Update: WA public defense crisis ‘fix’ will bankrupt counties, say Franklin officials

The public defense system for criminal suspects is in trouble, and the Washington State Bar Association believes it has a solution.

But Franklin County officials say the proposed fix will bankrupt them and other small counties.

At the center of the dispute is a proposal in approved by the Washington State Bar Association’s Board of Governors on Friday.

After three hours of discussion, a majority of the members said the change was needed to help defense attorneys who are overwhelmed by caseloads. They believe the change will push state legislators to act.

The proposal is tied to a state Constitution guarantee that any criminal defendant who can’t afford an attorney will be appointed one. As part of that guarantee, the state law caps the number of cases public defenders can take on.

In an attempt to make the job more attractive to attorneys, the association is considering slashing the number of cases public defenders are allowed to take to a third of what they are now.

State law says the counties and municipalities should use the new rules as guidelines. The state Supreme Court still has the choice to also adopt the rules, which would make them part of the court rules.

The bar association’s Council on Public Defense said the cuts in caseloads is the solution the state needs to make it easier to recruit attorneys.

“Repeatedly, we hear from law students that they do not want to enter public defense because of the volume of work with little staff support,” Jason Schwarz, the chair of the association’s council on public defense wrote in a memo to the board. “And we hear from our resigning colleagues that they cannot continue the work given the volume of cases they are expected to handle.”

While state officials say that the changes will attract more attorneys, county officials are afraid the change will strain budgets and lead to more shortages.

Franklin County Administrator Mike Gonzalez said the change will devastate his already financially struggling county. They are already spending $1 million more on public defense compared to 2022.

“This could be what bankrupts smaller counties like ours. The public defense issue feels like a death by a thousand cuts,” Gonzalez said in a statement Thursday. “The system is on the verge of collapse and it feels like the state wants to take things over. At some point, we simply will not be able to pay the bills anymore. It is getting closer to that every day.”

Benton County Commissioner Jerome Delvin also weighed in on the issue in a letter to the bar’s board of governors. He pointed out that the changes would require the county to hire 83 attorneys in 2027.

According to the association, there are only 89 attorneys in the Tri-Cities area able to handle criminal cases, several of whom have retired or are employed elsewhere.

“I believe other similarly situated jurisdictions are doing the same arithmetic and wondering how they are going to be able to attract that amount of legal talent over the next three years,” Delvin said.

Attorney shortages

Public defense across the state has been struggling with attracting and keeping lawyers.

A combination of factors have compounded over the years to create the shortage. Between an increasing number of retirements and fewer law school graduates, the number of available attorneys has declined.

And many recent graduates don’t want to go into lower paying county jobs because their college debts are so high, according to the state Office of Public Defense.

The lack of attorneys has been exacerbated by rules set by the state Supreme Court that limit who can take what cases and how many can be handled at once.

State law limits attorneys to 150 felony cases every year.

The council on public defense is taking aim at that cap, saying it’s far too high to be sustainable and are proposing a series of cuts that would bring that number down to 47 by 2027.

“The current criminal caseload standards are based on 50-year-old national standards,” Schwarz said in his memo. “They put public defenders in an unsustainable position where attorneys simply lack the time and resources necessary to provide constitutionally adequate defense to their clients.”

The recommendation relies on a National Public Defense Workload Study that was published by a coalition of the RAND Corporation, the American Bar Association, the National Center for State Courts and a nationally recognized public defense expert.

Schwarz acknowledged that the change would cost the counties some money, but that the bar association doesn’t have any way to offer funding.

“To alleviate some of the funding pressures, the revised standards provide for a gradual implementation to allow time for agencies to request additional funding and hire staff and for counties and cities to adjust budgets,” the memo said.

Too expensive

Larry Zeigler, manager of Franklin County’s public defense program, told the Tri-City Herald that this change would create new problems for a system that continues to struggle.

He said the proposal would mean nearly quadrupling the number of attorneys from five to 19. In addition, the department would need to hire new investigators and social workers to support those attorneys.

“Where am I supposed to get that money?” he said. “They never bothered to talk to county commissioners.”

He was frustrated that the association never came to Franklin County to talk about the proposal.

This proposal comes on the heels of the department recovering from a shortage of attorneys and a backlog of cases. The county raised the amount it was paying to compete with its neighbors in Benton and Yakima counties.

Benton County also raised its pay to contract attorneys to attract more attorneys, as well.

While the proposal does ease the requirements for being a defense attorney, it’s more likely to set off a bidding war where wealthy counties will snap up the available attorneys and smaller counties simply do not have the resources to compete, Zeigler said.

The solution to these issues needs to come in the form of state funding, Zeigler said.

While Delvin agreed that state board should take the matter seriously, but the board needs to understand there are not enough attorneys in the state to meet this requirement.

“We encourage the board to not adopt these revised standards but rather focus their efforts on ways to attract new attorneys to the state so that we can fulfill our duty to our citizens,” he wrote.

Friday’s meeting

Bar members voted 12 - 1 to make the new rules part of the bar association’s policy after three hours of discussion.

Schwarz started the hearing by presenting the findings of the council of defense. He said the current studies aren’t based in any research of how long defense attorneys spend with their client.

“We can’t address funding or the rollout, until we know what standards we’re implementing,” he said. “Public defense is in crisis right now. If we do nothing, we’re going to remain in crisis.”

The people most directly affected are people in poverty and people of color, supporters of the measure said.

The board members were met with an equally passionate plea from the Director of the Office of Public Defense Larry Jefferson.

He noted public defenders often are faced with 60- to 80-hour work weeks, and don’t have enough time to spend time with their families. And even with that dedication, their clients are often waiting years for a trial.

He said the standards represent the best step forward toward giving defendants a chance at a fair trial.

“This is about people and about making people get the representation that they deserve under the Constitution of the United States!” Jefferson said.

Most of the members of the board, and the speakers from the public supported the measure. Some of them pointed out that it would push the Legislature into taking action to address the problems in the system.

There were people who raised concerns about the new standards.

Eric Johnson with the Washington Association of Counties said the measure will bring the cost of public defense up from $200 million to $600 million statewide.

Right now the state is only funding about $6 million.

He said the proposal is untenable for nearly every county in the state. He called on the association to help them in advocating for more state funding.

The head of Benton County’s Office of Public Defense Charlie Dow also expressed concern. While he said he is one of those overworked public defenders who is carrying cases in two counties, he said there simply aren’t enough attorneys in the region to fill spots that this would create.