For years, Heather Cessna has sounded alarms about the chronic shortage of public defenders and the constitutional crisis associated with that in Kansas. Now she's leaving the post she has held for six years as the director of the board of indigent defense services. I'm Sherman Smith, this is the Kansas reflector podcast, and Heather is here to talk about this crisis situation, Heather, welcome to the
show. Thank you so very much for having me. I'm excited to be here today. Tell us why you're stepping down. Yeah. So when I first came into this position six years ago, I had some very specific opinions about things that I wanted to see change in the agency. I had been a public defender in the agency for 17 years, and I thought we needed a training program. I thought we needed caseload controls to work on our high case loads in many of our offices. I thought we needed additional internship opportunities to be able to develop a good pipeline of new public defenders coming into the agency, a variety of things like that, and definitely we needed to work on pay issues and pay parity with prosecutors. Over the last six years, we have been able to make pretty significant progress on most of those issues. And while there's still lots of work to be done, I'm pretty proud of the progress that we have made, and I think we have set our agency up to be able to continue building on that process into the future, I have this amazing opportunity to be able to go teach at Washburn law school, and so I'm incredibly sad to leave an agency that I've dedicated the vast majority of my career as a public defender and career in public service to, but I'm Excited to be able to go to Washburn and hopefully help bring up sort of the next generation of lawyers coming into Kansas, and hopefully maybe some of them will be coming into the public defense
system. We'll take a closer look at some of the things that you're talking about here, but let's start by just telling us about your background and why, you got interested in public defense
work? Yeah, so I started off in law school, and I was not really sure what kind of a lawyer I wanted to be. I A lot of people do when they go to law school. I mean, one of the great things about law school is that you do get a chance to take a variety of different courses in law and so it opens you up to, you know, things that you may not have otherwise been interested in. And so I took a lot of different classes when I was in law school, and enjoyed a lot of them. But what was really kind of a defining moment in my career was when I was a second year law student at KU law, and I got the opportunity to work with Gene Phillips in the what was then called the Paul E Wilson defender project. Now it's the Innocence Project at KU, and the process of working with Gene, who is an incredible attorney and a great mentor, and then also being able to work with Rick Kittle, who was one of the individuals in that group that did appellate work for the appellate defender office with law students at KU at the time, allowed me to participate in working on actual criminal cases and writing actual briefs. And so when I really enjoyed that work, and I was getting ready to graduate, a position came open in the statewide appellate office that is part of our public defense system, and I went straight from law school into appellate practice, where I very much found my mission and had enjoyed being in that office for many years before I stepped into this position as the director, I'm
gonna put you on the spot for a second. Is there a case or two that come to mind that's that was just particularly meaningful to you in your career as a public defender?
Yeah, yeah, I've had a couple of cases over the years. One of the most meaningful that I had was a case that I had out of out of Wichita, where I had a client who had a variety of mental health issues, was unable, because of employment issues, to have access to health insurance and access to community health resources, and as a result of that, was not able to stay on his medications and suffered from a variety of mental health disorders that caused him to hallucinate. He ended up killing somebody as a result of his hallucinations. And when I had that case on appeal. It was incredibly sad. It was obvious that, you know, his mental health situation had been being handled well when he was on medication and had access to those resources, but when things had deteriorated, you know, it had resulted in this horrible tragedy, and unfortunately, there wasn't a lot that we could do for this individual on appeal or at trial, because the state of of the law on mental health disorders and how that affects your ability to form intent in Kansas is not great, and so it. Was, it was a defining case that ultimately I wasn't able to do a lot with, and I was very disappointed by, but it did sort of spark this, like I want to make a bigger impact on our clients lives than maybe what I can do in individual cases and and so I think that is probably where it kind of sparked my interest in trying to step into some kind of position like what I'm in now, where I have sort of a more wider impact on the state of criminal justice in Kansas than what I had as like an individual defender.
