I wasn't a regular feature on any of those shows.
I can't believe that. I couldn't either. Why
did they not appreciate my talents? Spoken like
a true council member. Welcome to County Connection.
the official podcast of the Washington State
Association of Counties, where we dive into the
legislative issues shaping the future of our
communities. From budgets to public safety, infrastructure
to elections, we'll break down what's happening
in Olympia and how it impacts counties from across
the Evergreen State. Stay informed, stay engaged,
and join us as we amplify the voice of Washington's
39 counties. Welcome back, everybody, to the
County Connection podcast. I'm Paul Jewell, your
host and government relations director for the
Washington State Association of Counties. We're
back in the studio today. Well, not really. We're
not in the studio today, actually. We're doing
our first podcast virtually via Zoom. And ironically,
my guest today is not some foreign dignitary.
It's not some expert from across the pond or
across... the nation or even five blocks down
that couldn't get here. It is Derek Young, Executive
Director of the Washington State Association
of Counties. Strangely, Derek, this is our first
podcast that we're doing virtually, and it's
you as the guest. And this is the first time
you've been on the podcast, I think, if I'm not
mistaken. Isn't that right? It is. Yeah, and
I'm here in the office. You're in the office
and I'm hanging out at what we lovingly refer
to as HQ2 for WASAC. And that is my home office
in Ellensburg. Just happened to be that there's
some kind of breaking information that we wanted
to get out to folks. And I wasn't there this
week, so we decided to try. this and to be honest
with you I'm glad we're trying it with just you
and me first right because if it's a total disaster
I can come to the office next week and we'll
re -record this thing actually I think you'll
be gone in Philadelphia so that won't work but
we'll figure out a way to re -record it versus
you know someone else that I had to you know
schedule this for that's not not a part of WASAC
so I'm glad it's you and I kind of trying this
out Yeah, there was good reason for it. And if
I have to be the disaster test case, I'm happy
to do so. Well, you're definitely, we're both
kind of the racks in the maze right now, I think,
where the testing is concerned. Let's see how
this goes. We'll kick it off and see if this
is a model that works. And if it does, it'll
create some more flexibility for the podcast,
which is great. That's not why we're here to
chat, though, today, right? I know it's kind
of interesting to talk about different formats
we're doing the podcast, but that probably just
interests you and me. We're actually here to
chat about the recent Supreme Court decision
that I think was issued maybe two or three weeks
ago now. We had a meeting with our members about
it, et cetera. And you just put out some press
information earlier this week on some of our
concerns. And this has to do with the Supreme
Court adopting in large part, not completely,
but in large part, the recommendations that were
being discussed earlier this year from the State
Bar Association regarding lower caseload standards
for public defenders, right? Yeah, this is something
we've been mourning, you know, our colleagues
about. in the legislature as well as the Supreme
Court itself. And we testified multiple times
to them. Our members submitted lots of comments
and or testified themselves. But this is an unusual
case in that the Supreme Court's not ruling on
a case that's before them, but in their administrative
capacity. You know, the Supreme Court also sits
as. in charge of the court system in Washington
and establishes all the rules. And so this was
a rule proposed by the Washington State Bar Association.
We strenuously opposed it. And unfortunately,
in large part, it was adopted by the court. So
before we get into some of the specifics about
that, something you just said was interesting
to me that I think maybe we could explain a little
bit further for our listeners. You said that
the courts and the Supreme Court specifically
are in charge of the court system in Washington,
and they make the rules. I'm curious about that
because, you know, we're really familiar with
the legislature, obviously, right? That's what
we talk about here mostly on the podcast. And
I think a lot of our members are pretty familiar
with, and if they don't know it a lot or they
don't have a lot of experience with it, they
know that there's this rulemaking process out
there. that state agencies have authority to
do. But there's a difference between legislation
and rulemaking, right? And in fact, we call them
different things in state law. We call legislation
RCW or the Revised Code of Washington. Rules
we call WACs, which I think is an appropriate
name. But it stands for Washington Administrative
Code. And the idea behind the WACs is to really
interpret in some ways. Well, that's not right
because they're not allowed to interpret legislative
intent. They're supposed to implement, I guess
is a better word, the RCWs. So putting some more
meat on the bone, putting some more detail around
the specifics on how to actually accomplish what
the legislation proposes in any particular law.
And there's not necessarily a whack to go with
every RCW. Right. But there but there are a lot
of them out there. Is the court's authority in
making decisions like, for instance, caseload
standards similar to the Washington Administrative
Code type of process like agencies have? Or are
they kind of a quasi legislative body and have
greater authority than you would think that's
been granted to them somehow? And how has that
been granted to them? Can you explain that just
a little bit for folks? It is a little confusing
for people because it is unusual, I will say,
because most people don't interact with the rules
and procedures that the courts adopt because
it's really about the conduct of the attorneys
in the courtroom and the judges that oversee
them. So they'll establish rules that are. You
know, there's kind of a best practice nationally
that most of them will follow. But then there's
some local kind of, you know, traditions, rules
of evidence, things like that. So if you're not,
you know, in the legal profession, you probably
haven't interacted much with this area. Code
is driving a tremendous amount of necessary appropriation.
the thing that we were most concerned about was
the size of the bill that this was creating.
