Public defenders are warning that public defense as we know it is on course to collapse in King County and across the state if officials do not intervene.
From public hearings at the Washington State Supreme Court to King County Council meetings about the 2025 budget, those most intimately involved with our criminal legal system are discussing new caseload standards for public defenders: what they should look like, why they’re important, how much they’ll cost, and who is going to foot the bill.
Across the board, policymakers agree there’s a crisis in public defense, both in King County and statewide. Where they don’t necessarily agree is on what to do about it.
What does the public defense crisis look like?
We can easily see the public defense crisis when we look at attrition numbers at the King County Department of Public Defense (DPD).
In a presentation to the King County Council, DPD reported a 19% attrition rate since the beginning of 2023. The agency said 53 lawyers have left, 20 of which were among the department’s most experienced (and, therefore, the hardest to replace). 43.9% of felony cases have been transferred from a departing lawyer during that time.
Molly Gilbert, the Bargaining Union President of SEIU 925 representing public defenders, began tracking departures in January of 2024. She says that since that time, 38 lawyers have left, including five in September and five in October, and that eight additional attorneys have given notice they’ll be leaving by the end of the year. According to her observations, the exodus appears to be accelerating.
“That means that 83 line attorneys resigned in the past two years, which is 48% of our attorney positions,” Gilbert said. “They have primarily been replaced by attorneys who just received their bar card, many of whom have zero work experience.”
A DPD spokesperson said Gilbert’s figures exaggerate the attrition rate, which they said their latest tally puts at 26% since 2023, not counting future planned departures. DPD also contends Gilbert’s numbers include some inaccuracies.
The attrition cycle tends to worsen over time because departing attorneys’ incomplete cases transfer over to the remaining attorneys, who have to re-do at least a portion of the work already done on the cases. As more attorneys leave, more cases have to be reassigned, and caseloads become higher and higher. And brand new attorneys, who tend to be easier to hire, cannot take many of these cases due to their complexity.
“The work is incredibly taxing,” Matt Sanders, the interim director of DPD, said. “It’s one of those things where people come to the work because they’re mission-driven, and they really want to advocate and defend the most vulnerable people in our community, and hold police accountable and promote public safety. But the workloads are overwhelming, and that’s why you’re seeing public defenders leaving the profession in droves.”
When asked what we can expect a public defense crisis to look like, Sanders said, “I think a number of things would happen. As an initial matter, police accountability would be undermined because there’s going to be attorneys who aren’t able to thoroughly investigate these situations because the caseloads are unsustainable. There’s going to be people who end up, because we can’t take the cases, sitting in custody without an attorney.
To some extent, the crisis has already arrived, since public defenders are already under-resourced and spread very thin.
“Even under the current situation, we have folks who are in custody for entirely too long and speedy trial is a constitutional right, and it’s undermined,” Sanders said. “I can recount examples of clients, predominantly people of color, who have sat in custody for years only to be acquitted.”
Yakima provides a stark example of what can happen when public defense is no longer adequately available. At the beginning of October, the ACLU of Washington filed a class-action lawsuit against Yakima County and others on behalf of people charged with crimes who didn’t have an attorney assigned to their cases. The lawsuit claims the lack of counsel for defendants constitutes an unlawful restraint, as well as interfering with rights to due process and a speedy trial.
“This is about fairness — everyone deserves and has a right to an attorney, and that’s not happening now for defendants in Yakima County,” David Montes, staff attorney for the ACLU of Washington, said in a press release. “They don’t have an opportunity to ask to be released. They don’t have an opportunity for an attorney to move their case forward. We have protections in place to ensure there isn’t government abuse of power and that people are treated fairly, and right now, those protections don’t exist for a whole class of people in Yakima County.”
In a recent op-ed in The Seattle Times, two judges at the King County Superior Court cite the cautionary tale of Oregon, saying that due to their mismanagement of public defenders, defendants without representation have been released and there are significant delays in resolving cases. And in an op-ed at The Stranger, DPD attorney Austin Field argues that public defenders need lower caseloads in order to be able to protect their clients from improper police and prosecutorial behavior.
