Kansas indigent defense board warns proposed cuts would undermine right to counsel

The Kansas State Board of Indigent Defense Services (BIDS) told the Legislative Budget Committee during a budget hearing that proposed reductions for fiscal year 2026 and the potential lapse of reappropriated funds threaten the state's ability to provide constitutionally required legal counsel to indigent felony defendants.

BIDS Executive Director Heather Sussan and legislative fiscal analyst Molly Pratt presented figures showing major shortfalls in staffing and pay parity that, the agency said, have produced statewide shortages of qualified criminal defense attorneys. "Kansas does not currently have enough experienced, qualified, and available criminal defense counsel to meet the volume of cases currently being charged by local prosecutors across the state," Sussan said.

BIDS told the committee that 84% of adult felony cases in Kansas require appointed counsel; in 2024 that required counsel in 26,417 cases. The agency said the 2024 Legislature appropriated about $61.9 million in all funds for BIDS for fiscal 2025 and that the agency requested $69.8 million for fiscal 2025. Pratt said the agency carried forward approximately $7.8 million in unspent state general fund (SGF) monies into fiscal 2025, including roughly $2.3 million earmarked for expert fees and transcription, $2.1 million transferred into the capital defense account, $1.7 million to the assigned counsel account, $600,000 for leases, $300,000 to lower amortized lease costs, and the remainder for IT security projects. The special committee on legislative budget later removed that reappropriation from the fiscal 2025 budget papers.

Why it matters: BIDS said about 87% of its budget is dedicated to either public defender salaries or payments to assigned counsel. The board warned that a proposed 7.5% reduced-resources target for FY2026 or a large lapse of reappropriated funds would force cuts that could make it impossible to meet state and federal constitutional obligations under the Sixth and Fourteenth Amendments. Sussan described likely downstream effects if funding is cut: delays in appointment of counsel, case dismissals for lack of timely counsel, increased litigation over the constitutionality of the system, and a potential mass exodus of attorneys from panels and public defender offices.

Requested changes and governor's recommendations: For FY2026 BIDS requested two enhancements: $6.7 million in SGF for pay-parity adjustments (the agency said this would raise attorney pay by about 28% and non-attorney pay by about 10%), and $4.3 million in SGF plus 29 full-time equivalent positions (FTEs) to reduce ethical caseloads. The agency told the committee that trial-level public defenders currently average about 157 cases each and that, by BIDS' estimate, an attorney in Kansas has approximately 13 hours to spend on each of those cases compared with national workload standards that call for 35 hours for low-level felonies and 248 hours for highest-level felonies. The governor recommended roughly $6.07 million (about a 10% increase) on pay-parity adjustments but did not recommend the 29 FTEs; the executive recommended $4.8 million for assigned counsel funding. Pratt confirmed to the committee that the governor’s package included funding for assigned counsel but did not include the 29 FTEs tied to the ethical-caseload enhancement.

Capital defense and reappropriation risk: BIDS said capital defense litigation accounts for approximately 11% of its budget while representing fewer than 1% of cases (BIDS reported 37 active capital cases and nine people currently under actual sentences of death). Sussan told the committee BIDS budgets roughly $5–$6 million a year for capital defense litigation; she said that eliminating the death penalty (a legislative decision outside BIDS’ authority) would reduce those costs over time but would not eliminate all trial and appellate costs for the underlying violent felonies.

Options if required to cut: Sussan described options the agency would consider if forced to meet a 7.5% reduction: prorating the statutory minimum assigned-counsel rate (she cited testimony about a statutory provision referenced as "20-2457(2)" that the agency said permits rate adjustments), hiring freezes, or temporary furloughs; she warned that lowering the assigned-counsel rate (the statutory minimum is currently set at $120 per hour after a 2024 statutory change) could prompt litigation and lead to a loss of appointed counsel. The agency said a proposed lapse in House Bill 2007 of as much as $7 million would be "catastrophic," whereas the governor proposed lapsing only $1.5 million.

Local impact and recruitment: Sussan and Pratt described persistent shortages in both urban and rural counties. They cited Johnson, Sedgwick, Shawnee, Riley, Leavenworth and many rural counties as facing panel shortages that require hiring attorneys from other regions; they said 53 of 105 counties have 10 or fewer lawyers and a third of Kansas attorneys are over age 60. BIDS estimated it needs about 400 full-time public defenders statewide to meet minimum workload standards; the agency reported it currently has 127 trial-level public defenders and said it also needs roughly 200 full-time private attorneys who would accept BIDS appointments as their primary work.

Committee questions: Committee members asked about vacancy timing and starting salaries. Sussan said BIDS had 31 technical vacancies at the time of the hearing, 18 of which were already filled with hires who had not yet started (many because they were third-year law students who would begin after passing the bar). She said the last of those hires would begin in August or September of the following year. Sussan said starting public defender pay is $62,500, compared with roughly $80,000 in many prosecutor offices and some higher reported starting packages and signing bonuses prosecutors can offer.

What was not decided: The committee did not take a formal vote on any motion during the hearing. The hearing record shows no formal committee action or adopted amendment; BIDS’ enhancements and the proposed lapses remain subject to the legislative appropriations process.

Ending: BIDS asked the committee not to adopt the 7.5% reduced-resources target for FY2026 and urged preservation of reappropriated funds. The agency said sustained multi-year investment would be required to reverse the staffing and pay deficits it described and to avoid the constitutional and operational consequences the agency warned of if funding is reduced.