Confronting a Crisis

What You Should Know About the State of Public Defense

BY COLIN RIGLEY

Part of the bargain of being a public defender is that you sacrifice pay and prestige in exchange for altruistic benefits—the feeling of providing a necessary, constitutionally protected service for people who need help. Public defenders are notoriously overworked and underpaid, but that bargain was generally good enough.

That’s no longer the case.

“I think it’s a crisis nearing epic proportions here in the state of Washington; I have never seen as many job openings as I’ve seen in defense and prosecution,” Larry Jefferson, director of the Office of Public Defense, explained on the Washington TVW program The Impact.¹1 The Impact, “Could a Public Defender Shortage Lead to Cases Being Dismissed?” TVW, Sept. 6, 2023, https://tvw.org/video/the-impact-could-a-public-defender-shortage-lead-to-cases-being-dismissed-2023091126/?eventID=2023091126. “Right now, it’s certain localities having a crisis, and we’re on the verge of the whole state having a crisis—and I never thought I would say these words. We need more lawyers, we need them now, and we need them faster than ever.”

If it feels like overworked and underpaid public defenders have been ringing the alarm for decades, they have. A 2004 investigation by The Seattle Times,²2 Ken Armstrong and Justin Mayo, “Part 3: Frustrated attorney: ‘You just can’t help people,’” The Seattle Times, April 6, 2004, https://archive.seattletimes.com/archive/?date=20040406&slug=defense06. for example, found that “[s]ince the 1970s, legislative committees and bar groups have decried caseloads so excessive they undermine public defense. Those warnings have resulted in little more than one impotent state law,³3 RCW 10.101.030 [2005 c 157 § 2; 1989 c 409 § 4]. https://apps.leg.wa.gov/rcw/default.aspx?cite=10.101.030. passed 15 years ago, which most counties have simply ignored.”

In the two decades since, the public defense system in Washington and many other states has steadily approached the breaking point. Today, caseloads are more complex and less manageable, the funding is still inadequate, the pay still sucks,⁴4 Debra Cassens Weiss, “What is the starting pay for public defenders? Low salaries discourage applicants,” ABA Journal, Oct. 21, 2021, www.abajournal.com/news/article/what-is-the-starting-pay-for-public-defenders-low-salaries-discourage-applicants. and it’s causing public defenders to leave in droves.

A number of efforts are now underway to try to address these issues and stem the crisis from spreading. In Washington, public defense is undergoing a new study and proposed solutions through policy, legislation, and litigation.

Underlying the latest efforts is a September 2023 National Public Defense Workload Study⁵5 Nicholas M. Pace, Malia N. Brink, Cynthia G. Lee, and Stephen F. Hanlon, “National Public Defense Workload Study,” 2023, www.rand.org/pubs/research_reports/RRA2559-1.html. conducted by the Rand Corporation, the National Center for State Courts, and the American Bar Association. In that study, “researchers conducted a comprehensive review and analysis of 17 state-level public defense workload studies⁶6 The 17 studies were conducted by Colorado, Idaho, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Mexico (two separate studies), New York, North Carolina, Oregon, Rhode Island, Texas, Utah, and Virginia. conducted between 2005 and 2022.” The key findings include:

• The average time needed to represent an individual in an adult criminal case ranged from 286 hours to 13.5 hours, depending on case type.
• High-severity felony cases required the most time, on average: cases with a possible sentence of life without parole, 286 hours; murder cases, 248 hours; sex crimes cases, 167 hours; and other high-severity felony cases, 99 hours.
• The 1973 National Advisory Commission on Criminal Justice Standards and Goals (NAC) standards fail to differentiate among types of felonies, giving equal weight to a burglary, a sexual assault, and a homicide.
• Using the 1973 NAC standards creates a risk of excessive workloads.

The study, in part, concludes that: “The 1973 NAC standards are outdated and should not be applied to determine appropriate public defense workloads in 2023.” Authors of the 2023 study go on to say, “This study will permit public defense providers and jurisdictions across the country to review their caseloads against a more justifiable, data-driven set of standards and should allow them to better avoid overload, as required under the ethics rules.”

Release of the study has spurred waves of government action and renewed conversation about the long-simmering problem. Late last year, the Washington Supreme Court tasked the Council on Public Defense (CPD) to review the study’s findings and send recommendations to the court for new caseload standards. (The Washington Supreme Court tasks the state Bar, through the CPD, to make recommendations regarding public defense caseloads and performance guidelines.⁷7 CrR 3.1, Standards for Indigent Defense, www.courts.wa.gov/court_rules/pdf/CrR/SUP_CrR_03_01_Standards.pdf.)

“There have been underfunded public defenders in the past and overworked public defenders, that is not a new story, but we have not seen defenders leave the workforce before,” Jason Schwarz, director of the Snohomish County Office of Public Defense and CPD chair, told Bar News. “The day-to-day job is so out of line with what the original caseloads were that they need to be realigned.”

It’s not simply that public defenders have more cases now than they did when the 1973 NAC standards were created. The nature of public defense—indeed, the practice of criminal law—itself has changed and the types of cases public defenders now juggle are more complex and more time-consuming.

