From KCBA: Additional Information to Consider
The proposal by the WSBA to reduce case loads for public defenders has generated significant commentary from across the state, all of which is available here1. The KCBA has not taken a position on this issue but presents this summary and citations so that members can access the differing viewpoints on this issue. Some of the objections to the current proposal discussed in Robert Boruchowitz’s article are further articulated in the comments below. To better understand the context of comments both in favor and against the proposal, the full statement should be read.
Objections to the implementation of the current recommendation include concerns about the underlying study by RAND, which provides a foundation for the case load recommendation:
Washington Association of Prosecuting Attorneys, p. 1., citing https:/ /leg.colorado.gov/sites/default/files/documents/audits/2354p office of the state public defender.pd
The RAND study is a survey, it did not actually study public defenders at work to ascertain the time required to efficiently and effectively handle criminal cases in Washington. Rather, RAND gathered thirty-three public defenders from across the country and surveyed them on how much time they believe is necessary to do their jobs. Currently, Colorado is in the process of evaluating caseload standards as well. They started with a state audit, which called for a statewide caseload study, even though they have the RAND survey.
Pierce County Superior Court, p. 1.
While the RAND study claims that it is supported by empirical evidence, such actual empirical evidence is lacking. First, its methodology is based solely on surveys of so-called experts (described in the study as an “expert Delphi panel”) and not any hard data. Moreover, there is simply no validation contained in the study that adoption of its proposed standards will address the core problem facing criminal justice systems in Washington, namely the recruiting and retention of public defenders.
Washington State Association of Municipal Attorneys, p. 1.
WSAMA strongly urges that instead of embracing a proposed rule premised on a faulty study with no connection to our state, the Court should instead convene a Washington state specific study by a neutral party focusing on misdemeanor and gross misdemeanor defense workload. The RAND study states that it is intended to be used to assist in evaluating public defender workloads.4 It further states that a “specific state or local workload study remains the ideal approach for public defense resource planning…”5 (citing RAND study)
Representatives from a diverse group of cities and stakeholders in the criminal justice process must be heard during formulation of the proposed rules. Unlike the RAND study, the Washington state specific study should include a diverse group of representatives from all parts of the criminal justice system, including prosecutors, judges, and victims, in addition to defense attorneys.
Many comments include concerns on the expense and lack of budget available to fund the costs associated with the proposal.
Mayor Bruce Harrell, City of Seattle, p. 2.
The financial impact of the proposed rules also cannot be ignored. Initial estimates suggest the proposed changes could cost cities upwards of $400 million annually. Seattle, like other cities, funds public defense services through its general fund, which is already under immense pressure. This annual budget cycle alone, the City faced a $250 million deficit. The City has been forced to make difficult decisions and cuts in this challenging time. Enacting the proposed rules without additional financial support to the City would exacerbate these issues.
Mayor Kim Lund, City of Bellingham, pp. 1-2.
Following notice of the proposed rule change, we asked North County Public Defense (NCPD) to calculate the impact the change would have on Its staffing and budget needs. The attached spreadsheet provided by NCPD demonstrates how the proposed caseload limit of 120 misdemeanor case credits per year would substantially Increase the need for attorneys, support staff, and additional resources. The estimated financial Impact on the City of Bellingham from the Court’s adoption of the proposed rule would ultimately exceed $6,500,000.00 per year. By comparison, the City of Bellingham paid NCPD approximately $892,000 and additional $25,000 to conflict attorneys in fiscal year 2023 to provide Indigent defense services. It Is notable that our city Is already spending more to provide Indigent defense services ($917,000) than we are on criminal prosecution ($830,000). We contract for up to six public defenders while employing Just three full-time prosecutors who handle all the criminal cases filed in municipal court, not just those cases where the defendant is eligible for a public defender. That ratio would increase from 2:1 to 7:1 if the suggested amendments are adopted by the Court.
Comments include concerns regarding the Impact on filing charges and crime victims of the proposed standards.
City of Vancouver p.1.
