By Pepper Fisher

PORT ANGELES – The part of your Miranda Rights that guarantees you will be appointed an attorney if you cannot afford one is part of the fabric of American society. But what would happen if there was no public defender available when you needed one? That scenario may become more likely in the next 3 or 4 years if the Washington State Bar Association’s request of the State Supreme Court is mandated.

The public defense system in Washington is under significant strain because of what has become an exodus of experienced public defenders who are submitting their resignations. A recent survey found that the top two reasons for quitting were “low pay” and “high caseload.” Combine that with the fact that enrollment in law schools in America is down, and the Constitutional guarantee of a speedy trial, which in Washington is two months maximum, sounds unsustainable.

The State Bar Association and the State Office of Public Defense want to get caseloads reduced for our public defenders, and have petitioned the Supreme Court to impose a 90-day moratorium on the assignment of new felony clients to public defenders while they develop new caseload limits to be implemented over a 3 year period. They want to drop the caseloads for public defenders from the current 150 felonies per attorney per year down to a maximum of 47 cases each by 2027.

Clallam County Prosecutor Mark Nichols says he has no intention of artificially reducing his number of prosecutions where they’re warranted, so that only leaves one solution. Clallam County would need to at least double its number of public defenders, if they can find any.

“It doesn’t take a rocket scientist to roll this forward year after year to get a sense of what’s going to develop across the state of Washington, including here in Clallam County. An obvious question is, who is going to pay for all of those additional public defenders? Well, currently it’s the county. And so, this has, I know already, raised concerns within the Washington State Association of counties, who have questioned whether this rises to the level of an unfunded mandate at present, much less based upon what we can anticipate experiencing moving.”

Whether the State Supreme Court will take into account the cost of the new proposal to Washington communities is not known, but Nichols believes the cost discussion may be an academic one at this point anyway. If communities can’t find or afford the public defenders that are mandated, reduced public safety may be the real problem.

“I don’t think that any judge is going to be likely amenable to condoning a proceeding going forward in a circumstance where an individual is saying, “I would like an attorney at public expense. Please appoint one.” We can’t simply say, “Well, we can’t find one. So, we’re just going to go ahead and proceed forward.” I think the remedy instead is likely dismissal of the charges, and if somebody happens to be a dangerous offender who’s in custody at that time, we lose the ability to hold them and they a walk. And I think that would be a deeply, deeply concerning, extraordinarily dangerous outcome.”

The Director of the Public Defender’s Office in Clallam County, Harry Gasnick, shares Nichols’ concerns.

“The real question is going to be, what happens to the cases since attorneys will not be allowed to accept cases beyond their case load maximum? The question’s going to be, what happens to those cases? And I think a lot of cases will end up getting subjected to potential dismissals based on violation of due process rights. They’re going to prioritize people who are in custody. It may impact charging decisions over at the over at the prosecution. But yeah, it’s going to be a real problem. People can’t sit waiting for Counsel to be appointed.”

Nichols told KONP via email “It is my understanding that the Washington Supreme Court is going to allow the WSBA proposal to go through the regular rules committee process, although it may be an expedited timeframe. The rules committee will next meet on May 13th.  The committee will decide on how much time to accept comments before making a decision on the WSBA proposal.”