In June 2012, the Washington State Supreme Court directed the state’s public defenders to limit their caseloads and certify compliance with the new numerical standards on a quarterly basis. With the goal of improving the quality of legal representation for indigent defendants, the Court has adopted standards that were formerly considered advisory and largely unenforceable. But by imposing a cap on the number and type of cases a public defender can handle, the Court has burdened local government with potentially devastating costs, as cities and counties in Washington state currently contract for their defender services. With already strained budgets, how will they provide representation to all in need of legal counsel? Will the quality of indigent criminal defense actually decline as a consequence of this ruling?
First, let’s examine the caps that the Supreme Court adopted. The Court determined that lawyers who represent indigent clients should limit their practice to 150 felony cases per year, or 300 to 400 misdemeanor cases, depending on the type of offense or legal experience needed. These numbers can be adjusted to reflect the complexity of the case or the gravity of the offense charged; this process is called “weighting” and will be calculated for compliance purposes at the local jurisdictional level. For example, representing a defendant charged with a parole violation may not count as a single case toward the cap, but a fraction thereof. Alternatively, representing a client from pre-filing through trial would be counted as one case unit.
Where did these numbers come from? A little history may be instructive here. For years-decades in fact-observers and participants alike have bemoaned the uneven quality of public defense practice in Washington state. The legislature, local bar associations, judges, criminal lawyers, and legal advocates for the poor have monitored the failings of the defense system, without remedial authority. In 1984, the Washington Defender Association (WDA) proposed a set of professional standards, which were then endorsed by the Washington State Bar Association (WSBA). These standards included caseload limits, training requirements, experience levels for particular case types, and pay parity with prosecutors. In 1989, the Washington legislature passed a law (RCW 10.101.030) requiring cities and counties to adopt standards to provide public defense services, advising that they “may” use the above standards as guidelines. The law had no enforcement mechanism, however; they could set their own criteria, including compensation, caseload limits, and qualifications. Consequently, cities and counties could contract with attorneys or law firms for a fixed fee for their defense services, without regard to the recommended professional standards.
Despite the availability of these guidelines to improve the quality of representation for indigent defendants, a pattern of “meet ‘em, greet ‘em, and plead ‘em” justice emerged in several counties, as overburdened defenders struggled to manage huge caseloads, find time for client meetings, and investigate possible defense strategies. This processing of defendants continued largely unabated until 2004, when a “perfect storm” of events coincided to capture public attention and compel action. The Seattle Times published a series titled “The Empty Promise of an Equal Defense” exposing the failures of some counties to provide effective assistance of counsel for indigent clients.
The cases profiled in this award-winning series were so alarming that they profoundly eroded public confidence in the criminal justice system. That same year, the American Civil Liberties Union (ACLU) filed a lawsuit against Grant County for their deficient delivery of indigent defense services. The WSBA established a Blue Ribbon Panel on Criminal Defense to respond to concerns about indigent defense services and published a report that states: “When defense attorneys do not provide effective assistance of counsel, the results can be devastating for the individuals whose liberty is at stake, for the legal system, and for society as a whole.” The state legislature amended RCW 10.101.030 in 2005, directing cities and counties that they “should” use the WDA and WSBA standards in their localities, rather than suggesting that they “may” use them, as the language of the prior statute stated.
Did the “perfect storm” of these events compel meaningful change? In 2010, a landmark Washington Supreme Court case, State v. A.N.J. , reviewed a claim of ineffective assistance of counsel from a juvenile defendant whose public defender’s performance was so deleterious that the Court declared a “manifest injustice” resulted from his representation. The Court then amended specific rules of practice to require that all attorneys representing indigent clients meet baseline professional requirements, including access to an office, mail, and phone services; availability of investigatory services when necessary, and professional qualifications to practice law in the state. The momentum created by that case, coupled with significant input from the WSBA, WDA, and the Washington Office of Public Defense (OPD), led the Court to mandate caseload limits and certification requirements in June of 2012.
Implementation of the new standards will be phased in, beginning October 1, 2012, when attorneys must certify that they comply with the approved Standards for Indigent Defense Services with every court in which they practice. Certification forms must be filed quarterly or the court cannot assign new cases to the attorney. On September 1, 2013, the numerical caseload limits take effect. Attorneys whose practice includes public defense for felony, misdemeanor, and juvenile cases must certify the percentage of their caseloads reserved for indigent defense, using weighting and case counting methods specific to their jurisdiction.
Will the goal of improving the quality of legal representation for indigent defendants be advanced by implementing these standards? What impact will they have on cities and counties whose budgets are already facing unprecedented deficits? This is an issue being addressed throughout the country, not just Washington State. There, some jurisdictions may reduce the number of cases filed, consider pre-filing diversion programs for certain types of offenses, or contract with less experienced, cheaper lawyers. Others may look to the state legislature for additional funding grants. Decriminalizing certain traffic offenses could lead to significant reduction of assigned counsel. An offender could pay a fine for an infraction violation instead of a contesting a misdemeanor charge in a court hearing, thus avoiding the necessity of representation. Similarly, decriminalization of certain drug offenses is also under consideration as a way to divert defender resources to more serious crimes. Washington cities and counties must take whatever steps are necessary to allocate finite resources to guarantee the fundamental right to effective counsel for indigent defendants. Bob Boruchowitz, director of the Seattle University Law School Defender Initiative, was recently quoted in the Seattle Times: “If a case is important enough to prosecute, it’s important enough to defend, and the Constitution says they have to be defended completely. It’s long past time for everybody in the criminal justice system to stop tolerating the unfair treatment of poor people.” It’s a fundamental right enshrined in the Constitution, a basic tenet of our criminal justice system. We can no longer abide by “and justice for (almost) all.”
To determine if your jurisdiction provides public defender services, simply select the Legal Aid and Lawyer Referral resource category for your state on http://www.courtreference.com/ .