You’ve seen Law & Order. You’ve heard the Miranda Rights. You know that if someone charged with a crime cannot afford an attorney, all US states have a constitutional obligation to provide one. But, because of the backwards way we fund it, the public defense system in Washington has been destitute for decades.
Complicating things further, last year the Washington State Supreme Court set new caseload standards, stating that public defenders could only take on a fraction of the cases they currently see now, which will make it impossible to cover everything that needs covering with current staffing levels. That creates a new monetary problem and a constitutional crisis.
The situation is so dire that the non-profit that represents all 39 counties in Washington is suing the state for allegedly shirking its constitutional responsibility to fund public defense. If successful, the court could force the state to pay up the way it did with education funding back in 2018. Our state’s harried public defenders could be breathing easier if the Legislature had included public defense funding in its final draft of the millionaire’s tax bill, but that didn’t happen.
A BIT OF A PICKLE, FROM A NUMBERS STANDPOINT
Funding for “indigent defense services,” legal representation for people who can’t afford a lawyer, is a national problem, according to Larry Jefferson, director of the state’s Office of Public Defense.
“No one in the nation has figured it out,” he says, “No one has ever cared about this population of people, except public defenders.”
Look no farther than Oregon. This February, its State Supreme Court announced it would toss 1,400 cases because the state didn’t have enough public defenders to represent people awaiting trial. Out east, Maine ran out of money to pay the private attorneys the state contracted with to help lighten its public defense load and won’t be able to pay them again until July. And both those states fund their public defense system better than we do.
Washington is one of ten states where local governments are overwhelmingly responsible for funding public defense. Here, the state only pays 6 percent, or $11.9 million, of the total cost of public defense. Counties and cities pay the other 94 percent, equal to $230 million, through their own budgets. The only states that contribute less to public defense than Washington are Arizona, Mississippi, and Nebraska.
And, Washington’s 6 percent contribution is a recent upgrade. Until last year, the state was putting in less than 3 percent a year. Before 2007, it coughed up absolutely nothing. And since then, defense costs have risen by more than $120 million.
Counties shoulder most of the budgeting burden for public defense since their jurisdiction prosecutes felonies which are lengthy and expensive. (Cities fund public defense for the misdemeanors they prosecute and get some funding from the state, too).
The lack of funding has already been a problem for Benton County in south central Washington, which, due to a lack of public defenders, dismissed nine felony cases and released three inmates accused of non-violent crimes. Clark County in the southwest corner of the state has dismissed 24 cases for the same reason.
It’s only going to get worse. New caseload standards set by the State Supreme Court reduce the number of cases public defenders can take. Under the State Supreme Court’s new rules, public defenders can only work on 47 felony cases and 120 misdemeanor cases annually—a third of what current caseloads look like. The reduction was mandatory starting this year, but the court is being cool and giving everybody a decade to reach full implementation of those standards. However, public defenders must reduce their caseloads by 10 percent each year.
That’s a good thing for over-worked public defenders and the clients they represent. The system relied on those insane workloads. The amount of cases will stay the same (except in Spokane where new anti-homelessness laws flooded the system as the public defense office implemented new caseload standards), but there will be fewer lawyers to take them on.
“We’re going to need to hire more public defenders in order to service the same number of clients,” says Matt Sanders, director of King County’s Department of Public Defense (DPD).
According to Derek Young, executive director of the Washington State Association of Counties (WSAC), those caseload standards will triple the cost of public defense for counties.
“That’s catastrophic at full implementation,” Young says, “and counties were already struggling.”
Counties get their budget money primarily from property taxes and sales taxes. Property taxes are capped at 1 percent growth per year. As a tradeoff for passing the millionaire’s tax, Democrats in Legislature cut a sales tax hike from last year. Young estimates the losses at around $300 million for counties statewide. Both of those taxes will bring in higher revenue in wealthier areas, so poorer counties will be the least funded. “Our entire justice system … is almost entirely based on the wealth of the local jurisdiction,” Young says.
Relatively speaking, King County, the wealthiest county in the state, is actually doing alright with the public defense crisis.
King County’s Department of Public Defense (DPD) implemented lower caseload standards when the Washington State Bar Association recommended them last July, several months ahead of the State Supreme Court’s ruling. “We marketed that as part of our recruitment campaign,” Sanders says. It worked, and they’ve hired 88 new attorneys—a record number—in the last 18 months.
If the state funds public defense the way it should, then the attorneys will come, Sanders says. “And that is what we need to avoid this crisis.”
Jefferson, with the Office of Public Defense, agrees the new caseload standards “are really helping King County to recruit and to retain” public defenders.
But, DPD isn’t in the clear yet. It’ll still have to cut caseloads year-by-year, driving up costs over the next decade.
And that’s wealthy King County worrying about the future. Smaller, rural counties are already in dire straits.
WHERE, OH WHERE IS OLYMPIA?
This year, the state was close to getting with the program and funding public defense. But, it didn’t materialize.
The Senate draft of the millionaire’s tax carved out $233 million a year for public defense funding for county governments. That disappeared in the House version of the bill, which Gov. Bob Ferguson signed.
According to Rep. Shaun Scott (D-Seattle), public defense lost out on that funding because “there were a number of competing silos of potential public sector spending… between K 12 schools, higher education, child care” it was politically hard for lawmakers to choose public defense over those needs.
“Before the final bill got passed,” Sanders says, legislators “replaced public defense funding with Fair Starts for Kids.” That’s an early childhood education program.
“I think that lawmakers should prioritize constitutional mandates first before discretionary spending, regardless of our views on it.” Sanders, director of DPD, says. He paused. “I know that’s cold. It’s not that I don’t like kids. I love kids. But the crisis is heading right towards us.”
Sanders is a “glass half-full person” and sees the DPD model as the way out of this mess. The legislature will need to do something “so we can change course,” he says. Young is skeptical that will happen.
“It’s clear to us that the Legislature isn’t going to probably do anything unless they’re absolutely forced to,” Young says.
Hence, the lawsuit from the Washington State Association of Counties. It argues that Washington is “violating the fundamental rights to counsel and equal protection guaranteed by both the state and federal constitutions.” The WSAC considers it a McCleary decision for public defense, referring to the 2018’s McCleary decision which found Washington was failing its constitutional duty to fund education and forced the state to do something about it. Albeit, the jury’s still out on if Washington has actually ever been in line with the McCleary decision.
The case is ready to go. Young says they’re hoping for a trial later this year or next. The long timeline for trial is due to funding issues at the Thurston County Superior Court, Young says.
“It’s a little ironic,” he says.
But the crisis is already underway. What’s going on in Oregon should be a “clear warning sign” for us, Sanders says. Those 1,400 case dismissals came from a public defense shortage caused by underfunding, high caseloads, and, as Sanders puts it, waiting too long “to address structural challenges.”
With our weird, limited state funding, the new mandatory State Supreme Court caseload standards, the WSAC lawsuit—we’re in a pressure cooker. Something’s gotta give. There are 10 years until the full implementation of the new caseload standards, counties have time to follow King County’s model and staff up. They just need the funds.
“We still have time to act,” Sanders says.