Normally their rules don't impact, you know,
and drive legislation or appropriation. They're
about the, you know, how a courtroom operates.
So in this case, what they've done is basically
said under these rules of professional conduct,
which are what all attorneys have to abide by,
you can, you're capped at these many hours. or
these many cases per year. And that's the crux
of this is by establishing that it has all these
downstream effects that are really large. There
is some question about whether or not that's
appropriate use of their authority, particularly
since the legislature has occupied the space.
They have adopted in RCW legislatively. code
that says that counties must adopt caseload standards
and that they may or must consider the Bar Association's
recommendations. They don't require you to follow
them, but they basically say that counties will
have to do this. This sort of takes an end run
around that legislation. So you have a separation
of powers. argument that's potentially there
because the three branches aren't supposed to
tread into each other's territory. Yeah, that's
a really good point. And that's exactly what
I was thinking about when you were describing
that. And I know it's going to be a question
that our members have is, how is it that the
court has the authority to do this, especially
if the legislature has stepped in? Like you said,
there's an RCW already on the books. It reminds
me As I think back to kind of the McCleary case,
right, which was a big landmark case around education.
Everybody knows it. But if you if you're you
know, if you're new and you weren't following
the news before several years ago, there was
a case that basically alleged that the state
was not meeting its paramount responsibility,
which is to fund public education. And the Supreme
Court found in favor of the appellant in that
particular case. And basically told the legislature,
you know, you have a certain amount of time to
basically fully fund education. But they didn't
tell them what that amount was. They didn't tell
them how to do that because that's not really
within the scope of their authority. They just
said, look, you have a paramount duty. Evidence
has been shown to us that you're not meeting
that obligation. Fix it. Right. But here they
went further. They didn't say, hey, your caseload
standards are too high or you're not meeting
some. minimum service level for public defense
or you know any other sort of reason that they
could have put forward they just said we're adopting
these new standards done i'm curious do you think
they've overstepped their authority here or are
you hearing others say that and will there be
some sort of challenge to that moving forward
or are we kind of stuck with their decision regardless.
Yeah, it is an argument that we made before the
court and effectively said, you know, you're
using your administrative authority to do this.
You do have constitutional authority in the,
you know, before them where WSAC and some of
our member counties filed suit challenging the
state on the level of funding that they we're
providing for indigent defense. Because one thing
that everyone seems to agree on is that the system
is in crisis. We just think that this approach
to it exasperates the problem rather than fixing
it. And so what we asked is basically, instead
of going through this process where you are arguably
intruding into the legislature's authority, you
do have a case in front of you. that you could
take. And we asked for a direct review because
it's hung up on, you know, not to go into too
much detail, but we are appealing a summary judgment
that was on standing. And so we need to get that
result. But we initially appealed it during this
process to the Supreme Court for a direct review,
hoping that they would take that instead. And
so they could, just like in that McCleary case,
they could rule. uh you're violating the constitution
and you must fix the funding model for um providing
uh adequate public defense instead they change
the standard for what public defense looks like
yeah so that's an interesting kind of wrinkle
there because we've been working on this issue
as a county association for many many years and
i know that there's reports that go back you
know to the early 2000s that the legislature
themselves asked for that some of their agencies,
I can't remember who did the reports, but basically
told them, look, you got problems here. You need
to fix this issue. And nothing's really been
done to fix it. You mentioned the lawsuit. We're
waiting for some procedural thing on that lawsuit
right now. But since we're talking about public
defense and you mentioned the lawsuit, why don't
you give a quick little history of how we came
to that decision and what we're actually suing?
and what we're suing for and who we're suing.
Yeah, so as you recall, because you were around
back then as well, and we were both members.
Yeah, you know, it's getting a little weird continuing
to say that in many of these podcasts. I'm feeling
like, wait a minute, I'm starting to be one of
the old people around here. What's happening?
I know. In the olden times. Yeah. Back in the
old day when I was still in my 30s. Yeah. Holy
cow. That was a long time ago. Yeah. So basically,
we started challenging the state to increase
their level of funding because Washington is
unique amongst the states in how we fund not
only public defense, but the criminal justice
system as a whole. As our members will know,
it's almost entirely funded at the local level.
And when you say unique, are we the only state
that does that or are we one of just a small
group of states that do that? What do you mean
by unique? There is a handful of other states
that have similar levels of public defense funding.
There is a smaller group that were, you know,
the courts and the prosecution and all of that
system are almost entirely funded at the local
level. And so we're kind of set apart there.
