CERTIFICATION OF ENROLLMENT

SECOND SUBSTITUTE SENATE BILL 5046

Chapter 261, Laws of 2023

68TH LEGISLATURE

2023 REGULAR SESSION

INDIGENT DEFENSE—POSTCONVICTION ACCESS

EFFECTIVE DATE: January 1, 2024

SECOND SUBSTITUTE SENATE BILL 5046

BySenate Ways & Means (originally sponsored by Senators Saldaña, Nguyen, Trudeau, C. Wilson, Dhingra, Frame, Kuderer, Nobles, Pedersen, and Valdez)

AN ACT Relating to postconviction access to counsel; amending RCW 2.70.020; creating new sections; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

The legislature observes that wealthy people retain attorneys to represent them in these complex, high-stakes postconviction legal proceedings. However, at least 80 percent of persons charged with felonies are indigent and cannot afford to hire a lawyer. In addition, nearly 40 percent of incarcerated persons have a cognitive or physical disability that would limit their capacity to access or understand critical legal documents, draft required petitions, or otherwise effectively represent themselves pro se in legal proceedings. Up to 70 percent of persons in prison cannot read above a fourth-grade level.

The legislature finds that the criminal legal system disproportionately incarcerates people of color, and that most people in prison are poor and the poorest are women and people of color. The legislature further finds that current law may have the effect of limiting access to counsel to initiate legitimate claims for postconviction relief. The legislature believes this situation perpetuates and exacerbates the disparate impacts of the criminal legal systems on poor persons and persons of color.

The legislature therefore declares that indigent incarcerated persons would benefit from access to public defense counsel to advise, initiate, and execute certain postconviction procedures. In addition, the legislature finds that the state should fund and administer access to counsel for certain types of postconviction procedures through the Washington state office of public defense. This act is intended to: Authorize the office of public defense, within amounts appropriated for this purpose, to provide counsel for certain indigent adults and juveniles to file and prosecute one, timely personal restraint petition; petition a sentencing court when the legislature creates an opportunity to do so; and challenge a conviction or sentence if a final decision of an appellate court creates an opportunity to do so.

Sec. 2. RCW 2.70.020 and 2021 c 328 s 3 are each amended to read as follows:

The director shall:

(1) Administer all state-funded services in the following program areas:

(a) Trial court criminal indigent defense, as provided in chapter 10.101 RCW;

(b) Appellate indigent defense, as provided in this chapter and RCW 10.73.150;

(c) Representation of indigent parents qualified for appointed counsel in dependency and termination cases, as provided in RCW 13.34.090 and 13.34.092;

(d) Extraordinary criminal justice cost petitions, as provided in RCW 43.330.190;

(e) Compilation of copies of DNA test requests by persons convicted of felonies, as provided in RCW 10.73.170; and

(f) Representation of indigent respondents qualified for appointed counsel in sexually violent predator civil commitment cases, as provided in chapter 71.09 RCW; ((and

(g)))(2) Subject to availability of funds appropriated for this specific purpose, provide access to counsel for indigent persons incarcerated in a juvenile rehabilitation or adult correctional facility to file and prosecute a first, timely personal restraint petition under RCW 10.73.150. The office shall establish eligibility criteria that prioritize access to counsel for youth under age 25, youth or adults with sentences in excess of 120 months, youth or adults with disabilities, and youth or adults with limited English proficiency. Nothing in this subsection creates an entitlement to counsel at state expense to file a personal restraint petition;

(4) Provide access to attorneys for juveniles contacted by a law enforcement officer for whom a legal consultation is required under RCW 13.40.740;

(((2)))(5) Submit a biennial budget for all costs related to the office's program areas;

(((3)))(6) Establish administrative procedures, standards, and guidelines for the office's program areas, including cost-efficient systems that provide for authorized recovery of costs;

(((4)))(7) Provide oversight and technical assistance to ensure the effective and efficient delivery of services in the office's program areas;

(((5)))(8) Recommend criteria and standards for determining and verifying indigency. In recommending criteria for determining indigency, the director shall compile and review the indigency standards used by other state agencies and shall periodically submit the compilation and report to the legislature on the appropriateness and consistency of such standards;

(((6)))(9) Collect information regarding indigent defense services funded by the state and report annually to the advisory committee, the legislature, and the supreme court;

(((7)))(10) Coordinate with the supreme court and the judges of each division of the court of appeals to determine how appellate attorney services should be provided.

The office of public defense shall not provide direct representation of clients.

(1) Examine and evaluate barriers to providing postconviction counsel to file and prosecute a collateral attack. Barriers to be examined and evaluated include issues related to statutes, state and local court rules and practices, availability of qualified attorneys, and any other issues that may come to the attention of the office of public defense;

(2) Engage in outreach to postconviction stakeholders, and include input from prosecutors, defense counsel, and convicted persons and their families;

(3) Identify resources and reforms to overcome the barriers;

(4) Report findings and recommendations to the appropriate fiscal and policy committees of the legislature not later than December 1, 2024.

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