It's not always about whether somebody is guilty of a crime, right? It's about what is the appropriate sentence for that, or some of these other factors that weigh in, that's all part of the work. So the as the person in charge of the public defender's office, this is actually called the board of indigent, indigent defense services, which is a mouthful and difficult to write, public defender what? What is it? It's abbreviated to bids. What is bids? Exactly?
Yeah, so bids is kind of two, two sides of the public defense system. So we have on one side all of our actual public defenders offices. So in certain jurisdictions throughout the state, we have actual public defender offices where our employees or direct state employees. And we have everything in those offices, from our chief public defenders or line attorneys, mitigation specialists, investigators, legal assistants, as you know, admin specialists, everything and those. But then also in every jurisdiction, we have to have a panel of appointed attorneys who volunteer to serve on the appointments panels that are usually in private practice. So there are some jurisdictions throughout the state that don't have a public defender's office, and they're entirely served by the appointed panel of private attorneys. But even in the places where we have public defender's offices, we have overflow issues where we can't take cases because we don't have the staffing in our public defender's offices to be able to handle the volume of cases that are coming into those jurisdictions, and we have conflicts with CO defendants and things like that that we just can't take for ethical reasons. And so every county has what is our assigned counsel program? Basically, is that panel of private attorneys who volunteer to serve and take a low rate of pay for those cases.
So you say it's a volunteer program, it's not like attorneys can be drafted into the service. They have to actually agree to do this.
Yes, they have to be willing to serve. And there are requirements as far as what their experience levels are, so that if you can't also appoint somebody to a case, you know, to take a murder case that's never had experience doing a murder case before, because you want to make sure that people are being appointed to cases that they're appropriately experienced for. So there's some some rules and regs about how that process works for the district judges who get to appoint those but that is a program where we basically pay those bills. So we pay those attorney bills, we pay the experts and things like that that are associated with that side of things, but it's really the district judges or the chief judges in those jurisdictions who determine who ends up on those panels when somebody applies to volunteer for it.
And just to underscore the importance of this work, 84% of adult felony cases in Kansas require appointed counsel.
Yes, which, you know, that's one of the things I think people like, if you're, if you're not involved in the criminal justice system, when one way or another, obviously, whether you're a client of our store, but even if you're, if you're if you're not actually involved in the process of the criminal justice system, I think a lot of people don't understand how many of our clients are considered impoverished. So anytime somebody is charged with a adult felony in Kansas, they're potentially eligible if they are impoverished enough, and there's a process of applying with a financial affidavit based on the federal poverty guidelines and a variety of other factors, where you apply for assistance of counsel, but that is a huge, huge portion of the number of adult felony level cases that are filed that qualify for that appointment of counsel. And so when we talk about the problems in the public defense system, about lack of staffing, lack of pay, lack of sufficient attorneys in a lot of areas, you know that is a constitutionally protected right that applies to a huge portion of these cases that are coming into the system that is currently not working, and that's one of the reasons why we've tried to participate very heavily in conversations, like with the judiciary on shortages of counsel issues, because if you know, we're the sort of weak link of the criminal legal system in Kansas, if we can't. Support having an attorney to stand up next to every single one of our clients that's charged with a felony case in Kansas, and we are dangerously close to not having that.
You moved into this position in October of 2019, just a couple of months before a novel Coronavirus began upending life as we know it. Yes. How did that complicate this work?
