November 2009

Repairing the Constitutional Right to Counsel: Justice in Jeopardy’s Promising Start

by Joanne Moore

After being arrested for a misdemeanor assault, “Sean” was waiting in court lacking a public defender for arraignments when, in keeping with local practice, the city prosecutor presented him with a guilty plea form. Unaware of his options, Sean signed the form without being able to present the facts of the so-called assault: He had been charged for tossing a juice container at a friend’s back.

Sean’s “let’s just get it over with” guilty plea without benefit of counsel carried collateral consequences far beyond a night in jail or a day in court. Later, when he tried to enlist in the armed forces, Sean learned that he was barred from an honest career serving his country due to his assault conviction.

For decades, our justice system has guaranteed indigent individuals the constitutional right to effective assistance of counsel.

While most states fund 50 percent or more of their public defense costs, Washington has lagged far behind. Until recently, trial-level public defense was supported by local governments alone, and it was often under-funded and inconsistently administered.

In fact, by 2004, Washington’s jerry-rigged criminal indigent defense system was coming unraveled. Parents in dependency and termination cases were represented by underpaid, overworked attorneys in many counties. A Seattle Times series exposed fundamental deficiencies in appointed attorney time and resources that led to numerous miscarriages of justice around the state. Grant County was sued for providing systemic ineffective assistance of counsel.

Since then, the Justice in Jeopardy (JIJ) initiative has successfully focused political attention on improving public defense services statewide. Although many challenges remain, JIJ partners have achieved the important precedent of state funding for trial-level criminal defense where none existed before, along with enhanced oversight to help local programs meet constitutional muster, through amendments to Chapter 10.101 RCW. JIJ also has fostered a major expansion of the Washington State Office of Public Defense (OPD) Parents Representation Program to serve indigent parents in dependency and termination cases, taking it from a pilot program in two judicial districts to fully operational in 25 counties.

As a direct result of these efforts, trial courts are seeing substantial improvements in the availability and quality of public defense representation in both criminal and dependency proceedings.
 
Using State Funds to Upgrade Basic Public Defense

Counties and cities report significant advancements in their criminal indigent defense services from the relatively small infusion of state funds — just $6 million a year statewide in recent years. Local jurisdictions use their share of these funds to meet critical local needs. Common improvements include hiring a county or regional coordinator to oversee public defense contracts; improving attorney compensation; enhancing access to investigators, interpreters, and experts; and providing counsel at every critical stage of a court case, including initial court appearances.

The jurisdictions have used the state funds for improvements that have a ripple effect throughout local justice systems. For example, state funds used to provide counsel at initial appearance calendars not only make the proceedings fairer, but also improve the efficiency and effectiveness of the criminal justice process.

The city of Olympia was awarded a $20,000 grant for 2008 and a $25,000 grant for 2009. Court Administrator Bonnie Woodrow reports: “With early resolution of simple cases, our public defenders’ caseloads have dramatically declined, allowing them to focus on higher-priority or complex cases.” She adds that defendants understand the process better and thus can participate more actively in their cases. Meanwhile, having counsel at arraignment has resulted in reduced continuances and more timely resolution of cases, Woodrow says.

Other jurisdictions report reduced jail and in-custody transportation costs, as well as improvements in out-of-custody defendants appearing for subsequent hearings.[1] Jennifer Henson, Des Moines and Normandy Park Municipal Court administrator, reports a reduction of 1,317 jail days after the court’s $33,000 state funds grant was used to implement public defense counsel at initial hearings, resulting in a jail budget savings of $112,875.

Of course, for defendants themselves, the impact of counsel at the first appearance in court is even more meaningful. Indeed, deprivation of counsel at a first court hearing can derail a person’s life, as Sean’s case demonstrates.

Although the state funding that OPD administers to counties and cities represents only a fraction of the total statewide cost of trial-level criminal indigent defense, these dollars are crucial to maintaining recent basic improvements — some as fundamental as reducing high attorney caseloads to manageable levels.

