
On top of that, it was the first time she had ever met her client.
It’s a common situation for staff attorneys with Kentucky’s Department of Public Advocacy, or DPA. Public defenders represent clients who can’t afford a private attorney. That puts them on the front lines of where poverty and substance abuse meet the criminal justice system. Bowen said caseloads have only increased during her 16 years with the agency.
“It’s difficult to have the kind of caseload that we have and be able to keep up with all your cases, and keep up with all the facts of all your cases, and go through the discovery of your cases,” Bowen said. “You have just so much information that you need to know in order to adequately represent someone and it’s hard to find the time.”
Bowen currently juggles about 300 cases, mostly felonies in circuit court. But that’s much lower than her highest caseload of around 1,800 cases at one time, when she was forced to cover all of Warren County’s district court dockets.
DPA attorneys in Warren County were appointed in more than 3,400 cases last year. Statewide, public defender caseloads were 124% of what is generally considered an ethical standard. The high caseloads coupled with low pay created an environment that caused nearly one-third of DPA attorneys to leave in 2021. Many of the outgoing lawyers left for higher-paying prosecutor positions or jobs with other state agencies.
Pay boosts provided by legislature
The budget passed in the 2022 session of the Kentucky General Assembly used a historic surplus to make investments in state government, including more than $7 million to boost the Department of Public Advocacy’s budget. Damon Preston, Kentucky’s Public Advocate and the head of DPA, said he told legislators the crisis would only worsen without more funding.
“The legislature thankfully recognized this and saw the impact it was having on communities and on public safety and on services that the state is constitutionally required to provide, and provided additional funding for public defenders,” Preston said. “We got a little over $7 million that’s targeted to raise the salaries of public defenders. Prior to that budget, public defenders for DPA were the lowest-paid attorneys in state government.”
Christian County Republican Sen. Whitney Westerfield is one of DPA’s top advocates in the General Assembly. He chairs the Senate Judiciary Committee and fought for the budget boost for public defenders. He said initial drafts of the budget didn’t include the appropriations bump for DPA.
“It was the bare minimum we could do to keep them running,” Westerfield said. “We gave them $7 million. At first they didn’t get that. One of the earlier versions of the budget before we made a final passage of the document didn’t even include the $7 million.”
The initial budget without an increase for DPA caused Preston and other officials to lobby harder for higher funding. Westerfield said he worked to make sure his colleagues saw the urgency of tackling the agency’s staffing shortage.
“They [DPA leaders] came and said, ‘Whitney, this is an existential threat. We can’t keep up with everybody we’ve got now. We can’t pay them competitively. We can’t train them faster than we lose them. We can’t do this job and our mission adequately,’” Westerfield explained.
Preston said the $7 million is a helpful starting point to stop the hemorrhaging of attorneys, but he hopes more state dollars will come in the future to expand DPA services and hire additional lawyers. But, for now, the pay boost is life changing to public defenders like Deidre Bowen, who started with DPA in 2006 making $38,000 per year.
“You can’t live on that salary, so it was a big deal they were able to get this funding,” Bowen said.
Her salary was at $52,000 and jumped to more than $70,000 this month. DPA leaders hope the salary increases will contribute to DPA’s recruitment efforts at Kentucky’s law schools. University of Kentucky law professor Cortney Lollar chairs the Kentucky Public Advocacy Commission, which advises the DPA. She said stronger recruiting among new attorneys and a return in recently-departed DPA employees could help in reducing the dozens of public defender vacancies throughout the commonwealth. But the agency may not see the impact immediately.
“I don’t think you can build it from graduate level- people who are entry level graduating from law school,” Lollar said. “Those numbers are not going to be able to fill it up that quickly. It’s going to take other people. Perhaps people who have left and now realize that the salaries are going to be higher and are willing to come back and do the work they want to do while getting paid equivalently.”
Clients caught in budget woes while their lives hang in the balance
The clients represented by the Department of Public Advocacy are some of Kentucky’s poorest citizens. Public defenders are responsible for helping their clients navigate the criminal justice system, staying up to date on the facts of their case, preparing a strong defense, negotiating with prosecutors, attending hearings in court, and more. Every attorney must complete these duties for hundreds of clients each, leading to concerns over the ability of a public defender to meet those demands.
ACLU of Kentucky Staff Attorney Heather Gatnarek is no stranger to the demands placed on public defenders. She was a public defender with DPA for five years, traveling the commonwealth with the agency’s Capital Trials Unit to represent indigent clients in cases involving the death penalty and other serious punishments. Gatnarek said the high caseloads put a defendant’s right to counsel at risk.
“I certainly recall times when I was going into court to cover a docket and I had a stack of case files with me and I was seeing names on the files that I didn’t recognize,” Gatnarek said. “Then I’d look through my notes and say, ‘I talked to this person.’ But my brain couldn’t retain the information for each and every client.”
Gatnarek said while she still gave every client the most amount of attention and help possible, she said defendants deserve more from their public defenders than what current caseloads allow.
“Your life, your liberty, and your livelihood are on the line here. And to have an attorney that can’t even remember the name or the facts of your case is incredibly distressing. That’s not for a lack of an attorney wanting to be the best advocate for their clients. Public defenders are some of the hardest-working, most dedicated lawyers that I know. It’s a terrible feeling to feel like you’re not giving the client the type of representation that everybody deserves,” Gatnarek said.
The mass exodus of experienced public defenders has brought the average experience of each DPA attorney from more than eight years in 2018 to less than five years now. The hope among DPA’s leaders is that the staffing crunch will ease as former defenders return and current ones stay to enjoy a full career with the agency.
After 16 years with DPA, Deidre Bowen of Bowling Green is in public defense for the long haul. She said the pay boost was a huge help, but her heart has been in helping low-income Kentuckians since law school, and low pay was just part of the deal in doing the type of legal work she loved.
“It just takes a real special person to be able to know that this is God’s work and that you are helping people who need help and don’t really know how to be receptive to that help,” Bowen said.
Back in circuit court, her caseload grew by three in less than an hour. That’s on top of the existing cases she brought into Judge Steve Wilson’s courtroom. Filling the three vacancies in Bowling Green’s DPA office and the dozens of statewide vacancies could mean more equitable caseloads for attorneys like Bowen and her colleagues.