With Prof. John Strait1
The U.S. Supreme Court's decision in Gideon v Wainwright,2 the decision that said no one should be forced to answer a felony in state court without the assistance of counsel, will be 50 years old in 2013. While there is much to regret about how poorly many jurisdictions have failed to honor this constitutional protection, there is much to celebrate about how the independent public defender agencies in King County and the City of Seattle have fought to give it life.
In many jurisdictions, lawyers are not been provided at critical stages of criminal proceedings, or courts routinely accept invalid or coerced waivers of counsel. Lawyers are assigned caseloads so high that effective representation, including adequate investigation, is virtually impossible. Lawyers who attempted to band together to do something about this and set the terms on which they would accept indigent defense assignments have been pursued for anti-trust violations.3 Surveying the national landscape on the eve of Gideon's 50th anniversary, and even the situation elsewhere in Washington,4 shows how easy it is to get public defense wrong.
King County, in contrast, has a strong and vigorous public defense system regarded as one of the best in the country. For the past 40 years, with support from this bar association and others, the County has contracted with independent not-for-profit law offices to defend indigent clients. All the public defender offices employ investigators to critically examine the charges brought by the prosecutor. They join with social workers to give the court and prosecutor a complete picture of the client and to develop sentencing alternatives. They have suggested, provided and found funding for programs and policies that improve the criminal justice system.
We believe the strength of our system follows directly from the independence of the agencies. They are not restricted, as are county employees serving at the direction of elected officials, from challenging the assumptions and policies that impact their clients.
Ten years ago, four past presidents of this bar association (Ralph Maimon, Fred Noland, Mary Alice Theiler and Steve DeForest) wrote an op-ed in the Seattle Post-Intelligencer praising King County's nationally acclaimed defender program and calling to maintain it. More recently, in 2010, King County commissioned a $200,000 expert review of our public defense system in which dozens of justice system stakeholders were interviewed in preparation for assessing defender workloads. The County's nationally regarded consultant observed, "The provision of indigent defense services in King County has historically been seen as among the finest in the nation," and concluded that "King County has rightfully earned a fine reputation for the quality of public defense."5
Last year, the Washington Supreme Court held that employees of the public defender agencies are de facto county employees for purposes of eligibility for the state retirement system (PERS).6 Since the County must now pay certain benefits for defender agency employees, this decision has raised the question: Should King County abandon the independent agency system of the past four decades?
An essential feature of our strong public defense system has been realistic caseload limits, ensuring that defenders have sufficient time to establish a meaningful attorney-client relationship, research and investigate their cases, and maintain a credible trial capacity. Another has been salary parity with prosecutors, ensuring that defense agencies could recruit and retain lawyers of comparable caliber to opposing counsel. In recent years, the County Council and the defender agencies developed a funding model that established the real cost of running a defender practice and ensures that public defenders have adequate resources.
We believe that these components of a robust public defense system can be traced to a single source: the defender agencies stand independent of political influence. Each of these protections — caseload limits, salary parity and an accurate funding model — was achieved, not through state legislation or mandatory ethical standards, but through advocacy by the independent defender offices. Because the agencies were not under the direction of public officials, they were free to battle for the resources required to effectively and professionally represent their clients.
Independence is rare and public defense often suffers as a consequence. In recent years, many municipal defender systems incurred damaging funding reductions. Absent an independent voice for public defense, appointed in-house defenders can only make a quiet internal case to the executive branch for sufficient resources. Further public discussion, explanation and disagreement are not permitted.
The American Bar Association long has recognized independence of the public defense function from political influence as the first of its Ten Principles of a Public Defense Delivery System.7
Periodically, the idea of converting King County's independent public defender agency structure to an in-house government agency has been considered and rejected. Leaders in the private bar have been in the forefront of making the case to maintain independent nonprofit agencies as the primary providers of public defense services.
In 1980, for example, Bob Moch, chair of the King County Public Defender Advisory Committee, wrote the King County Council urging that it not create a government public defender office, which was under consideration at the time. Moch drew on the Advisory Committee's original 1970 report recommending that public defenders be "entirely separate from the government which has placed them in jeopardy."
In 2000, King County commissioned a national expert on public defense systems to assess the independent contractor structure and report to a multi-agency Public Defense Study Oversight Committee, chaired by Judge Michael Spearman and including representatives from the offices of the King County prosecutor, the Seattle city attorney, King County superior and district courts, the King County executive and the county and city budget departments.
