When the WSBA Board of Governors adopted new caseload standards for indigent defense services, as recommended by the Council on Public Defense (CPD), it was a key step toward mending a collapsing public defense system in Washington, but it’s no panacea in itself.
On March 7, the CPD took its recommendations to the WSBA Board of Governors, which adopted them on a 12-1 vote. The new standards are not binding and are next bound for the Washington Supreme Court for review and possibly full adoption statewide, which would shift the standards from recommendation to requirement. The CPD developed these revised standards over more than two years of study, an effort that was recently boosted by a landmark national public defense workload study published in late 2023. Washington’s recommended new standards drop the caseload limit for felony cases from 150 to 47 and for misdemeanor cases from 400 to 120. The new standards are recommended to be phased in beginning in 2025, with the maximum felony caseload recommended to drop to 110 and misdemeanor cases to 280, with full implementation scheduled for 2027.
In a survey of public defense staff and contract attorneys, “Attorney Recruitment and Retention Challenges,” vacancy rates for public defense attorneys fluctuated from as little as 0 percent to as much as 67 percent. Statewide, the vacancy rate is 14.63 percent, on average. That average vacancy breaks down further, to 9.23 percent among staffed public defense agencies and far worse among public defense contractors where, on average, 25.04 percent of positions are unfilled. According to the survey, “[d]espite active recruitment attempts, there are simply fewer applicants for staff and contract positions, and even fewer attorneys who meet mandatory qualification requirements.”
As the WSBA was just beginning to share information about the new standards, I was on the road to Eastern Washington to spend a couple days shadowing two public defenders. What follows is the story of one of those days spent with Shelley Ajax, a public defense attorney under contract in Benton County.
I’m standing in line waiting to pass through security at the Benton County District Court. It’s a crisp Wednesday morning in Kennewick and a handful of people who are waiting in line alongside me are chatting to pass the time—trading notes and generally trying to make sense of a system that feels on the verge of collapse and that has abandoned them to a Sisyphean loop of weekly court appearances.
They sound confused, a little scared, and somewhat angry (“Thanks, Inslee,” one of them mutters). They also sound strangely optimistic, but not because they expect to have an attorney assigned to represent them and have their actual day in court. The scuttlebutt in line is that if they keep coming back every week, after 90 days their case will be dismissed for lack of representation. The problem with this belief is that it’s probably wrong.
Later, when I share this with Shelley Ajax, a contract public defense attorney I’m following for the day, she scoffs. Public defense shortage or not, charges are still being filed and dismissals are rare, Ajax says. It’s more likely that those people in line will keep coming back until someone is available to represent them, and others will wait in jail until then.
“People on the west side, what they’re not going to understand is our people don’t get out the next day,” Ajax says.
On this day, which is typical for this court, the morning docket is more of a human-processing machine that churns through defendants to get them filed into a system that’s still trying to catch up from the last batch. It feels like waiting in the DMV, except here there’s the very real possibility of incarceration.
A court staffer in Judge Dan Kathren’s courtroom asks members of the public who do not have an attorney to all sit on the left side of the room and, after a bit of shuffling and grumbling, more people make their way to the left side until it outnumbers the right by about four to one. A representative from the local Office of Public Defense—going by the acronym OPD, and not to be confused with the state OPD—makes her way row by row to get folks’ information and start processing them. Their names are called one by one. They approach a podium, things are read into the record, and Judge Kathren tells them to come back next week and, essentially, try again. It’s all punctuated by the whirring sound of a printer spitting out documents that tell them in writing to come back next week. It goes on like this, over and over: new defendant, new court date, the printer whirs back to life.
During a break I overhear a couple behind me saying, “They don’t care about us; we’re just another number out here.” From what I can see, the court does care, but it’s hard to argue with the latter point. Because weekly reappearances are so routine, the court can even serve as an unintentional welfare check. Judge Kathren—who for most of the morning has been cheery and avuncular—notices that one defendant has for the first time missed a court appearance.
“She’s been coming every week, so I’m a little concerned about her,” he says in a way that sounds more familial than judicial. “I hope everything’s alright.”
Not long after, there’s tension surrounding one of the in-custody defendants who has been growing visibly frustrated with the mounting confusion until he erupts.
“I got kids,” he snaps. “I’m the provider out there. I need to figure out how to get back to my kids.”
Ajax tells me she predicted long ago that things would unravel as they are now. That’s part of what led her to transfer from superior court to district court, where she believes the system is better equipped to handle the load, but still underequipped to address the full need. And now it’s why she’s considering leaving public defense altogether.
“To me this is semi pro bono work,” Ajax says. “People have to be dedicated to the service or the system will collapse. Well, the system’s collapsing now for other reasons.”
For example, in nearby Franklin County, Ajax had to go to court after the fact and argue why she should receive back pay in a prior case. In that instance, Ajax had reached the end of her contract in the middle of an active case, but she feared that withdrawing would be an ethical violation, as she would be leaving that client in a worse position because no other public defender was available to step in. In the end, she was able to convince the court to retroactively compensate her for the work, which came to about $35,000 for more than 90 hours of work—a number that doesn’t account for the total hours she actually put in or the other resources she had to devote to the case.
“I just did what I was told and I’m just in the middle of the crossfire,” Ajax tells me. “It’s a disaster.”
In Benton County, the backlog of unrepresented defendants is exacerbated by strict new local ordinances, as well as a steady flow of low-level offenses like property crime, driving violations, and drug charges, which haven’t shown signs of slowing, according to Ajax and Heather Carlson, another contractor in Benton. Both share examples of relatively insignificant cases that have gone to trial, such as a stolen bowl of pho, or restitution orders that have been entered for as little as $2. Meanwhile, Ajax says she has motions for mental health evaluations of clients who’ve been waiting for a year, and it’s not uncommon for defendants to wait in jail for upward of 200 days.
“It’s like rolling a snowball downhill,” she says, meaning every case that gets jammed into the system adds to the backlog.
Ajax and the 18 other contract public defenders (the Benton County OPD also employs four in-house attorneys and, according to Public Defense Manager Charlie Dow, expect to have two additional in-house hires by October) are paid on an hourly, per-case basis, the total of which is capped according to Washington’s current caseload standards. A Benton County public defense contractor, for example, can still maintain a private practice and generate additional income, as long as their total caseload doesn’t exceed the standard. Ajax and other attorneys I spoke with fear that reducing those caseloads will reduce their income, and their livelihoods will take a dramatic fall. Rural Washington is already struggling to recruit and retain enough attorneys to serve the local population, and some fear reduced caseloads and correspondingly lower public defender income will accelerate the bleeding and make it even harder to attract the attorneys needed for a real fix.
“If all the contractors leave, the whole system collapses,” Ajax says. “It’s already collapsing, but if they leave then it’s done.”
Colin Rigley. Colin worked as a print news journalist and editor in California, as well as a content strategist in the Puget Sound area, before joining WSBA as the communications specialist in 2018. He can be reached at colinr@wsba.org.
