It’s a staple in every crime show: “You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.” But in the real world, idle attorneys cannot be plucked out of central casting. In the real world, public defense is expensive and politically unpopular. So some states get by as cheaply as possible. The state of Washington is one of them.
A Washington State Bar Association panel made up of judges, prosecutors and defense attorneys recently released a review of Washington’s public defense system and found that it often fails low-income clients.
The findings are not new, but they do indicate the utter lack of progress on two longstanding problems:
• Public defenders take on too many cases. Two-thirds of Washington’s counties operate on a contract basis. Some of the contracts call for fixed fees, which means attorneys are paid the same amount regardless of whether a case goes to trial. Such an arrangement encourages attorneys to accept as many clients as possible and to spend little time on their cases. There’s no incentive for high-quality defense work.
The Seattle Times investigated several small counties and found that public defenders take on far more clients than the bar association recommends. Thomas J. Earl, a former Grant County public defender, was recently disbarred for soliciting money from indigent clients. He handled 413 felony cases in 2003. The state bar recommends a maximum of 150 felony cases a year.
The state bar recommended barring such contracts in 1973, but many counties say it’s the only way they can afford to provide legal counsel for indigent defendants. The bar panel report says that up to 90 percent of felony defendants qualify for public defense.
• The state doesn’t pay its fair share. In most states, the cost of public defense is split 50-50 between the state and counties. Washington state kicks in only 5 percent of the costs, leaving counties with small tax bases to fend for themselves. Under pressure to keep budgets small, many counties turn to fixed-fee contracts.
But even counties without such contracts have shortchanged public defense. Spokane County is relatively progressive on financing public defense, but it still doesn’t provide enough money. The state bar says public defenders should not handle more than 300 misdemeanor cases and 150 felony cases a year. The county’s attorneys take on 650 misdemeanors and 165 felonies a year. They’re also over the limit on probation, parole and juvenile delinquency cases, too.
The state’s system does more than harm indigent defendants. It has led to convictions being overturned, not because defendants were innocent, but because their legal representation was so shoddy.
Operating on the cheap at the expense of basic constitutional rights may serve politicians, but it doesn’t serve anyone else. The Legislature needs to find the money to reform the system. In the meantime, justice will be reserved for those who can afford it.
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