Martin de Boer
Managing Research Analyst
The U.S. Constitution grants certain rights and protections to criminal defendants, including the right to be represented by an attorney. This right has been interpreted by the U.S. Supreme Court and the Kansas Supreme Court to require the State to pay for attorneys to represent indigent defendants at most key stages in the criminal justice process.
In Kansas, this requirement is met by the Board of Indigents’ Defense Services (BIDS). BIDS provides criminal defense services through:
- Public defender offices in certain parts of the state;
- Contract attorneys (attorneys in private practice contracted by BIDS); and
- Assigned counsel (court-appointed attorneys compensated by BIDS).
In addition to providing trial-level public defenders and assigned counsel, BIDS operates offices tasked with handling defense of capital cases, cases in which conflicts of interest prevent local public defenders from representing a particular defendant, and post-conviction appeals. BIDS is also responsible for paying the other costs associated with criminal defense, such as for expert witnesses and transcription fees.
BIDS officials monitor the cost per case for each of its offices quarterly to determine the most cost-effective system to deliver constitutionally required defense services and make changes as needed to maintain cost-effectiveness.
The 2020 Legislature required BIDS to submit a report to the Legislative Budget Committee (LBC) detailing issues relating to staff vacancies and retention as well as providing a detailed strategy to address staffing concerns. The report, which was presented to the LBC on October 6, 2020, laid out a three-phase plan to address the issues.
According to the report, the core issues relate to excessively high caseloads relative to industry standards, low compensation, and a lack of resources. As a solution, BIDS proposed a three-phase plan with a focus on a client-centered, holistic defense model that would impact the whole of the state’s judicial and correctional systems.
The plan would address immediate needs via the FY 2022 budget request, with the remaining phases to be implemented in FY 2023 and subsequent years.
In 2021, the Legislature added $4.2 million to the BIDS budget, and 45.0 full-time equivalent positions, to address staffing concerns and high caseloads for FY 2022. This amount included $200,000 for a new case management system, as well.
Assigned and Contract Counsel
It is not possible for state public defender offices to represent all criminal defendants who need services. For example, if two individuals are co-defendants in a particular matter, it would present a conflict of interest for a single public defender’s office to represent both individuals.
Additionally, BIDS has determined it is not cost- effective to operate public defender offices in all parts of the state, based on factors such as cost per case and caseload in these particular areas.
Instead, BIDS contracts with private attorneys in those areas to provide these services and compensates willing attorneys appointed as assigned counsel by local judges.
BIDS has been directed to monitor assigned counsel expenditures and to open additional public defender offices where it would be cost effective to do so.
Counsel Hourly Rate Increases
- Effective January 18, 2010, assigned counsel were compensated at a rate of $62 per hour as the result of a BIDS effort to reduce costs and respond to budget cuts.
- For FY 2016, the rate was increased to $65 per hour.
- For FY 2017, the rate was increased to $70 per hour.
- During the summer of 2018, BIDS voted to increase the rate for FY 2019 to $75 per hour.
- For FY 2019, BIDS increased the rate to the statutory $80 per hour cap.
- For FY 2022, the Legislature added $3.6 million to the BIDS budget to increase the statutory cap to $100 per hour, contingent upon 2021 HB 2363 not becoming law.
Exceptional Fees for Counsel
Total fees for defense in felony cases are capped at various levels depending on the classification of the felony and the disposition of the case.
However, if there is a judicial finding that a case is “exceptional” and requires the assigned attorney to work more hours than the cap allows, BIDS is required to exceed these caps. These exceptional fees are included in BIDS’ overall budget for assigned counsel payments.
The 2007 Legislature changed the language of the assigned counsel compensation statute to allow BIDS to negotiate rates below the mandated (at that time) $80-per-hour rate as an alternative cost-savings strategy.
BIDS conducted public hearings in 11 counties where it was determined it was not cost-effective to utilize assigned counsel at $80 per hour.
BIDS responded to local requests to maintain the assigned counsel system in these counties by negotiating reduced compensation rates.
The negotiation was successful, and rates of $62 per hour and $69 per hour were implemented. BIDS has determined these rates are more cost- effective than opening additional public defender offices.