It was very complicated. So yeah, part of the problem too was that I was relatively new to the position. So it was not only a shocking once in a lifetime experience to have to, like, lead a state agency through that entire process just generally, but then I was relatively new to the position as well. So it was particularly shocking. The hardest part about it was, is that every jurisdiction was handling this very differently. So we had attorneys in, for instance, in Johnson County, who, I mean, they were, you know, having virtual court almost from the beginning, and it lasted for an extremely long time, whereas other jurisdictions were like holding jury selection within two weeks of of the, you know, official shutdown of everything out in the plaza in the middle of the of the you know, park, to be able to have enough separation but still conduct jury trials. And so it was, it was a lot of just trying to do anything and everything we could to try to support our employees, who were all experiencing sort of very different responses to the crisis. So we did the best that we can. I mean, the good news is, is that I think we all learned how to how to appear virtually, very quickly, as much as we could. And actually, that is one of the things that lasted out of the pandemic. That's actually been very helpful as we're dealing with the shortages of counsel and a lot of our more rural areas, is that so everybody, including the judges, are a lot more comfortable now as a result of the pandemic, to being able to do like non evidentiary hearings and things like that, virtually, which then makes it a little easier for us to cover some of those cases in some of those more far fetched areas. So there was some things that ended up being good coming out of that, but it was, it was definitely a wild ride for most of us. Yeah,
you just have to make sure you don't have the cat filter on when you log into Yes, how, how has the office changed or evolved over these six years?
So, so in the public defense system, we've tried to make a couple of pretty significant changes, some of which are probably more publicly obvious and some of which probably are not. The more publicly obvious thing that we have tried to change significantly is it was very clear the day that I walked in the door as the executive director that the caseload situation that we had in our public defender's offices was unethically high. One of the first conversations that I had when I started going around and visiting all of our offices when I first came into this position was a number of conversations I had where attorneys were telling me that they were leaving the agency in droves. By that time, earlier that spring, we had lost one out of every four public defenders in the spring of 2019, before I came on, and they were all saying it was a combination of pay, but primarily it was also a combination of the high case loads, where they felt like they had such high caseloads that they were in danger of losing their licenses to practice. And as the new executive director coming in, that was horrifying, because I could not reassure them that they would not, because these caseloads were astronomical and absolutely unacceptable, and so one of the first things that we did was sit down and look at our authority to be able to refuse cases for ethical reasons and for caseload reasons. We are actually one of the few public defense agencies across the United States that actually has very clear authority to do that. One of the reasons why there's been litigation in Missouri is because they don't have that ability in their public defender system, and so there's this conflict between, like, the ethics rules and what technically they can, you know, turn down, but our rules are pretty clear that we have the authority to refuse cases if caseloads are too high, and so, you know, we had to, unfortunately, make use of that in a lot more explicit manner in order to comply with our ethical requirements. And then, over the course of the last couple of years, is the national workload study came down on public defense workloads, and as we've been able to participate as a national part of that conversation through like groups like the National Association for Public Defense, which I sit on their workloads committee for we've been able to incorporate, like, a weighted caseload system so that we can within our Public Defender's offices, so that we can we. Very closely monitor not just the number of cases that we have, but the severity levels of those cases and the relative experience of our attorneys who are handling those cases, because that is kind of has to be kind of a match to make sure that you're not overloading inexperienced people with too high of cases, too high of severity level cases. So So we've implemented this weighted caseload system. It still needs to continue to be tweaked, and we still need additional staffing to be able to sufficiently staff our caseloads, but that's been a huge difference, and it's made a huge quality of life difference to our attorneys, and it is something that now has become a part of the day to day lexicon in the Public Defense Agency in a way that it didn't before. Some of the other things that we've made changes to that probably haven't been as obvious are just simple things, like when I walked into the administrative office that is supposed to be providing support for you know approximately 30,000 cases a year, and all of you know 300 employees in the public defense system, and 350 attorneys throughout the assigned counsel system. There was like 11 people in our administrative office, most of whom were accountants to be able to pay bills for the assigned counsel side that were supposed to be supporting the entire agency, and that was just not sustainable. I mean, there was, you know, people who were wearing three, four or five hats in that scenario, that there was no way that we could provide the amount of support that we needed to internally, to our employees and to our sign Council program and to the courts and to our clients with that sort of lack of internal support. So we've made a pretty significant investment in making sure that we've got people within our administrative office to be able to provide the level of support we need to our employees and to our assigned counsel program. So that's probably something that's not sort of more visible from the outside, but has made a huge difference in the amount of things that we can handle. I mean, at this point, our attorney shortages, for example, are so bad that we have a full time person whose job it is to basically try to match those attorneys that we have on staff who are willing, or that we have within our assigned counsel program who are willing to travel with the cases that we have around the state that need attorneys, and because our shortages are that bad, that's something that we absolutely would not have had the capacity to do even three four years ago. So so there's been some pretty significant changes like that that we've been able to make
too I think we we write the story every year, multiple times, every year, you go to the legislature every session and outline these challenges, the prospect of a constitutional crisis with these staffing levels and caseloads and everything else that's happening. You know, sometimes lawmakers will do a little something about that. Sometimes they don't. This year think they actually made it worse, right? They cut your funding.