In part due to rising indigency rates following the pandemic, the City is currently facing an unprecedented volume of misdemeanor cases requiring a public defender and is projected to exceed the capacity of its longstanding contracted primary public defense firm by more than 500 cases. Despite proactive measures to recruit new firms and individual attorneys, as well as implementing policies aimed at reducing the number of cases charged, the City remains at risk of case dismissals before year-end due to a lack of available defense resources. The proposed two-thirds reduction in the caseload capacity of our existing public defense team would have a severe impact on our program, potentially resulting in the dismissal of hundreds to thousands of cases, given the scarcity of public defenders available for hire to represent defendants.
Leesa Manion, King County Prosecutor, pp. 2-3.
While prosecutors have discretion and have been entrusted to exercise it fairly and responsibly, our work is not discretionary. Prosecutors cannot simply choose to ignore crime or decline to file charges without reason. Doing so would be to the detriment and disservice of victims and survivors of crime who have been harmed as the result of criminal acts.
In King County so far this year, after careful individualized case reviews, DPA’s in my office have declined 2,000 cases (the vast majority of which were declined due to legal insufficiency) and have diverted more than 1,000 adult and juvenile cases away from the criminal legal system. I stand behind each of those decisions, but our office has still filed 3,895 charges, including hundreds of serious assaults, residential burglaries, robberies sexual assaults, incidents of domestic violence and gun crimes.
It is neither realistic nor just for prosecutors to inform victims that we are unable to file charges in a sexual assault case (for example) because public defenders have reached their maximum caseload numbers, nor can I simply ignore or refuse to file the types of serious crimes listed above.
Comments argue that rural cities and counties face particular challenges:
City of Wenatchee, p. 1.
Rural cities and counties, such as Wenatchee, already deal with a profound shortage of defense attorneys for indigent clients. (Please see public comment submitted on October 25, 2024, by Kottkamp, Yedinak & Esworthy, the City of Wenatchee Public Defense Firm.) Slashing the maximum caseload by between sixty and eighty percent for this class of attorney would require a huge increase in the number of defense attorneys just to maintain the current level of representation for indigent clients. This is simply not possible for rural cities and counties.
Island County Board of Commissioners, p. 2.
City Our experiences in 2023 and 2024 resulted in the identified concerns about attorney shortages, delays in bringing matters to trial, and impacting timing on pretrial matters. It is very difficult for Island County to find qualified counsel for murder, rape, and child molestation cases where delays could force the courts to release defendants who are a risk for committing additional serious crimes. These shortages have required Island County to pay additional fees to conflict counsel to ensure defendants are timely and adequately represented. Because Island County is a relatively small community, we also face conflict situations based on multiple defendant cases, cases where defendants and victims are involved in cases but one is already represented by our contracted public defense firm and where our contracted public defense firm does not have sufficient numbers of attorneys to take a case as it would force them to exceed the current guidelines.
Comments also argue that the proposed rule violates separation of powers principals and improperly invades the authority of local governments on how to prioritize spending:
Washington State Association of Counties p. 1.
Beyond the impracticality of the WSBA’s recommendation, WSAC believes adopting such standards would exceed the Court’s authority and infringe upon the constitutional separation of powers. The Legislature encompassed jurisdiction on the subject in RCW 10.101.030, directing local governments to set standards for public defense[.]
Certainly, the Supreme Court has authority to establish rules for courts in Washington. However, we do not believe it has the authority to direct spending levels by the State or counties outside a question of constitutionality. The courts also retain jurisdiction over individual cases of ineffective counsel with sanctions and vacation as remedies.
Dow Constantine, King County Executive, p. 7.
In essence, the WSBA caseload proposal would bring about a hostile takeover of the General Fund and dictate indigent defense spending as the highest priority for county government. The proposal to use a procedural court rule to override the policy and budgetary determinations of the political branches violates separation of powers, especially when there is no clear constitutional mandate forcing such unprecedented court action.
1 https://www.courts.wa.gov/court_rules/?fa=court_rules.commentDisplay&ruleId=6163
