Public defenders make budget pitch to lawmakers

Listen to this article

The state’s public defenders are asking lawmakers to beef up their support staff, forgoing a chance to ask for more permanent front-line lawyers.

The request contemplates spending about $5.7 million on permanent staffing — entirely to hire a combined 52 paralegals, investigators, legal secretary assistants and dispositional advisors.

It leaves the office’s current total of 563 statewide public defender attorneys unchanged. Those lawyers represent clients in 90% of the state’s felony and delinquency cases, and more than half of all misdemeanor cases.

“We purposely did not ask for attorney staff this time around, just because we didn’t know where the COVID situation was going to go,” said Kevin Kajer, chief administrator for the Board of Public Defense, who spoke to the House Judiciary committee on Feb. 16.

Minnesota has only 75% as many public defender attorneys as are called for by the American Bar Association and Board of State Public Defense Weighted Caseload standards. But the situation is worse for support staff. By the same state and national standards, Kajer said, only 60% of needed support-staff workers are on hand.

“The proposal would be to bring our support staff levels up to the level of where our attorney levels are,” Kajer said. The budget request was approved last fall by the Board of Public Defense, said Kajer, and included in the governor’s proposed budget. The office’s total base, fiscal year 2021 budget is $101 million, Kajer said. Of that, 90% is spent on personnel, Kajer said.

At the time it was hammered together, Kajer told legislators, Minnesota Management and Budget had just projected a $2.4 billion deficit for the rest of this biennium, plus a $4.7 billion shortfall for the 2022-23 biennium, which starts in July.

“There was a need, we thought, to be prudent,” Kajer said. “So this really was a budget maintaining public defense.”

MMB’s November forecast, offered after the public defenders’ budget request was in the pipeline, wiped out any immediate deficit, projecting a $641 million 2021 surplus.

It also reduced the longer-term budget hole to a quarter of its former size — $1.27 billion for the next biennium. An updated state budget forecast was due for release on Feb. 26.

Salary hikes, etc.

In addition to new hires, the board is asking the Legislature for a 1% cost-of-living salary increase for each year of the biennium. That would add $11.04 million to the office’s two-year budget.

It is also asking for money to cover rising insurance expenses, an additional $3 million.

Though there is no money requested for permanent new attorneys, there is a one-time, $2.67 million request to temporarily contract with lawyers, at $60 an hour, to help manage the backlog of felony and gross misdemeanor cases that has swelled throughout the pandemic.

When the defenders’ budget request was assembled, Minnesota’s courts were estimating a backlog of 10,000 pending felony and gross misdemeanor cases. The $2.67 million in one-time money is based on that estimate, said Kajer, adding that it will take an approximately 46,000 hours of lawyer time to catch up.

However, the situation appears even worse than that now. According to data shared Thursday with the state’s Judicial Council, the backlog of pending felony and gross misdemeanor cases, as of Feb. 11, grew by 12,458 cases since March 2020 — a 35% increase since before COVID-19 hit the state.

The public defenders’ final budget request is a 4.5% increase for each year of the biennium for Minnesota’s four public defense corporations, nonprofits in the Twin Cities and on two tribal reservations, which handle criminal and juvenile defense services for mainly minority and indigent defendants. That request totals an additional $74,000 in FY2022 and $152,000 for FY2023.

The board’s overall request is $8.45 million in fiscal year 2022 and just shy of $11.3 million for fiscal year 2023, a total of $19.645 million.

That’s a bargain, as far as Kajer and state Chief Public Defender Bill Ward are concerned. If the state were to fully staff up the public defenders’ office to meet weighted caseload standards, Kajer said, the state would have to spend $28.8 million more than requested to hire 289 workers — including 149 additional public defenders — just for the first full year.

“There are standards and we would love to be able to meet them,” Kajer said. “But we also are realistic in that you all don’t have that kind of money to be able to do that.”

Testimony

The committee heard from several people working with Minnesota’s public defender offices. Several talked of how their ranks have been thinned as qualified people left their high-stress jobs to take easier, better paid jobs with other government agencies.

It is often difficult to replace them, Kajer said, especially in Greater Minnesota. Recently, a full-time attorney position opened in Moorhead, he said. “We had 10 applicants, but only three of them were actually qualified for the position,” he said.

Darcy Sherman, an assistant Hennepin County Public Defender, said that in the past seven years, 75 attorneys have left her office alone. It’s not known where all of them went. But 20 retired and at least 25 left for higher paying jobs, she said.

“I could actually go from doing murders and criminal sex cases to doing misdemeanor prosecution for the city of Minneapolis, make $20,000 more, and I would be done by with work at 5 p.m. every day — and I wouldn’t be in the jail every weekend,” Sherman said.

“This is the root of our retention issue,” she added. “We have an incredibly stressful job and it’s undervalued.”

At the same time, public defenders struggle to deal with a constant flow of new technological demands and a flood of chemically addicted and mentally ill clients, testifiers said. They also must square off against better-staffed prosecutors’ and law enforcement offices with access to more people and better forensics.

“Keeping up with technology has been one of the biggest struggles,” said Jill Nitke, an investigator with the 10th Judicial District public defender’s office.

Take video alone, Nitke said. These days, investigating a simple bar fight might require the public defender’s office to transfer, view, log and store numerous surveillance, police body cam and squad car videos, plus witness statements.

“The [public] attorneys simply don’t have the resources,” said Nitke. “I’m one investigator out of five for our entire district. I’m one person that has to try to navigate all that technology.”

Bethany O’Neill, an assistant Ramsey County public attorney, said the average DWI case involves about 10 videos, while more complicated criminal cases can involve up to 180 videos. “All of which I have to spend my time downloading — and hope that our electronic system can handle it — one at a time,” she said. “And then make sure that I know what’s on each one.”

Nitke, who has been in the profession 34 years, said that for the last 10, she has worked a part-time job to make ends meet, and that’s on top of the 50 hours a weeks she spends at her regular job. “We need to have competitive wages and be paid equitably across the board,” she said.

The House committee made no immediate decisions on the public defender’s request, which also needs to clear the GOP-led Senate before it reaches the governor’s desk.

Nonetheless, committee Chair Jamie Becker-Finn, DFL-Roseville, an assistant Hennepin County attorney in her day job, invited Kajer and Ward to think bigger.

“One thing I am going to ask you for is to get us the actual number of what it would cost to properly serve the people of Minnesota,” she told Kajer.

“I understand that you may feel constrained by current budget situation,” she added. “But our budget is how we express our values. And we certainly could decide as a body to pull on this if we chose to.”

After the meeting, Kajer said that lawmakers know, both from personal meetings and public testimony, that the public defenders’ needs are greater than what’s reflected in their budget request. He seemed to hold out that, if the economic picture shows improvement after Feb. 26, the Legislature might choose to meet more of those needs.

“If the revenue forecast indicates that the budget picture has improved, our hope is that both the House and Senate would consider our needs a high priority,” Kajer said.