Yes, they cut our funding for 2025 the fiscal year that we just like, are ending this week, and they also reduced our funding for 2026 by one and a half percent for operations budget. I mean, we've been able to assess what we're going to be able to do to absorb that, and we are definitely going to have some shortages of funding and some key areas that we're hopefully going to be able to address with the legislature before it becomes a significant problem, and our intent is to be able to keep up with the level of operations, obviously, that we have right now. But it is disappointing because, I mean, one of the things that you just said, as you were kind of leading into that question, was the prospect of a constitutional crisis, like there is no prospect about that we are in a constitutional crisis. And one of the most frustrating parts of the legislative session this year was sitting through some of our budget hearings where individuals who I've had this conversation with over and over again, who we've filed testimony in front of, we filed reports in front of, we've been very clear at every step along the way that we are in a constitutional crisis right now, and the fact that we're holding it together with, you know, duct tape and bubble gum doesn't mean that it's less of a constitutional crisis. And yet, there were conversations during our budget hearings about how well bids is not in a constitutional crisis right now. So how is the impact of this budget decision gonna put them in a constitutional crisis next year, and it was about all I could do to keep from coming unglued during during that conversation, because I don't know how much more clearer I could be about
it. Explain the crisis to us, or for folks who haven't followed this. Why is this a crisis?
So the crisis comes from the fact that over the course of the last 30 years, we have significantly and consistently underfunded our public defense resources throughout the state. And at the same time that that has been happening, there has been no check on the number of cases or the prosecutor. Discretion in charging felony cases in Kansas. And so what's happened? I mean, it's it's not rocket science. What's happened is, the number of cases that are being charged by prosecutors has far outpaced the legal system's ability to be able to sufficiently sustain those cases. And as a result of that, the quality of representation, the expectation of what it requires to be able to sufficiently represent these cases, has deteriorated. It has turned into a system where we tend to triage cases instead of actually representing people. And I want to be very clear about this. There is no separate ethical standard for representation. Just because you have a criminal case or you're part of a public defender or a assigned counsel program, appointment system, those ethical rules apply, and there are certain standards that you have to meet in order to constitutionally provide effective assistance of counsel and not commit malpractice. And constitutional
right to this right as a defendant, you're entitled to a vigorous defense and a speedy trial,
yes, yeah, under the sixth amendment. I mean, that's like back from 1963 and Gideon versus Rain, right? This has been not just a clear constitutional requirement, but a requirement that is on the states to be able to provide resources for through the 14th Amendment. And so this is is we have not done a good job of keeping up with it. At the same time, we also are dealing with the fact that we have an aging population of attorneys that are now retiring or passing away or removing themselves from practice, and we are not replacing those attorneys across the board, not just in criminal defense, but particularly with criminal defense, not replacing them in the same amount as they are leaving practice. And so we are already dealing with too many cases, and we're seeing an even greater shortage of attorneys that are coming down the pipeline. Lawmakers
know this is a crisis they've known for years. This is a crisis. They know that they have contributed to it and that they can do something about it and that they're not doing it. Why don't they care?