But if you look at that group more closely, the
way their budgets work in those states, they
are state -shared revenue states. So the state
basically has an income tax and sends money back
to the counties. So in effect, the state ends
up paying for it. Washington is highly unusual
in that it relies basically on local tax generation
to fund these. We have to actually get the money
locally, right, is what you're trying to say.
Yeah, that's what's really weird, because what
you end up with is not a system of justice, but
39 systems of justice. And you get justice by
geography. You know that what the what it looks
like if you are a defendant who gets colored
in King County versus one of our more rural counties
is quite different. Now, it doesn't mean it's
it's worse because they're doing their their
best to make it work. uh funding uh the um capacity
for recruitment are are quite different and yeah
a bigger richer county has got more money they've
got more attorneys right they've got more resources
now they also have more people potentially you
know more defendants um so there's a little bit
of a balance there but there's a huge difference
when you think about you know, just the population
basis and the revenue basis in some of our larger
counties versus some of our really small rural
counties. I mean, even with that balance of population,
it's hard to imagine that you're going to have
the same level of reasonable option for public
defense in one of those small rural counties
that you would in one of the big urban ones.
And it certainly ends up cutting into their other
priorities. So to give you one example, Pierce
County, which is much smaller than King County,
has more felony filings. And yet they can only
raise about 60 % per capita of the same revenue.
So what that ultimately means is they have to
plow a lot of money into their justice system
to get the same cases dealt with. That also means
there's less money to pay for other things that
are like, you know, parks and behavioral health
and public health and all the services that our
members provide. You know, the justice system
is primarily, you know, the bulk of the revenue
is within our general funds. Right. So that's
taking up and it depends on county to county,
but usually it's like 70 to 80 percent of their
general funds. And what's the primary source
of general fund revenue for most counties? It's
property tax. Which we get into another problem
that the state has created for itself, where
they've capped that beneath the rate of inflation.
So over the last 20 years, the state has slowly
strangled our taxing capacity while adding more
and more responsibility. And then you add on
these additional burdens into the criminal justice
system. I guess what I'm saying is. It's not
a surprise that both the legislature, the Supreme
Court, all of our members, pretty much anyone
that touches the justice system will tell you
it's in crisis. And now we get this bomb dropped
and it gets much, much worse. You know, I cannot
do a single podcast. And I mean this. I cannot.
I haven't been able to do one single podcast
without talking about how these tax revenue issues
weave into all of these discussions and how.
It's such a limiting factor on a county's ability
to provide services. And it's a real, what's
the right word? I mean, it's a foundational problem
that I think affects every facet of what a county
does. And that's certainly the case here with
public defense. And it's particularly, you know,
it's not just the regressivity of the code. It's
not the... just that they constrain local revenues
in certain ways. It's the devolution of responsibility.
That is what makes Washington unique in all aspects
of the services that are provided. Very little
in terms of what you think of as the government
is actually provided at that state level. You
know, DSHS is like the big monster agency, but
most other government services are provided at
that county or city level. And they've evolved
so much of that revenue generation to the local
level. And it's interesting. It actually came
up when I was speaking to the Defenders Initiative,
which is the public defense folks. They invited
me to speak along with. Representative Peterson,
who was our champion on our bill this session,
and Representative Goodman. And so we're talking
there. And before I even had a chance to point
it out, Representative Goodman noted that in
every meeting I have with Derek, he always brings
up the tax issue. And so then when I had a chance
to talk, one of the questions was, how are you
going to pay for this? And that's when I had
that very thin conversation that and, you know,
it. He's laughing because it is true. Like literally
every conversation through the sentencing reform
and all the conversations we've had around justice,
it does come up because, you know, we need, public
law is a passion project for the folks that go
into it, but they're not going to work for free.
Well, it's just, it dovetails, that tax issue
dovetails into every type of service that we're
trying to provide at the county level. Yeah.
Because it's our most flexible funding. And I
know people have heard us talk about that ad
nauseum, so I don't want to go into a lot of
detail there. But kind of what you described
is really the crux of the problem. We've done
a lot of research here at WASAC around these
issues. We've been working on it for a really
long time. There are a series of legislative
reports that have highlighted this problem. We've
done our own data. If people want to go back
and look at information. that we've provided
and compiled over the years as we've advocated
on this issue. It's very consistent, very consistent
with what you said. And all of that really kind
of culminated into decades of work that led to
ultimately a high level of frustration with our
members. That predicated the filing of a pretty
unusual lawsuit by WASAC that you kind of mentioned
a little earlier, again, that we're waiting for
some technical decisions on, et cetera. What's
the crux of the lawsuit? What are we trying to
accomplish? Who are we suing? Yeah. So the the
lawsuit is against the state. It's literally
Wasak versus Washington. And the the crux of
the argument is that this is a constitutional
duty. They actually go through both the federal
and state constitution. There's very few positive
rights that are in them. It's usually restraining
government is the main point of the constitutions.
