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Published on Friday, March 22, 2013

Washington Supreme Court releases study on indigent defense standards

The Washington Supreme Court adopted standards that established requirements that public defense counsel must comply with in order to provide fair representation. The Supreme Court amended these standards last fall to include a requirement for a caseload management system that impacted many courts and public defenders. Because of this, the Supreme Court ordered the Washington State Office of Public Defense (OPD) to prepare a report on the implementation of the standards by gathering information through surveys and interviews of court personnel, city and county administrators, and prosecutors. OPD has released this report, which includes nine conclusions discussed below. (Conclusions are cited directly from the report; bulleted points have been added by AWC.) You can read the full report here.

Conclusion 1: Decreasing crime rates, coupled with changes in prosecutorial charging practices, have resulted in fewer criminal charge filings at all court levels. This helps lower public defense attorney caseloads.

  • Based largely on the premise that national and state crime rates are declining.
  • Moreover, some prosecuting attorney offices are modifying charging policies and filing certain drug and property felony offenses as misdemeanors.

Conclusion 2: Further reductions in case filings seem likely based on recent changes in statutes, court rules and local ordinances, and developments in case law. For some local jurisdictions, the decline in criminal filings might reasonably be expected to offset any potential need for additional public defense attorneys.

  • An example of these “recent changes” is the bill that passed in 2012 eliminating DWLS-3 when a driver fails to appear or respond to a non-moving traffic violation.
  • It also suggests that the passage of I-502, legalization of possession of specified amounts of marijuana, has raised the threshold at which prosecutors will charge - usually only at the felony level of over 40 grams.

Conclusion 3: Diversion programs and practices are utilized to varying degrees by courts statewide, and in many circumstances reduce the workload for public defense attorneys.

  • Pre-trial diversion reduces the need for some trial appearances.
  • The report states that diversion programs reduce recidivist caseloads by providing connections to counseling and accountability.

Conclusion 4: The Rules of Professional Conduct and case law require defense attorneys to undertake specific activities when representing criminal defendants.

  • The study broke down the ways the public defenders spend their time into three categories – Client Communication Time, Court Time, and Case Preparation – and stated that the amount of time spent on each of these activities determines the caseload a public defender can properly handle.
  • The report only shows data for two courts: Bellingham and Thurston County.

Conclusion 5: The number and types of public defense cases are not tracked on the statewide level or, in some jurisdictions, on the local level. A mandatory code for tracking the appointment of public defense attorneys for indigent defendants should be added to the Judicial Information System, and a misdemeanor tracking system should be developed.

Conclusion 6: Public defense attorneys and jurisdictions should have the option of counting the time of public defense attorneys who serve as first appearance or arraignment calendar attorneys by the number of calendar hours, rather than the number of defendants, even if the jurisdiction has not adopted a case weighting system.

Conclusion 7: Case weighting systems should be based on time studies of the amount of defense attorney time needed to provide effective representation. A handful of misdemeanor case weighting policies have been developed by jurisdictions, but they have not had the resources necessary to conduct time studies.

Conclusions 5-7

  • Reflect tracking cases and the case weighting system.
  • This study recognizes that the case weighting system is unique to our state.
  • 69% of polled public defense attorneys reported that they currently meet the caseload standards.
  • The study seems to recognize the uniqueness of each court and each public defender, and suggests a time study would be more effective to measure appropriate representation and caseload. However, time studies require significant resources.

Conclusion 8: Based on a review of legal literature as well as interviews with practicing attorneys, it is clear that attorney experience or inexperience may play a role in assessing a defense attorney’s ability to effectively handle more or fewer cases, particularly with regard to the time necessary for case preparation.

  • This highlights the individuality and the concerns about the caseload requirement. Is a blanket policy the best option for such varying population?
  • A majority of experienced attorneys felt that court time takes about the same amount of time in their schedule as it did when they were beginning practice. A few experienced attorneys reported they spend less time.

Conclusion 9: Preparation of this report raised additional questions that may merit further attention.

  • Can the implementation date be changed to January 2014 instead of Oct 1, 2013, because of the timing with contract start dates?
  • Is there flexibility in exceeding the caseload numbers? Attorneys are concerned that doing so, even slightly, may be grounds for an ethics violation.
  • Will a standard report be developed using JIS information for attorneys and courts to help track assigned public defense cases?

No action has been taken by the Supreme Court, and AWC will continue to monitor this issue closely.