On November 13, the State Supreme Court held a follow-up hearing covering new proposed statewide indigent defense caseload standards. Watch the recording of the entire hearing.

AWC testimony

AWC’s CEO Deanna Dawson was one of the first speakers to address the justices and she delivered clear and straightforward remarks on the impacts the new standards would place on cities.

The three main takeaways are:

1. This broad statewide approach doesn’t work for everyone
   Enacting these caseload standards would have a detrimental impact on the criminal justice system in many communities. The Court should consider the impact of caseload standards on the system as a whole – and work with the entire system to address challenges holistically.
   • Attorney shortages: Some parts of the state face significant attorney shortages (rural areas), making it nearly impossible to recruit and hire new ones; and
   • Varying caseloads: Some parts of the state face varying degrees of workloads (heavier caseloads within King/Snohomish counties), meaning adopting these standards would cause hardship on areas without caseload issues in the first place.

2. This approach is prohibitively expensive for already strained budgets
   These new standards would be very costly, again particularly in rural and underserved areas of the state. We urge the Court to work with us to ensure that the state steps up to equitably fund not only public defense, but all aspects of the justice system.

3. We need a Washington state-specific study to understand the full picture
   These standards are being proposed based on flawed national data that doesn’t reflect our local reality. There needs to be real, Washington-specific data produced before decisions are made that impact all cities. As one example, there is little to no evidence suggesting that misdemeanor standards need to be changed in this state, either in the national RAND study, or the record before the Court. Thus, we strongly urge the Court to exempt misdemeanors and gross misdemeanors.

Lastly, if the Court does decide to move forward, we ask for gradual and strategic implementation where changes could take place after January 1, 2026 or later to ensure that the impacts can be planned for and absorbed.

Cybersecurity issue at the Courts

As an important sidenote, the Washington Courts website is currently experiencing a shutdown due to unauthorized access and they are hopeful to come back online in the next week or so. In the meantime, they’ve established a temporary page to provide updates on the Washington State Bar Association’s website.

They haven’t uploaded any draft comments related to this issue on the temporary website. But don’t fear, AWC is full service and we’ve taken the liberty of requesting the documents so that you don’t have to! Browse through the written public comments (please be advised, this link will download a large, 1,500 page PDF).

Local government testimony

We were incredibly pleased to be joined in comment (written and oral) alongside an astounding 64 cities and towns! A decent mix of testimony took place, with nearly 70 stakeholders working within the court systems also joining from other local governments/partners. To save you time on what those remarks entailed, here is a not-exhaustive list of similar themes that emerged over two hours of public testimony opposing the Court’s adoption of these standards:

• No one has run a specific study on Washington state
• Local governments need to secure the necessary funding (and our hands are tied on revenue-raising ability)
• We need help to increase the existing public defender workforce, the shortage is a big impediment to adopting standards
• We need to get more information on a county-to-county basis on caseloads and other metrics
• Nuanced and actual hard data is missing (the qualitative national research available is not reliable)
• These are issues that should be dealt with at the local level or via collective bargaining agreements
• High costs mean we will have to cut other services like public safety, which is all part of the broader entire criminal justice system, including police services
• The state does not provide funding for public defense, unlike many other states
• These are policy choices beyond the Court’s purview (best left to legislature and local governments)
• Cities and counties are politically and geographically diverse, and yet we are all here and aligned together, which says something about the importance and weight of this issue
• There needs to be a realistic phase-implementation plan

The Court said the next steps are to gather again on December 4 to discuss further on the proposed caseload standards.

Free cybersecurity checkups for local governments

If the news about the unauthorized access to the Washington Courts website gives you pause about the possibility of that happening to your own systems, take a look at this AWC article covering five things you can do to protect your city systems.

Learn more about how the Washington State Auditor’s Office Center for Government Innovation can help you look at your own systems and assess them for vulnerabilities through free cyber checkups.

Lastly, there’s a new analyst working on this issue area and coming up to speed on all things in the city public safety portfolio. Reach out to Emma if you have questions or ideas.

