Cities grapple with new public defense rules
By a 7-2 vote this month, the justices adopted new case limits for public defenders -- lawyers appointed to represent poor defendants. The standards say that beginning in September 2013, public defenders should not handle more than 300 to 400 misdemeanor cases or 150 felony cases a year, limits designed to make sure the lawyers have enough time to devote to their clients and ensure those defendants are getting their constitutional right to an attorney.
The caseloads have been especially high in city courts that handle misdemeanors, with public defenders sometimes taking on 1,000 or more cases annually. Now, city officials busy preparing next year's budgets basically have two options: Provide more money to law firms that represent poor defendants or charge fewer people with crimes.
Sedro-Woolley City Attorney Eron Berg says the guidelines could triple or quadruple the public defense costs there, which now amount to $30,700 for two part-time lawyers.
"The timing is terrible," Berg says. "We're trying to maintain basic staffing. Now to have a rule that sucks all this money out, it's like, go fire a cop or lay off a fireman or close your library, whatever it is. I don't think we have a problem violating defendants' rights here."
Some city attorneys and public defenders share another concern that instead of paying more for public defense, cities will grant contracts to less experienced, cheaper lawyers or those willing to certify that they're meeting the standards even when they're not.
The state Bar Association had previously set similar caseload limits, but they were little enforced. The Supreme Court's adoption gives them new teeth, and requires lawyers who represent indigent clients to certify quarterly that they're meeting the standards.
"My partner and I have 50 years experience doing this type of work, and we frankly think we can handle a lot more cases than the standards indicate," said Tim Goss, whose three-lawyer firm handles public defense work for Tukwila, Burien, Newcastle and Algona. "I'm concerned it's going to drive good attorneys out of public defense."
The high court acknowledged the financial burden the ruling would place on cities and counties but said the move is essential in guaranteeing that everyone has adequate legal representation.
The workloads of public defenders have long been an issue. The cities of Burlington and Mount Vernon are being sued by the American Civil Liberties Union of Washington, which says the two lawyers hired to handle misdemeanor cases took on more than 2,100 cases in 2010 alone, and rarely if ever met with their clients or investigated cases.
U.S. District Judge Robert Lasnik said evidence suggests that the appointment of public defenders in those cities is "little more than a sham."
The cities deny that the plaintiffs' rights were violated and said that even if the public defenders were incompetent or overworked, the cities aren't liable.
Grant County has spent the past seven years making changes to its public defense system, including a reduction in caseloads, under a court settlement with the ACLU and Columbia Legal Services. Since then, the county's felony caseloads per public defender have dropped from about 500 per year to 150.
The Legislature has also stepped in to provide money to cities that made strides toward meeting the bar association standards. Last year, a dozen cities received grants ranging from $2,500 to $150,000.
"If a case is important enough to prosecute, it's important enough to defend, and the Constitution says they have to be defended competently," says Bob Boruchowitz, director of the Defender Initiative at Seattle University Law School. "It's long past time for everybody in the criminal justice system to stop tolerating the unfair treatment of poor people."
Some jurisdictions, including the city of Spokane, have already trimmed their caseloads by one-third by declining to prosecute driving with a suspended license as a crime. Instead, people are enrolled in plans to pay whatever unpaid fines led them to having their license suspended.
In Yakima, City Attorney Jeff Cutter is thinking about changing the way his office files charges. Instead of having police officers charge people with misdemeanors, the officers would send their case files to the city attorney's office, which would then determine which cases should be prosecuted. That would cut the number of cases being filed overall, but could increase the work for his prosecutors.
Jeff Barrar, whose firm represents indigent defendants in the city of Vancouver and Clark County under contracts worth $600,000 and $775,000, respectively, estimated that meeting the new standards will increase his expenses roughly 20 percent, and his office will have to pass that on to the local governments.
"The monkey's on their back to fund enough positions to satisfy this," he said. "I know they're not happy, but they don't have any choice."
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