Gideon Alert: Proposed Washington Supreme Court standards give focus to national caseload debate

BY David Carroll on Tuesday, November 8, 2011 at 3:16 PM

On October 31, 2011, the public comment period closed on proposed Washington State Supreme Court standards that would implement many of the American Bar Association’s Ten Principles of a Public Defense Delivery System.  These proposed standards have been long in the making.  The Washington State Bar Association (WSBA) Council on Public Defense developed the standards now being proposed for Supreme Court approval after months of seeking input from numerous stakeholders and interested parties.  Nonetheless, in the final days open for public comment, a flurry of opposition was mounted by local prosecutors, county and city policymakers, judges, the State Legislature, and even some public defense providers.  [All public comments are available on the Court’s website here].

If adopted, the proposed standards will require that public defense attorneys: 
  • meet minimum qualifications before being appointed to represent clients in categories of cases (Principle 6);
  • maintain an office to meet confidentially with clients and receive mail and phone calls (Principle 4); 
  • use investigators where appropriate ;  and,
  • refuse workloads that would interfere with providing quality representation (Principle 5).
The Court would specifically limit indigent defense providers to handling in a single year no more than: 150 felonies; or 250 juvenile delinquency cases; or 36 appeals; or a single active death penalty case along with a limited number of other cases; or a proportionate number where caseloads are mixed.  The standards do not currently address a maximum number of misdemeanor cases, though they do set limits for juvenile dependency and civil commitment cases.  Moreover, the proposed standards require “private attorneys who provide public defense representation” to limit the amount of privately retained work they take on, so as to handle not more than the maximum number of cases in a given year set out above.  The specific caseload limits would take effect January 1, 2013, while all other standards would take effect January 1, 2012.
Washington State requires each of its 39 counties to fund almost all of its Sixth Amendment obligations.  The Washington State Office of Public Defense has a very small amount of state funding that it uses to provide appellate representation through contracts, to provide limited support to counties and cities to upgrade their trial-level services, and to oversee a program representing parents in dependency cases in 25 counties.  All other indigent defense services are funded and administered by the counties and cities.  And even that small amount of state funding first occurred only in this past decade.
Washington has long been criticized for setting up a system in which the level of justice a person receives is entirely dependent upon which side of a county line the crime is alleged to have been committed.  Counties with resources, such as King County (Seattle), have systems that broadly meet the foundational standards recognized by the ABA Ten Principles, while the majority of other counties do not.  King County delivers services through four independent non-profit public defender agencies that each operate under a separate, independent board.  Most of the other Washington counties provide representation through either a contract or an assigned counsel system.  Attorneys in these systems are not employees of the county.  Instead, they are paid by the individual case or number of cases, and they have to pay all of their own office expenses.  In order to make more money, they must take more and more cases, whether through the public defense system or from privately paying clients.  The danger of this situation is that attorneys will base their decisions in part on what will allow them to put food on their family’s table rather than solely on what is in the best interests of their client.   A three-part series by The Seattle Times on April 4th, 5th, and 6th, of 2004 highlights the wide divergence between functioning and deficient systems.  (Gideon Alerts has more recently written about systemic deficiencies in Washington’s right to counsel systems, here and here).
One private attorney, commenting in opposition to the Court’s proposed standards, actually argues that attorneys will not be able to make as much money as they wish if they are forced to have a physical office and limit the number of cases they handle.  This commentor is suggesting that an attorney should be able to short-shrift clients of the time and effort necessary to provide them effective representation, in order for the attorney to make more money.  In the letter, the attorney suggests it would be acceptable for a single attorney to carry a workload that requires 1.73 attorneys under all national workload standards -- standards that the ABA Principle 5 cautions should “in no event be exceeded.”  This is precisely the primary reason why Washington needs caseload controls in its public defense system.
The most common argument raised in opposition to the proposed standards is that their adoption would violate the separation of powers among the branches of government.  The division of power among the three branches is often described simply as: the legislative branch makes laws, the judicial branch interprets laws, and the executive branch enforces laws.  As part of its law-making authority, the legislative branch also holds the power of the purse and determines the budgets for each aspect of government.  Opponents of the standards argue that the Court, if it adopts caseload limits for public defense attorneys, would be encroaching on the legislative power to determine budgets for public defense. This suggestion is incorrect.
Courts are solely responsible for controlling the practice of attorneys in their courts.  The caseload limit standards seek to do just that: ensure that public defense attorneys are capable of fulfilling their duties to their clients in cases before the courts.  Enacting caseload standards does not require counties to spend more money.  The state and county legislative bodies retain full control over the manner in which they respond to the effects of the standards, if at all.  They are certainly free to fund additional defense attorney positions, in order to handle more cases, if they wish.  But they may also decrease the number of cases that need public representation, so that the existing number of lawyers can provide all representation needed while complying with any imposed caseload caps.  Changing prosecution charging practices, creating new criminal justice processes to divert cases out of the formal criminal justice system, and reclassifying certain crimes down to civil infractions are all perfectly acceptable ways to decrease the number of cases needing publicly paid representation, without the state or counties spending one dime more for public defense. 
Many of the opposition letters acknowledge as much.  The Puyallup City Attorney notes that “local governments may be forced to end localized prosecutions and close municipal courts” if the caseload caps are adopted.  Similarly, the Renton City Attorney states, “[i]n order to live within a rigid numerical standard, some jurisdictions may be forced not to charge certain cases that they almost certainly would and should under normal circumstances.”  And, the Sedro-Woolley City Attorney suggests that she will have to write “infractions for crimes” which will “unintentionally” deny indigent defendants access to a lawyer (but neglecting to note the Sixth Amendment would no longer apply to those infractions, because jail would be off the table as a possible sentence).  What these prosecutors are saying is that the legislature might choose to re-evaluate prosecution practices in the state.  Indeed, the establishment of caseload caps may spur on a re-evaluation of criminal justice practices that could result in major cost savings for Washington taxpayers across the entire criminal justice system, while at the same time upholding our constitutional principles.
Advocates of the new standards, including The Constitution Project, The Washington State Bar Association, the Washington Association of Criminal Defense Lawyers, and the Washington Defenders Association, pushed back with their own letters of support.  The letter from Donald Horowitz to the Court, imploring that the caseload standards be adopted, sums things up well.  Through his career, he has served as a Senior Assistant Attorney General, Chief Counsel for the State Correctional System, Counsel to the State Parole Board, and as a Superior Court Judge.  He states: 
“We must all acknowledge that there are as yet no perfect standards, and there won’t be perfect standards for a long time, if ever.  What we must do, and do now, before things get worse is adopt standards that reflect our current best judgment and that carry with them an intent and a straightforward plan that will enable us to have better and better standards over time. To accomplish this essential task – and it is essential – we must have experience with and learn from the practical application of standards that arise from best efforts and judgments thus far of knowledgeable and experienced people of appropriate intent and balance, and in a reasonable time be ready to modify and improve the standards based on what we learned during that period.”
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