Underrepresentation in Kentucky misdemeanor courts

“An inevitable consequence of volume that large is the almost total preoccupation in such a court with the movement of cases. The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudication. Inadequate attention tends to be given to the individual defendant, whether, in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction. The frequent result is futility and failure.” [Argersinger v. Hamlin, 407 U.S. 25 (1972), affording the right to counsel to every case with a potential jail sentence.]

“Trampling Over the Sixth Amendment,” a story published November 9, 2011 in CityBeat, is an apt description for how the right to counsel is handled in many of our country’s lower courts, where misdemeanor cases are heard and felony cases often begin. It is a common occurrence for these courts to attempt to save money and expedite the processing of cases by pressuring the accused to forego his right to legal representation without adequately informing him of the consequences of doing so (such as potential loss of public housing, deportation, inability to serve in the armed forces, and/or ineligibility for student loans, to name a few). Other courts threaten to impose large fines and costs if a client insists on receiving legal representation, and some simply refuse to appoint an attorney in direct violation of Argersinger and the Sixth Amendment.

The CityBeat story focuses on two northern Kentucky counties where the desire for speed over due process seems especially egregious (Kenton and Campbell). A report from the Kentucky Department of Public Advocacy (the statewide public defender program) notes that on average only 29.5% of all misdemeanor defendants get counsel in Kentucky. Kenton and Campbell counties fall well below even that average. In Kenton, only 7.8% of misdemeanor defendants qualified for counsel over the last three years, while less than 5 out of every 100 people facing misdemeanor charges in Campbell County received a public defender (4.5%) over the same period.

As one public defender describes it, “judges just don’t want to slow their dockets down,” and the judges assume defendants are “waiving their right to a public defender unless indicated otherwise.” Our courts are supposed to protect defendants by ensuring that, before they waive their right to counsel and plead guilty, judges confirm the defendant understands the rights he is giving up. According to a public defender quoted in the CityBeat story, no discussion ever takes place to determine the validity of the waiver in these Northern Kentucky counties. “Someone might be working at Skyline Chili, trying to support a family. Yes, they’re employed, but that doesn’t mean they’ve got money to hire an attorney. I sat in on one court session when the first thing a judge said to the defendant was, ‘You don’t qualify.’ Of course, they’re not going to question it. A judge just told them so.”

Short of reclassifying many non-violent misdemeanors to non-jailable infractions, fixing the no counsel court problem in Kentucky will be difficult because of the long history of excessive caseloads in the state. The Kentucky Department of Public Advocacy (DPA) provides right to counsel services in every jurisdiction in the state, with the exception of Louisville-Jefferson County. DPA is overseen by the 12-member Public Advocacy Commission. Central administration and post-trial defenders operate out of the agency’s Frankfort office, with trial services provided by the thirty non-capital branch offices located throughout the state. Services in Louisville-Jefferson County are provided by the Louisville-Jefferson County Public Defender Corporation, a non-profit defender office under contract with the county. Commonly referred to as the Louisville Metro Defender, the office operates cooperatively with, but functions separately from, the state Department of Public Advocacy.

Kentucky public defenders work at levels far above national averages. As stated in the 2010 U.S. Department of Justice, Bureau of Justice Statistics report, State Public Defender Programs, 2007, “defense counsel's workload should be sufficiently controlled to allow defenders the time needed to provide quality representation in each case. Furthermore, public defenders are expected to decline appointments that exceed the established caseload limits.” To help policymakers understand how best to control public defender workload, the U.S. Department of Justice's National Advisory Commission (NAC) on Criminal Justice Standards and Goals specified that a public defender should not have more than 150 felony noncapital, 400 misdemeanor, 200 juvenile, or 25 appellate cases per year. Using these guidelines, the BJS report notes that the Kentucky Department of Public Advocacy operated in 2007 with 327 attorneys when DOJ workload guidelines would require 636 attorneys. In other words, for every fifty-one attorneys they presently have, they actually need one hundred attorneys to properly handle the caseload.

Unfortunately, this is not –- or should not be -- news to Kentucky policymakers. In August of 1978, the U.S. Department of Justice, National Center for Defense Management noted in a report that the work of the fifty-five attorneys required under national standards was being done by just sixteen Kentucky defenders. A preliminary review of DPA by The Spangenberg Group, released in 1998, showed that DPA caseload “far exceed[ed]” national standards. A year later the Final Report of the Blue Ribbon Group (June 1, 1999) concluded that “[h]igh caseloads take an immediate toll on attorney morale and performance, calling into question the level of advocacy provided on behalf of clients. High employee turnover, and its accompanying perpetual state of hiring and training, has become a fact of life in several of the DPA offices.” And, a September 2002 report of the ABA National Juvenile Defender Center found that, despite a drop in caseloads in some parts of the state, juvenile cases were still far in excess of national standards.