The Washington Supreme Court is considering controversial changes to public defense that would cut attorney caseloads by about two-thirds and necessitate huge increases in funding and staffing.
Proponents of the lowered case limits, beefed-up support staffing and tweaked qualifications for public defenders say the changes are badly needed to address a crisis of attorneys leaving the profession and problems recruiting replacements. Excessive workloads and low pay are to blame, they say, and without revisions more people will go unrepresented and have their rights violated.
Critics in Pierce County contend that the crisis is not felt here, and making the proposals a reality would bring its own disastrous consequences.
Requiring public defense attorneys to take on fewer cases would mean far more attorneys would need to be hired to represent thousands of people who can't afford a lawyer. An initial estimate from Pierce County government is that about 124 more attorneys would be needed in the Department of Assigned Counsel by July 2028.
Accomplishing that kind of hiring blitz would be "extremely challenging," according to the director of the Department of Assigned Counsel, Michael Kawamura. Mary Robnett, the county's elected prosecutor, says there simply aren't enough lawyers to make it happen.
The overall effect, Robnett said in an interview with The News Tribune, is that two-thirds of the cases filed by the Prosecuting Attorney's Office won't have public defense attorneys available to represent the accused. She said by law, judges would have to dismiss the cases.
"That means I'm going to try to prosecute murderers, rapists, kidnaps, arsons, robberies," Robnett said. "Auto theft, probably not. Residential burglary, probably not."
What's keeping Robnett up at night isn't public outcry over criminals getting away with stealing cars — people already feel that way, she says. Her fears about what could come to pass are darker.
"I think it's going to be vigilante land," Robnett said.
Of all the referrals the Prosecuting Attorney's Office gets from law enforcement to accuse someone of a crime, charges are filed about 55-60 percent of the time, according to Robnett. The others can't be proven. Understandably enough, sometimes people are upset about that. But if prosecutors are confident they have a good case and still can't pursue it?
"He doesn't have an attorney, and we can't force him into court without one, so he's going to walk free," Robnett said. "People are going to lose their minds."
The state Supreme Court is seeking public comment on the proposed changes until Oct. 31, and justices will have two public hearings, the first of which is scheduled for Sept. 25. Kawamura said he believes the court could accept the amendments as they are, reject them or modify them. Robnett said she's heard that many in the legal community view what's proposed as a done deal.
In the meantime, Kawamura is bracing for whatever decision is made, doing calculations about the cases the Department of Assigned Counsel handles each year and gathering data on the variables involved in the revisions.
Pierce County Council and Executive Bruce Dammeier, those responsible for articulating the county's stance on the proposal, have joined with the county councils and executives of King and Snohomish counties in asking the state's Office of Public Defense for assistance studying and addressing the possible impacts.
What is proposed?
Under current case limits, a full-time public defense attorney is allowed to work 150 felony cases per year or 300 misdemeanor cases per year. In some jurisdictions the misdemeanor cap is 400. The new limits would set the felony cap at 47 and misdemeanors at 120 on July 2, 2027.
In the intervening years, case limits would be incrementally lowered each July. By July 2028, public-defense agencies will be required to have one full-time investigator for every three trial-court level attorneys, a legal assistant or paralegal for every four full-time attorneys and a mitigation specialist or social worker for every three attorneys.
The proposed maximums and support staffing requirements were requested by the Washington State Bar Association and its Council on Public Defense, which already adopted the changes in their standards for indigent-defense services in March. The bar association's Board of Governors voted to forward their revisions to the state Supreme Court to incorporate the new standards into the court's standards for indigent defense.
The Council on Public Defense began to revise their standards in January 2022, prompted, according to a report from the council, by an "unignorable shift" in nationwide public-defense workloads and working conditions.
"Post-COVID, some Washington jurisdictions have experienced a surge in criminal case filings and have been unable to appoint qualified defenders to represent the accused," the council wrote in the report's introduction.
Elsewhere in Washington, public-defense lawyers might be within caseload limits, according to the council, but exponential increases in how long it takes to review information in each case demonstrates that current maximums are outdated. Caseload standards haven't been substantially updated since 1984, and the council states those standards were based on the recommendations of a study conducted in the 1970s.
Informing the new case limits is a national study published last year that analyzed 17 state-level public-defense workload studies conducted between 2005 and 2022. Called the National Public Defense Workload Study, it convened a panel of expert criminal defense attorneys to come to an agreement on how much time, on average, is needed to provide reasonably effective counsel in a variety of adult criminal cases.
