After serving with the Department of Public Advocacy for more than 30 years, Public Advocate Ernie Lewis will retire on Sept. 1. He discussed his accomplishments and concerns about the future of public advocacy in Kentucky with Staff Writer Paul Glasser.

Why did you decide to retire and how do you feel about leaving?

I decided to retire for several reasons. The primary reason is that I finish my third term on Aug. 11 and feel like I have achieved most of my primary goals as public advocate during these three terms.

What were your goals?

When I became public advocate, the three goals that I set for myself and the agency was number one, to complete the full-time system at the trial level; number two, to raise salaries for public defenders; and number three, try to reduce caseloads for public defenders. The number one goal, that of completing the full-time system, we completed that in 2005, with the opening of the 30th public defenders office. When I became public advocate in 1996, we only had 47 counties that were covered by a full-time office, the rest of the counties were covered by part-time lawyers on contract with the department so we had to convert 73 counties between '96 and 2005 and we were able to do that. Today we have 30 full-time offices covering all 120 counties in the commonwealth.

On the second goal, salaries for public defenders, in '96 we were able to set $23,000 and today they're over $38,000. I'm only partially satisfied with that. I think our Kentucky public defenders are woefully underpaid. Even compared to other state attorneys, they're underpaid. I believe the entry-level in the Attorney General's Office for example is $45,000 and public defenders is $38,700. More significantly, the directing attorneys of our trial offices are approximately $50,000 to $55,000 and they do a comparable job to that of commonwealth's attorneys who earn over $100,000. I'm very, very concerned about the inequity between commonwealth's and county attorneys and the directing attorneys of our trial offices.

On the third goal, that of trying to decrease caseloads. Back at the time I became public advocate, many of our offices had caseloads over 600 new cases per lawyer, per year. That's another partially met goal; we've been able to get those caseloads down and to 400 but due to the actions of the 2008 General Assembly I can't really say that goal is now met. Caseloads " unless we did something " would skyrocket again during 2009 and I'm not going to let that happen.

How do you feel about leaving?

I have mixed feelings of course. First, I have a profound sense of accomplishment. I feel good about the time I've spent in public service. I feel like I've been a part of a group of people who have advanced justice in a really significant way over the last 30 years. On a personal level I feel like it's time for both me and the organization to move into other areas of interest. One other feeling that I have right now is I'm very disappointed that the 2008 General Assembly failed to fund fully the needs for indigent defense in Kentucky. I feel like the organization needs my leadership during what promises to be a very difficult time of service reductions and so I hate to leave when that battle is about to begin.

What do you plan on doing after you leave, what are your future plans?

My future plans are, after an initial period of rest, my new wife and I are going to plan on taking a trip, probably to Greece. After that I want to be involved in indigent defense reform in both Kentucky and other states. I want to stay involved in the public policy arena by acting as a consultant in other states in indigent defense issues. I want to remain involved in criminal justice issues in Kentucky and because I've devoted my life to justice for poor people, I want to continue to represent poor people charged with crimes most likely as a conflict lawyer at some point in the future. Under executive branch ethics I'll need not to represent anybody for about six months, but after the six-month period of time passes, I'd like to take a limited number of criminal cases for our local trial offices.

Are you concerned about the future budget situation? How many jobs could be cut? What will the local impact be?

I am, I think I used the word profoundly disappointed, and that really captures what I think, profoundly disappointed that the 2008 General Assembly failed to fund indigent defense adequately. I also share that opinion regarding human services and education and I really do use the term "failure' deliberately. I think that the General Assembly was well educated on the needs of its public defenders, criminal justice, human services. They had alternatives provided to them by the governor and they simply failed to rise to the occasion and place the icon of low taxes above the needs of real people with real problems. I'm not a native Kentuckian but I came here in 1976. I love Kentucky. I chose this as my home; I chose this as the place to raise my family and I really fear for Kentucky's future as I've watched year after year after year of the failure to meet human needs here and public defense is one of those needs.

We're still trying to analyze the extent to which our budget is going to result in fewer staff. We estimate right now anywhere between 54 and 70 people that we will not be able to employ and 60 percent of those are going to be trial lawyers In fact, I'm in the process of writing trial judges right now informing them of reductions in services that we're going to undertake. We simply have not been funded for all the cases the judges appoint us to and for the first time since I've been public advocate we're going to tell judges we cannot represent people in court. When you ask about local impact, what we're doing is we're analyzing every single trial office and where vacancies are and then tailoring service reductions to those vacancy levels. There are going to be some offices where there are no vacancies and the service reductions are going to be minimal. There are other offices with one, two, three, four vacancies that we will not be able to fill where attorney caseloads are excessive and when I say excessive I mean unethical, and there we simply won't be able to continue to provide services in all cases.