“When these standards were created not every cop had a body cam,” Schwarz said. Nor were there other evidentiary sources—cellphone cameras, ATM cameras, social media, text messages—that today’s defenders must now incorporate into a solid defense. Such shifts have pushed the workload past the breaking point for many lawyers, leading to widespread attrition, particularly in certain parts of the state. And with each public defender who leaves the profession, their workload is passed on to another, and so on down the line as ranks grow thinner. “Once those cases get distributed, you’re dumping that workload on somebody else, so it’s a domino effect.”

In the worst scenarios, some clients must wait for an attorney to become available and are left to languish in jail, and cases are being thrown out for lack of adequate representation. In fact, in a Nov. 27, 2023, memo, OPD Director Jefferson asked the Washington Supreme Court to impose a 90-day moratorium on the assignment of new felony out-of-custody clients to public defenders and restrict assigning new clients to public defenders whose caseloads are below 60 percent of state limits until new caseload standards are adopted.

“If we can change the caseload standards … then you change the amount of work the lawyer has to do,” Schwarz said. “The problem is getting from here to there without losing more people and recruiting new lawyers.”

Which, of course, requires funding.

Last September, the Washington State Association of Counties (WSAC) joined Pacific, Lincoln, and Yakima Counties in a lawsuit against the state.⁸8 “Washington’s Counties File Suit Against the State of Washington for Unconstitutional Indigent Defense System,” WSAC, Sept. 7, 2023, https://wsac.org/washingtons-counties-file-suit-against-the-state-of-washington/. The lawsuit alleges, “The State has failed to give counties the resources or funding necessary to furnish constitutionally adequate trial court indigent defense services and is, therefore, in violation of Article I, Sections 3 and 221 of the Washington Constitution.” According to the complaint for declaratory and injunctive relief, WSAC and the county plaintiffs allege the state has saddled counties with nearly all the cost of public defense, with the state providing just 3.2 percent of the approximately $174 million total cost in 2021. “Although the State provides counties with limited trial court indigent defense funds for specific purposes, this funding is unreliable and inadequate to provide constitutionally sufficient indigent defense services among all counties.”

Legislatively, a number of bills seek to address other aspects of the public defense crisis. This year, Washington state Sen. Nikki Torres, R-Pasco, introduced SB 5773, which would require the state to cover at least 10 percent of the cost of public defense services in 2024, increasing an additional 10 percent each year to at least 50 percent by 2028.

Another Torres bill, SB 5781, would create a law student rural public defense program in which the OPD would coordinate with law schools to place second-year law students and recent graduates as legal interns with experienced public defenders in underserved rural areas of the state. (The bill was scheduled to go to the Senate Committee on Law & Justice on Jan. 18.)

Even assuming that new caseload standards and additional funding sources stem the depletion of the public defense workforce, there of course need to be new lawyers on which to spend that funding.

“We have to build the tie-ins and infrastructures with students, not just students in law school but going further back to high school and college,” said Christie Hedman, executive director of the Washington Defender Association.

Hedman continued, “The system as a whole, I think, is coming to a place where it has to recognize that the old system was not providing the best representation possible in a significant number of cases in different parts of the state. Although that’s improved greatly, it’s still a huge challenge if you don’t have the people to do the work. … Having public defenders who are in a strong enough position to be able to negotiate and get cases out of the system that shouldn’t be in the system … those lead to not just more-just outcomes, but often they’re more efficient in the long run.”

NOTES

1.    The Impact, “Could a Public Defender Shortage Lead to Cases Being Dismissed?” TVW, Sept. 6, 2023, https://tvw.org/video/the-impact-could-a-public-defender-shortage-lead-to-cases-being-dismissed-2023091126/?eventID=2023091126.

2.    Ken Armstrong and Justin Mayo, “Part 3: Frustrated attorney: ‘You just can’t help people,’” The Seattle Times, April 6, 2004, https://archive.seattletimes.com/archive/?date=20040406&slug=defense06.

3.    RCW 10.101.030 [2005 c 157 § 2; 1989 c 409 § 4]. https://apps.leg.wa.gov/rcw/default.aspx?cite=10.101.030.

4.    Debra Cassens Weiss, “What is the starting pay for public defenders? Low salaries discourage applicants,” ABA Journal, Oct. 21, 2021, www.abajournal.com/news/article/what-is-the-starting-pay-for-public-defenders-low-salaries-discourage-applicants.

5.    Nicholas M. Pace, Malia N. Brink, Cynthia G. Lee, and Stephen F. Hanlon, “National Public Defense Workload Study,” 2023, www.rand.org/pubs/research_reports/RRA2559-1.html.

6.    The 17 studies were conducted by Colorado, Idaho, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Mexico (two separate studies), New York, North Carolina, Oregon, Rhode Island, Texas, Utah, and Virginia.

7.    CrR 3.1, Standards for Indigent Defense, www.courts.wa.gov/court_rules/pdf/CrR/SUP_CrR_03_01_Standards.pdf.

8.    “Washington’s Counties File Suit Against the State of Washington for Unconstitutional Indigent Defense System,” WSAC, Sept. 7, 2023, https://wsac.org/washingtons-counties-file-suit-against-the-state-of-washington/.