Supreme Court releases indigent defense standards hearing details; Written comments due October 31

October 30, 2024

The Washington State Supreme Court has released details on how to participate in the second public hearing on the proposed indigent defense standards, scheduled for November 13. The Court intends the hearing be an opportunity for rebuttal arguments in response to written comments submitted to the Court and to the testimony at the September 25 public hearing.

Cities that wish to participate can testify remotely or in person at the Temple of Justice in Olympia. Anyone that wants to testify must register in advance. You can register with the link in the table below. The hearing will also be live-streamed and recorded on TVW.

Written comments are due to the Court by October 31. You can email them to the Clerk of the Supreme Court at supreme@courts.wa.gov. AWC has also finalized and submitted our own comments on the proposed indigent defense standards. You can read them here.

Understanding the proposed indigent defense standards

October 2, 2024

AWC and cities across the state have commented to the Supreme Court rulemaking around WSBA’s new proposed indigent defense standards. The Court recently held the first public hearing and written comments are due October 31. A second public hearing has been set for November 13.

Hearings and comments:On September 25, the Court held a public hearing on the proposal that you can rewatch on TVW. AWC’s CEO Deanna Dawson testified at the hearing, and you can watch her comments here. Cities have until October 31 to submit written comments on the rulemaking. Written comments are limited to 1,500 words and can be sent to supreme@courts.wa.gov. AWC will be finalizing and submitting our own written comments by the deadline. AWC has shared a draft comment letter that cities may want to consider when drafting their own comment letters. You can also see the comments that have already been submitted here.

A second public hearing is scheduled for November 13, at the Temple of Justice in Olympia. We will provide more information on how to participate when it is available.

AWC also presented to the House Civil Rights and Judiciary Committee work session on September 24 and the Senate Law & Justice Committee on May 30 to review the public defense system and to discuss workforce and funding needs, which are incorporated in AWC’s 2025 legislative agenda.

Proposed Standards Overview:The right to counsel is part of the 6^th Amendment to the U.S. Constitution and has applied to state courts since 1963. The vast majority of states include at least some state funding for public defense of indigent defendants, however, Washington is one of only 12 states that provide minimal state funding and largely leaves public defense costs to local governments.

The State Supreme Court first adopted the current case load standards for indigent defense in 2012. The current indigent defense standards cap public defenders at:

• 150 felonies per attorney per year
• 300 misdemeanor cases per attorney per year, OR 400 misdemeanor cases per attorney per year in jurisdictions that have not adopted a case weighting system.
• 250 juvenile offender cases per attorney per year.

The new proposed standards phase in progressively lower caseload limits over the next three years that cap public defenders and effectively cuts by two-thirds the number of cases a defender can accept:

• By July 2025: 110 felony case credits per full-time felony attorney per year, or 280 misdemeanor case credits full-time misdemeanor attorney per year.
• By July 2026: 90 felony case credits per full-time felony attorney per year, or 225 misdemeanor case credits per full-time misdemeanor attorney per year.
• By July 2027: 47 felony case credits per full-time felony attorney per year, or 120 misdemeanor case credits per full-time misdemeanor attorney per year.

The proposed caseload limits apply equally to government-employed public defenders and  private attorneys on contract as public defenders. They also apply regardless of an attorney’s experience. The dramatic drop in caseloads will require either hiring a massive number of new public defenders, charging far fewer crimes than are currently charged, or some combination of both.

WSBA’s 2024 proposed standard goes to a different system of weighting cases for the purposes of the cap. Under the proposed standard, each case type is assigned a case credit weight used to calculate an attorney’s workload. Importantly for cities, misdemeanors are split into “high” and “low” categories with different credit weights:

• Misdemeanor-High cases are weighted at 1.5 credits each. The category includes drug offenses, sex offenses, domestic violence offenses, and DUIs.
• Misdemeanor-Low cases are weighted at 1.0 credits each. This category includes all other misdemeanors.

Some other items that are part of the WSBA proposed standards include:

• Changes to how public defenders are compensated, including requiring comparable compensation between government-employed public defenders and prosecutors, regardless of relative caseloads.
• New compensation requirements for expert witnesses, mitigation specialists and social workers, mental health professionals, and interpreters.
• Requiring public defense to have access to their own investigation services.
• Standards for additional staff support for public defenders.
• Other changes and restructuring of attorney training, supervision, and private criminal practice.