None of the state-level workload studies was conducted in Washington, but one of the 33 experts on the panel has practiced law in the Puget Sound area, Lorinda Youngcourt. She was the top public defender in King County from 2015 to 2018 when she resigned her post after County Executive Dow Constantine reportedly told her he wouldn't appoint her to a second term.
The study found that under the current standards, a public-defense attorney handling 150 felony cases per year would, on average, be able to spend less than two full working days, 13.9 hours, on each case.
Based on the expert panel's consensus, even low-level felony cases require more than double that amount of time to represent a defendant, and the most serious crimes a person can be accused of, which carry possible sentences of life in prison without parole, such as aggravated first-degree murder, require 286 hours.
To get to the case limits that the state Supreme Court is now considering, the state bar association's Council on Public Defense used the study to assign crimes a number of credits based on the seriousness of the offense and how time-intensive the case would be.
A low-level felony such as attempting to elude a pursuing police vehicle, for example, is one credit, and a murder is seven credits. Under the proposed annual limits, a full-time public-defense attorney could work 47 attempted eluding cases a year, six murder cases or a mix of the two.
Those limits are lower than what the National Public Defense Workload Study calculated as reasonable. It found that attorneys could work 59 low-level felonies per year or eight murder cases. That's because for simplicity, it assumed a full-time attorney works 40 hours every week for all 52 weeks in a year.
It doesn't take into account the average Washington public-defense attorney's holidays, vacation and sick leave, the 15 hours they are required to spend each year on continuing their legal education, or time spent on work not specifically related to cases, according to the Council on Public Defense's report on its suggested revisions. With those limitations in mind, the council calculated that public defense attorneys have about 1,653 hours, or about 206 full work days, to spend on cases each year.
Pierce County public defenders well-staffed, well-paid
Robnett agrees it's important to have a limit on the caseloads of public-defense attorneys so they're not overwhelmed. Unlike defense attorneys who work in private practice, public defenders don't have the luxury of turning away cases.
It's also important to her that anyone accused of a crime receives a good defense. The right to an attorney is enshrined in the U.S. and Washington state constitutions, and landmark Supreme Court decisions shaped the right into what we know today. Even if you can't afford an attorney, the government will provide one, thanks to 1963's Gideon v. Wainwright. It was 1984's Strickland v. Washington that helped guarantee the right to effective counsel.
As Robnett sees it, Pierce County's public-defense services are working well, and the new limits on caseloads are underestimating the abilities of attorneys who work in public defense locally and around Washington state.
"I'm not in favor of, you know, going out looking for a fix for a problem that doesn't exist," Robnett said.
Robnett said Pierce County should be aggressively pushing back on one-size-fits-all caseload standards. There are counties where the system is not working, she said, and the state should be looking for creative ways to address their needs, but what's in place now is working for Pierce County.
"We don't need help in Pierce County," Robnett said. "We're lucky."
Like the rest of the country, public defenders in Pierce County represent most people accused of a crime. According to county data, public-defense attorneys were assigned to 71.5 percent of the 3,589 felonies filed in Superior Court last year.
It's a lot of cases — Pierce County Superior Court is the second largest Superior Court in the state — but according to Assigned Counsel Director Kawamura, his office is well-staffed to handle them. He has 79 attorneys currently working that take on cases, 11 of whom have more responsibilities as supervisors.
Seven more prospective defense attorneys have accepted employment offers from Kawamura, and he expects to be at full staff after they get their bar exam results back in September.
That's not to say that the Department of Assigned Counsel has been immune to the labor shortage and turnover crisis felt by many industries during and after the height of the COVID-19 pandemic. Kawamura said his office experienced turnover "like the rest of the country," but for those who decided to stop working for him, there isn't a central theme.
"I think some of it, I think, could be attributed to workload," Kawamura said. "Some of it was opportunities to go places where you could work 100 percent remotely, some people moving closer to family. You know, it kind of runs the gamut."
Low pay has been cited as one of the top issues alongside workload for attorneys who decide to quit working in public defense. In some jurisdictions, public-defense offices get fewer resources, and their attorneys are paid less than their colleagues who work in prosecution.
The Department of Assigned Counsel's budget is a little more than half that of the Prosecuting Attorney's Office's budget of about $89 million. Depending on their level of experience, attorneys working in either office are paid the same. According to The News Tribune's salary database, the lowest-paid public defender makes $76,955.85. The high end of the pay scale, not including leadership positions such as Chief Deputy Attorney, is nearly $160,000.
