Public Defense Standards Are Changing: What Counties and Cities Need to Know

On March 8, 2024, the Washington State Bar Association (WSBA) adopted revised Standards for Indigent Defense Services (WSBA Standards). The WSBA Standards provide caseload limits and other requirements related to public defense services. In particular, the revised standards will, over a three-year period, drastically reduce the number of public defense cases an attorney is able to accept in a given year. This blog will address some frequently asked questions about how the revisions to the WSBA Standards affect Washington local governments.

The Role of Local Governments in Providing Public Defense Services

Since the U.S. Supreme Court decided Gideon v. Wainwright in 1963, indigent criminal defendants have had a constitutional right to legal counsel to represent them. In the years following, states have taken different approaches to meeting this obligation. A 2017 Right to Counsel Services in the 50 States report from the Sixth Amendment Center summarizes the wide range of state involvement. In 21 states, public defender services are regulated by commissions at the state level, 13 states regulate only certain aspects of public defender service, and 16 states provide no direct oversight.

There is a similarly wide range of approaches to funding. According to the report, 27 states fully fund public defense services, 11 states provide some of the cost of funding public defense services, and 12 states provide minimal or no funding. Washington falls into the “no state oversight” and “minimal or no state funding” categories.

Therefore, in Washington, the responsibility for providing and overseeing public defense services has been delegated primarily to local governments. RCW 10.101.030 requires cities and counties to adopt standards for the delivery of public defense services and provides that the WSBA Standards shall serve as guidelines.

Washington does have an Office of Public Defense, which provides some funding to local governments, but it is a small fraction of what local governments spend on public defense services. For example, the Washington State Association of Counties (WSAC) reports that in 2021, state funding amounted to 3.22% of the total amount spent by counties on public defense services.

Why does the WSBA set public defense standards for local governments?

The WSBA first adopted public defense standards in 1984 using caseload standards that were issued nationally in the early 1970s. In 1989, the state legislature adopted RCW 10.101.030, which requires cities and counties to adopt standards for the delivery of public defense services. In 2005, RCW 10.101.030 was amended to provide that the WSBA Standards “should serve as guidelines to local legislative authorities in adopting standards.”

The last amendment to the WSBA Standards occurred in 2014, although there have been no significant changes to the WSBA caseload standards from 1984 until the issuance of the March 2024 revised standards.

How Do the New WSBA Standards Change Caseloads?

The previous standards set maximum caseloads that one full-time criminal defense attorney could handle per year. For example, the annual caseload maximum for felonies was 150 and for misdemeanors (unweighted) was 400. The previous standards did not have subcategories based on the type or complexity of the felony or misdemeanor.

The new WSBA Standards are based on recommendations in a RAND National Public Defense Workload Study (RAND Report), which was published in July 2023. The RAND Report creates subcategories of felonies and misdemeanors based on the type of charges and complexity of the case. For example, there are two types of criminal misdemeanors — low and high complexity. When the new WSBA Standards are fully implemented, a full-time, fully supported public defender working only on misdemeanor cases would receive a total of 120 case credits per year. A “misdemeanor low” case equals one credit, or 120 misdemeanor low cases per year. A “misdemeanor high” case equals 1.5 credits, or 80 misdemeanor high cases per year.

For felonies, there are 6 case types, and the maximum annual caseload for a full-time, fully supported public defender handling felonies when new WSBA Standards are fully implemented is 47 case credits. As an example, a “felony low” case equals 1 credit or 47 felony low cases per year, while a “felony high” case equals 3 credits or 15 2/3 cases per year. For more information on maximum case credit limits, please see WSBA Standard 3.J.

That is a dramatic change! What is the timeline for phasing the new standard in?

WSBA Standard 3.O provides that the caseload limits will be phased in over a two-year period beginning on July 2, 2025. As of that date, a full-time, fully supported public defender working only misdemeanor cases will be allowed to take no more than 280 case credits at a time. There will be another interim reduction in caseloads on July 2, 2026, and the new WSBA Standards will take full effect on July 2, 2027.

Are caseload reductions the only changes to the WSBA Standards that local governments need to know about?

No. The WSBA Standards also provide that agencies provide reasonable compensation for expert witnesses necessary for preparation and presentation of the case (Standard 4.A) and maintain specific ratios of investigators (Standard 6.B), mitigation specialists (Standard 4.B), and legal assistants/paralegals (Standard 7.B) for each public defender. Public defense attorneys must also have access to administrative services necessary for legal representation, including consistent access to interpreter services (Standard 5).

Local governments that contract for public defense services should, in the course of negotiation and oversight, be prepared to document that a contractor is able to meet the applicable WSBA Standards.

WSBA Standards: Guidelines or Regulations?

RCW 10.101.030 states that the WSBA Standards “should serve as guidelines” to local governments. However, local governments should be extremely cautious about adopting standards that do not conform to the WSBA Standards. The RAND Report is based on the recommendations of a nationwide panel of experts and serves as the foundation of the WSBA Standards. Further, many jurisdictions incorporate the WSBA Standards into their contracts with public defense contractors.

The risks of not meeting applicable standards was made clear in the case, Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122 (W.D. Wash. 2013). That case was a class action in which the plaintiffs alleged that indigent criminal defendants were not provided effective assistance of counsel. The court agreed, finding that public defenders had caseloads far in excess of the annual 400 misdemeanor limit set forth in the WSBA Standards. According to the court, the public defender services offered “amounted to little more than a ‘meet and plead’ system.”

In response, the court entered a comprehensive injunction that required the cities to retain a public defense supervisor to supervise and evaluate public defense services and ensure that defendants receive adequate representation at all stages of the proceedings. In addition, there was a large attorneys’ fee award. Any decision to depart from applicable public defense standards should be well-documented, carefully considered, and made in consultation with agency legal counsel.

Washington Supreme Court Standards for Indigent Defense and the WSBA Standards

The Washington Supreme Court’s Standards for Indigent Defense (“Court Standards”) are set forth in the court rules — in particular, CrRLJ 3.1. Those standards are similar to, but less comprehensive than the WSBA Standards. Currently, the Court Standards currently reflect the previous WSBA caseload standards because the Washington Court has yet to act on the new standards adopted by the WSBA on March 8, 2024.

Keep in mind that the Court Standards apply to attorneys and courts, while under RCW 10.101.030, the WSBA Standards serve as guidelines to cities and counties. The Court Standards preamble addresses the separation of powers concern:

To the extent that certain Standards may refer to or be interpreted as referring to local governments, the Court recognizes the authority of its Rules is limited to attorneys and the courts.

Therefore, even if the Washington Supreme Court were to depart from or choose not to adopt the WSBA Standards, such a decision would potentially impact attorneys and courts, but not local government entities.

Conclusion

Several recent news articles have addressed the chronic shortage of public defenders, particularly in rural areas:

• Crosscut: Washington public defenders say the strained system needs funding
• KNKX: Public defenders are on the front lines of Washington's worst crises, and there aren't enough
• Seattle Times: WA’s public defender system is breaking down, communities reeling

Keep in mind that the public defender shortage has arisen under current WSBA caseloads limits, not the new limits that will be phased in beginning on July 2, 2025.

Washington local governments will undoubtedly turn to the state legislature for relief, but it will be important for cities and counties to start contingency planning now for how to meet the WSBA Standards.