The Washington State Administrative Office of the Courts (AOC) have made a proposal to the Washington Supreme Court to amend caseload standards for indigent defense lawyers. The standards were drafted by the Washington State Bar Association (WSBA) and are a large reduction to previous standards initially put in effect in 2012.
Caseload standards refer to the annual amount of misdemeanor and felony cases a full-time indigent lawyer is allowed to handle. The proposed change would see a notable reduction from 400 to 120 misdemeanors and from 150 to 47 felonies. The amendment also includes a nuanced point system for weighing cases where misdemeanors would weigh 1 or 1.5 points and felonies would weigh 1 to 3 points, depending on the severity and complexity of the case. The changes would be implemented over three years.
“Our public defense cost would go up by about 150 percent in 2 to 3 years. Not accompanied by any source of revenue that we are aware of to help offset that. That’s not even the problem, the problem is that the attorneys are not there to hire, they do not exist,” said Jefferson County Prosecutor James Kennedy.
This amendment could have a big affect on rural counties like Jefferson County, who face lawyer shortages. Some relevant parties are in disagreement regarding how it might affect the county and if it should be passed.
Kennedy is very much against its passing, holding that a reduction in caseloads would be highly detrimental in the county. His worry is that either many cases would go untried, or that people could languish unrepresented.
“It is so obvious that this will cause catastrophe that I have to assume it is being done in bad faith, to force prosecutors to charge less crime, because there are certain groups of people out there who think Washington state engages in mass incarceration when, in fact, it does not,” said Kennedy.
Richard Davies, director of Jefferson Associated Counsel holds a starkly different viewpoint. As an indigent defense lawyer, he says that reductions in caseloads are long overdue, and that for these lawyers to offer their clients the defense they deserve, and are constitutionally guaranteed, the caseload standards should be reduced.
In contrast to Kennedy, Davies does not foresee any major fallout even if certain cases went untried.
“Somewhere between a fourth and a third of district court cases are driving while license suspended, or driving without a valid license,” said Davies, adding that the county should handle these by “charging them as infractions or not charging them at all. There are other counties in the state that don’t touch them, because it’s just not cost effective for anybody.”
Clallam County Prosecuting Attorney Mark Nichols and Chief Public Defender for Clallam County Harry Gasnick have shared a similar perspective to Kennedy’s, that public defenders offices will face significant struggles in funding and securing staffing, and thus prosecutors will be limited in what they can try.
“With the new caseload standards, reducing the number of cases that any one attorney can handle, the implication is you’re going to have to hire a lot more attorneys to keep up with the volume of cases,” said Clallam County Prosecuting Attorney Mark Nichols in a prior interview. “Somebody’s going to have to pay for that lot more attorneys, and it’s counties.”
“Once the new standards are fully phased in, the number of cases that can be handled by any given attorney will be reduced by a factor, that I estimate, a factor of 50 percent or more,” Gasnick said previously. “Which would mean the staffing requirements to handle those caseloads would double or perhaps even triple, with commensurate increases in non-attorney staffing.”
In his presentation to the Board of Jefferson County Commissioners on July 15, Kennedy presented several letters from other Washington county prosecutors, as well as a public defense lawyer, expressing similar degrees of confidence about the potential for harm that passing such an amendment might bring about.
“I don’t know what’s driving it, other than a recognition that too many cases results in less-than-zealous advocacy for too many clients. If you’re going to charge people with crimes, you’ve got to respect their humanity. They are entitled to the same due process that someone with a pile of dough in their pocket receives,” Davies said.
Public comment is open on the amendment until Oct. 31. Comments may be sent by email to supreme@courts.wa.gov or by U.S. mail to P.O. Box 40929, Olympia, WA 98504-0929.