The report observed, "Public defense services in King County are considered among the best of the major urban counties across the country."8 The Oversight Committee, after reviewing numerous other possible configurations, recommended the continuation of King County's independent agency structure.9
Historically, the King County defender agencies have used their independence to advocate for important criminal justice policy reforms. The agencies often have identified ways to reduce justice system costs while improving the quality of justice in King County courts.
For example, the defender agencies have helped streamline contempt of court proceedings in child support enforcement cases; reduced costs dramatically by reducing their own staffs; and helped design re-licensing programs so clients can negotiate the often-confusing process of regaining their driver's licenses, significantly reducing the number of charges filed by the prosecutor while improving public safety.
One agency, with foundation funding, has developed policies to reduce racial disparity in the justice system, helping to launch innovative partnerships with local law enforcement and prosecutors to transform drug law enforcement in ways that reduce racial inequality. Another agency created the ROYAL (Raising Our Youth As Leaders) program, striving to prevent justice system involvement for youth of color.
Twice in recent years we have seen instances where, without an independent voice for public defense able to directly and openly advocate for adequate resources, funding for public defense in King County would have been reduced to a level that threatened the quality of representation for indigent clients in our courts.
In 2005, the King County Council developed a public defense funding model, tracing the real costs of providing defense services. The model was created in response to budget proposals from the King County executive that woefully underfunded defense needs. The situation was so dire that a mid-year budget correction appropriating an additional $1.5 million was required to restore the defender agencies to viable funding levels.
Had the defender agencies not existed to make the case for the necessary resources directly to the Council, it is highly doubtful that the Spangenberg Project could have found in 2010 that King County's defender program continues to be one of the strongest in the nation. An independent voice for the defense function was, and undoubtedly will again be, necessary to prevent underfunding.
In 2009, the defender agencies argued that changes in the King County prosecutor's filing standards meant that the average case handled by public defenders had become much more serious and that reasonable workloads for defenders should be assessed. The King County Council retained an outside expert to study public defender caseloads. The study confirmed the defender agency concerns and the County Council approved funding that recognized the increased difficulty of public defense cases.
Again, if the public defense function were held within the County's executive branch, it is unlikely that this needed reform would have taken place. It came about because independent agencies advocated for public defender clients before the King County Council.
The quality of public defense services we have become accustomed to in King County is directly linked to the independence of the public defender agencies. An independent voice is the key to maintaining effective and vigorous representation.
King County reasonably should, and will, consider ways to limit the cost impact of the recent Dolan decision. However, the political independence and stability of defender offices must be core principles in that analysis, as they have been for the past four decades, to the great benefit of both the County and its residents.
1 Prof. John Strait is an associate professor of law at Seattle University School of Law. An expert on ethics issues, he teaches Criminal Law, Criminal Procedure, Professional Responsibility and Trial Advocacy. A special thank goes to Lisa Daugaard for her assistance with this article.
2 Gideon v. Wainwright, 372 U.S. 335 (1963).
3 See, e.g., F.T.C. v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990) (ruling that boycott by contract public defenders in Washington, D.C., to get the local government to raise compensation rates constituted an illegal restraint on trade under federal antitrust law).
4 Grant County settled a systemic lawsuit alleging ineffectiveness in its felony public defense program by agreeing to establish a new public defender system with caseload limits, salary requirements, investigation and expert services resources, a monitor to report on the system, and $500,000 in attorney fees. Best v. Grant County, Grant County Superior Court No. 04-2-00189-0 (2005). In addition, Grant County paid $250,000 to settle a separate lawsuit for ineffective assistance in one case. See "Grant County man gets millions for poor defense," at http://seattletimes.com/html/localnews/2008694272_pubdefender01.html.
More recently, U.S. District Court Judge Robert Lasnik denied summary judgment for the cities of Mount Vernon and Burlington in litigation challenging the adequacy of those cities' indigent defense services. Judge Lasnik wrote:
At this early state of the litigation, the evidence … could support a finding that indigent defendants in Mount Vernon and Burlington are deprived of counsel at critical stages of the prosecution and that the assignment of public defenders is little more than a sham. Order Denying Summary Judgment in Wilbur v. Mount Vernon, C11-1100RSL (February 23, 2012).
5 The Spangenberg Project, "King County, Washington Public Defender Case-Weighting Study/Final Report," April 30, 2010, pp. 1, 78.
6 Dolan v. King County, 172 Wn.2d 299 (2011).
7 Available at: http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf.
8 The Spangenberg Group, "King County Public Defense Study/Final Report for the Public Defense Study Oversight Committee," July 7, 2000, p. 7.
9 Id., p. 62.