In this case, the constitution says that you
must provide counsel. in to aid in the defense
of for all criminal matters. The Sixth Amendment
used to be interpreted as, well, we'll provide
it in capital cases, for example. And then there's
the famous Gideon case where the decision was
that, no, you have to provide it in all criminal.
cases. So that sets up what the modern public
defense system is. Now, everyone handles it a
little differently. You know, some of our members
have largely staff employees that provide it.
Others have contracts. But this is a state obligation.
Counties aren't in our federal constitution.
Some states don't even have counties. But our
state has chosen to delegate that responsibility
because it's set up its justice system to be
operated at the county level. The problem is
that that cost has grown substantially. So what
we're arguing is that while you can delegate
that responsibility, you can't do so without
ensuring that locals have the capacity to pay
for it. That was effectively the argument that
was made in the McCleary decision. And they delegated
most of these responsibilities for funding schools
to school districts. And basically, their argument
was we are providing for basic education under
the Constitution. We're doing so by giving them
authority to tax and all that kind of stuff.
And that didn't work. Right. And that did not
work. The court said, hey, you can't you can't
say that you're meeting your obligation, your
paramount duty to fund public education at an
equitable level if you're relying only on the
ability of the local community to raise funds
to provide that. And that's exactly, I mean,
I see where you're headed right here. It seems
to me that what you said before with how they're
funding public defense is really in line with
their decision under McCleary that, hey, you're
still, here's another paramount duty, a constitutional
responsibility of the state that's been delegated
to the counties. And again, you're relying on
their ability to raise funds locally in order
to meet that obligation. There's got to be a
huge disparity from one place to the other in
how much they can actually raise and how much
is spent on public funds. Yeah, absolutely. You
know, and so those disparities not only create
burdens on taxpayers that are, you know, unfair
because if you have... large commercial properties
that are really high value, that will tend to
spread the burden differently to homeowners.
So getting back to the McQueary thing, when you
looked at the tax burden for raising the same
amount of revenue per pupil in Tacoma versus
in Bellevue was astonishing. several times the
amount of taxes that people had to vote for themselves.
And so ultimately, you are going to create some
inequities across the system. And the same is
true county by county. So, yeah, we're basically
making that argument. The only difference between
the two situations, one is in our state constitution
for education, the paramount duty is for education.
In the case of public defense. It's in our federal
constitution and federal court cases. In fact,
there was some discussion at that time, you may
recall, about whether or not the proper venue
was federal or state court. Ultimately, for lots
of reasons we don't need to go into, the decision
was to go to the state. But, you know, it is
the state's obligation to guarantee this right.
And what we're arguing is right now they are
not doing so. Okay. So we're hoping to get, you
know, more resources from the state, a higher
level of funding, maybe even ultimately some
sort of standardized statewide system if that's
the solution. I think the solution itself is
probably remains to be seen. It'll be if we get
a decision in our favor, it might be along the
lines of the Clary, which is, yeah, you're not
doing it right. Go fix it and bring it back.
Bring a solution to us. We'll tell you if it's
adequate, something like that. Is that kind of
what we're thinking? We've tried multiple different
ideas on how to approach this. Ultimately, the
issue comes down to funding. In the beginning,
I would say that running a policy bill was more
about just getting a hearing because you've been
in those ways and means committees. There's not
exactly a great opportunity to make your case
for additional funding for something like this
because a lot of the decisions are already made.
In a minute and 30 seconds. Yeah, in a minute
and 30 seconds. So some of it was to get a hearing.
But over time, it was like, actually, you know,
having a statutory structure and some predictability
would be good for, you know. ensuring a basic
constitutional right. Yeah, I think that that
probably is the best approach. We've tried different
formulas and everything. This last session, we
probably got further than we ever have before
by arguing for a split that we could, you know,
agree to that would effectively reimburse counties
for their actual costs. I think that's a pretty
fair way of doing things because it would basically.
account for differences in the number of not
only charges, but actual public defense cases,
because not everyone that, you know, commits
a crime is indigent. So, you know, making sure
that there's some, you know, equity in the system
between the various different jurisdictions.
You know, one thing that we haven't pointed out
as much, and I think needs to be part of the
conversation now that we know this is coming.
is the criminal side isn't the only one that's
going to be impacted by this. We do have a civil
law system that people avail themselves of the
courts to settle all kinds of disputes. It's
one of the things that makes our system of capitalism
work is contracts, for example, and being able
to rely on all those things. Yeah, but people
can't get a public defender or a public prosecutor,
for instance, for... for civil cases, can they?
That's not a guaranteed right under the Constitution.
Well, there are some limited civil cases. That's
not where I was going with it. It's that with
additional time spent with an additional pressure
on those local resources to run that side of
the criminal justice system, it's going to be
harder even to access that civil side. Cases
are already backlogged in most of those. jurisdictions,
now imagine that you're tripling the cost of
one leg of the criminal justice system. I suspect
that, you know, and I've talked with our counterparts
at the Association of Washington Business about
this, is that I have concerns about the impacts
that this is going to have on the broader economy.
