HOUSE BILL REPORT
HB 1542
As Reported by House Committee On:
Judiciary
Title: An act relating to indigent defense services.
Brief Description: Providing indigent defense services.
Sponsors: Representatives Lantz, Hinkle, Appleton, Rodne, Lovick, Newhouse, Buri, Darneille, Williams, McDermott, Clibborn, Schual-Berke, O'Brien, McIntire, Kagi, Hasegawa, Dickerson, Green, Kenney and Kilmer.
Brief History:
Judiciary: 2/9/05, 2/18/05 [DPS].
Brief Summary of Substitute Bill |
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HOUSE COMMITTEE ON JUDICIARY
Majority Report: The substitute bill be substituted therefor and the substitute bill do pass. Signed by 9 members: Representatives Lantz, Chair; Flannigan, Vice Chair; Williams, Vice Chair; Priest, Ranking Minority Member; Rodne, Assistant Ranking Minority Member; Campbell, Kirby, Springer and Wood.
Minority Report: Do not pass. Signed by 1 member: Representative Serben.
Staff: Bill Perry (786-7123).
Background:
Both the federal and state constitutions contain guarantees of the right to legal representation
for an accused person in a criminal prosecution. Court decisions at both the federal and state
levels have construed these provisions to require public funding of indigent legal
representation in criminal prosecutions in which the accused's liberty is at stake. Statutes and
court decisions have also extended the right to publicly funded counsel to other cases, such as
involuntary commitments, dependencies, and juvenile cases. The right also attaches to
criminal appeals, and special rules apply in capital punishment cases.
The Washington statute on indigent defense declares that:
"...effective legal representation should be provided for indigent persons and persons who
are indigent and able to contribute, consistent with the constitutional requirements of
fairness, equal protection, and due process in all cases where the right to counsel
attaches."
A determination of indigence is to be made for any person requesting the appointment of
counsel in a criminal, juvenile, involuntary commitment, dependency, or other case in which
the right to counsel attaches. The indigent defense services law defines an indigent person as
one who:
Most criminal defendants are found to be indigent within this definition and therefore eligible
for legal representation at public expense. The court may determine that a person is indigent
under this definition, but nevertheless able to contribute to the cost of his or her legal counsel.
In such cases, the court is to require the person to make payments toward the cost of his or
her legal representation.
Generally, the funding of trial-level indigent defense costs are a local responsibility.
Counties and cities are required to adopt standards for the delivery of public defense services.
The local service delivery standards are to cover:
The standards endorsed by the state Bar Association may serve as guidelines for the counties
and cities.
A variety of delivery methods are used for public defense services. Some local jurisdictions
provide indigent defense services through their own public defense agencies. Other
jurisdictions contract with private non-profit agencies or with individual law firms or
attorneys. Still others assign counsel on a case-by-case basis from lists of available attorneys.
Some jurisdictions may use combinations of these delivery systems.
The Office of Public Defense (OPD) was created in 1996 to administer state-funded indigent
defense services for criminal appeals. The OPD also processes requests from counties to the
Legislature for reimbursement for "extraordinary criminal justice costs," including indigent
defense costs associated with aggravated murder cases. The Director of the OPD is
appointed by the state Supreme Court. The director is supervised by an 11-member advisory
with a chair and two other members appointed by the Supreme Court, one member appointed
by the Court of Appeals, two by the Governor, four by the Legislature, and one by the Bar
Association. The OPD is scheduled to sunset in 2009.
In 2003, the Board of Governors of the state Bar Association appointed a Blue Ribbon Panel
on Criminal Defense. The panel was created in response to concerns about the delivery of
indigent defense services. The panel was directed to develop recommendations for the Board
of Governors regarding various aspects of indigent defense services.
Summary of Substitute Bill:
A mechanism is established for providing state funding of local indigent defense services.
The OPD is to disburse appropriated funds to eligible cities and counties for public defense
services. Local jurisdictions may apply for funds if they meet certain requirements, including
requiring public defenders to get annual training approved by the OPD. Applicants must also
report financial and caseload information on public defense services for the previous year.
Individuals and entities that contract with local jurisdictions to provide public defense
services must report to the local jurisdiction hours they have billed for nonpublic defense
legal services.
If a local jurisdiction receives funds from the OPD, it must document that it is meeting the
standards of the Bar Association or making "appreciable demonstrable improvements" in
services, including:
If the OPD determines that a local jurisdiction receiving funds has not substantially complied
with these requirements, the OPD may terminate funding. A determination to terminate
funding is appealable to the OPD Advisory Board, whose decision is final.
Distribution from total available appropriated funds by the OPD is to be as follows:
Substitute Bill Compared to Original Bill:
The substitute eliminates a reference to achieving all of the Bar Association standards for
indigent defense services as part of a local jurisdiction's eligibility to continue receiving state
money. The substitute retains the requirement that the city or county make appreciable
demonstrable improvements in delivering indigent defense services under the specific
standards enumerated in the bill, (i.e., adoption of a plan that should use the bar standards as
a guideline; training for attorneys; special qualifications for attorneys handling serious cases;
compensation for extraordinary cases; and payment of experts and investigators).
Appropriation: None.
Fiscal Note: Available.
Effective Date of Substitute Bill: The bill takes effect 90 days after adjournment of session in which bill is passed.
Testimony For: The right to counsel is fundamental under our constitutions, and as such its support and enforcement are a state responsibility. Washington has provided public funding for indigent defendants since at least 1909. Current funding is local, and no two jurisdictions have the same system. The one common denominator is that defender caseloads are too large. Many local jurisdictions have no real standards for service delivery at all. Recent reports have demonstrated the seriousness of the problem in some jurisdictions. Statewide, caseload problems are clogging jails and courts. The system is not fair to defendants or to victims. The worst bottleneck in the system is caused by the lack of defense attorneys. The current system is also costing local jurisdictions more than they can afford, but even more importantly, the system is not adequately ensuring the quality of the defense services that are delivered. Ineffective assistance of counsel cases result in injustices as well as unnecessary retrials. The criminal justice system works best with competent and well-prepared counsel on both sides. The OPD has experience in dealing with county applications for money and with imposing and evaluating delivery systems.
Testimony Against: None.
Persons Testifying: Representative Lantz, prime sponsor; Gary Alexander, Chief Justice of the Washington Supreme Court; Jon Ostlund, Washington State Bar Association; Anne Daly, Washington Defender Association; Joanne Moore, Office of Public Defense; Jennifer Shaw, Washington American Civil Liberties Union; Tammy Fellin, Association of Washington Cities; Tom McBride, Washington Association of Prosecuting Attorneys; and Al Carter, Grays Harbor County Commissioner.