photo by: Anna Kaminski/Kansas Reflector

Heather Cessna, executive director of the Kansas Board of Indigents’ Defense Services, describes a public defender system in crisis Jan. 14, 2025, at a meeting of the Senate Judiciary Committee.

TOPEKA — Public defenders in Kansas face borderline unethical caseloads, lower pay rates than peers and now the possibility of even less funding to address attorney shortages.

Heather Cessna, executive director of the Kansas Board of Indigents’ Defense Services, or BIDS, painted a picture for the Senate Judiciary Committee at its first meeting Tuesday of a state struggling to keep up with high case volumes, an aging workforce and economic pressures.

BIDS requested an additional $10 million from the Legislature this year to adequately compensate public defenders to avoid turnover and hire more lawyers to allow for ethical caseloads.

Instead, the special legislative budget committee wants to cut $7 million from the BIDS budget, according to House Bill 2007, which was introduced Monday and sponsored by committee chairman Rep. Troy Waymaster, R-Bunker Hill.

Ultimately, Kansas does not have enough “experienced, qualified and available” attorneys willing to take on BIDS cases, Cessna told lawmakers. About 84% of adult criminal cases in Kansas are BIDS cases.

Clients and lawyers alike are frustrated, Cessna said, “and I field those phone calls daily.”

In Sedgwick County, home to Wichita, attorneys from outside the county are called to travel in to represent indigent defendants. In Shawnee County, where BIDS has two offices, attorneys spent 2024 refusing to take on more cases to maintain professional and ethical caseload levels. In Johnson County, public defenders are inundated with cases, even with a fully staffed public defender’s office and a back-up cache of private attorneys, Cessna said.

“In counties with fewer attorneys, that only gets worse,” she said.

A judge appoints a public defender to a criminal case when a defendant cannot afford representation. It’s a right embedded in the U.S. Constitution, and when that right is in jeopardy due to attorney shortages, like those in Kansas and jurisdictions across the country, the consequences are serious, Cessna said.

Without an attorney, cases are delayed. Evidence can be lost.

“If you have a constitutional requirement to have an attorney representing these people, and you don’t have an attorney standing in that courtroom next to that person, then that case has to get dismissed,” Cessna said.

More than half of Kansas counties have 10 or fewer lawyers and even fewer who specialize in criminal defense. One-third of lawyers in Kansas are over the older than 60, signaling a swath of soon-to-be retirees.

Freshman Republican Sen. TJ Rose, an insurance agent from Olathe, wondered if compensating private attorneys who take on public defense cases at a rate of $250 an hour instead of $120 an hour would alleviate the shortage.

Steve Leben, a retired Kansas Court of Appeals judge and a University of Missouri-Kansas City School of Law professor, wrote Monday on social media platform X that higher compensation rates for private attorneys could “lessen or eliminate” the shortage.

“But the most effective solution economically and for professional representation is properly funding public defenders,” he said.

Cessna said private attorneys are also subject to the same ethical caseload standards as public defenders, and there isn’t the same oversight and quality control capabilities as with direct employees.

Kansas remains in a better position than some other states, which have seen courts forced to dismiss criminal cases due to a lack of attorneys and, therefore, an inability to fulfill constitutional obligations.

Still, challenges persist.

“There is no question” cutting BIDS’ funding will escalate a situation that has already reached a crisis point, Cessna told Kansas Reflector.

“I think we’re going to have difficulty paying bills,” she said.

— Anna Kaminski reports for Kansas Reflector.