By Erica C. Barnett
The Washington State Bar Association’s governing board adopted new standards for public defenders last week that could dramatically reduce caseloads for defense attorneys and other staff at the King County Department of Public Defense (DPD), which represents indigent people accused of crimes.
The 12-1 vote could also have implications for public defense departments around the state, DPD director Anita Khandelwal says, because the state Supreme Court—which adopts rules that counties across the state must follow—asked the bar association’s Council on Public Defense to come up with these recommendations to respond to the statewide public defender shortage.
“We’ve seen a high rate of attrition and burnout, because the caseloads… are too high,” Khandelwal said. “And what happens is people leave is that the same cases get concentrated onto a smaller number of people. It’s basically like we’re in a death spiral.”
The new rules would have a more immediate impact in King County, according to DPD, because King County operates under its own unique rules: Under the King County Code, public defenders are required to follow the standards the WSBA adopts.
According to DPD director Anita Khandelwal, that means the county must either hire enough attorneys—along with support staff like paralegals, social workers, and investigators—to meet the new standards or invest in alternatives to prosecution and incarceration, reducing caseloads by reducing the number of cases.
“I think we have a chicken and egg problem here. I recognize that there’s a shortage of attorneys, but I think that shortage of attorneys is in part due to the fact that this work is impossible.”—King County DPD supervising attorney Michael Schueler
The guidelines, which would also change the requirements for attorneys to qualify for various types of cases (felonies that carry sentences of life without parole, for instance), include a phasing-in period that ends in 2027.
One criticism of the old standards, which have not changed significantly since they were adopted in the 1970s, is that they don’t distinguish between different types of crimes—treating murder, for instance, as if it’s no more complex than a car theft. The new standards no longer dictate a maximum caseload for each broad category of crime; instead, they use a formula that weighs each type of case separately; on average, the new formula would give attorneys about twice as much time to work on each case.
King County Executive Dow Constantine was alarmed enough about the proposed new rules that his general counsel, David Hackett, took the unusual step of sending a letter urging the bar association’s governing board not to adopt the new recommendations. Doing so before the state supreme court can issue its own statewide guidelines, Hackett wrote, would “contradict a standing court rule”—specifically, the current state guidelines for public defense attorneys. Khandelwal says there is no contradiction, because the state standards set a ceiling, not a floor, on cases.
Under the current WSBA standards, each public defense attorney is expected to handle as many as 150 felony cases or as many as 400 misdemeanor cases a year—a workload that would work out to as little as 11 hours per felony, or 4.5 hours per misdemeanor, if attorneys didn’t work overtime. “That’s obviously absurd,” Khandelwal said. “If you were charged with a misdemeanor, you would want an attorney who’s going to spend more than four and a half hours on your case.”
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As it is, high caseloads are leading to an epidemic of burnout among public defenders, and leaving some jurisdictions with so few attorneys that people are languishing in jail for months waiting for a lawyer.
During the WSBA hearing last week, a steady stream of attorneys described the impacts severe overwork has had on their ability to spend time with their families and adequately represent their clients. Larry Jefferson, director of the state’s Office of Public Defense, said his family reacted with shock when he spent a Sunday at home when he was a public defender, because he was rarely able to take even one day off “An normal week for public defenders 60 to 80 hours of work, and [that’s when] they’re not doing a trial. So these standards represent us taking the best step forward to making sure that people get adequate assistance of counsel.”
Kitsap County prosecutor Chad Enright was the lone voice of opposition at Friday’s hearing, calling the standards “frankly comical” in light of the ongoing shortage of public defense attorneys across the state. His “friends in public defense,” Enright said, had two theories. The first was that the new standards are “designed to create chaos” in the hope of creating a new state agency to oversee public defense. The second was that by lowering the number of people public defenders can represent, defense attorneys are hoping to turn the current defense attorney shortage into a crisis, forcing prosecutors to dismiss some charges and effectively “decriminalizing” certain crimes.
Responding to those claims, King County DPD supervising attorney Michael Schueler said, “I think we have a chicken and egg problem here. I recognize that there’s a shortage of attorneys, but I think that shortage of attorneys is in part due to the fact that this work is impossible.” Last year, Schueler’s client D’Andre Glaspy was found not guilty of murdering his girlfriend’s two-year-old son after languishing behind bars, unable to pay bail, from 2017 to 2023—a situation Schueler attributed to the crippling caseloads he was working under during those years.
“These caseloads are crippling. It is an impossible task to sit down with a client and tell them, ‘I can’t work on your case effectively and quickly,'” Schueler said.
In his letter, Constantine’s general counsel Hackett warned that adopting the new standards could create “practical problems of adequate legislative funding from the state to fund the new caseloads and the daunting question of whether there are enough defense attorneys to staff the caseloads proposed.” The county is currently facing a $100 million two-year budget shortfall; DPD’s annual budget is currently around $170 million.
Khandelwal argues that the new standards don’t necessarily require the county to increase spending on attorneys.
“It doesn’t have to be a budget question,” she said. “The three-year implementation phase for the standards is also an opportunity to ramp up alternative programming for the next three years, so that we are using our criminal legal system for fewer things.”
Constantine’s office has not yet responded to questions about Hackett’s letter or the impact the new standards will have on the county’s public defense department.