February 2007
Improving Public Defense in Washington: A Progress Report
by Rafael Gonzales
It was just over 40 years ago that the U.S. Supreme Court, in 1963, honored Clarence Gideon's plea for help and decided that the assistance of counsel is required — guaranteed — for indigent defendants by the U. S. Constitution. Washington's justice system — the courts' Justice in Jeopardy Initiative, the counties, the state, the Washington State Bar Association, the Washington Defender Association, the Washington Association of Prosecuting Attorneys, the American Civil Liberties Union, and others — are still working toward that ideal.
The tasks ahead include establishing consistent systems for the delivery of defense services; objective criteria for the evaluation of court-appointed counsel; development of oversight mechanisms for the entire system; and adequate funding for all of those needs. The issues are large in scope: Each year, some 43,500 felony defendants and well over 100,000 misdemeanor defendants are indigent.
Gideon v. Wainwright made the appointment of attorneys for indigent criminal defendants a state responsibility under the Sixth and Fourteenth amendments, but until now, this duty has been delegated to the counties and cities. The result: Washington's jurisdictions have a myriad of public-defense systems — virtually none of which meet state standards developed by the Washington Defender Association and adopted by the WSBA in 1990.
State Funds to Support Public Defense
HB 1542. During the past two years, progress has begun. In 2006, for the first time, the Legislature appropriated state funds for public-defense systems in the counties and cities, totaling $3 million. HB 1542, passed in 2005, establishes that the Washington State Office of Public Defense (OPD) distribute appropriated funds to the jurisdictions. The funds must be used to improve local public-defense systems.
"Counties and cities receiving HB 1542 funding are spending the state dollars for what they have determined to be their areas of greatest need. That includes hiring attorneys to lower caseloads, providing attorneys at arraignment, increasing pay for contract public defenders, or purchasing computer updates for public defense attorneys," said Judge Harold D. Clarke (ret.) of Spokane. Judge Clarke chairs the Washington State Office of Public Defense Advisory Committee.
In Chelan County, officials are using their HB 1542 funds to pay for a new nonprofit public-defender agency. Clark County has established an attorney position of indigent defense coordinator, to oversee, monitor, and work to improve public defense. David de Long, the new coordinator, notes that the state funding is helping the county take "new actions toward reaching state and county goals regarding justice for all residents of Clark County."
Public Defense Pilots. High defense-attorney caseload levels remain chronic throughout Washington. In 2005, the Legislature appropriated funds pursuant to the courts' Justice in Jeopardy bill, SB 5454, for the development of pilot programs to implement caseload standards and adequate case resources. Washington State OPD is working with three jurisdictions to initiate these pilots:
• A city-state program in Bellingham Municipal Court that features two additional state-funded attorneys, an investigator, and other support, such as social worker and paralegal services. These additions have lowered attorney caseloads and allowed public-defense representation at defendants' first appearance. Municipal Court Judge Debra Lev says that the court saw significant benefits even at the beginning of the pilot, and that the additional services have been well received by the public.
• A county-state partnership program in Grant County Juvenile Court that has added 1.4 attorney FTEs to lower public-defense representation caseloads to the state standard of 250 cases per attorney per year. Now, juveniles can meet with their attorneys before their first court appearances — something that did not happen before the pilot. The public-defense caseload is supported by investigative services and a part-time social worker.
• A program in Thurston County District Court adding attorneys to help handle a caseload so high that one news commentator called it a "circus" in 2005. Now, investigator services are readily available and attorneys represent indigent clients at their first appearances. "I am so pleased to see a decrease in the number of unrepresented individuals at their first court hearing, who stare up at the bench, afraid of what is happening," Judge Kip Stilz recently said. "In Thurston County, I believe this project has significantly improved the quality of criminal justice."
These pilot programs provide information and practical experience in implementing state funding to improve public defense on a court-by-court level. An evaluation measuring the results will be published in 2007.
Targeted CLEs. Legislative funding was provided under SB 5454 for six regional Washington State OPD public-defense conferences, held this year in Vancouver, Wenatchee, Richland, Spokane, Poulsbo, and Ocean Shores. These two-day CLEs were provided free of charge to public-defense attorneys practicing in the regions. More than 300 attorneys attended statewide. Pertinent public-defense issues were covered, including ethical considerations of plea negotiations, cross-examination of expert witnesses, sentencing options, updates on the Rules of Professional Conduct, procedures for filing appeals, and recognizing and dealing with cross-cultural issues and immigration consequences of convictions. Numerous attorneys noted they appreciated that these conferences were held in their areas, and that useful, practical information was presented.
Parents' Representation. Another major public-defense program, Washington State OPD's Parents' Representation Program, was expanded to about half the counties during the last two years. This program was initiated as a pilot in Benton-Franklin and Pierce juvenile courts in 2000. The program furnishes state-funded attorneys for indigent parents in dependency and termination proceedings, which can lead to termination of all parental rights. In the past, the counties funded parents' attorneys at a much lower level than the state funded assistant attorneys general to represent the state. Parents' attorneys were hindered by overwhelming caseloads and few expert or social work services to assist their clients. The new funding, now about $8.5 million per year, allows contract attorneys to carry reasonable caseloads within state standards and to access support services where needed.
"Better representation means that all the parties and the court have the information needed to make just and proper decisions for the children and families involved in these difficult cases," OPD Director Joanne Moore noted. Three independent evaluations of the Parents' Representation Program pilots found that family outcomes have improved substantially. More children are safely reunited with their parents, and don't have to grow up in government-paid care.
The Next Steps
In 2004, the WSBA Blue Ribbon Task Force on Public Defense found that though the problem of "deficiencies in the provision of defense services in Washington" has been reported by a multitude of studies, reports, and court decisions over a period of many years, few remedial steps had been taken. Three years later, progress has begun, but much is left to be done. Fortunately, the coalition of concerned Washington justice-system members remains committed to addressing indigent defense's deeply embedded deficiencies.
Following the Blue Ribbon report, the WSBA appointed the Committee on Public Defense to develop action recommendations for consideration by the WSBA Board of Governors. "The Committee on Public Defense has made substantial progress by bringing together a diverse group of public defenders, prosecutors, and community leaders to address Washington's public-defense problems and support state funding for counties and cities struggling with these issues," said Co-chair Jon Ostlund.
The Committee will soon submit its report to the Board of Governors, recommending proposed court rules, updates to the indigent-defense standards, measures to make the application of the death penalty more fair, continued educational efforts for judicial and county officials, methods for improving mental health proceedings, and a recommendation for the continuation of a WSBA public-defense committee, among other actions. Significant improvements will be gained upon the implementation of such action steps.
Another critical remedy is increasing state funds and scrupulously using them to address the jurisdictions' individual needs. The beauty of HB 1542 is that as additional funding is appropriated by the Legislature, each jurisdiction uses the state dollars to improve public defense in conformance with the WSBA standards. Washington State OPD audits the jurisdictions' use of HB 1542 funds. Thus, state appropriations assure apt, localized public-defense improvements.
This session, the justice system coalition is advocating for additional biennial funds of $19 million for indigent defense and $17 million for the Parents Representation Program. Given the state's favorable budget climate, this is a good year for Washington to honor its constitutional obligation to provide effective counsel for indigent defendants. Gideon's holding — that the criminal justice system will provide a lawyer for those who cannot afford one to ensure the accused stands equal before the law — requires our state's commitment to implement a system that truly guarantees that the Sixth Amendment is fulfilled.
Rafael Gonzales is a public defense services manager at the Washington State Office of Public Defense. He previously served as a senior trial attorney with the Yakima County Department of Assigned Counsel.
