Inside the Whatcom County Superior Courthouse, judges and lawyers are diligently chipping away at a backlog of cases left over from the pandemic, even as dozens of new cases filter in every day.
On the third floor, three judicial clerks work the phones trying to find counsel for defendants who don’t have representation. In a nondescript office, technology staff pack away computers and files to create judicial chambers for a newly added fifth judge to help with the case backlog and water adjudication hearings.
Those involved in the Whatcom criminal legal system, from judges to public defenders and prosecutors, agree the system has faced problems in the past few years, from a lack of lawyers because of recent retirements and burnout, to clearing cases. Some solutions have been applied with the implementation of a conflict office and the appointment of a fifth Whatcom judge in July.
[ Read more: Inside the conflict office dedicated to finding attorneys for jailed clients ]
But a decision from the Washington Supreme Court could upend the status quo and thrust Whatcom County — and possibly the state — into legal chaos.
By the end of 2024, the state Supreme Court will decide if public defenders have to reduce their caseloads.
Currently, public defenders can take up to 150 felony cases or 300 misdemeanor cases in a year. But the caseload limits could be reduced by nearly 70% based on the argument now in front of the Supreme Court.
That decision could force the Whatcom County Public Defender’s Office to triple in size, and in turn, impact the Whatcom County Prosecutor’s Office.
“I don’t think I have ever seen anything like what’s coming,” said Starck Follis, the Whatcom County Public Defender. “It’s funny because it seems like it’s flown under the radar. I mean, this is a big issue. This is a tidal wave headed towards the criminal justice system in Washington.”
Follis said his office would have to grow from 27 attorneys to 81 — if they could be found. Support staffing in the office, including investigators, legal assistants and behavioral health specialists, would have to increase. His budget would also triple from $8 million a year to roughly $25 million. That doesn’t include finding a new office space since the current downtown office is at capacity, with a couple employees working out of converted closets.
The first public hearings on the issue, hosted by the state Supreme Court, begin on Sept. 25.
The looming challenge
Last year in Whatcom County, public defenders, prosecutors, private attorneys, judges and judicial commissioners saw 1,495 new criminal cases filed in Superior Court. That doesn’t include the number of criminal cases making their way through the system that were filed in previous years.
In the first seven months of 2024, about 829 new criminal cases had been filed in Whatcom Superior Court, according to Washington Courts data.
The idea of capping caseloads by 70% isn’t novel. Rather, the entire U.S. public defender system is weighing the idea after a study by the American Bar Association, the National Center for State Courts and the RAND Justice Policy Program last year recommended public defender caseloads should be greatly reduced to give appropriate time and attention to clients.
“A justice system burdened by triage risks unreliability, denying all people who rely on it — victims, witnesses, defendants, and their families and communities — efficient, equal and accurate justice,” according to RAND.
In response, the Washington State Bar Association recommended and adopted a standard of a maximum of 47 felony cases or 120 misdemeanor cases a year for public defenders. The Bar also recommended a three-year implementation phase. The recommendations are under a public comment phase.
The Supreme Court will host two public hearings and will take written comments ahead of Oct. 31 before deciding on adopting the recommendation later in the year. The first hearing will take place in Olympia from 9 a.m. to noon on Sept. 25.
King County, in anticipation of the Supreme Court’s decision, has already started to adopt the caseload limits.
“It’s funny because it seems like it’s flown under the radar. I mean, this is a big issue. This is a tidal wave headed towards the criminal justice system in Washington.”
Whatcom County Public Defender Starck Follis
Anita Khandelwal, the King County Public Defender, told Cascadia Daily News her office has changed the way it monitors attorney caseloads and is working toward getting more attorneys qualified to take felony cases. The office is also preparing budget requests for additional needed staff.
“We’re hopeful that [by] providing a clearly articulated path to relief from the heavy caseloads responsible for the burnout widely reported among public defenders, we’ll be able to stem the attrition of attorneys — particularly those who are qualified to handle the most serious cases,” she said.
Caseload limits can be a good thing, said Aditi Goel, deputy director of the Sixth Amendment Center, a national nonprofit that educates about indigent defense services. It gives attorneys time to spend on a case and fulfills a constitutional requirement that attorneys aren’t overburdened with an excessive caseload.
“When there’s a crisis, the question isn’t necessarily, ‘Is it a bad thing that attorneys have workload standards and that there’s a cap to the number of cases they can take?’ It’s who to shift to and working together collaboratively as a system to address the issue,” she said.
Across the state, public defenders, judges, lawmakers, and city and county officials have sounded the alarm of what could happen if the reduced caseload limits are implemented.
County expenses across the state could double or triple and could cost the state an annual average of $150 million more, according to the Washington State Standard.
“There just aren’t enough lawyers around to fill the positions that would be necessary to comply with those caseload standards,” Follis said. “And there isn’t any money that’s been appropriated to pay for the lawyers even if they did exist.”
And if the public defender’s office wasn’t able to find extra attorneys, that would also impact the prosecution side of things, said Eric Richey, the Whatcom County Prosecutor.
“If the public defender’s office can’t handle all the cases that are out there, then we won’t be able to prosecute a number of cases,” Richey said. “That’s what everyone’s concerned about.”
What’s at stake?
Follis and Richey say they’ve struck a balance in their offices with managing employees, caseload limits and a few staff vacancies.
“I feel pretty good about the workload that my lawyers have,” Follis said. “Certainly there’s a lot of stress and pressure that comes with this work and they do deserve to have their caseloads reduced. But this isn’t a sweatshop at this point. I think people are relatively comfortable with where they are right now.”
When caseloads are reduced — Follis and Richey believe it will happen — people may be waiting a while for an attorney, whether that’s one in the Public Defender’s Office or an assigned private attorney.
“Frankly, that’s my biggest fear about these new caseload standards when they kick in is that there’s going to be a large number of people that are not represented and I’m not sure what the answer is to that,” Follis said.
In the prosecutor’s office, there are three vacancies, forcing Richey to ask more of his 25 attorneys, from assigning criminal cases to defending the county in civil matters. When the caseload limit decision comes in, Richey will have to hire more attorneys.
“We’re talking about three times the number of public defenders in this community and in theory, that’s going to increase the workload for us,” he said. “It’s going to be a real interesting situation if it comes to fruition.”
Annie Todd is CDN’s criminal justice/enterprise reporter; reach her at annietodd@cascadiadaily.com; 360-922-3090 ext. 130.