AWC encourages cities to provide comments to the Court on the effectiveness and impact of adopting these new standards.

Supreme Court announces details for proposed indigent defense standards public hearing

September 17, 2024

The Washington State Supreme Court has released details for how to participate in the planned September 25 public hearing on the proposed indigent defense standard. AWC has been invited to testify, along with other associations representing other local governments, prosecution and defense attorneys, and judicial administrators. We encourage cities that wish to participate to register beforehand and attend the hearing to make their voices heard.

The hearing will run from 9 am to Noon on Wednesday, September 25, with in-person and online options to participate. Those wishing to testify need to register beforehand, and registration closes an hour before the hearing. The hearing will also be broadcast on TVW. It is likely that oral testimony will be subject to time limits. In-person testimony will be held at:

Thurston County Atrium Building
3000 Pacific Ave. SE, Room 110, Olympia, WA

Written comments can continue to be submitted until October 31 and can be sent to supreme@courts.wa.gov. The Court also set a second public hearing for November 13. More details on how to participate in the November hearing to come later.

Read AWC’s draft comments on the Supreme Court’s proposed indigent defense standards

September 6, 2024

Over the spring and summer, local governments have been talking about how to respond to the Washington State Supreme Court’s rulemaking on proposed indigent defense standards. AWC is concerned that the proposal would create unachievable standards for cities and towns, severely impact already limited budgets, and impact the administration of justice at the local level.

AWC plans to provide comments on the rulemaking, and we urge cities to do the same. AWC has prepared a draft comment letter for cities to consider as they develop their own comment letters. AWC will finalize and submit a comment letter after the September 25 public hearing to update our comments with any additional relevant information from the public hearing. You can read the full draft of our comments to the Court.

Written comments are due to the Court by October 31. Comments submitted by email (send to supreme@courts.wa.gov) are limited to 1,500 words, and we recommend that cities meet that limit for any comments they submit. A public hearing is planned for September 25, though details on how to participate have not yet been released. AWC will let cities know how they can participate in the hearing when that information is available.

Here are some highlights from our draft comment letter on the proposed standards:

• Possible bias of the national study. The proposed standards are based on a national study conducted by researchers from advocacy organizations, not neutral parties. It is not clear to what extent the national findings apply to Washington specifically.
• Making existing issues worse. Rural, low income, and/or high crime parts of the state already have a difficulty with the volume of cases due to inadequate funding and lack of workforce. More criminal cases will likely get dismissed as resources go towards compliance with new standards and away from addressing the root causes of these issues.
• Unrealistic workforce assumptions. The workforce needed to meet the proposed standards simply does not (and will not) exist, especially in rural and underserved areas.
• Budgets are limited. The proposed standard will cost cities an estimated $400 million annually. Cities cannot absorb this cost, and cities do not have the tools needed to raise that kind of revenue.

AWC’s recommendations to the Court in our draft letter include:

• A Washington-specific study. The Court should follow other jurisdictions and call for a neutral researcher to look at the conditions in Washington before adopting new standards.
• Limit proposal to feasible parts. The Court should adopt only the portions of the proposed standards that are feasible and achievable within current revenue and workforce limits.
• Exempt misdemeanors. If the Court chooses to adopt the standards in their entirety, they should exempt the standards from applying to misdemeanor cases.

Washington Supreme Court sets public hearing for indigent defense proposal

August 9, 2024

As part of the Supreme Court’s process to consider the state bar association’s recommended changes to the standards for indigent defense, the Washington Supreme Court will hold the first of two public hearings on September 25. The Court will release more details on how to participate in the hearing later in September, but AWC is confirmed as a participant in the September 25 hearing.

There will be a second hearing yet to be scheduled and will occur sometime after the written public comment deadline of October 31.

AWC is concerned the WSBA proposal, if adopted in full by the state supreme court, would drastically increase public defense costs, and for nearly all jurisdictions, it will be infeasible to implement given the current workforce shortages of public defenders, prosecutors, and court staff.

