Washington among the bottom of states in public defense funding

Counties primarily shoulder the cost of public defense with the state covering less than 3% on average, making Washington an outlier nationally in how little the state invests in public defense. While defendants have sued Yakima County over delays in their cases, counties also have an ongoing 2023 lawsuit against the state to seek more financial support in meeting their constitutional obligations. 

“It’s one of our most critical needs,” Yakima County Commissioner LaDon Linde said. “I really feel that the lack of attorneys to be able to process and try the cases that we have really strikes at the heart of our public safety. It really needs attention, and we need state help. And [that is] the reason why all 39 counties said, ‘Yes, we need to sue the state and get some help.’”

The multilevel legal battles reflect the challenge of recruiting and paying for attorneys to uphold the constitutionally mandated obligation to provide public defense. The Washington Supreme Court is also weighing new public defender caseload standards that would give attorneys more time on each case, but significantly increase the number of attorneys needed and costs to local courts. 

The state argues that counties should foot the bill because they dictate local public safety policies, and the Legislature has specifically designed funding to reinforce that, but – with experts and officials advocating for the state to pay a larger share – the question of how the state will meet its constitutional obligation lingers.

Derek Young, interim executive director of the Washington State Association of Counties, said local jurisdictions can no longer shoulder the problem on their own. 

“The system is in crisis, and it has been for some time,” Young said.  “In fact, in different legislative findings, the [state] Supreme Court, pretty much everyone, has said that Washington’s public defense system is in crisis currently.”

‘Justice by geography’

Washington’s decentralized public defense system means the majority of funding and decision-making happens at the county level. That creates a patchwork for public defense that many refer to as “justice by geography.” 

“This is a duty that we have, and it’s delegated in Washington almost entirely to the counties,” Young said. “[So the] justice you receive in Washington depends largely on where you’re at. We think that for a fundamental right, that’s something that shouldn't be allowed.”

Public defense spending totalled $207.2 million statewide in 2024. The cost of public defense and the amount counties allocate varies substantially within the state, as does the percentage of state funding. King County sits on the lower end with 1.5% of public defense spending covered by the state, and Garfield County falls on the highest end with 15%, according to the state’s Office of Public Defense. Yakima County had about 5% covered in 2024.

Notably, Yakima County budgeted $11.2 million for the prosecutor’s office, compared to $8.4 million for the public defense office for 2024, and that’s not atypical. Larry Jefferson, the director of the state Office of Public Defense, said public defense has been historically underfunded.

“For years, public defense has basically had both arms tied behind their back while they’ve been doing these cases,” he said. “People did a tremendous job with the resources that they have, and we have folks that are just doing an excellent job. Yet even within that, there are cases that they can’t get to, and so we want to make sure they can get to those cases and that it’s a level playing field.”

More than half the states in the U.S. fully fund public defense at the state level. Another 21 – including Washington – share the cost between states and counties, according to the Sixth Amendment Center. But many of those that split the cost cover much more than Washington does. 

Aditi Goel, deputy director of the Sixth Amendment Center, said it’s not necessary for states to fully fund public defense, but they must meet their constitutional obligations.

“Most states provide 100% of state funding for trial-level services,” she said, “so Washington is in the minority of states that does not provide state funding, or at least significant state funding, for public defense.”

Goel noted that many states found that fully funding public defense was the best way to ensure the consistent right to counsel, but oversight and centralized data are equally as important. Putting more money into a broken system with limited insights into how it’s broken can exacerbate the issue, she said, highlighting that cost-sharing with local governments could work so long as there is adequate oversight. 

“Washington state, and every state, has the responsibility and the obligation of making sure this right is met, and it’s very complicated. There is no cookie-cutter model,” Goel said. “So it’s really a question for how the state will meet this obligation and what it will do to get there.”

Seeking state support

Public officials and county representatives are trying multiple approaches in Olympia to increase the state’s share of funding, from a lawsuit between counties and the state to a historic budget request.  

The Washington State Association of Counties sued the state in late 2023 on behalf of all counties, but specifically named Lincoln, Pacific and Yakima counties as plaintiffs. The lawsuit argues that the state is failing its constitutional obligation by delegating it to counties without the means to ensure it can be implemented. 

