Kentucky’s public defender system in ‘crisis’ as attorneys exit due to inadequate pay
The pay — about $46,000 a year — was not all that great for a fellow with a law degree. His workload was increasing, and the office hours were expanding to 50 to 70 a week. The job consumed him and a baby was on the way.
The final straw for state public advocate Greg Coulson to give up his passion and leave his state job of four years defending people who couldn’t pay for a lawyer came when his daughter was born.
Coulson had planned to take off the month of December 2013 to be with his wife and their newborn. He didn’t get paid overtime but could bank his extra work hours for comp time. “I wanted to be a great dad,” he said.
But when that month rolled around, Coulson was deep in preparing for a death penalty case.
Two months later, he gave his notice that he was exiting from the Kentucky Department of Public Advocacy. He has been practicing law in Lexington since then, specializing in criminal defense.
That scenario has played out for years for the state agency that fulfills a requirement in the Sixth Amendment to the U.S. Constitution to provide legal representation to indigent Kentuckians facing the loss of liberty due to criminal allegations. Its tasks range from DUI to death penalty cases.
But the departure of staff attorneys from the department now has reached a crisis, causing delays and confusion in the court system, said Damon Preston, a career public defender and leader of Kentucky’s Department of Public Advocacy.
Preston was first named to the post by then-Gov. Matt Bevin in 2017 and has been with the state department since 1997. Gov. Andy Beshear reappointed him in August to serve another four-year term. His current salary is $115,000 a year.
The Problem
In this calendar year up to Nov. 30, 89 state public defenders have left — the most ever in a year. That is about one in four of the 344 full-time staff attorneys. Last year, 53 left and 36 the previous year.
Preston said this is consistent with the so-called “Great Resignation,” the national, ongoing trend of employees voluntarily leaving their jobs due to the burnout and rethinking of work-life balance that followed the coronavirus pandemic.
Shortages of nurses and state social workers in Kentucky have been well documented this year. But Preston said the impact on the criminal justice system in Kentucky of fewer public defenders “is huge as clients and courts have to adjust to a revolving door of appointed attorneys.”
Kenton Chief Circuit Judge Patricia M. Summe, president of the Kentucky Circuit Judge Association, said the increasing exit of public defenders “does significantly impact the courts system.”
She called fair, timely legal representation “a cornerstone of our democracy and it suffers with so many departures.”
“When we have public defenders leave, their criminal caseloads are transferred to someone else,” said the judge. “That causes delays, lengthening the time someone has to wait for trial. It puts a drag on the system.”
The cause of almost all of these attorney resignations has been inadequate pay and the opportunity for more elsewhere, said public advocate chief Preston.
“While the loss of this many public defenders is devastating to our overall agency, it is even more dire in the local offices where the resignations have occurred,” Preston said. “Every attorney resignation increases the caseloads for the remaining attorneys, undermining the administration of justice and endangering the constitutional right to counsel.”
The public advocacy department has 36 offices across the state. In offices that have had multiple resignations, he said, the percentage of caseload has increased substantially: 33 percent in Maysville and Stanton, 29 percent in London, 25 percent in Nicholasville, 20 percent in Glasgow, 17 percent in Elizabethtown and Henderson, and 13 percent in Morehead and Columbia.
The department has represented about 131,000 clients this year. Preston said the number of clients has decreased “a bit” since COVID started but “they are picking up.” In fiscal year 2017, there were about 163,000 clients who needed legal help.
Preston attributes the attorney turnover to an inadequate pay scale. He said experienced and trained attorneys regularly leave the agency for local prosecutor offices or other executive branch agencies, which are able to offer pay raises of up to 30 percent.
Preston offered as examples a list of 27 pubic advocacy attorneys who have left the department since 2019. They included one leaving with eight years of experience making $50,004 to become an assistant Commonwealth’s attorney at $67,000 a year — a 34 percent increases.
Of the 200 attorneys throughout state government with the highest annual salaries — those making $65,240 or more — only three work for the Department of Public Advocacy. More than half work in local prosecutor offices or in other executive branch agencies, Preston said.
On the other hand, of the 200 lowest annual salaries for state government attorneys — those making $50,004 or less — almost 70 percent work for DPA. About 25 percent work in local prosecutor offices and about 5 percent in other state agencies.
The annual budget for his public defender office is about $72 million, compared to about $135 million for state prosecutors, he said.
“DPA attorneys are paid far lower than other attorneys in government,” said Preston. “They are not paid less because of experience, talent or accomplishments. They are paid less because DPA cannot afford to pay them more.”
Compared to surrounding states, Kentucky’s salary for public defenders is the lowest.
The starting annual salary for a public advocate in Kentucky is $45,000. The average starting salary for the job in the seven neighboring states is $46,820. In Kentucky, the average salary for a defender with five years of experience is $54,000. That compares to $64,000 for the average of the surrounding states.
But Preston said Kentucky is not losing public defenders to other states. “We’re losing them to other state jobs and the private sector,” he said.
Kentucky’s pay for public defenders also has not kept up with inflation, said Preston.
When he became a staff attorney in 1997, his salary was $31,344. The salary of that position today is $45,000. Adjusted for inflation, that salary today would be $53,568. That means the pay for a beginning attorney is 16 percent less today than it was in 1997.
Preston notes the irony in that the Lexington Herald-Leader on March 5, 1999, profiled him as an example of how lawyers for poor people in Kentucky make little money. It was titled “The Case of the Skimpy Salaries.”
In a way, the Kentucky DPA is a victim of its own success, said Preston. He said it has a national reputation for training new attorneys who become attractive to other state agencies and law firms.
A Fix
Preston has recommended to the state Justice and Public Safety Cabinet that Gov. Beshear recommend in his state budget proposal, which he will present to lawmakers in January, that they appropriate an additional $7 million to the state’s public defender system.
He said this would increase the starting salary for a beginning public advocate from $45,000 to $50,000 a year..
Beshear has been sympathetic to boosting salaries of state workers. Senate President Robert Stivers, R-Manchester, recently said the state should look at the salary structures for its workers but large pension and retirement costs also have to be considered.
Senate Judiciary Chairman Whitney Westerfield, R-Hopkinsville, said Preston has the right to be concerned.
“He has made his case before legislators and we share his concern,” said Westerfield. “But the Department of Public Advocacy is not the only state agency having problems like this. We have pay problems with state police, crime lab personnel, social workers, corrections officers.
“It’s difficult to say at this time what the legislature will try to do.”
The cost of inaction, said Preston, will be more reassignment of legal cases to be handled by less experienced attorneys, a delay in resolution of complex cases, possibly no defenders available in some areas of the state and a higher price tag to fix things later.
Former state public advocate Coulson said he was never interested in being a lawyer to be able to drive a BMW. “I grew up in a trailer park and waited tables in college,” he said. He got interested in being a public defender during an internship at Murray State University.
“I just wanted a job to help poor people and take care of my family,” noting that his wife, Courtney, worked in medical records at a Lexington hospital when their daughter was born.
Coulson said he’s not sure if an extra $7 million for the state public defender system will meet its needs.
Preston said he’s not sure either.
“I think it would be a start to give Kentucky a sustainable defender system with career public servants, improving the justice system and public safety.”
This story was originally published December 10, 2021 at 11:04 AM.
