Public defender crisis in Washington State afflicts both rural and urban counties

Daniel Beekman reported for the Seattle Times late last month on the indigent defense (aka "public defense") crisis facing Washington State, both its rural and urban sectors.  A few days later, Marcy Stamper reported for the Methow Valley News, out of nonmetro Okanogan County in north central Washington, under the headline "Public defenders struggle under big caseloads."  

Here's an excerpt from the Seattle Times story, which provides the big picture:  

Staffing shortages and burnout-inducing caseloads are squeezing urban areas like King County, rural areas like Asotin County and communities in between. Facing each other across the Columbia River, Benton and Franklin counties are struggling as they compete for attorneys from the same shallow pool.

There are consequences. In some instances, people presumed innocent are languishing in jail without counsel. In others, prosecutions have been delayed or dismissed because defendants lack representation, potentially putting crime victims and others at risk. In still others, defendants are getting shortchanged because their attorneys are too busy. It’s difficult to get a grip on the scale of such problems, because statewide data is lacking.

Meanwhile, cash-strapped counties are watching their expenses soar with minimal support from the Legislature. Some counties are actually suing the state over that reality, and experts say it’s only a matter of time before an unrepresented defendant also sues, alleging their rights have been violated.

As a further illustration of the problem and how it links to jail populations, Beekman writes that the director of the Washington Office of Public Defense (OPD) last year asked the Washington Supreme Court for a moratorium on attorney assignments for defendants who are not in custody so that backlogs of jailed clients could be cleared.  The court denied the request.   It did, however, ask OPD to survey the counties, which revealed that the highest shortages of public defenders are in rural counties.  According to Stamper's story in the Methow Valley News, 

Okanogan County had the third-highest vacancy rate in the state, with 50% of spots unfilled at the time, surpassed only by Asotin County (67%) and Lewis County (56%). (Seven of the 39 counties didn’t respond to the survey.)

The Washington Supreme Court is considering lowering caseload caps, to more aggressively limit how many cases each attorney can handle.  Doing so too quickly, however, will aggravate the situation because too few attorneys are available to absorb the cases that the existing attorney work force would need to shed.  Indeed, Beekman's story also considers the struggle to recruit attorneys to do this work, including in rural areas.  

Washington lawmakers are working on a bill that would establish a state-managed internship program to train law students and graduates as defenders and prosecutors in rural areas. But internships won’t reverse the shortages overnight, and a proposal to repay student loans for new recruits has been cut during the bill’s journey through the current legislative session. A separate bill that would greatly bolster state funding for public defense is likely dead, with no action taken since the session began in January.

* * * 

Fewer people are going to law school; young attorneys are choosing less-intense jobs with better pay; the COVID pandemic created backlogs; policing changes like body-worn cameras are making cases more time-consuming to handle.

Beekman explains some of the consequences for defendants of not having a lawyer advise them:  

Defendants have no one to talk with about their options. To argue for their release so they can keep a job or custody of a child. To interview witnesses. To secure evidence, like surveillance video before a recording gets taped over.

In neighboring Oregon, a federal district court in November ordered the "release anyone haled in jail without an attorney for more than seven days after being arraigned."

Beekman writes about rural areas in particular, and in doing so he references phenomena I and others have written about in other states--including paying attorneys to drive from other counties to provide indigent defense in a county with too few attorneys or where the attorneys in that county have conflicts.  ("Windscreen time" and the need for local governments to pay for it was an issue discussed a decade ago at the University of South Dakota symposium kicking off Project Rural Practice, which became the Rural Attorney Recruitment Program).  

In some of Washington’s smallest counties, officials scramble to hire out-of-town contractors and pay them by the hour to represent defendants because there are so few local attorneys and even fewer who want the work.

Ten counties in the state have no more than 30 residents practicing law of any sort, Dan Clark, a senior deputy prosecutor in Yakima County, wrote in a column for the state Bar Association last year, noting that attorney shortages are resulting in vacancies on the prosecutorial as well as the defense side.

