Attorney shortage continues in courts around WA, with new proposals on the table

It is becoming an almost standard part of the preliminary appearance process in Yakima County Superior Court, particularly in the middle of the month.

After a discussion on whether someone will need a public defender – and most do – attorney Melissa Derry, a public defender who represents people for their first appearance in court, advises the judge and the defendant that a public defender may not be available until the next month, at the earliest.

The problem? Not enough felony-qualified public defenders to represent all who need one. The cycle repeats each month as attorneys’ legally capped caseloads clear and they can take on new cases.

The shortage is getting attention at the state level, with one state official calling for a moratorium on appointing public defenders in some instances to help ease caseloads. A state senator representing part of Yakima Valley is introducing bills that would direct more funding into county public defense and prosecution programs, create internships, as well as study of the extent of the problem.

While a suggestion to pause appointments for some indigent defendants is extreme, both Paul Kelley, who heads Yakima County’s Office of Assigned Counsel, and Yakima County Prosecuting Attorney Joe Brusic both see it was a call to take the situation seriously.

“A crisis breeds a moment where you can improve things,” Kelley said.

The U.S. Constitution guarantees criminal defendants the right to an attorney, and the Supreme Court ruled in 1963 that indigent defendants were required to have a court-appointed public defender. In Yakima County, that’s about 90% of the more than 2,000 felony cases that get filed in a typical year.

Yakima County also has a shortage of prosecutors.

“It’s not enough attorneys,” said Brusic, who has been told he can only fill two of his four vacant deputy prosecutor positions due to budget constraints.

Caseloads

Not just any attorney can serve as a public defender, particularly in a felony case. Kelley said an attorney must have experience handling felony cases and training to ensure they can provide effective counsel.

Another safeguard is capping caseloads for public defenders at 150 felony cases per year, with more serious felonies given greater weight.

Prosecutors, however, are not under that restriction. Brusic said his attorneys average between 140 and 150 cases, with some hitting 200.

In a Nov. 27 memo to the court, Office of Public Defense Director Larry Jefferson said shortages of attorneys who can serve as public defenders has pushed the system to “the verge of collapse” and urged the state’s high court to step in and help provide some stopgap relief.

Jefferson cited a survey of departing public defenders who most often cited low pay and large caseloads as reasons for why they left, and that it would take better pay and lighter workloads to get them to return.

“There is no denying that these systemic stressors take a toll on the well-being of public defenders themselves,” Jefferson wrote in his memo. “Faced with the decision of persisting with their current workload or departing for the sake of their mental, emotional and physical health, many public defenders are opting for the latter. I personally grappled with this very dilemma around five years ago when I refused to accept additional cases as a felony attorney.”

Jefferson’s suggestions to alleviate the crisis included a 90-day moratorium on assigning public defenders for defendants who are not being held in jail while awaiting trial to give attorneys some breathing room, assigning new cases only to attorneys whose caseloads are 60% or less of the state caseload limits and reexamining the caseload limits that were formulated in the 1970s.

State law requires that people who are not being held in jail be brought to trial within 90 days of their arraignment to protect their right to a speedy trial. Those who are in jail have 60 days to be brought to trial, although in both instances it is not unusual for one side or the other to ask for extensions to fully prepare for trial.

Both Kelley and Brusic said the proposal seems to be geared more toward getting the court’s attention to the issue than imposing a moratorium, which would further compound the problem without any other improvements.

“It sounds like it is a call to arms,” Kelley said, while Brusic described it as a “shot across the bow.”

Issue around state

While Yakima County has boosted pay for both public defenders and prosecuting attorneys, Kelley said the problem is continuing, not just in Yakima County but around the state.

Brusic said due to the shortage in both offices, he’s had to use his discretion to prosecute some low-level felony cases as misdemeanors instead.

“We don’t like it. We want more people here and have more people prosecuting,” Brusic said.

Plus, he’s finding himself not only competing with private firms but other prosecutors in the state for attorneys.

Proposals in Olympia

Help may be coming in the next legislative session.

State Sen. Nikki Torres, a Pasco Republican whose district includes part of Yakima County, has introduced bills that would provide funding for more training opportunities for public defenders, as well as establish an internship program for law students to work in public defenders’ offices to get an introduction to public defense and training in the area.

She is also proposing a study of the state’s public defense situation to be conducted by the Sixth Amendment Center, an organization dedicated to ensuring all who go to court have an attorney.

She said the bills, which have bipartisan support, will be amended to include prosecutors as well to bolster their ranks.

“It’s getting the ball rolling,” Torres said of her measures. “It’s a step, but it’s going to take a bit longer. If we had all the money in the world, we could fix it.”

Torres became aware of the situation during the most recent legislative session. She said representatives of the Office of Public Defense and the prosecutor’s association were taking neutral positions on bills she expected them to support. She found out that they were taking that stance because of staffing shortages, especially in rural areas.

Franklin County Administrator Mike Gonzalez told her how the shortage was affecting Franklin County, and she formed an informal working group to investigate the issue.

Kelley predicts that officials are going to be paying more attention to the issue.