WA counties want big money to address public defender crisis

A new proposal to help solve Washington’s public defender crisis is attracting bipartisan support in the Legislature but would carry a hefty price tag.

Sponsored in the Senate by a diverse group of prominent Democrats and Republicans, Senate Bill 5404 would require the state to cover at least 50% of the costs that counties incur to hire attorneys for indigent defendants.

The bill is backed by the influential Washington State Association of Counties and is coming under consideration at a crucial moment, because the state’s public defender system has been teetering on the verge of collapse.

Governments are supposed to provide attorneys to criminal defendants who can’t afford to pay, and huge numbers of Washington defendants qualify.

It’s a right rooted in the U.S. and state constitutions. But low pay, high caseloads, court backlogs and technology changes have spawned public defender shortages in communities across Washington, sometimes leaving defendants without proper representation or scuttling prosecutions.

The American Civil Liberties Union of Washington has sued Yakima County for allowing defendants to languish in jail without assigned attorneys. Some jurisdictions are being forced to release people accused of violent crimes, said Derek Young, interim executive director of the counties association.

The Legislature passed a bill early last year setting up internship and training programs for new public defenders and prosecutors in rural areas.

And the Washington State Bar Association adopted lower caseload limits for public defenders last March, hoping to address the shortages and provide better representation by curbing burnout and attracting new recruits.

The Washington State Supreme Court could endorse the new limits as soon as next month, after holding public hearings in October and November.

Yet county officials say the lower caps are bound to exacerbate their problems in the short term by reducing the number of cases each public defender can take. The counties will need to spend more money to hire more defenders or, if attorneys are scarce, let more defendants go unrepresented. Some small counties have fewer than 20 people actively practicing law in any capacity.

The Bar’s prior caseload limits for public defenders, which match a current Supreme Court rule, are 400 misdemeanors or 150 felonies per year. The Bar’s new caps are at 120 misdemeanors or 47 felonies per year.

Some jurisdictions follow the Bar’s standards and are already preparing for the changes that are scheduled to take effect in phases, starting July 1. King County has started using the changes as a recruiting tool.

Ramona Brandes, a resource attorney at the Washington Defender Association education and advocacy nonprofit, quit her longtime job as a King County public defender last year because she was so stressed she thought she was going to have a stroke or a heart attack, she said last week.

“Other people are now just hanging on by their fingernails,” she said.

The defender association wants to see caseloads brought down, regardless of whether state lawmakers pass something like SB 5404. The association supports efforts to secure more money, however, Brandes said.

“Washington is at the bottom for state funding of public defense,” she said.

Although most U.S. states pay for all or most public defense services, Washington’s counties and cities currently cover more than 96%. Those costs have doubled since 2012 to more than $200 million annually, and counties say they expect new caseload limits will drive the costs up even more.

So, there’s intense pressure on state lawmakers to step in with assistance. SB 5404’s sponsors include urban Democrats like Sen. Yasmin Trudeau of Tacoma and rural Republicans like Sen. Mark Schoesler of Ritzville.

Hot spots for defense problems include King County in Western Washington and the Tri-Cities in Central Washington. There’s also a bipartisan bill to repay law school loans for new public defenders and prosecutors.

“This isn’t a political issue” or an issue of state versus local control, said Young from the counties association. “It’s a basic constitutional right.”

But advancing an expensive bill could prove challenging, especially at a time when state lawmakers are grappling with multibillion-dollar projected deficits and other big-ticket demands, including for public schools.

Although there’s no official fiscal note for SB 5404 yet, the counties association says public defense costs across Washington could surpass $550 million over the next two years, accounting for the Bar’s new caseload limits.

SB 5404 would put the state on the hook for 50% of today’s public defense costs and 100% of those related to the caseload changes. That could mean Washington paying $340 million over the next two years, and more later.

In return, the counties would have to collect public defense data and spend any savings on things including pretrial diversion, reentry services and affordable housing, with an eye toward reducing prosecutions.

Many counties can’t afford to keep paying alone, partly because the state says they can only raise their property tax collections by 1% each year, Young said.

“The money problem is massive” and it’s getting worse, Young said. “It’s really hard to avoid the fact that this is a crisis now.”

The bar has joined the counties in asking the Legislature for a funding boost, said Jason Schwarz, Snohomish County’s public defense director.

What the Supreme Court decides about defender caseloads could affect what happens to SB 5404, Brandes said. If the justices endorse the Bar’s new limits or something similar soon, the pressure on lawmakers will increase.

“Having this pending in court and in the Legislature is what’s creating that momentum and a possible resolution,” Schwarz said.