Indigent Defense in Washington

The right to counsel is embodied in the Sixth Amendment to the United States Constitution.  In 1963, the United States Supreme Court, in Gideon v. Wainwright[1], ruled that the Constitution requires the states to provide defense attorneys to criminal defendants who cannot afford lawyers themselves.

In Washington State, public defense services are administered, and largely funded, by county and city governments.  Since 1989, RCW 10.101.030 has required each jurisdiction to adopt local standards that ensure indigent defendants’ constitutional right to effective representation.[2]  In recent years, significant developments have established specific criteria that must be followed, which noticeably impact public defense services.

In 2004 a class-action law suit was filed against Grant County charging that Grant County’s felony public defense system violated indigent defendants’ constitutional right to counsel.  The county agreed to a settlement in 2005 after a Kittitas County Superior Court judge ruled that the county’s system “suffered from systemic deficiencies.”  The judge found that Grant County overworked its lawyers, failed to provide effective supervision, and allowed the prosecutor’s office to interfere with funding for expert witnesses and investigators.  In response to this settlement other Washington State counties were prompted to take a closer look at their public defense services.  Seeing the writing on the wall, counties began hiring more attorneys so that they would have smaller caseloads, in addition to other public defense services.

In 2005 the Washington State Legislature adopted RCW 10.101.030 that requires each county or city to adopt standards for delivery of public defense services.  This statute further provides that standards endorsed by the Washington State Bar Association (WSBA) should serve as guidelines to local legislative authorities in adopting standards.

The WSBA in 2011 and the Washington State Supreme Court in 2012 adopted the Standards for Indigent Defense[3] (Standards) which established various requirements for public defense attorneys.  Among these, all attorneys with public defense cases are required to adhere to caseload limits, so that they have sufficient time to effectively represent their clients.[4]  Felony (150 cases annually) and juvenile (250 cases annually) caseload limits became effective in October 2013.  Misdemeanor caseload limits became effective January of 2015, limiting attorneys to 400 (with some exceptions) misdemeanor cases per year for full-time public defense attorneys.

In December 2013, the U.S. District Court of the Western District of Washington ruled decisively against the cities of Mount Vernon and Burlington in Wilbur v. City of Mount Vernon, et. al.  The Wilbur decision held the cities liable under 42 U.S.C. § 1983 for systemic flaws that deprived indigent criminal defendants of their Sixth Amendment right to the assistance of counsel.  The decision imposed injunctive relief as well as plaintiffs’ attorneys’ fees in the amount of $2.2 million, in addition to the amounts spent on defending the cities.  The Wilbur decision, just as the Grant County settlement, had an impact in Washington, as many cities and counties used it as a guide for making improvements to public defense.  Furthermore, Wilbur appears to have had a national impact, as seen in a relatively recent settlement agreement in Hurrel-Harring v. New York, 15 N.Y.3d 8 (2010).  In this case, the New York State Court of Appeals recognized a cognizable claim for state relief based on allegations that New York’s county-based public defense system was inadequate to ensure the constitutional right to counsel, and the state agreed to pay more than $3.5 million to improve defense in five of the state’s 62 counties.

In response to these developments, Washington counties and cities have had to evaluate and modify their public defense delivery systems in order to align their programs with the Standards and the Wilbur decision.  Such changes have had significant budgetary impacts in most, if not all, jurisdictions.  Over the last 9 years, county expenditures for public defense costs have increased by more than 56%.  Counties contribute approximately $136 million per year to trial court public defense costs alone; the state contributes approximately $6 million per year.

In April 2017, the American Civil Liberties Union of Washington (ACLU) filed a class action lawsuit in Thurston County Superior Court against the state Office of Public Defense (OPD) on behalf of all juveniles charged in Grays Harbor County Juvenile Court who have the constitutional right to have defense counsel appointed.  The ACLU seeks to have the court find that the county is violating the rights of children charged with crimes and that OPD has the authority to require remedial measures.  This case is ongoing.

During the 2017 legislative session, WSAC asked the Legislature to fully fund trial court public defense costs, to no avail, leaving counties to struggle with the brunt of this multimillion dollar financial responsibility.  WSAC also proposed legislation, that was not adopted, that would have eased the financial strain on counties.  There is very little room for counties to continue to pay for other important services when counties are having to spend an average of 75% of county budgets on criminal justice.  This is a very real and significant issue going forward as county costs continue to increase, yet counties are unable to raise additional revenue as a result.

[1] Gideon v. Wainwright, 372 U.S. 335 (1963).

[2] While the statute did not dictate specific language, it directed local governments to address certain issues and recommended that “[t]he standards endorsed by the Washington state bar association for the provision of public defense services should serve as guidelines to local legislative authorities in adopting standards.”

[3] The Supreme Court Standards for Indigent Defense derive from the Washington State Bar Association (WSBA) Standards for Indigent Defense Services (updated in 2011).  Starting in 1990, the WSBA endorsed the Washington Defender Association Standards for Indigent Defense Services (originally published in 1984).

[4] All attorneys appointed to represent indigent defendants are required by court rule to file quarterly certifications affirming their compliance with the Supreme Court Standards, including adherence to caseload limits.

Juliana Roe comes to WSAC with almost a decade of experience working as non-partisan staff in the Washington State Senate. She has a strong legal background and knowledge of our court system as she served as a law clerk for Chief Justice Alexander for the Washington State Supreme Court, as well as a Deputy Prosecuting Attorney for the Pierce County Prosecutor’s Office. Juliana received her Juris Doctorate from Seattle University School of Law, and her Bachelor of Arts from the University of Washington. She represents WSAC on issues relating to public safety, law and justice, and human services.

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