Can smaller caseloads help Washington fill its public defender ranks?

By Jerry Cornfield / The Washington State Standard

Too few public defenders and too many cases are stressing the criminal justice system in Washington, with counties struggling to ensure people accused of crimes, but unable to afford a lawyer, receive counsel as they are constitutionally guaranteed.

In less populated counties where finding private attorneys to fill the role can be difficult, cases are getting delayed or dismissed, leaving defendants and victims in the lurch.

Public defenders, prosecutors, judges and local government officials agree on the problem. But they disagree on whether shrinking public defender caseloads is the best immediate solution, as members of a Senate panel heard during a work session last week.

“The crisis is that the accused are going unrepresented, in criminal and in civil cases, throughout the state because of the shortage of public defenders,” Jason Schwarz, director of the Snohomish County Office of Public Defense, told the Senate Law and Justice Committee.

“Without changes in the public defense system, the crisis will get worse, and more people will go unrepresented and their rights violated,” he said. “The victim here in this delay is not public defenders, it’s the defendants and the victims of crime who are subject to delays.”

Recruiting and retaining public defenders is a struggle, especially in rural counties, as experienced barristers retire and newer hires bail for better-paying, less stressful jobs elsewhere, said Larry Jefferson, director of the state’s Office of Public Defense.

“We have justice by geography. Depending on what county you live in determines your access to a public defender,” he said.

A proposal from the Washington State Bar Association to ease pressure on public defenders by reducing caseloads is encountering concerns from prosecutors, judges and lawmakers on potential costs and unintended consequences.

Under standards adopted by the state Supreme Court in 2012, a full-time public defense attorney or assigned counsel should have no more than 150 felony cases per year.

Last year, the American Bar Association, the National Center for State Courts and the RAND Justice Policy Program released the National Public Defense Workload Study that concluded public defenders should handle far fewer.

Washington’s high court asked the state bar association to weigh in on whether the cap needs adjusting. What the association is recommending is new maximums of 47 felony cases or 120 misdemeanor cases in a year, depending on one’s primary area of practice. This reduction would be phased in over three years.

“These standards I don’t believe are obtainable. I don’t think they are going to happen,” said state Sen. Mike Padden, R-Spokane Valley, a former judge. “What I think is going to happen is more cases will be dismissed and that is going to hurt our society as a whole.”

Derek Young, interim executive director for the Washington State Association of Counties, didn’t quibble with the need. He voiced concern about potential legal repercussions if standards are unmet.

“What I hear with these standards is they are not goals. [But] they say must. And what I hear is a ‘cause of action’ when we don’t meet them,” he said. “It won’t be counties only holding the bags when the cause of action comes, it will be the state of Washington as well.”

Schwarz and Jefferson said workload is at the heart of this crisis and new caseload standards seek to address it in a way that will assure defendants receive effective counsel.

“This is the solution. These standards are hard for people to swallow because they are expensive,” Schwarz said. “Without changes, the crisis will get worse.”

Facing a costly reality

The U.S. Constitution and the Washington state Constitution guarantee court-appointed counsel for indigent defendants facing criminal prosecutions.

In Washington, the state picks up the tab for civil commitment actions where people are sent to psychiatric hospitals, representing parents in cases involving child custody and handling appeals of indigent defendants, according to the suit.

Counties are left to cover legal defense costs for poor defendants in criminal prosecutions. It’s eating up larger chunks of local government budgets as cases multiply, and get more complex and time-consuming.

This past year, counties tried unsuccessfully to secure more aid through litigation and legislation.

They sued the state last fall, alleging inadequate state funding leaves counties unable to provide constitutionally adequate defense services for indigent individuals. But a Thurston County Superior Court judge dismissed the lawsuit in March.

Lawmakers did allot $1 million to increase the ranks of public defenders, including encouraging recent law school graduates or law students who are eligible to practice as legal interns to work in rural areas where the lack of counsel is most pronounced.

Adopting new caseload standards will be pricey. More lawyers, and legal staff must be hired. Complying with new standards could double or triple expenses of counties, with a city official telling senators the added cost for the state could average $150 million a year more.

“We are not here to argue against these caseload standards. They were developed by people who know what they are talking about,” Young, with the counties association, said in the committee meeting. “We do need to face reality on what those costs are.”

Sen. Manka Dhingra, D-Redmond, the committee chair, said the workforce issues are real and the challenge for the Legislature is clear.

“It is May. Hopefully this gives everybody enough time to really come together and figure out how we will move forward,” she said.

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