Young said the intention for the lawsuit is to compel the state to fund public defense similar to how McCleary v. Washington mandated the Legislature to fully fund education. 

“We think it should be a statewide funding level, same as it was for schools,” Young said. “Trying to basically determine your access to a constitutional right based on whether or not your local government or your community is rich or poor, we think it’s wrong. There are basic services that we should provide to all Washingtonians, as the Constitution expects. But more and more of that burden has been devolved to the local level.”

A Thurston County judge dismissed the initial lawsuit last April, saying that counties are not the appropriate group to bring the suit – it instead should be brought by the individuals whose rights have been infringed. The counties then appealed to the Washington Supreme Court, arguing that precedent exists for governments to act on behalf of residents – but the court denied the case, so it was kicked to the state Court of Appeals. 

The Attorney General’s Office, which is responsible for defending the state in lawsuits, argues the Legislature designed funding specifically to ensure counties are responsible for paying for the public safety policies they enact. 

“The Attorney General’s Office strongly supports adequate funding for public defense. The question in this case is simply whether local governments or the Legislature should cover that cost,” deputy communications director Mike Faulk wrote in an email. “For over a century, the Legislature has made the policy decision that local governments should have primary responsibility for the decisions and funding of criminal prosecutions and defense.”

The state also contends that counties lack the proper standing to sue the state on behalf of defendants. 

“Our primary argument in this case is that counties should not be allowed to bring a lawsuit on behalf of indigent defendants when the counties prosecute those same defendants,” Faulk added. “The trial court agreed with that argument, and we hope the Court of Appeals will as well.”

WSAC also worked with legislators to craft and introduce several bills this legislative session to increase state funding for public defense, including companion bills in the House and Senate that would split the cost evenly with counties. But neither bill made it past the fiscal cutoff on Feb. 28. 

The Office of Public Defense also made a historic request through the governor’s office for the next budget that would nearly double the office’s previous budget, requesting $293.2 million. 

“What’s most important is that the Office of Public Defense wants to work with every city, in every county,” said Larry Jefferson, director of the state Office of Public Defense. “We might need a resource or two to do that, to make sure that we can, but that’s what we want to do.”

Much of the money would cover or expand existing programs, but a few line items specifically focus on addressing the crisis. For example, the request includes $420,000 to hire an expert to evaluate public defense services to determine the most appropriate methods “to ensure constitutionally sufficient representation in all jurisdictions.” 

It also includes a $80.9 million request for grants to counties and cities. 

“Trial level criminal defense is in crisis in Washington, without enough public defense attorneys to represent indigent persons facing criminal charges,” the budget request reads. “In spite of steadily increasing public defense costs borne by local jurisdictions, state funding for trial level criminal public defense has remained stagnant for nearly 20 years. Washington is one of only 13 states that provide little or no state funding for criminal public defense. Cities and Counties need supplemental funding in order to provide adequate indigent defense.”

Potential caseload adjustments

The Washington Supreme Court is currently deciding whether to adopt new standards for public defender caseloads. Following a national study released last year, the Washington State Bar Association’s Council on Public Defense released recommendations for how many cases public defenders should be assigned within a year. 

Current standards limit a public defender to handling about 150 felony cases a year, which equates to about 14 hours on average for each case, according to the national study. For misdemeanors, attorneys are limited to a few hundred cases per year. The new standards cut the caseloads by 2/3 for felony charges and more than half for misdemeanor cases. 

Lower caseloads would require substantially more attorneys and support staff across the state, and with that come increased costs. Young, who opposed the new standards, said they would cost about $1 billion statewide if implemented. But for supporters of the proposal, like Jefferson, new caseload standards are needed to retain existing attorneys, let alone hire new ones. 

In Yakima, the county decided to increase the salary for public defenders after having difficulties filling vacant positions, worsening a backlog of cases. That’s part of what led to longer wait times for defendants and ultimately the class-action lawsuit, Al-Tharwa v. Yakima. The case is ongoing. 

County Commissioner Linde said the pay bump helped some, but further shows that counties need more money to ensure effective representation. 

“It’s not solving the problem, but it should help with the problem somewhat,” Linde said. “We need assistance from the state for funding. We think it’s very fair to say that you’re going to mandate that the counties are responsible for trying these cases, that we get some appropriate state funding to help us with the job. Particularly when the state has resources that we do not.”