“Most law school graduates tend to be in their 20s or 30s, and to be blunt, most rural areas simply do not offer the variety of restaurants, entertainment, and social opportunities that urban areas can provide,” Clark wrote. “Many law school graduates have significant student loan debt, and lower salaries in rural areas — particularly for governmental attorneys — can be a barrier to attracting and retaining new and young lawyers to rural communities.”

Several defense attorneys under contract with Okanogan County in North Central Washington live elsewhere, including over the mountains in Western Washington, said Anna Burica, who leads the work and manages the roster. Judges allow them to appear in court via video, reluctantly.

“You want that face-to-face contact before making a big decision, and a lot of people just don’t get that opportunity,” Okanogan Judge Robert Grim said.

Here's what Stemper reports out of Okanogan County, leading with information about the caseloads there: 

For now, the workload is manageable and — crucially — within the limits set by the Washington State Bar Association. But if it continues at the current pace, some of the county’s public defenders won’t be able to take more cases, said Anna Burica of Burica Law, who holds the contract for public defense work for Okanogan County.

Burica handles cases on her own and subcontracts with seven other attorneys to provide legal representation to indigent defendants in Okanogan County.

Although the year started with an especially heavy load, the situation in Okanogan County is better than in some of Washington’s counties — no one is sitting in jail without an attorney, Burica said. But attorneys are overworked and struggle to find time to meet with clients, collect evidence, and prepare for defense.

“We’re overloaded, but all within the state standards. I hope it will slow down,” Burica told the Methow Valley News in February.

* * * 

While the state requires the county to provide indigent defense services, it pays just 5% of the county’s costs — even less if you consider that the county isn’t paying attorneys what they’re worth, Okanogan County Commissioner Andy Hover told the News. “It’s an unfunded mandate,” he said.

Moreover, Okanogan County has a higher proportion of indigent defendants than wealthier counties, creating a disproportionate burden, Hover said.

Washington is one of just 12 states in the country that provide only minimal funding for indigent defense. Here's more on the cost implications--including local taxes--of these attorney deficits, per Beekman in the Seattle Times: 

In January, tiny Asotin County in Eastern Washington had only one attorney under contract to represent defendants charged with felonies, and he lived 100 miles away in Spokane, County Commissioner Brian Shinn said. Shelling out $150 per hour to other attorneys boosted the county’s defense costs (by about 43% last year), putting strain on an already-tight budget, he said.

Although Asotin County is raising its sales tax rate this year, most stores in the area are located across the Idaho border, so the revenue bump will be modest, Shinn said, explaining why he’s glad the Association of Counties sued the state in September, claiming the Legislature should step in.

"The state sends us $30,000,” while the county spent about $825,000 last year, the county commissioner said. “The state is really dropping the ball.”

Stamper provides more details on the funding situation in Okanogan County, as they relate to the overall state budget to support these services. 

Public-defense expenses in Washington exceed $200 million annually, but the state provides just $5.9 million of that, which is distributed to counties based on a complex formula set out in state law. An additional $1 million supplements the allocation to cities, Hulsey [managing attorney for OPD] said.

Of the $5.9 million, 6% is divvied equally among all counties. The remaining funding is allocated proportionately, half based on county population and half on the number of filings in each county’s Superior Court.

Although Okanogan County’s 2024 budget provides about $1.3 million for public defense, less than $50,000 of that comes from the state — in 2024, the county got $48,532, which will cover just 3.7% of the county’s costs, Hover [Okanogan County Commissioner] said.

Again the strain on county budgets echoes what I found in my deep dive in 2010 into how indigent defense is funded in Arizona. There, too, the state makes meager contributions to a constitutionally mandated function that is thus largely the fiscal responsibility of county governments. 

On the theme of spatial inequality, here are two more revealing data points from Stamper's story:

The state funding formula is not only inadequate, but it results in inequities. For example, in 2021, Grant County got less than 3% of its total spending from the state, while Garfield County got about 20%, according to a lawsuit filed against Washington by WSAC [Washington State Association of Counties].

Per capita spending on indigent defense services varies widely across counties. In 2018, Whitman County spent $6.71 per capita on public defense, whereas Skagit County spent $48.15, WSAC said.

Both of these deeply reported stories are well worth a read in their entirety.   Another terrific story about Washington State's court system--including the struggle of litigants to access its courthouses--is here.