I think part of it is that there are other priorities that are set by leadership and and when leadership in the legislature, you know, sets a priority. I mean, I think it's expected that, you know, you know, you try to follow those party lines. And this has not been set as a priority by leadership. Why isn't this a priority? Um, I think it's a combination of factors. I mean, I think we got to acknowledge the fact that our clients are not the most popular people, and it is not usually a popular topic to add money into criminal defense. Now I will counter that by saying that the vast majority of our clients are presumed innocent, and that's an important thing to remember when we're talking about public defense. These are people who have not been convicted of a crime, and they were given the presumption of innocence for the most part. I for the most part. And so the it's important that we provide them those constitutional protections. The other part of it is that it is a significant problem, and it is a significant cost. And I think what we have tried to do over the course of the last five years is we've tried to set out, like some interim steps that you could take to make that cost more viable, to make that cost more reasonable over the course of a series of years. Because this is not something that we can probably solve overnight or with some kind of huge influx of, you know, cash or or positions, even if the legislature suddenly decided to give them to us, I mean, it's going to take time to fix
you'd have to go find attorneys who are willing to do this and take that job and move to right flung places of the state.
Yeah, and, and we've been doing a huge effort at our recruiting, and we've been very successful. We've been bringing in attorneys from Michigan, Arkansas, Oklahoma, Missouri. I mean, like we've, we've really done a good job, yeah, and they and we've been doing an amazing job of recruiting people into Kansas to come and do this work. I mean, I think there are a lot of people out there who this type of work, even with the low pay and and resourcing issues, and all of that are really believe in the importance of this work, and want to come do this work, but we have to have the positions to be able to hire them, and we have to be able to have the funding to be able to compete with the Prosecutors Offices and have pay period of the prosecutors so that people don't leave after they've been with us for a couple of years. And so those are all things that we've tried to set out as solutions to this problem. And it's not going to solve it overnight, but it's going to take consistent investment over a series of years to be able to solve this issue. And for a few years, I think they were willing to put some money into it, but for the last couple of years, they have not.
The situation is so bad, it's. Now the subject of an academic study that was released earlier this year. Can you talk about that? Who did the study? What did they
find? Yes. So the dus center for criminal justice reform at the Dedman School of Law at Southern Methodist University in Texas recently released a report where they looked at this shortage of attorneys across Kansas specifically to criminal defense. The this was sort of partially related to our rural justice initiative that was put into place by the Kansas Supreme Court. So there's this larger conversation happening, obviously, about shortages of attorneys across Kansas in all areas of practice, but because criminal defense is a uniquely constitutional requirement, and the shortages are even that much more acute for people who are willing to do that kind of practice, and especially who are qualified to handle high level cases in this area. The decent center report really focused on that issue in particular. And you know what they found was that the crisis, as bad as it is right now, is going to get significantly worse as we have more of those individuals out in the rural areas who are starting to leave practices are aging out. The Age of our average age of our attorneys in Kansas, and specifically who are doing criminal practice is, you know, within that retirement age already. And so it's, it's really problematic that there's as many areas that don't have criminal defense attorney coverage as possible. One of the other things they looked at is that we have a very few number of attorneys who are willing to travel. I mean, we have basically about 10 attorneys who are willing to do significant travel across the state to handle cases. And that is a very scary realization that our constitutionality of our system is literally on the backs of about 10 people right now across the state. And so their recommendations ultimately are that we need to continue to invest in the public defense system. We need to continue to put in public defenders offices. Specifically, one of the one of the difficulties that we have is that we can't force people to go into private practice and hang up a shingle in in an area where there's no attorneys. I mean, like we don't have any ability to force people to do that. What we can do is open public defenders offices and and have, you know, assign the funding and the staffing and the positions to those offices, and then hire and recruit for those positions throughout the state. And so one of their big recommendations was basically to continue to invest in the public defender system and public defenders offices in order to meet those needs going forward, but that's going to continue to require additional investments that we are hoping that, you know, obviously, in these next few budget cycles that the legislature will take seriously,
I've written about cases in some of the parts of the state, rural parts of the state, where it's like there are prosecutors in neighboring counties who act as the defense attorney for each other. And it just, you know, it seems like there's some inherent conflict
there, yeah. And that has been determined to not technically be a conflict, although it is concerning from the perspective of, like, I mean, I also have concerns about that.
