WA Supreme Court weighs step to solve public defense crisis

By Jerry Cornfield / Washington State Standard

Supporters and opponents of a proposal to slash public defender caseloads in Washington made their closing arguments to the state Supreme Court on Wednesday.

For two hours, justices listened to speakers weigh in on a request to amend the Supreme Court’s standards for indigent defense by trimming the number of cases public defense attorneys handle each year by up to two-thirds.

This was the second and final public hearing on changes first put forth by the Washington State Bar Association. Justices will consider the testimony and trove of public comments submitted in recent weeks before deciding what, if any action to take. They next meet Dec. 4.

“I don’t know if we’ll be taking action or not in that time frame,” Chief Justice Steven Gonzalez said at the close of the hearing. “But you’ll hear more from us as we decide on the process from here.”

There’s a shortage of public defenders in Washington. Supporters contend that large caseloads and low pay are driving people out of public defense and deterring new lawyers from entering the profession. The proposed standards address one part of the equation.

“When we issued standards last time, it helped us retain people. These standards will help us recruit,” said Jason Schwarz, director of the Snohomish County Office of Public Defense and chair of the Washington State Bar Association’s Council on Public Defense.

In counties where the lack of public defenders is most pronounced, those accused of crimes, but unable to afford a lawyer, wait long periods before receiving counsel they are constitutionally guaranteed.

In October, the ACLU filed a class-action lawsuit against Yakima County and other parties on behalf of individuals who had waited weeks before getting an attorney assigned to their case.

“People’s rights should not be violated. There is anxiety. The people are being traumatized by sitting in jail for long times,” said Dominique Davis, founder and chief executive officer of Community Passageways, a Seattle nonprofit focused on felony diversion and prevention.

Prosecutors have been concerned that reducing defenders’ workloads will lead to the filing of fewer cases to ensure no one’s rights to counsel are violated. That will result in less justice for crime victims and could spark an increase in vigilantism by those who feel the system isn’t working for them, they said.

Okanogan County Deputy Prosecuting Attorney Teddy Chow implored the justices to discard the proposal which he called an “unnecessary, short-sighted, unreasonable and corrosive rule.”

And if the public defender ranks grow, cities and counties will need to amp up hiring of staff and prosecutors to keep pace and that will be exorbitantly expensive.

To cover the tab, local government leaders said Wednesday that they will be forced to divert dollars from other important programs.

Ryan Mello, Pierce County Council chair and the county executive-elect, warned imposing the standard will cause “real harm” to criminal justice services and other critical services.

He urged the justices to help lobby lawmakers and the governor for funding to stabilize the public defense system and to adopt a “realistic phased implementation” of the standards.

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 a 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 Washington State Bar Association to weigh in on whether the cap needs adjusting. The association responded in March with the recommendation now under public review for new maximums of 47 felony or 120 misdemeanor cases in a year, depending on the severity. The reduction would be phased in over three years.

Judge Kristin Ferrera of Chelan County, president of the Superior Court Judges Association, said the crisis is real but the timeline for caseload changes is too short and will create hardships in some counties. The association recommends carrying out the first phase of reduction but delaying the later phases to assess if the situation changes.

Justices can accept, reject or modify any or all of the proposals. There is no deadline to act. Any decision will be handled similar to a court case where they confer behind closed doors then issue a decision and explanation.

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