Should King County not take corrective action, its ability to provide public defenders to defendants might become similarly compromised.
“It is a priority for me to identify the resources needed to make sure that we don’t have a situation where our criminal legal system kind of grinds to a halt, essentially,” said King County Councilmember Jorge Barón, chair of the Law and Justice committee. “The fact is that right now I have a system that is falling apart, and so we need to fix it.”
New caseload standards for public defenders
The Washington State Bar Association (WSBA) published a new set of caseload standards for public defenders in March. In September of 2023, the Washington Supreme Court had asked them to analyze a landmark new study on national public defense workload and make recommendations for the state’s criminal courts. The study, published in July of 2023, found that public defense workload standards are outdated, not empirically based, and inadequate for providing the constitutionally guaranteed right of counsel.
“Excessive caseloads violate ethics rules and inevitably cause harm,” the study says. “A justice system burdened by triage risks unreliability, denying all people who rely on it — victims, witnesses, defendants, and their families and communities — efficient, equal, and accurate justice.”
The WSBA’s new standards make changes in three areas: caseload limits, support staff ratios, and attorney qualifications. In short, the new standards will greatly reduce (by roughly two thirds) the number of cases a public defender is allowed to be assigned at any given time, while also increasing the number of support staff available such as investigators, social workers, and paralegals. They also broaden the definition of experience for public defenders to qualify to take on various levels of felony cases, meaning they will be able to take on more difficult cases more quickly.
These standards are set to be rolled out in three distinct phases, with the first phase beginning July of 2025 and the last phase beginning July 2027. The mandatory support staff ratios would become effective as of July 2028.
The state Supreme Court sets its own public defense caseload standards, which are legally binding and govern lawyers’ ethical and professional obligations, along with the WSBA. It is in the process of reviewing whether to change those standards to match the ones developed by the WSBA, with the last public hearing on the issue scheduled for November 13.
The Court has no deadline to make their final decision. But Justice Mary Yu, Chair of the Washington Supreme Court Rules Committee, issued a statement saying, “The Court is aware of the importance of the issue and the concern that all interested parties have about the standards.”
Until the Court announces their decision, plans to address the public defense crisis in the state will remain uncertain.
“This is going to be a very significant shift to the way that we do our criminal legal system,” Barón said. “I think the court is appropriately responding to a crisis that we’re seeing. And, you know, fortunately, I will say this is not a Washington State crisis. This is happening across the country.”
The public defense landscape in King County
The King County Code currently looks to the WSBA caseload standards, not the Supreme Court standards, leading to some confusion as the County looks to address the current crisis.
King County is the first county in the state undergoing a serious effort to implement new standards. In talks about the County’s 2025 budget, the DPD has asked for an additional $6.4 million beyond what County Executive Dow Constantine has included in his budget proposal to help it meet the first phase of the standards.
However, the King County Council introduced an amendment only providing $1.7 million to hire additional attorneys in 2025, which could stymie DPD’s efforts to comply with the first phase.
There is also speculation as to whether the Supreme Court will adopt the WSBA standards or suggest some sort of compromise. If the latter, it is possible the WSBA would alter its own standards to match those of the Court. Councilmembers could also potentially change the county code to refer to the Supreme Court’s standards instead.
“[The Supreme Court decision] matters for simply the fact of whether or not it forces our county to actually abide by the standards, because once it’s legally binding, instead of just being their county code, you know that is substantially more force being applied,” said Gilbert.
Barón said he was planning to write to the court suggesting they begin implementing the new standards next year as planned but provide a slower schedule for the full roll-out, allowing two years between each phase instead of one. He cited both the financial difficulties caused by the new standards as well as the challenge of recruiting and training so many attorneys in a three-year period.