In other developments on this issue, in late May, the Senate Law & Justice Committee held a work session on the indigent defense proposal. You can watch the video of the hearing here. The committee heard an overview of public defense funding and concerns from various stakeholders. You can find those presentations here. AWC presented at the hearing, letting legislators know about cities’ concerns of a drastic increase in criminal defense costs to cities and an inadequate public defender workforce, especially in rural areas that are already underserved for legal services generally. Ultimately, given the lack of available workforce, the proposed standard would likely result in unnecessary dismissal of city misdemeanor cases – like some domestic violence cases, DUIs, and other crimes handled at the municipal level.

AWC also held a listening session for members on July 17. We heard more details from cities about their concerns regarding the proposed standards and their plans to get involved in the Court’s rulemaking process and the legislative process on this issue.

AWC encourages cities to discuss this issue with your city attorney and begin considering how this would impact your city specifically. We plan to send out AWC’s draft comments in mid-September so you can use the draft as a resource when preparing any written comments you plan to submit directly to the Court prior to October 31^st. In the meantime, please reach out to AWC with any questions.

Supreme Court Rules Committee recommends comment period for new public defense standards

May 13, 2024

This week, the Supreme Court Rules Committee met and discussed the WSBA's suggested amendments to the indigent defense standards. The Rules Committee voted to recommend to the En Banc Administrative Conference (the full court) that the WSBA's suggested amendments be published for comment ASAP with a comment period ending on October 31. The Rules Committee also recommended scheduling two public meetings – one to occur prior to October 31, and the second to occur after October 31.

The Court's next En Banc Administrative Conference meeting is June 5. The meeting will not be open to the public, but any rules-related orders will be posted on the Court's website within about 48-hours after the meeting.

Once we have confirmation that the En Banc Administrative Conference has approved this recommended timeline, AWC will also be providing some suggestions/guidance on how cities can best engage with this process.

AWC sends letter to Washington Supreme Court on Proposed Public Defense Standards

April 2, 2024

AWC sent a letter to the Washington Supreme Court last week expressing our concerns about the Washington State Bar Association (WSBA) Board of Governors’ recommended changes to the Washington Standards for Indigent Defense. AWC is seeking to work collaboratively with the Court and legislators on indigent defense issues, but we are still concerned about potential impacts.

Council on Public Defense proposed revised standards for indigent defense and caseload limits

March 19, 2024

Earlier this month, the Washington State Bar Association (WSBA) Board of Governors voted to adopt revised public defense standards, including reduced caseload limits. The WSBA standards provide guidance for cities and counties, and also were submitted as a recommendation to the Washington Supreme Court.

The standards adopted by the WSBA Board of Governors are not binding; however, revisions to the caseload standards will be binding if adopted by the Washington Supreme Court or imposed in statute by the Legislature.

The revised standards were proposed to the WSBA by the Council on Public Defense based on a response to a national study which suggested that existing indigent defense attorney caseloads are too high, citing factors such as increased complexity of cases and new workload requirements from reviewing law enforcement body camera footage.

While AWC supports careful consideration of the caseload standards for indigent defense attorneys, the proposed standards are not financially feasible for local governments. Regardless of whether a city contracts with their county or provides their own public defenders, the financial implications of the WSBA adopted standards, if imposed as a mandate, would be drastic and unsustainable. Additionally, even if funding were available, there is an inadequate workforce to meet the proposed caseload standards given the current shortage of public defense attorneys in the state and nationally.

AWC sent a letter to WSBA prior to adoption of the indigent defense standards expressing our concerns with the proposed rule. Since then, we have heard from many cities with concerns about this issue. We will soon be reaching out directly to the Supreme Court with our concerns and will continue to work to ensure that your voices are heard.

In the meantime, AWC is requesting your feedback on how changes to the standards would affect your court operations and budgets. Please provide input to Lindsey Hueer.

Want to know more?

• Watch the complete recordings of the March 7-8 WSBA Board of Governors meeting, or go directly to the recording of the hearing and the vote on public defense proposed revised standards for indigent defense and caseload limits.
• Read the standards as recommended in the March 7-8 WSBA Board of Governors meeting materials, starting at page 243.