Attorneys in the Department of Assigned Counsel have varying caseloads, according to Kawamura. Not unlike the proposed model of assigning fewer cases based on how serious and time-consuming they are, attorneys who are more experienced and handle murder cases, for instance, have much lower caseloads than attorneys who work theft or burglary cases.
No matter the variation, Kawamura said all of their caseloads are within the current limits.
Still, as supporters of the new public-defense standards have pointed out, the work of criminal-defense practice has become more complex and time consuming. In the Council on Public Defense's report to the Washington State Bar Association on the revisions, the council noted that the use of body-camera footage, cell tower data and advances in knowledge of mental health and youthfulness have increased how much time public defenders need to spend on pretrial investigation.
In a presentation given in June to Pierce County Council, Robnett said that the most difficult to manage and time-intensive cases have started to take up a larger portion of her office's referrals from law enforcement in recent years. Those include murders or manslaughter cases, robberies, assaults, arsons, sex crimes and felony domestic violence. Before 2020, those made up closer to 30 percent of referrals to the Prosecuting Attorney's Office.
"Now it looks like our new normal is going to be over 50 percent of our case load will involve this type of case," Robnett told the County Council.
What's next?
Whatever changes come to public-defense standards, the task of meeting new staffing requirements will be overseen by Pierce County's Executive and County Council.
Come November, a new Executive will be elected after Bruce Dammeier reaches the end of his second four-year term. Ask the Democrat or the Republican vying for his job what they think of the new standards, and you'll find they agree on a lot: The schedule for reducing caseloads is too aggressive, more data is needed on the local conditions of public-defense services and the state needs to contribute more to the costs of providing the services.
Rep. Kelly Chambers, a Puyallup Republican who is running for County Executive, told The News Tribune she's dealt with some of those issues in the state Legislature, so she's aware that there is a shortage of attorneys, and she understands that in that shortage is a disparity between rural and more urban counties, which generally have more resources.
"We can change that lever and have a different standard for caseloads, but do you have the bodies then to fill the position," Chambers said. "And that's where I think the gap is — that you could put money at an issue but do you have the people to then staff it, and I don't think we're there."
Workforce shortages are something Chambers said she's seen in a variety of industries while she's worked in the Legislature, including in nursing and education. She said she's been happy to support state-level policies such as student-loan forgiveness to incentivize more people to go into high-demand fields. She said lawmakers need to do more to work with counties on addressing what their needs are by figuring out what incentives different counties can take advantage of.
Chambers also said the state needs to pay a larger share of the cost of providing public defense services. She supported the passing of Senate Bill 5780, which is meant to help recruit and train more attorneys for public defense and prosecution. At one point, it included a proposal to repay student loans for early-career public defenders and prosecutors, but it was cut before reaching the governor's desk.
Ultimately, Chambers said she wants to ensure Pierce County is a safe place to live and that the rights of people in the criminal justice system are protected. She said she's concerned that implementing the new standards could throw the system into "chaos."
"Would we wind up in a position where judges are having to release criminals, essentially on a technicality?" Chambers said. "I wouldn't want something that moves us further away from pursuing more public safety."
Ryan Mello is the Pierce County Council chair and a Democrat seeking election to County Executive. Mello said he and the County Council support updating caseloads to ensure the fair implementation of justice and a fair trial, but the state needs to pay its fair share of the costs, and the implementation schedule needs to be realistic.
Mello said the state contributed $640,504 for the cost of providing indigent defense for Pierce County, which is 1.3 percent of the county's costs.
Based on the proposed implementation schedule, Mello said, the county has estimated that 20.8 full-time employees would need to be added in 2025; 16.7 in 2026; and 87 more full-time employees in 2027. By 2028, another 126.6 full-time employees would be needed, totaling 251 positions that would need to be filled.
"[The] state will need a heavy investment in indigent-defense workforce development to meet this demand, but no one is addressing this focus at the state level," Mello said.
Mello said indigent defense is a right guaranteed under state and federal constitutions, and the state has chosen to delegate that duty to counties without any serious financial support. Mello said that's why the Washington Association of Counties is suing the state to fund the cost of that responsibility. He added that Pierce County would be asking the state Legislature to pay a significantly larger portion of the cots.
"Without additional state financial support, the dramatic increase in costs from the new caseload standards will force all counties to reduce other important programs that are priorities to our communities," Mello said.
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