“I think the biggest concern is about the cost,” Barón said. “And that is a reality. This will cost a lot of money, and I think everybody in the community should understand that. But I think it’s a necessary cost. So the legislature is going to have to step up with either giving us avenues to raise revenue for this or give us the money necessary to be able to implement it.”
At a King County budget public safety roundtable last month, a staff member said that according to staff model estimates, the new standards could cost as much as an additional $50 million per year once the implementation is complete.
Gilbert pushed back on delaying the full implementation of the new standards, saying public defenders have already been raising the alarm for some time now.
“King County is experiencing the worst crisis pretty much in the state, as far as the breadth of attrition that we have, and even If the standards are adopted with the three-year timeline that’s proposed, I don’t think we’re going to see actual relief on the ground for our attorneys for quite a few years,” Gilbert said. “So even though there’s hope on the horizon, we’re not going to be actually feeling the effects of positive change for years afterwards because of the backlog of cases that many of us are carrying.”
The criminal legal system is becoming more expensive
But no one wants to foot the bill to hire all the additional attorneys and support staff that will be required to address the public defense crisis.
In 2021, Washington State was only paying 3.2% of the cost for public defense services. 37 states fully fund public defense, while another 11 use a mixture of state and county funding.
“This is a constitutional responsibility,” Barón said. “I think the state should be providing at least half of the support, if not more of that, to share the responsibility.”
Barón acknowledged that the criminal legal system is getting more expensive over time, which is forcing a conversation about how to best use King County’s limited resources.
“We can raise a lot of taxes and spend a lot of money to be able to meet those costs and continue the number of cases that we have going through the system, or increase them,” Barón said. “Or we can live with a more limited amount of money and then identify other pathways of accountability, but also maybe providing support that might actually be more effective in reducing recidivism through diversion programs.”
In other words, the public defender crisis could accelerate discussions about broader criminal legal system reforms.
“The idea is not that we do nothing with those cases, but that we find alternatives to a very, very expensive system, a system that, in many low-level cases, doesn’t really lead to the results that we like to see in terms of reducing recidivism and having a change in people’s conduct long term,” Barón said.
Sanders agrees with the value of diversion.
“What’s frustrating is that substantial evidence shows that diverting non-violent felony cases away from the traditional carceral system and into alternatives actually is better for the individual and the community because it aims to address the underlying problems, like mental illness, like substance use disorder,” Sanders said. “It actually reduces recidivism, reduces arrest rates, and is more cost effective than what we currently do, which is basically throw these low-level offenders, or these nonviolent offenders into a jail that costs an extraordinary amount of money.”
He said that in addition to utilizing more diversion, the prosecuting attorney’s office could be more efficient in making offers, expediting motions, and encouraging a robust efficient prosecuting unit, all of which would save money.
A move away from massive criminalization, which received more public support in 2020 as a result of the George Floyd protests, would ultimately save more public dollars by addressing root causes instead of using the ever more expensive criminal legal system. But in order for such a strategy to succeed, Sanders said we’d need to have mental health and substance use disorder infrastructure already in place.
“People have misinterpreted [the move away from criminalization] as a failure,” Sanders said. “When, in fact, we never actually gave it an honest chance at succeeding.”
Correction: We have clarified that the King County Department of Public Defense disputes Molly Gilbert’s statistics and has calcuated their attrition rate to be 26% since 2023. Additionally, due to a transcription mistake, the original version incorrectly quoted DPD’s Matt Sanders as saying “I can recount examples of clients, predominantly people of color, who have sat in custody for four years only to be acquitted.” Sanders has since made clear this was a repeated word — “for, for years” — not the number four.
Amy Sundberg is the publisher of Notes from the Emerald City, a weekly newsletter on Seattle politics and policy with a particular focus on public safety, police accountability, and the criminal legal system. She also writes science fiction, fantasy, and horror novels. She is particularly fond of Seattle’s parks, where she can often be found walking her little dog.