April 01, 2009 05:55 pm
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The failure of the 2009 Kentucky General Assembly to approve $4.7 million in additional funding for the state Department of Public Advocacy demands that Gov. Steve Beshear issue an executive order providing the funds. The alternative is the possible release of hundreds of indigent inmates awaiting resolution of their cases because the state is unable to provide legal representation for them.
That obviously would put public safety at risk and is unacceptable. The failure of the recently concluded General Assembly to approve additional funding for public defenders is another example of legislators failing to do their jobs in a timely fashion and putting off too many important issues until the last minute.
For the record, both the House of Representatives and the Senate approved the additional funding, but when they failed to reach agreement on the differences between the two measures, it became one of several projects that died when Speaker Greg Stumbo refused to use the two legislative days set aside to consider vetoes by Beshear (there were none) to finalize any pending legislation. Of course, the General Assembly had plenty of time to approve the funding before then but failed to do so.
Without the additional money, Chief Public Advocate Ed Monahan said the Department of Public Advocacy will run out of money in late April or early May and be forced to close down until the start of a new fiscal year on July 1.
Stumbo says Beshear has the authority to move funds within the budget to provide money for DPA “because it’s a constitutional mandate.”
The governor seems to agree, but he is waiting for the advice of General Counsel Ellen Hessen before issuing any executive order. Hessen said Beshear is “genuinely concerned about the disruption to the criminal justice system that could occur, and he’s charged his staff to be as resourceful as we can be to avoid that.”
It would not be the first time a governor has used an executive order to do what the General Assembly failed to do. When legislators twice went home without approving a budget, both Paul Patton and Ernie Fletcher issued executive orders to prevent state government from shutting down.
We think those executive orders were unconstitutional, and the courts have indicated they agree. Money not approved by the General Assembly should not be spent.
While the legality of an executive order to fund public defenders may be challenged in court, it would at least keep the Department of Public Advocacy operating until the end of the fiscal year on June 30. That’s a better alternative than failing to meet the U.S. Supreme Court’s edict that all those charged with crimes are entitled to legal representation. If they can’t afford an attorney the courts must provide one.
Even with the additional funding, the Department of Public Advocacy is woefully underfunded. According to Teresa Whitaker, Directing Attorney for the Somerset office of the Department of Public Advocacy, public defenders in Kentucky typically handle more than 550 cases at one time.
Providing effective representation for that many clients is impossible, Whitaker admits. But with the department running out of money, there is no chance of the 55 current vacancies for public defenders being filled to ease the case load. Instead, a combination of low pay and higher caseloads is keeping attorneys from being public defenders.
With such heavy caseloads for public defenders, the status quo is unacceptable. But if the Department of Public Advocacy runs out of money and is forced to shutdown, true justice simply will be impossible to achieve in Kentucky — particularly for those who can’t afford an attorney.
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