WA Supreme Court is told cutting public defender caseloads could incite ‘vigilante’ justice

Prosecutors are warning the Washington state Supreme Court that reducing public defender caseloads could lead to filing of fewer criminal charges and people seeking retribution on their own.

“This is a social contract. People give up vigilante justice in exchange for the government to administer justice,” Okanogan County Deputy Prosecuting Attorney Teddy Chow told justices.

“Vigilantism will not only be limited to revenge or retribution to a particular offender but may also endanger those who work in public and criminal justice,” he said.

Chow wasn’t the only one making a dire prediction to justices in a hearing Wednesday on a request to amend the Supreme Court’s standards for indigent defense by trimming the number of cases public defense attorneys handle each year by up to two-thirds.

The state has a shortage of public defenders. Prosecutors say reducing defenders’ workloads will lead to filing of fewer cases to ensure no one’s rights to counsel are violated. And if the public defender ranks grow, cities and counties will need to amp up hiring of staff and prosecutors to keep pace and that will be exorbitantly expensive.

“Without sufficient attorneys or without sufficient resources, it would lead to a de facto decriminalization and an increase in vigilantism,” said Russell Brown, executive director of the Washington Association of Prosecuting Attorneys. He added that “way too many” people have had their cases dismissed or not filed because of a lack of public defenders.

Supporters of reducing caseloads say the change is needed to stabilize the system. They contend that large caseloads and low pay are driving people out of public defense and deterring new lawyers from entering this line of legal work.

And they, too, pointed to the problem in some counties where those accused of crimes, but unable to afford a lawyer, can wait long periods of time before they receive counsel they are constitutionally guaranteed.

“Public defense is in a downward spiral. We can fix this,” said Jason Schwarz, director of the Snohomish County Office of Public Defense and chair of the Washington State Bar Association’s Council on Public Defense. “This will be expensive. Justice is not cheap.”

Larry Jefferson, director of the state’s Office of Public Defense, urged the justices to make the change and heaped praise on public defenders for their efforts amid rising caseloads, growing trial backlogs and increasing departures through retirements and resignations of those seeking higher-paying, less stressful jobs.

“They’re giving up their lives for this state right now,” he said.

Crisis of attrition

Caseloads of public defenders have been a topic of conversations the past two years.

Under standards adopted by the state Supreme Court in 2012, a full-time public defense attorney or assigned counsel should have no more than 150 felony cases a year.

Last year, the American Bar Association, the National Center for State Courts and the RAND Justice Policy Program released the National Public Defense Workload Study that concluded public defenders should handle far fewer.

Washington’s high court asked the Washington State Bar Association to weigh in on whether the cap needs adjusting. The association responded in March with the recommendation now under public review for new maximums of 47 felony or 120 misdemeanor cases in a year, depending on the severity. The reduction would be phased in over three years.

Under the proposal, crimes are assigned a number of credits based on seriousness and complexity of providing a legal defense. A motor vehicle theft is assigned one credit and a murder seven, for example. That means a lawyer could theoretically be assigned 47 vehicle theft or seven homicide cases in a year before hitting their limit.

In addition, the bar association wants the court to increase minimum support staff requirements and revise attorney qualifications to enable lawyers to handle a variety of cases faster.

“Attorneys are resigning from the public defense profession in droves because they cannot continue the work given the volume of cases,” bar association members wrote in the summary of the requested amendments to the Court’s Standards for Indigent Defense Services.

Justices will hold a second public hearing about the standards on Nov. 13 in the Temple of Justice and comments can also be submitted to the court until Oct. 31.

They can accept, reject or modify any or all of the proposals. There is no deadline to act. Any decision will be handled similar to a court case where they confer behind closed doors then issue a decision and explanation.

‘Critical issue’

It will be expensive to reduce caseloads. On that point everyone agreed. But cost is not a concern for the court, justices noted.

Jefferson, with the Office of Public Defense, told justices he’s requesting $137 million in the next two-year state budget of which $40 million would be specifically to help defray costs of public defense at the local level. The current budget provides $5.8 million to counties and roughly $1 million to cities.

He also acknowledged the challenge of complying with the change will vary by county.

Reducing caseloads by roughly 60% will require hiring many attorneys. Local government leaders are concerned they won’t be able to find them and, if they do, will lack money to pay them. And if the Supreme Court sets new minimum staffing levels for paralegal and other support staff, it will compound the challenge.

Candice Bock, government relations director for the Association of Washington Cities, and Derek Young, interim executive director for the Washington State Association of Counties, said during a briefing for state lawmakers on the issue earlier in the week that collective costs could be in the hundreds of millions of dollars.

Even if the state managed to come up with money, a reduced caseload standard will not result in three times as many individuals being interested in pursuing a career in public defense in such a short amount of time.

“If these standards are enacted and if these standards are required, we’ll need help from the Legislature,” Young said.