Show me with each other, it's a very odd situation,
well. And just, I mean, it's, it's difficult to not end up with actual conflicts with clients who you know, because nobody county one, yeah, most people don't just stay in one county. So, um, so yeah, I have concerns about that, for sure. I I'm concerned that part of the reason why that's been determined to not be a technical conflict is because the reality is that if you said it was, then you don't, yeah, which that's not, I mean, that's not how we should make ethical terminations. But yeah, one of
the things that this report looked at is this kind of cycle where you have these enormous case loads, you get burned out, and you quit as a public defender, and that means the rest of the public defenders have even larger case loads, which means they get more burned out, and so they quit, and so it just keeps cycling through that way. The numbers that I took down here as I was making notes earlier, they said, on average, in Kansas, public defenders had 170 cases and were able to contribute about 12 hours to each case.
Yes, which is insufficient, and that's just an sheer average. I mean, one of the things that I always get asked about when we talk about those kind of numbers at the legislature is that the actual number of hours are dedicated on any specific case is obviously dependent on the specific case. That's just an average for the number of cases that we have and the number of attorneys that we have that are active at any given time the but that number is very concerning. And the reason why it's very concerning is because in December or Well, September of 2023 the national workload study from the American Bar Association and the RAND Corporation and the National Center for state courts came out that did. Gave a list of the like, average amount of hours that is required to be able to do all of the things that you have to do in a case in order to provide minimally competent, you know, minimally competent counsel representation on these cases, and even for low level felonies, that's 33 hours per case per attorney that is supposed to be spent on those cases. When you're talking about things like first degree murder cases and things like that, you're talking closer to like in the 240 hour range. So 12 hours is absolutely a crisis, and that's one of the reasons why we have repeatedly gone over and asked for additional staffing from the legislature, is because the truth of the matter is, is we've got too many cases coming in to these you know, to these jurisdictions are being charged, and we don't have the number of staff that we need to be able to support those caseloads. What happens if we do not have an attorney to stand up on every single one of those cases? And by an attorney, I don't mean a warm body with a law license, I mean an actually competent attorney who has the time and the ability to do the work that needs to be done. If we don't have that in every single one of those cases, then cases get dismissed. That is what is happening right now. In Washington, that's what's happened previously. In other states that have had this issue come up the when does that happen? In Kansas, it is not a question of if it will happen. It is a question of when and where. And I can tell you, we are on the verge of that every single day. In every jurisdiction the you know, right now we have delays in appointment of counsel as we're trying to match attorneys with cases, and we have been able to hold things together sufficiently so far that there hasn't been any specific lawsuits yet on any of these issues. But that is why, when I talk about that, we are in a crisis right now. I mean, it, this is how bad it is
hard to see why you would want to leave such a wonderful job.
Well, I mean, I do, I do feel like we have made significant amount of progress on being able to sustain these issues. I mean, frankly, we were at this point, when I walked in the door as well. I mean, six years ago. So the fact that we have been able to support our Public Defender's offices, control their caseloads, continue to support our assigned counsel program, help our judges make the connections that they need, because they don't have the resources with their own panels to be able to cover all of these cases is a testament to our pluckiness and resilience. But it's not necessarily. It is not a sustainable long term solution. What the sustainable long term solution requires is additional investment and positions and ongoing pay. You know, issues in our public fed system,
we are running out of time here, so I think we can leave it on that somewhat positive note. Heather Cessna, thank you for being here talking about this. Good luck in your position at Washburn. Thank you. Applause.
