Bid to revamp public defense receives bipartisan support

A bill that would overhaul Washington's troubled public-defense system has cleared its initial hurdle in the state Legislature, drawing support from Democrats and Republicans alike.

Now the question becomes whether lawmakers and the governor will be willing to commit money — and if so, how much — to help counties and cities pay for such improvements as reducing the staggering caseloads that many public defenders must carry.

For decades, legislative advisory committees and attorney groups have urged the state to help local governments pay for the court-appointed attorneys. Indigent defendants facing trial are entitled to court-appointed lawyers under the U.S. Constitution. But the Legislature has refused, leaving many counties to embrace contract systems that tend to save money at the expense of quality representation.

Such contracts often get awarded to the lowest bidder and pay a fixed amount no matter how many cases an attorney handles or how many hours an attorney works.

The bill now before legislators calls for the state to help pay public-defense costs — and to condition funding on local governments adopting such measures as restricting public-defender caseloads and providing them with training. The bill's backers include the Washington State Bar Association and members of the state judiciary.

Proponents are asking the Legislature to pay $12.5 million a year for public defense.

"I think it's very important for the Legislature to send a signal that it recognizes the magnitude of this problem," said Ron Ward, the bar association's president. "And I think it's important that legislators send a signal that they have a commitment to begin remedying it."

Last month the bill passed the House Judiciary Committee on a 9-1 vote and the Senate Judiciary Committee on a 7-0 vote. Now the bill must clear each chamber's committee for appropriations and then be passed by both chambers of the Legislature.

"I support it with as much passion as I can put into anything," said Rep. Patricia Lantz, D-Gig Harbor, Pierce County, the House Judiciary Committee's chairwoman and one of the bill's sponsors.

Last year The Seattle Times published a series, "The Empty Promise of an Equal Defense," which revealed that many public defenders in Washington labor under crushing workloads and struggle to provide competent representation.

One public defender in Grant County, since disbarred, was so incompetent that he requested "D and A testing" — he meant DNA — and dispensed such misguided advice as telling a client facing a felony drug charge that he could leave the country before trial, according to court documents and lawyer disciplinary records.

Lantz, an attorney herself, said that when she read the series, "the hairs on the back of my neck went up, I got this pit in my stomach, and I said, 'I'm not leaving the Legislature until I do something about this.' It's a totally unacceptable situation."

Perhaps the biggest obstacle for the bill will be getting the necessary funding, particularly with the state facing a projected budget deficit of more than $2 billion.

"I'd be very surprised if they got all that they're asking for," said Marty Brown, Gov. Christine Gregoire's director of legislative affairs.

Brown said Gregoire is "very sympathetic" to the need to improve public defense. "Everybody knows it's a problem," Brown said.

"But there just isn't the money right now to go that far," he said. "I think there will be some money, but we just don't know right now what that amount will be."

If the Legislature passes the bill, lawmakers and Gregoire will have to decide whether to fund it and at what level.

In addition to the legislative proposal, the state Office of Public Defense has requested a budget increase of $1.26 million for the next two years. The money would be used to help provide training and mentoring to public defenders statewide and to hire two attorneys who could advise local governments on how to improve their public-defense operations.

Washington is not alone in struggling to meet its obligations to provide a meaningful defense to indigent defendants. Last month an American Bar Association (ABA) committee released a report that said "indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction."

The report's recommendations included calls for state governments to increase funding for public defense and to establish oversight mechanisms to ensure quality representation.

Bill Whitehurst, an Austin, Texas, attorney who chairs the ABA committee, said the constitutional right to an adequate defense "is in words only."

"It's not being fulfilled," he said. "And it's not in just one state, it's across the nation.

"Funding is the critical element. It's very difficult to get the state legislatures to focus on this and to give it the priority it deserves."

Nationally, states pay an average of 50 percent of public-defense costs, with local governments picking up the other half. In Washington, the state pays 5.5 percent — and that percentage is attributable almost entirely to the fact that the state pays for indigent appeals.

Ken Armstrong: 206-464-3730