Larry Jefferson went to justices of the Washington State Supreme Court last fall with an unprecedented request for a public defense system he told them is “on the verge of collapse.”
Jefferson, director of the state’s Office of Public Defense, asked them to halt, for 90 days, the assigning of new felony cases to public defenders if the accused was not in custody so they could clear a backlog of clients who were in jail.
And, after three months, he wanted the court to bar any jurisdiction from assigning new clients to public defenders with a caseload exceeding 90 cases in a year.
“It has become quite clear that the public defense system in Washington is under significant strain and in need of decisive action,” he wrote in his Nov. 27 memo.
Too many cases, too few lawyers and too little funding imperil the ability of local governments across Washington to provide timely, equitable and effective counsel to every person unable to afford a lawyer, he wrote.
Jefferson knew he had essentially asked justices to violate the constitutional right to counsel for those not in custody in order to preserve that right for those who were locked up.
But he felt compelled to do so “to save the public defenders we have left.”
“I am trying to prevent people from committing suicide. I am trying to prevent people from getting divorced,” he said in an interview. “I am trying to keep people in public defense. I am trying to give people some hope and to let them know that someone cares about them.”
The court declined his request.
“We are concerned about the issues raised,” state Supreme Court Chief Justice Steven González said in a recent interview.
“What the letter asked us to do either would bring us up to or over the line for what’s within our authority,” he said. “Some of his asks, I think, would have taken us over the line, others were testing the limits of the judicial branch authority we can appropriately exercise.”
Jefferson’s letter highlighted persistent challenges that worsened for public defenders during the pandemic: rising caseloads, growing trial backlogs and increasing departures through retirements and resignations of those seeking higher-paying, less stressful jobs.
In less populated counties, a lack of public defenders means private attorneys, some with little training in criminal defense, are assigned clients, Jefferson said.
“Larry’s letter lays it out pretty clearly that there has been significant and unacceptable delays in appointment of counsel for people accused of crimes,” González said. “The crisis exists fairly broadly across the state but is far more acute in some counties than others and it tends to be acute in rural areas.”
In search of a fix
Republican state Sen. Nikki Torres of Pasco represents communities wrestling with these challenges.
“I am hearing people are not getting the proper representation that they need,” she said. “It is important that they have representation at every step if they cannot afford an attorney.”
She’s introduced legislation to address funding, caseloads and lack of public defenders in rural communities “where we’ve seen a big struggle.”
Senate Bill 5773 would increase state funding to cities and counties with the state covering half the costs of public defense services by 2028. It also directs the Office of Public Defense to recommend ways to reduce caseloads, erase criminal trial backlogs and boost retention of experienced public defenders in high-need counties and cities.
“This needs to pass. I think in Washington, throwing more money at it really will help in some small jurisdictions,” said Jason Schwarz, director of the Snohomish County Office of Public Defense and chair of the Washington State Bar Association Council on Public Defense.
In September, the Washington State Association of Counties sued the state, arguing the public defense system is inadequately funded by the state, denying poor defendants equal access to justice.
Counties contend the state fails to provide them with enough moneyto cover costs or the means to raise what they need on their own. This leaves counties unable “to furnish constitutionally adequate indigent defense services and denies indigent defendants equal access to justice,” according to the suit.
“It is essentially a McCleary for public defense,” Schwarz said, referring to the landmark case in which the state Supreme Court ordered the state to amply fund basic education in public schools. “I think it would be better for the Legislature to act rather than litigate.”
Another Torres offering, Senate Bill 5916, would bring back the Indigent Defense Task Force to evaluate the situation. The Legislature created the panel in 1988 and the report it issued two years later cited a need to reduce caseloads and boost state funding to local governments.
Senate Bill 5780, also sponsored by Torres, would expand the criminal defense training academy in the Office of Public Defense and encourage new public defenders to work in underserved areas and rural parts of the state.
The legislation also would provide money to repay law school loans for those who commit to working as public defenders and prosecutors. A person could get $20,000 a year up to $120,000.
“We really feel heard by Sen. Torres,” Jefferson said this week. “We’re happy. We want to train more people before they ever touch one case.”
‘A Hail Mary’
Jefferson’s approach earned notice among public defenders concerned their challenges aren’t getting enough attention among state decision-makers.
“I think it was a Hail Mary,” Schwarz said. “I don’t think Larry wants to be in the position of trading constitutional rights but doesn’t know what to do.”
The U.S. Constitution guarantees court-appointed counsel for indigent defendants facing criminal prosecutions.
In Washington, the state does pick up the tab for civil commitment actions where people are sent to psychiatric hospitals, cases involving child custody where parents need representation, and 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 get more complex and time-consuming.
For example, the growing use of police-worn body cameras means attorneys spend many more hours watching video evidence. Depending on the nature of evidence, there also may be a need to hire additional experts to testify which can add time and expense.
Counties’ biggest challenge is too few public defenders and, in some instances, none at all, forcing judges to assign clients to private attorneys – even if they’ve little or no training in criminal cases.
Jefferson said there’s been an exodus of experienced public defenders, some retiring and others resigning, citing their inability to provide the quality of counsel demanded by the constitution due to large caseloads they carried.
Counties are struggling to fill openings because fewer individuals exiting law school want to serve as public defenders or prosecutors. Some counties are offering as much as $50,000 signing bonuses to fill prosecutor jobs, local government officials said.
Low pay and high caseload are the top two reasons former public defenders gave for leaving the profession, according to a survey conducted by the Office of Public Defense.
While salaries are a local issue, caseloads are a matter that the state Supreme Court can weigh in on.
Under standards adopted by the court in 2012, a full-time public defense attorney or assigned counsel should have no more than 150 felony cases a year in Washington.
A recent study may lead to the state paring that number.
The American Bar Association, the National Center for State Courts and the RAND Justice Policy Program released the National Public Defense Workload Study last year that concluded a public defender representing clients in the least serious felony cases should handle a maximum of 59 cases annually.
A group of attorneys led by Schwarz are fashioning recommendations to the state Supreme Court on whether the state should alter its standards.
Reducing caseloads to the level in the report would mean every jurisdiction in Washington would need more lawyers – roughly 60% more statewide in Jefferson’s estimate.
“It’s one thing to have standards. It’s another thing to follow them,” Jefferson said on Tuesday. “It costs money.”
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