ACLU Report Finds Lack of Standards, Accountability In County Indigent Defense Systems

News Release: 
Friday, November 20, 2009

The American Civil Liberties Union today issued a report that details the problems with the manner in which counties provide criminal defense services to people in poverty. The report, “The Unfulfilled Promise of Gideon,” shows that a majority of Washington counties lack comprehensive standards and adequate oversight systems to ensure that these publicly funded legal services meet basic constitutional standards.

“Inadequacies in our system for providing indigent defense services means that many impoverished people in Washington are not guaranteed adequate legal representation.  The absence of oversight by either the State or most counties has perpetuated a system that lacks accountability and fairness.  Washington can and must do better,” said Julya Hampton, ACLU-WA Legal Program Director.

Forty years ago the U.S. Supreme Court ruled in the landmark case Gideon v. Wainwright that the government must provide an attorney to criminal defendants who are too poor to afford one.  Twenty years later, in Strickland v. Washington, the Court expanded on this principle when it ruled that the right to counsel guarantees more than just the appointment of an attorney, but it also guarantees the defendant “effective assistance of counsel.”

Although Washington passed legislation in 1989 requiring local governments to adopt standards for the delivery of indigent defense services, the ACLU found that a majority of counties still have not adopted the required standards.  And although indigent defense services are supported with tax dollars, they are not held to the same standards of accountability to which other publicly funded programs are held.

Without comprehensive and enforceable standards, it is difficult to ensure that indigent defense services meet minimum constitutional standards.  Indeed, several recent court rulings have found ineffective assistance of counsel in cases involving attorneys who contracted to provide indigent defense.

In Grant County, numerous court rulings have found that contract indigent defense attorneys failed to provide effective assistance of counsel.  The Washington Supreme Court is considering the state bar association’s recommendations to disbar two Grant County attorneys for unethical conduct.  The misconduct underlying the disbarment recommendations included findings that the caseload was excessive and that there was a lack of diligence in handling indigent defense cases.  These attorneys provided the majority of indigent defense services in the county.

Although indigent defense services in Washington are handled at the city and county level, the State of Washington retains the obligation to ensure that the criminal defense services meet minimum constitutional standards.

The ACLU calls for several steps to remedy deficiencies in the indigent defense system:

  • The State should require counties to adopt minimum standards for the delivery of indigent defense services, including:
    • Caseload Limits: Each county must establish caseload limits that are consistent with the standards adopted by the Washington State Bar Association.
    • Payment for Experts and Conflict Counsel: Each county must make provision for the payment of experts and conflict attorneys separate from the fees paid to defense attorneys.
  • The State should exercise its responsibility for overseeing the delivery of indigent defense services.  The State should assign to the Office of Public Defense general oversight of county indigent defense services.

The State should bar renewal of indigent defense contracts with attorneys who have repeatedly failed to meet the standards adopted by the Washington State Bar Association.