King County government has a brand-new Department of Public Defense and a county charter amendment authorizing creation of the new department will probably go to the voters in August. Some people, though, see the new department as a step in the wrong direction.
The county's old system of public defense — in which a county Office of Public Defense channeled cases to four independent non-profit defender associations — has won accolades. "If not the best in the country, [it's] one of the very best," says Bob Boruchowitz, who directed one of the four non-profits for 28 years and now directs the Defender Initiative at the Seattle University School of Law. Replacing that system, Boruchowitz says, is "tragic."
The devil will, of course, be in the details. "The [eventual] structure is up in the air," says Dave Chapman, who directed the Office of Public Defense and has become the new department's interim head.
But to start with, will anything really change? "From my perspective, no," Chapman said at the end of last week. "From Friday to Monday, I don't expect a lot." He says only two of the 355 lawyers working for the defender associations decided not to become county employees. Over time, he hopes to provide better equipment, a better case management system and a stronger voice for the clients. "The details of the implementing ordinance are going to be really important."
In 1963, the United States Supreme Court ruled, in Gideon v. Wainwright, that counsel must be provided for criminal defendants in non-federal courts who couldn't afford lawyers.
By and large, the states — and the local governments that actually provide or pay for most of the public defense — seem to have been doing a lousy job. "While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases," Lincoln Caplan wrote in The New York Times. "This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers. . . . Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts. Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm."
Nobody says that about King County. Boruchowitz and others think the reason the county's public defense system has become a national good example is because all four of the defender associations were independent, able to hire their own staffs, develop their own cultures, work out their own strategies. But they didn't provide county pensions.
In 2006, defender Kevin Dolan filed what became a class-action suit against King County. The suit argued that defenders were basically working for the county and should therefore be included in the public Public Employees Retirement System (PERS). In 2011, the state supreme court agreed, which led to a settlement late last year under which all employees of the defender associations would become King County employees, starting July 1st. On March 18 — right around the 50th anniversary of Gideon — the county council voted to create the new county department.
Not everyone was pleased. "After he announced the potential dissolution of the four public-defense agencies to the heads of the four agencies on Wednesday and Thursday, Chapman said he was met with 'mixed reactions,'" Jennifer Sullivan reported in The Seattle Times. "In a joint statement released Thursday, the four firms said . . . '[t]he decision to create a County Public defender agency was made without input or analysis from our offices, bar leaders or community leaders representing our clients.'"
The county figures that over time, by bringing four separate agencies in-house, it can save money. Boruchowitz is skeptical. "County bureaucracy does not always result in efficiencies or savings," he says. Still, he concedes that "a lot of progress has been made in the past couple of months."
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