You know, that, you know, right now people may
be thinking, well, I'm only impacted if I'm,
you know, getting arrested or doing something
wrong or if a crime is committed against me.
But if you are needing to seek relief in the
courts for civil matters, which is pretty common,
or just having that threat there, because that's
what makes our system work. It's based on trust
that you can always get it resolved by going
to courts. That system is embedded within those
same superior courts. Yeah, there's only so many
of them. And there's only so many hours of the
day and so many days in the week and weeks in
the year, etc. That was a good explanation of
kind of where counties are, some of the research
we've done. I remember being in a lot of those
conversations and kind of getting through all
of that material and understanding exactly why
we were doing what we're doing and getting all
of our members on the same page. And I think
over the years, we've accomplished that. And
we have a really good sense of where we're headed
and what we're trying to actually achieve. with
the lawsuit. We're looking at it from a, you
know, equal access or equitable access to justice,
trying to relieve this justice by geography thing,
right, that we see as a problem. We're also looking
at it from a cost perspective and the fact that
the cost continues to skyrocket. And this latest
decision and previous decisions by the Supreme
Court and, you know, that were based on recommendations
by the Washington... State Bar Association that
affected caseload standards and really only reduced
them, certainly not increased them, have increased
costs over time for us as well. Now, people might
ask why. From my point of view, I think they're
thinking about the same things we are, at least
partly. And I'm interested if you're getting
that from them as well. I mean, really, the reason
they want to reduce caseload standards. is to
provide a better system for public defense, right?
To make sure that folks who are arrested and
who are accused of a crime, who need the assistance
of an attorney but can't afford it, are actually
getting good assistance, right? They're getting
something that is guaranteed to them as a right
in the Constitution. When you look back at our
founding fathers, John Adams specifically said,
That the presumption of innocence when accused
and the right to counsel if you couldn't afford
it, effective counsel when you couldn't afford
it, was one of the foundational principles of
our government. Like one of the actual bedrock
pieces. Now, I know I probably butchered that
completely, but that was the gist of what he
said. Yeah, he interpreted the British troops
that were in the Boston Massacre. He did indeed.
And took a lot of heat, him and his family, for
doing so. But he was a man who strongly believed
in the right to counsel and the right to a vigorous
defense as an accused individual in our justice
system. And that, you know, this idea that just
because you were accused, you were automatically,
you know, found guilty, et cetera, was not something
that the New World or a civilized society in
the United States should prescribe. We should
have something better. So that kind of ideological
point of view is carried forward today in the
spirit, I think, of these recommendations from
the Bar Association and indeed in the decision
from the Supreme Court. They're certainly not
looking at it from a cost perspective, though,
right? And I'm just curious, you know, where
do you think the balance is there? And do you
agree that that's what's motivating these decisions?
Yeah, I do think basically they're looking at
the same problem we are and and took an approach
that I think will exasperate it. But it was definitely
trying to identify the same issue. And it's that
people providing public defense services are
probably overworked, not in every single case.
But, you know, we've heard a lot about burnout.
One of the things that was. Kind of hard to listen
to in those Supreme Court hearings was some of
the public defenders that were passionate about
the job, but were were either burnout and thinking
about leaving or already had left because it
is difficult. You know, one thing that I think
we have to remember, and this is true on both
sides of the the the docket, it's, you know,
some of these are really terrible cases. And
being the prosecutor in it or the public defendant
are necessary parts of our system to resolve
that issue, to speak for the victims and to make
sure that the public is protected. But that takes
a toll on a person. And so if you're dealing
with too many cases, you're going to miss things.
And, you know, we all have that in our jobs.
When we get too busy, stuff starts dropping.
It's really important that we not have that happen
in criminal cases because it involves situations
where we are now going to probably deprive people
of their rights, you know, by incarceration or
their finances. You know, they may get fines
or whatever. In the worst cases, maybe even their
life. Yeah, exactly. So it is it is critical
component of our system. It also provides a check
on the government. You know, the government we
we trust law enforcement and prosecutors with
a lot of authority to take away our rights. And
you want to make sure that that's you know, there's
a tension there that that they're only doing
it in cases where absolutely is they have you
dead to rights. You committed a crime. We know
for a fact. That isn't always the case because
people are let out of prison and exonerated frequently.
So stuff still gets through. But you want to
reduce that as much as possible. So it's a necessary
component of the system. But, you know, in trying
to not overwork them, you know, they decided
that we'll set a standard. Instead of saying,
let's get them more resources so that they can
hire an adequate number. So what this will actually
do is reduce the number of cases that they can
handle, meaning that we either have to add additional
people to take those cases or we end up with
a situation where you can't charge as much. And
that's where it gets really scary, where it becomes
a public safety threat. So this idea behind caseload
standards basically creates. level right it says
as a defense attorney a public defender you can
only have so many of these types of cases a year
and so many of these types of cases a year and
that by doing that they're hoping to make sure
that there's enough time right and enough energy
on the part of that public defender to actually
mount an adequate defense you know check all
the boxes you know limit their mistakes, hopefully
eliminate their mistakes, and really do a good
job defending their clients. In some cases, well,
in many cases, I think across the state, we're
seeing a shortage, right, of public defenders.
