Newly approved caseload limits for public defenders could pull Washington's criminal justice system back from the verge of collapse or could strike a blow to counties — depending on whom you ask and what happens next.
Proponents say the much lower limits adopted Friday by the Washington State Bar Association are desperately needed to stop public defenders from quitting, attract recruits and represent defendants fairly. They say the state's old limits, combined with attorney shortages and policing shifts, have saddled defenders with too much work, causing them to burn out and their clients to go weeks, months or years without adequate counsel.
The new standards are designed to slash maximum caseloads by about two-thirds, though the change won't take effect immediately and the Washington State Supreme Court hasn't yet decided whether to enforce it.
"Public defense is in crisis right now," Snohomish County Office of Public Defense Director Jason Schwarz told the Bar, which regulates attorneys across Washington. "If we do nothing, we're going to remain in crisis."
Skeptics agree the system is breaking down but worry the new limits could exacerbate the crisis because more attorneys will be needed to cover a set number of cases. Many counties, especially in rural areas, already struggle to employ enough public defenders and get almost no state funding.
"This could be what bankrupts smaller counties like ours," unless the new limits help persuade state lawmakers to allocate more funding, Franklin County Administrator Mike Gonzalez said in a statement before Friday's Bar meeting. "At some point, we simply will not be able to pay the bills anymore."
The stakes are high because the government is supposed to provide attorneys to criminal defendants who can't afford to pay. Although that right is rooted in the U.S. and Washington constitutions, public defenders are scarce and busy, so some people presumed innocent are languishing in jail, some prosecutions are being dismissed and counties are watching their costs soar.
Most defendants in Washington use public defenders, and the point of caseload limits is to make sure defenders have enough time and energy to represent each client properly.
Proponents acknowledge that the Bar's new limits will likely boost expenses for counties but note that the change will be phased in over multiple years. Some advocates hope the potential costs will push counties to reduce the number of cases they prosecute, in favor of alternative strategies.
"We could decide to do something else in our communities," King County Department of Public Defense Director Anita Khandelwal said Monday.
Court's role
Responding to widespread defender shortages and workload problems, the Bar's Council on Public Defense began working on new standards in 2022.
The work was supercharged in September when a national report reassessed how many cases public defenders should be expected to handle and proposed a new way of calculating reasonable limits. In October, the state Supreme Court asked the Bar to recommend revisions for Washington.
That process culminated with almost three hours of debate Friday, as proponents urged the Bar to shake up the state's criminal justice system.
"I am horrified that in 2024, in our democracy, in this state, people wait before they get their constitutional rights" because attorneys are overloaded, said Adam Heyman, a King County defender. "My clients sit in jail and rot."
The Bar's old standards dated to the 1970s and 1980s, capping defender caseloads at 150 felonies or 400 misdemeanors per year. The new standards will incrementally tighten the limits in 2025 and 2026 until capping them at 47 felonies or 120 misdemeanors in 2027, with lower maximums for certain case types within those categories. For example, a defender working only on murder cases would be capped at about seven cases per year.
The Bar's board of governors voted 12-1 to make the change.
The state Supreme Court wields ultimate authority over criminal proceedings and has yet to adopt the Bar's new caseload limits. The court's existing rules are modeled on the Bar's old standards.
But the Bar's standards matter because state law says counties should use them as guidelines and because some county laws and contracts also cite the Bar's standards. The court plans to consider updating its rules soon, drawing on the Bar's new recommendations.
Fierce debate
Eric Johnson, executive director of the Washington State Association of Counties, warned about costs. The Bar's new caseload limits could require counties to double or triple the $200 million they currently spend on public defense each year, he said, asking the Bar to help lobby for state funding.
"Counties lack sufficient resources to adequately administer the existing public defense system, let alone to implement the new standards," wrote Johnson, whose association sued the state last year for more funding.
King County Executive Dow Constantine's office sent a letter last week urging the Bar to let the court take the lead on caseloads. If the Bar's new limits drive up costs, "we would expect the state" to fund those, Snohomish County Executive Director Ken Klein said in an emailed statement Monday.
Prosecutors from Franklin and Kitsap counties spoke against the new limits, calling them unrealistic amid attorney shortages. Benton County's public defense manager, Charlie Dow, reluctantly concurred. Based on historical case counts, the Bar's change could require him to employ almost every active attorney in his county who practices criminal law, he said.
Although state lawmakers passed a bill this month to train law students and new attorneys for public defender jobs in rural and underserved areas, advocates say that step is unlikely to solve the crisis overnight.
Still, most of the Bar's board members sided with proponents who said the new caseload limits could combat Washington's defender shortages by providing exhausted attorneys with opportunities for work-life balance.
"We're not going to be able to recruit new lawyers" or retain today's defenders "until we fix the caseloads," said Snohomish County's Schwarz, who helped develop the Bar's new limits while chairing its Council on Public Defense.
To deny the expenses that counties will likely incur under the new caseload limits "would be lying," but the crisis "is costing the counties now," Schwarz added, arguing the new limits will pressure state lawmakers to act.
Board member Brent Williams-Ruth hesitated Friday, asking whether the Bar was deliberately laying the groundwork for "the next McCleary case." In that case, the state Supreme Court compelled the Legislature to fully fund public education. Then Williams-Ruth voted "yes," along with board members such as Serena Sayani, who called the old caseload limits unsustainable.
"We are failing the service of our public by not having a system in place that allows people to have adequate representation," Sayani said.
