Bar in Brief > Not Enough Attorneys; Not Enough Justice

COLUMN > A Note From the WSBA Executive Director

BY TERRA NEVITT

Recently, the WSBA Board of Governors approved new caseload standards for public defenders despite significant objections from many local government leaders and prosecutors. Most of the pushback related to valid practical concerns: Implementing the new standards would cost too much and, even if funding were not an issue, there simply aren’t enough lawyers going into public defense to do the work.

These critics are right.

To be clear, the debate is not whether there is a crisis in public defense. The Seattle Times, KUOW, Crosscut, and many other local publications¹ have sounded the alarm. Larry Jefferson, Director of the Office of Public Defense, wrote a memo last November asking the Washington Supreme Court for a 90-day moratorium on the assignment or appointment of new felony out-of-custody clients to public defenders to provide some relief to the severely strained system. We spotlighted some boots-on-the-ground experiences of public defenders across the state in the June issue of this magazine.

The heart of the debate, then, is about the impact on a crisis that has been decades in the making: Do the new standards add fuel to the metaphorical fire or are they a meaningful step toward systemic change? In my view, they are definitely the latter, with an emphasis on the idea that they are a step—a catalyst or a movement—that will lead nowhere without much, much more additional work. To truly solve the crisis, it is going to take the will, partnership, and action of all the players in our complex criminal legal system.

For some context, the history and authority of the WSBA’s Standards for Indigent Defense are based on one fundamental, overriding objective: to provide specificity about minimum requirements to ensure Washingtonians’ constitutional right to effective assistance of counsel. By statute,² the Bar has the responsibility of providing these guidelines to be used by local governments in adopting their own standards for public defense services. The Bar published its first set of standards in 1984 with updates in 1990 and 2021. This work is carried out by the WSBA’s Council on Public Defense, a standing body that comprises a broad range of people who are involved in the delivery of public defense services across Washington.

This group of public defenders, private defenders, judges, prosecutors, civil legal aid providers, and academics devoted the past two years to a singular question: What does it mean to provide adequate, constitutionally guaranteed public-defense service in our modern world? The standards had not been significantly updated in more than 50 years, and the Council on Public Defense spent literally hundreds of hours studying data, speaking to stakeholders across the state, analyzing a landmark national public-defender study,³and ultimately, at the behest of the Washington Supreme Court, compiling all that research into a recommendation for the new standards.

Which brings us back to the debate about impact. The new standards do what they are meant to do: They provide important information about what is reasonable to expect from public defenders, and they serve as a baseline to uphold the integrity of our criminal legal system. They do not solve the crisis. They set a target and define what success looks like. They are a catalyst for conversations that need to happen between all parts of the system, because calling out a crisis in one area should not be seen as a zero-sum game. We are all in the business of justice.

And now the work begins—the hard work of identifying funds and funding priorities, addressing the barriers presented by the way we fund the legal system in our state, and addressing a lack of legal professionals to do the work. The WSBA is ready to support all these efforts but perhaps is best positioned to help address this last significant challenge.

The shortage of legal professionals does not only impact public defense. It impacts prosecutors’ offices as well. It has long impacted civil legal aid. It’s a problem in small towns and rural areas.⁴ (To be sure, we are often told it’s a problem in urban areas too!) The WSBA is actively working on these issues—it’s one of our strategic goals. Our Small Town and Rural (STAR) Committee⁵ is driving this work to support rural practices and access to justice in small towns and rural parts of the state. In addition to exploring paid rural internships and loan forgiveness, holding CLEs for rural practitioners, and putting on robust rural job fairs, the STAR Committee is bringing together practitioners to brainstorm and look for solutions like never before.

At the WSBA Small Town and Rural Practice (STAR) Inaugural Summit convened in Spokane in June, the new public defense standards were a topic of conversation and stakeholders talked frankly about implementation challenges. The tone of the entire summit was not about whether there is a crisis in the availability of legal services in many places but rather what to do to make a meaningful difference, with an eye toward practical and real challenges.

The funding side of the legal system,⁶ the licensing side of the legal system,⁷ and the efficacy side of the legal system⁸—these, too, are areas where the WSBA has been working to convene the legal community to make needed changes. Because in the end, there are simply not enough attorneys and not enough justice in Washington state. The solution is not lowering standards to meet the justice system where it is now. The solution is working together to move the system forward to where we know it needs to be—toward standards where we can deliver on the promise of justice for all.

About the author

Terra Nevitt is the WSBA Executive Director and she can be reached at 206-727-8282 or:

terran@wsba.org

NOTES

1. See www.seattletimes.com/seattle-news/politics/was-public-defender-system-is-breaking-down-communities-reeling/; www.kuow.org/stories/public-defender-shortage-slows-the-wheels-of-justice-in-washington-state-courts; https://crosscut.com/politics/2024/02/washington-public-defenders-say-strained-system-needs-funding; www.yakimaherald.com/news/local/crime_and_courts/two-month-wait-for-public-defenders-as-yakima-county-attorney-shortage-grows-worse/article_ea9c6860-f2b3-11ee-af01-4364995330f9.html; https://salish-current.org/2024/01/24/verge-of-collapse-washington-public-defenders-swamped-by-cases/, etc.

2. RCW 10.101.030.

3. This is a watershed study, the culmination of comprehensive review and analysis that provided, for the first time, a national workload study based on empirical data and the consensus of indigent defense experts practicing in the modern criminal defense system. www.rand.org/pubs/research_reports/RRA2559-1.html.

4. https://wabarnews.org/2021/11/01/the-bar-in-brief-a-deeper-look-at-our-states-legal-deserts/.

5. www.wsba.org/connect-serve/committees-boards-other-groups/small-town-and-rural-committee.

6. https://tvw.org/video/senate-law-justice-2024051134/?eventID=2024051134.

7. www.wsba.org/for-legal-professionals/join-the-legal-profession-in-wa/lawyers/pathways.

8. https://wabarnews.org/2021/07/01/bar-in-brief-the-golden-rule-of-rule-making-your-input-is-welcome-and-important/.