We're also seeing public defenders say that the
compensation isn't enough. And you talk about
the burnout, and I saw some of that testimony,
and some of it was pretty moving, especially
for some folks who are obviously pretty passionate
about their jobs. And the burnout wasn't always,
you know, from the number of cases. Some of it
was the types of cases as well, right? I mean,
if you're dealing with a lot of, you know, child
abuse cases, for instance, I mean, that can really
wear on someone. If you're dealing with a lot
of capital, you know, felony murder type cases,
you know, that can really wear on someone as
well, I think, over time. So there's some of
that going on. But, you know, we've seen these
case standards reduced before. Right. Wasn't
it about a decade ago? There was another reduction.
Yeah. In case standards. So we saw that and that
that that reduction in standards was supposed
to address that issue and was supposed to achieve
what this new decision, which even lowers them
further, is proposed to do as well. Why? Why
do we need to? What happened? What happened 10
years ago? that we need another reduction in
caseload standards today. Yeah. Those standard
changes, they about doubled the amount of funding
that counties were spending on public defense.
Right. Does that mean they actually cut the previous
standards in half? So the standards were not
new. They had standards, but they were based
on, they were more qualitative versus quantitative.
This was an effort to actually put like, you
know, actual numbers to it rather than having
a standard that was more about, you know, the
duty for effective counsel. And so this is going
a step further. It's based on a. You know, there
was a Iran study and it was actually kind of
a study of studies. They sampled others that
were done about how many hours it takes to effectively
work a case. It did not involve Washington, notably.
That was something that particularly our partners
in the Washington Association of Prosecutors,
prosecuting attorneys, they pointed out that.
You know, this isn't really relevant to Washington
because, you know, it didn't involve our specific
way of conducting our cases. But flawed that
the study may have been, the bar recommendations
effectively adopted them and said, this shows
how many hours are needed. Here's how many hours
an individual can spend on cases in a year. So
that results in. cap on the number of cases that
you can take on. And they're broken down a little
bit by category. You know, it separates out felonies
and misdemeanors and civil commitment cases.
But it doesn't, the court did not go so far as
to adopt the case weighting, which says, you
know, different types of cases require more hours.
So a complicated, you know, murder trial, for
example. might take more time than a felony theft.
Okay. So what you're saying is the caseload standards
that we all had to adjust to about a decade ago
were really kind of the first time that the courts
actually put a hard number out there. Before,
it was a lot more organic. It was based on this
idea of what it actually takes to provide adequate
defense under the Constitution, and that could
be interpreted a lot of different ways. And probably
was, right, from county to county. And they created
some new standard about 10 years ago. And then
since then, they've done this, well, maybe survey
of study. You say study of studies, right? But
this survey of different studies and compiled
some information said, okay, here's what we think
it actually takes to do different categories
of cases. And then they further adjusted the
caseload standards based on that information.
Is that what you just said? Okay. So what did
they go from to? So, for instance, misdemeanor
cases, they could have done how many before?
And now the new standard says they can only do
X. And the same thing for other types of cases.
What are the actual changes there in the decision?
So I don't have the old standards in place, but
just know it was about, they were about a third
of what you hear here. Case credits per year
for felony cases are 47. For misdemeanor cases,
it's 120. And for full -time civil commitment
attorneys, it's 250. Okay, so for felony cases,
the new standard is 47. Yes. So before, it would
have been right around 150 or so? A little less
than that, but I... But pretty close? Yeah. Okay.
So they dropped them essentially two thirds is
what you're saying. So the new standards are
about a third of what they would have been previously.
Yeah. Basically to accomplish the same tasks,
they effectively tripled the number of attorneys
that will be necessary. Yeah. And they tripled
the cost at least, wouldn't you say? I mean,
ballpark, yes. However, that's not consideration.
