At the first public hearing on a controversial decision to cap caseloads for public defenders, state Supreme Court justices heard passionate opinions Wednesday from multiple stakeholders who would be impacted by the proposed policy.
Public defenders and their families pleaded for the caseloads to be capped during the nearly three-and-a-half-hour hearing, but prosecutors and county officials warned the limits could financially devastate counties and cities.
The Washington State Bar Association is recommending a new maximum of 47 felony cases or 120 misdemeanor cases a year for public defenders, a cut of nearly 70% of the current case limit standard.
The justices listened to local government officials argue about whether capping caseloads for public defenders could either help or hurt the system. Nearly 200 comments were submitted in writing ahead of the hearing. The ruling could thrust Whatcom County — and possibly the state — into legal chaos.
Currently, public defenders can take up to 150 felony cases or 300 misdemeanor cases in a year. The proposal includes dropping the caseload over a three-year period.
In Whatcom County, Public Defender Stark Follis told Cascadia Daily News that the proposed caseload caps could triple the budget of his office, from $8 million a year to $25 million a year, as he would be forced to triple the number of lawyers in his office.
“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.”
The doubling or tripling of a public defender’s office was constantly brought up by those opposed to the case cap standards during Wednesday’s public hearing.
Public defenders are primarily funded by counties or cities through property tax collections, said Derek Young, the interim executive director of the Washington State Association of Counties. The state funds about 3% of public defense costs across the state. Defense costs have boomed over the past 12 years from $110 million to $200 million in 2022.
Meanwhile, state funding for public defense costs has remained static in that time, from $5.6 million in 2012 to $5.8 million in 2022.
“Without significant court or legislative assistance, it is unclear how any county can implement the new standards,” he said. “I want to be clear, shouldering this burden even without the proposed three-year phase in — it’s impossible under the current funding structure for counties.”
Some counties, like Thurston County, are already facing a budget crisis and are working through case backlogs from the COVID-19 pandemic. Whatcom County is also working through those case backlogs and is facing a sobering budget situation that led to a 90-day hiring freeze in July.
No one from Whatcom County, including from the public defender’s office, the prosecutor’s office or county executive’s office, gave public testimony nor submitted written comments.
Working public defenders who attended the hearing, either in person at the Thurston County Atrium building or on Zoom, were split on the caseload caps.
Some public defenders in larger cities like Seattle, liked the caps because they could offer work-life balance and they could spend time on cases that have become more complex over the years due to the amount of discovery.
Michael Schueler, a public defender at the King County Department of Defense, said he was leaving the profession after a decade of work during his testimony Wednesday.
“This job, in order to do it right, to do it effectively, to represent our clients in a timely manner, means I cannot be a present parent,” he said. Since returning from paternity leave 10 weeks ago, Schueler has received 13 felony-level cases or 1,600 hours of attorney time. That’s on top of the existing caseload he had prior to his leave.
“Recently, on my current cases, I stayed at the office until 11 p.m.,” he said. “I missed seeing my daughter for the full day. I can’t do that anymore … I don’t know a single person who could be an effective parent and an effective lawyer.”
Meanwhile, other public defenders in smaller counties, such as Ian Maher, the director of the Cowlitz Public Defender’s Office, said the caps could destroy his office.
“This to me is basically knocking down the house to fix a leaking sink,” he said. “I understand the issues are largely being voiced by larger counties. The rest of our counties are not experiencing the same issues.”
Larry Jefferson, the executive director of the Washington State Office of Public Defense, said that the Supreme Court justices have a unique opportunity in front of them to address the future of public defense in the state. He was a public defender when the current caseload caps were implemented 12 years ago but nowadays, the caps have become untenable.
“This crisis is an opportunity to give promise to Gideon’s promise,” he said, referencing the U.S. Supreme Court decision, Gideon v. Wainwright, that determined the Constitution requires states to provide attorneys to those who cannot afford them in criminal proceedings. “No state has fully effected that. So we have a grand journey.”
He suggested an alternative path to case limit caps since each county approaches public defense differently. Jefferson argued all counties and cities create public defense action plans for public review and then file the plans with the Office of Public Defense. The plans would then be sent to lawmakers and the Supreme Court.
In those plans, counties and cities would lay out how to address challenges faced locally when trying to reduce caseloads and plans to address those challenges.
“That three-year timeline that was proposed, while ideal, is not achievable,” Jefferson said. “We need a process that is sustainable, that’s attainable, that’s actionable and focuses on accountability.”
The justices will have a second hearing on the caseload caps in November while the public comment period remains open until Oct. 31. Justices will make a decision about the caseload caps this winter.
Annie Todd is CDN’s criminal justice/enterprise reporter; reach her at annietodd@cascadiadaily.com; 360-922-3090 ext. 130.
