OPINION: Washington faces challenges with public defense

This editorial was published in The Columbian of Vancouver, Wash.

———

One of the underpinnings of the American justice system is that people suspected of crimes are entitled to a vigorous defense, even if they cannot afford to pay.

But over the years, cases have grown in both number and complexity, stressing Washington’s — and Clark County’s — public defense system. It seems likely that 2025 will be a year of reckoning and change in this admittedly flawed system.

Indeed, the status quo is not an option. Overworked public defenders are increasingly unable to effectively handle all the cases they are assigned. This creates a two-tiered justice system, where wealthy defendants may receive a different outcome than their indigent counterparts.

According to the Seattle news nonprofit CascadePBS, the state Supreme Court is now considering a drastic change to case limits for the first time since 1973. Currently, public defenders statewide, including Clark County, can be assigned about 150 felony cases per year. (Felonies are more serious crimes punishable by prison sentences, such as murder, robbery and sexual assault). Attorneys who handle misdemeanors, such as petty theft or drunk driving, can receive around 400 cases per year.

The new standards would slash that to 120 misdemeanors or 47 low-level felonies per attorney. The proposed cap is even lower for higher-level felonies such as murder. The new limits would be phased in by July 2027, according to CascadePBS.

If that proposal sounds drastic, expensive and difficult to implement, it is. By one estimate it would require adding 2,000 more defense attorneys statewide and cost taxpayers an extra $1 billion per year. In a year when public schools and their unions are likely to be raising a hue and cry over funding shortfalls, and aging baby boomers require more services, it’s unlikely that voters and legislators will be eager to find lots more money to defend criminals.

And that’s not the end of it. In an interview with The Columbian’s Becca Robbins last March, Clark County Prosecutor Tony Golik warned that his office wouldn’t be able to function against what he called “an army of defense attorneys.” Golik said the change would make it harder for his office to retain prosecutors if they could instead become defense attorneys for the same pay, but far less work. His office has 29 prosecutors who file about 2,000 felony criminal cases per year, putting each prosecutor at a caseload of about 70 felony cases annually.

“All of these things in the justice system, they’re three-legged stools, four-legged stools,” Golik told Robbins. “If you take one of the legs and you make it three times as long, well it doesn’t work.”

The county is already taking some steps to improve its public defense system. This year the county set up a public defense office and hired Christopher Swaby to lead a team of 10, including six attorneys. The county was able to use $3.1 million in pandemic relief funds for start-up costs and to pay salaries through 2025. The savings from hiring fewer contract public defenders should defray its cost after next year.

Going forward it seems likely that Clark County will have to adjust its new public defense model as the Supreme Court rules on caseload limits. Whatever new limits are established, they are likely to be expensive to implement and unpopular with political leaders and taxpayers. But the alternative of unequal justice is equally unpalatable.

TNS