for all of the other costs that are going into
it. So you're probably going to need some significant
capital changes. So requiring more space, you'll
probably need more additional support staff for
all of that. And then because we have a very
low supply of attorneys willing to go into public
law in the first place, that's going to drive
up their costs. So this is the rare case where
we have policymakers who are increasing demand
while also simultaneously limiting supply. And
as we know from our Econ 101, that will drive
up costs. So while the ballpark estimate we've
been giving our legislative or our friends in
the legislature is about triple the cost, it's
probably substantially more than that when it's
all said and done. Wow. Well, if counties are
struggling now to meet their obligations to provide
adequate public defense and make sure that the
rights of citizens under the Constitution are
upheld, it seems to me that this is going to
make it a lot harder. And you're going to have
a lot more cases where either that isn't happening
or counties are going to have to start doing
something or a lot of things differently. What
do you think the implications are actually going
to be here? The thing that we told the court
at the time, and we, you know, frankly, our partners
elsewhere all said is that this is unlikely to
actually happen. And the reason is that, you
know, the cost is probably north of a billion
dollars per biennium. And I don't know about
you, but I don't know where we're going to come
up with a billion dollars per biennium. What
that means is that they will have to go the other
route and reduce the number of cases. That means
charging less. That means agreeing to more plea
agreements. That may mean in certain cases, a
chaotic kind of episode where counties are unable
to find a public defender in time. And you have
people who will be set free because there isn't
legal counsel ready to for their arraignment.
Now, isn't this flipping the script potentially
a little bit then, Derek, when you're talking
about, you know, the real life kind of practical
implications of dealing with these significant
cost increases? Well, you know, one strategy
being charging less or letting people out once
they've been accused because we don't have the
resources to actually provide them a public defender
and we'd be violating their rights otherwise.
You're flipping the script a little bit in that
now we're not just talking about access to justice
and maintaining people's rights to an adequate
defense, but now you're talking about access
to justice for victims as well. Absolutely. That
is going to be my primary concern is, you know,
if victims no longer feel like they are being
represented. Because keep in mind, you know,
when the prosecutor shows up to... the the in
a hearing, they always say on behalf of the state.
Right. Because we have taken away the the responsibility
for justice and assume that to represent the
people, not that particular victim. However,
if we end up in a circumstance and this is something
that our colleagues in WAPA have been warning
about, where the victims aren't feeling like
their rights are being respected, that. Justice
isn't being served to them. Do we then have another
problem called vigilantias where people are taking
justice into their own hands? Well, that's exactly
what I was thinking, but I wasn't going to say
those. I wasn't going to say those words. We're
going to have to talk about a lot of uncomfortable
things. I mean, that's pretty uncomfortable when
people no longer trust the court system and our
system of justice to actually deliver justice.
or to actually give them the opportunity to make
their argument for justice and they decide that
it's going to be up to them to take justice into
their own hands. I mean, that's what you're talking
about, essentially. There was a case not long
ago, because this is already starting to happen
in some of our counties, where they are having
the most difficulty recruiting. One of our counties
where a violent rapist was set free because the
72 hours had run up and they couldn't find a
public defender to take on the case. Imagine
you're a family member or that victim. That's
horrible. How you would look at that. That is
the kind of situation that is going to increase
and it's going to spread into other places because
there is no way under current tax policy, under
current funding levels from the state that we're
going to be able to adjudicate all of these cases.
This will happen. So what's the answer? I mean,
how do we go? Where do we go from here? What's
WASAC strategy? You know, what are we talking
to folks about? How do we solve this problem
before it gets out of hand? There's a couple
of ways you could. So the first is more state
funding. You know, we've been asking the legislature
to share this burden with us. You know, we're
not asking that our last bill did not ask for
the moon. Haven't we been asking, though, for.
decades now. What makes us think that what makes
you think that the legislature is going to start
listening now? You know, it's a good question.
They could still ignore us. But the I think reality
kind of sets in with this decision. You know,
I don't agree with it. I think it was the wrong
approach to solving the problem. But either way,
it's it's happening now. And we can tell that
story about what what this is going to do to,
you know, not just the county budgets. but to
public safety in general. You know, remember
the last few sessions have been dominated by
talk about public safety. Started with some,
you know, talk about reforms to our law enforcement
system. But when we had that spike in crime,
people started telling legislators they want
to see crime and disorder to be reduced. And
so the legislature is going to have to reprioritize.
And, you know, again. What we asked for last
session wasn't crazy. Every once in a while,
I'll talk to a member that says, well, you guys
were asking for so much. What I was asking you
for was what two -thirds of states already do.
Two -thirds of all states provide at least half
the funding. Half of all states provide 100 %
of the funding. We really are in the minority.
When you say unique, we're way on the other end
of the spectrum compared to other states. Our
system is so unusual that both of our bordering
states in Oregon and Idaho, recently the state
took over the system. We actually asked that
at one point, you know, just before we filed
the suit. Remember the, we actually had the bill
that said. I do remember that. Fine, you do it.
Right. I remember that. People looked at us like
horns grew out of our head. Now you have, you
know, Idaho system seems to actually be working
well. There was some hiccups, you know, things
that I probably would do differently having watched
them take over the system. But, you know, I heard
recently from their director that's basically
like, actually, it works pretty great because
we can kind of balance and manage cases loads
a little easier statewide because, you know,
crime's not spiking in every place all at once.
And so we can, you know, have people specialize
in different. So that's another thing we've asked
the legislature for is there was a there was
a case in Grace Harbor where they struggled to
find somebody to take on a juvenile case because
that takes some special expertise. And they finally
had somebody do it. And the Supreme Court ruled
that they had ineffective counsel in that case.
