By Brandon Ortiz
The state’s chief public defender is asking judges to order the state Finance and Administration Cabinet to pay for private lawyers for poor criminal defendants because his agency can no longer afford to represent them.
In a letter to judges released Wednesday, public advocate Ernie Lewis warned that public defenders will begin refusing certain types of cases starting July 1 as a result of the $2.3 million budget cut approved this spring by the General Assembly.
Lewis said the Department of Public Advocacy cannot afford to fill about 40 vacancies. With caseloads already at unethically high levels, Lewis said, public defenders cannot take on additional cases.
“The dilemma that now exists is that the Commonwealth of Kentucky is obligated to provide counsel to poor people charged with crimes, but the legislature has failed to fund that obligation,” Lewis wrote. “DPA will assert that the solution to this is for courts to enter orders requiring the Commonwealth to pay for private counsel.”
The service cuts, and the request for the state to foot the bill for private lawyers, could lead to a constitutional showdown. And, as Lewis acknowledges in the letter, it could lead to sanctions for Lewis personally.
Public defenders must have the permission of a judge to be removed from a case. Lewis or public defenders face contempt of court and jail if they refuse to follow a judge’s order to represent a client.
“This is an action for which I am ultimately responsible, and any sanctions or retribution should be directed at me rather than a directing attorney or individual staff attorney,” Lewis wrote. “I fully anticipate that there will be some judges who attempt to put pressure upon our local lawyers to represent people outside of this service-reduction plan. I would ask that courts respect the separation of powers and the independence of the Department of Public Advocacy.”
Lewis warned judges of several service cuts, the first since 1991, that will begin July 1:
• Funding will be eliminated for contract lawyers for 3,000 to 5,000 conflict-of-interest cases. These are cases in which there is more than one defendant; the DPA contracts with other lawyers so it is not representing both clients.
• The DPA will stop representing family court cases, which involve domestic violence and failure to pay child support.
• The DPA will withdraw from status offender cases, those involving children charged with running away from home, unable to be controlled by their parents or being truant.
• It will pull out of civil commitment cases, in which the state is trying to force a mentally ill person into an institution.
• It will refuse Class B misdemeanors (crimes with punishment of no more than six months in jail), some Class A misdemeanors (which carry punishment of up to one year in jail) and probation and parole violations.
Lexington’s public defender office will be the hardest hit. The DPA requested $2.8 million in funding for it but received $1.5 million.
Caseloads in Lexington will surge from 442 per lawyer, which were already the highest in the DPA, to more than 600 per lawyer.
The DPA employs 350 lawyers and handled 148,518 cases last year. The Lexington office handled 10,500 cases.
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