In addition, we're not going to have any money for conflict of interest cases. Conflict of interest typically arises when you have co-defendants and the local DPA represents one defendant but it can't represent the other and so in approximately 3,000 to 5,000 cases, most of them felons, we have been contracting with private lawyers to provide conflict counsel. What we are telling trial judges is we're going to continue to give them the names of lawyers but we will not be able to provide any funding for those lawyers. It's too soon to announce the extent to which the Frankfort trial office, for example, will be affected because we're analyzing where there are vacancies and what the caseloads in those offices are and how many cases are going to be cut.
We're also going to be getting out of involuntary commitment cases. Those are cases where people, because of their mental illness, are a danger to themselves or others. If the state wants to commit them to a mental hospital for 360 days, we're going to be pulling out of those cases and alternative counsel will have to be found and funded by somebody.

Expanding on that a little bit I guess you're concerned about the quality of service provided to clients. How could it be impacted and if so, to what degree?
One thing that we're doing is we're saying we are going to have ethical caseloads. The American Bar Association in recent years has become increasingly concerned about attorneys, specifically public defenders with excessive caseloads, and we have been warned as public defender chiefs that a public defender can be disciplined and even disbarred for carrying too many cases and my supervisors and I can be disbarred for assigning too many cases to my lawyers. Their workloads have to be controlled so that they can provide competent services. We are going to pull out of enough cases so that my attorneys are going to have ethical caseloads. So in some ways I'm not concerned about the quality of services in the cases we're going to be handling because we're going to get to a level where our attorneys are going to be able to handle the cases in an ethical manner. I am concerned about the thousands of people who have a constitutional right to counsel who will not be provided counsel after July 1.

The Commonwealth of Kentucky will simply have to develop another method for meeting the constitutional obligation to provide counsel to people charged with crimes. One of the things that a lot of people don't understand is that there are a lot of things in government that are good to do and people want them funded, for example, good roads. People want roads to be paved and to be able to drive safely on them but people don't have a constitutional right to a good road. They do have a constitutional right to an attorney provided by the state if they can't afford an attorney and that's the failure of this General Assembly is that they failed to fund a constitutional obligation. The General Assembly routinely provides funding to imprison people. There's no constitutional obligation to build prisons. The state chooses the penal laws that it passes and then it chooses a term of imprisonment or jail. The state chooses to do that and then routinely funds jail cells and prison cells, prison beds, law enforcement. What the commonwealth needs to begin to do is recognize that if it's going to do that it also has to fund enough public defense to provide due process and the right to counsel for those people that are tied up in that system.

What motivated you to join the Department of Public Advocacy. And over your 30 years you've been here, has your patience ever wavered?

What motivated me was I was a child of the "60s and after I graduated from college, I looked around for where I could be of service. I was inspired like many of us were by President Kennedy's words that called us to public service. I went into VISTA for that reason. I considered the Peace Corps but went into VISTA instead. While I was there, I saw a VISTA lawyer. This was prior to the Legal Services Corporation. I saw a lawyer in VISTA representing a poor person and decided at that point that that's how I wanted to be in public service. As soon as I graduated from law school in 1977, I joined the Department of Public Advocacy then and that was the only reason I went to law school was to become a poor person's lawyer. I have always wanted to provide the same level of service to poor people that a person of means could purchase. I think that there are places in Kentucky, there are places in this country where a poor person gets an absolutely different quality of justice than a person of middle class or a wealthy person and I think that's wrong. The whole reason I went into public defense was to try to counter that, change that.

Have you ever felt like giving up, being discouraged?

I'm discouraged often and probably never more discouraged than I was during the free conference committee hearings this last session with the budget. On the other hand, Dr. King has a quote that often inspires me and that's that the arc of the moral universe is long leaning toward justice and I understand that reform, increase in counsel, increase in justice is going to take a long time, but ultimately I believe we're going to have a more just society and that's what continues to inspire me. That's why I continue to do the work even though I would get disappointed. The injustices abound. When you are close to the criminal justice system you see a number of people we incarcerate. You see the manner in which victims are treated; you see people with drug addictions imprisoned for long periods of time; you see the effect of race on our criminal justice system and you do get discouraged, and that's when you redouble your efforts rather than giving up.