Well, OK, well, why don't you take over those
specialty cases that you provide, you know, in
juvenile cases? Maybe take over all of the competency
evaluations as well, since the competency system
is really your burden in the first place. So
there's lots of different things that the legislature
could do. Well, I think we come back to them
with is is really three different requests. One,
we need you to ensure that the system is fully
funded and, you know, we can talk with our members
and. with legislators about the best way to make
that happen. But either way, we're going to have
to make sure that that happens. The Supreme Court's
given us 10 years to implement this. So we're
going to have to figure out how to make that
timeline work. The second is we don't have the
workforce to do this now. One of our counties
was saying that the number of attorneys they
would have to hire exceeds the total members
of the bar in their county. A whole bunch of
people, in order to make this work, would have
to decide to leave their position in corporate
law or environmental law or whatever else. Whatever
private practice or public practice that they're
in, focus only on this and even that wouldn't
be enough. Yeah. That's a shocking data point.
Yeah. It also tells you kind of how extreme this
decision is. Well, for any young people that
are listening right now that might have an interest
in the law, there's going to be a huge need for
public defenders in Washington state. So if you
can get your law degree, you're definitely going
to find a job here in Washington. If that's the
coursework that you're in or if that's the practice
work that you're interested in pursuing, that's
for sure. So and that's, you know, why we're
going to ask them to tackle the workforce issue,
you know, workforce development, higher education.
That's traditionally a one of the things that
the state does. If this is, in fact, how many
attorneys we're going to need to produce, they're
going to have to build more law schools. We probably
need some geographic diversity, too, because,
you know, a lot of counties rely on third -year
law students to provide, you know, internship
work and also get connected to their workforce,
you know. It all can't just happen in the metropolitan
areas because you need them in the rural areas,
too. And we're going to need public ones because
the amount of debt that is allowed under the
new student loan rules that were just adopted
by the federal government, that that will be
capped. And going to a private college not only
will be cost prohibitive for someone that wants
to go into public law, but they may not be able
to afford it in the first place because they
can't take on enough loans. Well, there's a lot
of pieces at play here, Derek. It's a very interesting.
I hate to use that word, but it is a very interesting
subject matter with a whole lot of complications
and implications, not just today and not just
in the future. But, you know, I don't know what's
beyond the future. But if you think about, you
know, maybe long term down the road, it's really
hard to see how this is going to play out without
some major changes in the system. And I know
we've been advocating for those for years. We
haven't made much progress in that regard. If
this doesn't change that, if it doesn't somehow
spur action on behalf of policymakers, I guess
we're just going to have to wait for a major
crash in the system before it actually will.
It's hard for me to think that way, and it's
kind of a sad way to approach it. humans and
as a society oftentimes it really does kind of
take that um sort of major catastrophic event
before people really stand up and pay attention
i hope that's not the case in this particular
issue i hope that you know we're a lot more successful
moving forward and i hope that our strategy works
yeah absolutely it's we're all gonna it's an
all hands on deck kind of problem you know this
is too big uh to for us to not make just absolute
maximum effort to get it solved. And, you know,
my message to our friends in the legislature
is pretty simple. Is it best timing to have a
massive new cost dropped in your lap? No. This
is what you signed up for, though. It's unfortunate,
but it's your responsibility. It's the same thing
I told, you know, folks during COVID. Yes, this
is not great, but... It's your responsibility
to fix it. And so we're just going to have to
take it head on. And politically, it's not a
superstar issue, right? I mean, no one wants
to be seen as the champion for public defense
in Washington state as a legislator. I totally
get that. But it's just it's kind of the it's
the eating your vegetables part of nutrition.
You know, it's not the steak. It's not the sizzle.
It's kind of the green mushy part that's necessary
for. you know a healthy overall coordinated system
and that's something that we all have to do so
you know i i hope the legislators are willing
to should i say eat their greens you know on
this particular one um and um i know we'll be
working hard on it they'll we'll certainly keep
our members updated thanks for coming on the
podcast today derek uh and explaining this complicated
issue To all of us, I'm sure that folks are going
to have a lot of questions. I assume members
can reach out to you directly if they want to
know more. Of course, yeah. Always feel free
to reach out to me directly. And also, just be
talking to your own legislators. They listen
to you all, and we want them to be educated on
the issue and how this will impact not only your
county budgets, but also impact public safety
in their districts. Yeah, that's good advice.
All right. Well, thanks again for being on the
podcast. We'll see you soon, okay? Yeah. Thanks
for tuning in to County Connection. Stay in the
loop by subscribing to us through your preferred
podcasting app and following us on LinkedIn,
Facebook, and Instagram. And don't forget to
join The Hub, your go -to source for the latest
news and updates from the Washington State Association
of Counties. Until next time, stay connected
and stay informed.