In the current budget climate, with local governments facing continuing revenue reductions, local officials and JIJ supporters are deeply concerned about retaining even this modest level of funding, which is the state’s only contribution toward meeting its constitutional obligation to ensure the right to counsel in trial-level criminal cases.

Pierce County, for example, has used state funds to reduce caseloads for attorneys in its Department of Assigned Counsel (DAC) to numbers that approach accepted standards in the adult felony area, according to Superior Court Judge Bryan Chushcoff.

Explains Chushcoff, “If DAC staffing levels were further reduced by the lack of OPD funding, a number of DAC attorneys would have their caseloads expand to levels which create inefficiency and concern regarding the ability to effectively represent their clients. These impacts would result in further delays in case resolution, and ultimately suspicion as to the fairness of the provision of justice to accused indigent citizens.”

The immediate goal is to protect the current level of state funding. Over the long term, a far greater state contribution is warranted. Only a few states provide as little public defense funding as Washington. As declared in Chapter 10.101 RCW, effective legal representation must be provided for indigent persons consistent with their constitutional rights.

Better Representation for Parents Threatened with Loss of Their Children

The Department of Social and Health Services (DSHS) took custody of “Dan” and “Erin’s” young child following an emergency room visit for a severe second-degree burn on the boy’s hand. The young parents, still in shock themselves, couldn’t immediately explain how their son had been so badly injured, so the doctor suspected abuse. Because the parents were quickly appointed an attorney with resources to investigate the case and obtain timely photographic evidence, Dan and Erin were able to prove at the initial hearing that the burns resulted from a horrific accident when the curious boy impulsively grabbed on to a wall heater. After just a few days in foster care, the toddler was reunited with his parents and DSHS dismissed the case.

In dependency courts, improvements in the 25 counties associated with OPD’s Parents Representation Program are dramatic. From his courtroom in Central Washington’s Kittitas County, Superior Court Judge Michael Cooper observes that “the quality of parents’ representation in dependencies has improved vastly, thereby diminishing the complaints parents previously lodged about no one helping, or listening to, them.”[2]

Spokane Superior Court Administrator Ronald Miles echoes the judge regarding the Parents Representation Program: “Case loads have been reduced, family re-unification is improved, resolution of cases is quicker, expert resources are improved, and we have more and better training for dependency attorneys.” [3]

For families involved in these traumatic cases, the Parents Representation Program means that an indigent parent has access — from the first hearing onward — to a specially trained attorney advocate who can help ensure fair and equitable treatment according to the law. This kind of quick, intense attention has saved many children from unnecessary weeks or months in foster care — and saved the state millions of dollars.

In more complex cases than Dan and Erin’s, attorneys help troubled parents come to terms with underlying problems and get the treatment or other assistance they are guaranteed under the law. Program evaluations show again and again that parents with access to the Parents Representation Program are substantially more likely to succeed in their cases, reunite as healthy families, and meet the ultimate goals of child-welfare laws.[4] Funding reductions to the new program would not only hurt the families involved but would also threaten the state foster-care savings that have been generated.

Unfortunately, families in one-third of Washington counties who are involved in dependency and termination cases still don’t have access to the Parents Representation Program.

Recognizing that progress will be slower in the current economic climate, the Justice in Jeopardy Initiative nevertheless continues to press for statewide implementation of the Parents Representation Program and greater state funding for criminal indigent defense, as well as the other critical justice needs of the trial courts and civil legal aid.

Even as lawmakers grapple with the greatest budget challenges of this generation, these basic constitutional and statutory justice rights are so fundamental to our way of government that they must be protected.   

Joanne Moore is the director of the Washington State Office of Public Defense.

NOTES
 1.  2008 Status Report on Public Defense in Washington State, pp 3–5. Washington State Office of Public Defense. 
 2.  Response to July 2009 survey conducted by the Superior Court Judges Association (SCJA).
 3.  SCJA survey.
 4. www.opd.wa.gov/PRP-home.htm.