The state and its 39 counties are in another legal tussle. This time it centers on how to cover the cost of counsel for those facing criminal charges who cannot afford an attorney.

A lawsuit filed by counties last month asserts the state’s system for providing these people with defense services in trial courts is inadequately funded and unconstitutional.

Counties contend the state fails to provide them with enough funds to cover costs or the means to raise what they need on their own. This leaves counties unable “to furnish constitutionally adequate indigent defense services and denies indigent defendants equal access to justice,” according to the suit.

The suit was filed Sept. 8 by the Washington State Association of Counties and three counties – Lincoln, Pacific and Yakima. They are seeking a court order for “stable, dependable, and regular state funding” to assure defense services are provided equitably across the state.

“There is not a uniform system statewide and there needs to be,” said Eric Johnson, executive director of the counties’ association.

Resources to pay lawyers and conduct investigations vary from county to county because of the lack of state aid and disparities in each county’s ability to generate local tax revenue, he said. Just as with the historic McCleary education funding case, uniform state funding is essential for ensuring a consistent system of justice, he said.

As it is now, outcomes may differ based solely on where a defendant lives, what Johnson described as “justice by geography.”

The Office of the Attorney General had not filed a response to the suit as of Friday.

How it works

The U.S. Constitution guarantees court-appointed counsel for indigent defendants facing criminal prosecutions.

In Washington, the state does pick up the tab for civil commitment actions where people are sent to psychiatric hospitals, representing parents in cases involving child custody, and handling appeals of indigent defendants, according to the suit.

But counties, not the state, are left to cover legal defense costs for poor defendants in  criminal prosecutions. Counties argue the state has the “ultimate constitutional and statutory obligation” for indigent defense in these cases too.

It is getting more expensive for them as caseloads grow.

Collectively, counties’ costs rose from about $105 million in 2012 to $174 million in 2021, according to the association. Between those same years, the amount of state funding went from about $5.6 million to approximately $5.8 million.

Those dollars were distributed to counties by the state Office of Public Defense through the Public Defense Improvement Program, according to the suit. There are discrepancies in allocations which are based on a county’s population and the number of criminal case filings in its Superior Court, the suit contends.

As an example, in 2021 Garfield County spent $55,563 on public defense and received a distribution of $11,274 – about 20% of its total spending. Meanwhile, Grant County spent $3,212,207 and received $83,018, less than 3% of what it expended.

Calls for the state to put more dollars into indigent defense have surfaced in several reports and studies in the past 40 years.

And it’s been the Washington State Association of Counties top request of lawmakers each session for the past decade. Suing was a last resort, Johnson said.

Sen. Jamie Pedersen, D-Seattle, is well aware of the request and isn’t sure counties will secure a win from the courts.

“The [state] constitution contemplates a shared responsibility for these things. I am skeptical of the idea that the state has a legal responsibility to provide public defense at all levels,” he said. “It’s not our constitutional structure that the state is responsible for everything.”

by Jerry Cornfield, Washington State Standard

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