Editorial: Daunting fix to fund right to public defenders

By The Herald Editorial Board

An opinion now awaited from the Washington state Supreme Court could be among its most consequential, comparable in scope to others in recent memory, including its decision in the McCleary lawsuit regarding the state’s provision of ample funding for public education, and the more recent Blake decision that forced lawmakers into a years-long push-and-pull over penalties for drug possession.

This time, however, the opinion doesn’t directly involve a lawsuit. Instead, a decision would follow complaints over several years regarding the caseload burden of public defenders — lawyers paid by the public to represent defendants who can’t afford an attorney, a 6th Amendment right affirmed in a 1963 U.S. Supreme Court decision — as well as a recent report and recommendations that call for a significant reduction in caseloads for those providing indigent defense in counties’ and cities’ court systems.

And like McCleary and Blake, providing that right to legal representation will likely come down to issues of financial resources and who pays the tab.

In recent years, public defenders have warned of a building crisis among overworked and understaffed public defense offices that has burned out those attorneys, forcing some from the work, discouraging potential hires, and causing delays that have left defendants — disproportionately low-income and/or from BIPOC communities — in jail awaiting trials for weeks, or even resulting in the dismissal of charges, denying justice to victims.

Public defenders’ caseloads have faced scrutiny throughout the profession’s 60-year history. The state Supreme Court in 2012 set a standard for public defense attorneys of no more than 150 felony cases or 300 misdemeanor cases in a year.

But even in the last 12 years, the job’s complexity has increased, wrote Jason Schwarz, director of the Snohomish County Office of Public Defense, in a commentary in The Herald last year:

“The standards were drafted when public defenders didn’t have to view hours of body camera footage, review years-worth of data from witness’ cell phones or respond to complex forensic and toxicology reports. Increases in homelessness, decline in timely mental health services, and changes in the law have added complexity and increased pressure to the work,” he and co-author state Rep. Tarra Simmons, D-Bremerton, wrote.

Last year, the American Bar Association, the National Center for State Courts and the RAND Justice Policy Program released a national workload study that called for drastically reduced caseloads, setting a new maximum of 47 felony cases or 120 misdemeanor cases annually, about a 60 percent reduction, the Washington State Standard reported in July.

Since then the Washington State Bar has released its own report with proposed standards for indigent defense that seek to implement similar reductions in three phases between now and 2027, assigning credits to different levels of felonies and misdemeanors.

As part of its review, the state Supreme Court has held two public hearings, with the second on Thursday at the Temple of Justice in Olympia, taking testimony from public defenders, prosecutors, judges, public officials and others in the criminal justice system, many of them from Snohomish County and local municipal officers of the court.

Schwarz, opening up testimony Thursday, defended the proposed standards and argued against earlier criticisms that the standards were too broad and needed adjustments for different jurisdictions.

“Standards aren’t standards if they don’t apply equally,” he said. Different standards in different counties, he warned, would prompt an exodus from jurisdictions with higher caseloads and poor representation for defendants in those jurisdictions.

Representatives of local governments, however, including Lynnwood Mayor Christine Frizzell, warned that such a reduction in workload would amount to an unfunded mandate on county and city governments, which provide the bulk of the financial support for all aspects of the court systems. The new standard, some said, could require court systems to triple the size of public defender staffs; that is if enough attorneys were available to be hired.

David Hall, Everett city attorney, addressing the standards for misdemeanors in municipal courts, noted that the scope of any crisis in providing indigent defense does vary across the state, noting the city’s municipal court system has been able to meet demand for those services and hasn’t been asked by its public defenders to fund more attorneys, though it has hired additional support staff, including an overseer.

What the change in case-load standards would do, Hall said, is force the city to divert funding from other programs, including social services, its work to shelter homeless individuals and address addiction and behavioral health.

Snohomish County Executive Dave Somers echoed those concerns.

The proposed changes, Somers said, “would literally financially cripple our county and strain an already strapped criminal justice system.”

About 75 percent of the county’s budget goes to law enforcement and justice services, he said. Meeting the new standards would force significant shifts elsewhere in what it spends on public safety and courts.

“We would require funding from the state to cover the entire cost of implementing the standards,” he said.

Legislation was introduced this year that would have increased state funding to cities and counties, with the state providing half of the costs of indigent defense by 2028. But that legislation did not advance out of committee.

Even when the issue was placed before the state’s Superior Court Judges Association, its jurists, while acknowledging the crisis, could not reach a unanimous recommendation on the standards for felony cases, said Kristin Ferrera, the association’s president. It’s only advice, she said, was to move forward with the first phase of the recommendations, with further study before implementing the following phases.

In a nod to the complexity of the issue, Supreme Court Chief Justice Steven Gonzalez said the court would meet on Dec. 4 to continue discussions, but said it may not take action at that time.

State lawmakers, when they convene in January, won’t see state coffers as anywhere near flush as they consider funding. Gov. Jay Inslee announced that the state faces a budget deficit of $10 billion to $12 billion as it faces a budget session and has asked state agencies to begin paring spending.

At the same time, there is no shortage in spending priorities that lawmakers must meet, including funding for K-12 education that McCleary was supposed to have resolved.

But a fundamental constitutional right can’t be ignored, and can’t be left to local governments to shoulder alone, especially when state law has limited their property tax revenue to increases of only 1 percent each year.

Justice unfunded is justice delayed; and denied.