WA Counties File Suit Against the State of Washington for Unconstitutional Indigent Defens

Today, the Washington State Association of Counties (WSAC)—joined by Pacific, Lincoln, and Yakima Counties—filed suit against the State of Washington, asserting that the State’s trial court indigent defense system is unconstitutional and asking the court to direct the State to provide adequate funding for trial court indigent defense services from dependable and regular state sources or, alternatively, provide such services directly. WSAC’s goal in filing this lawsuit is to compel the State to consistently fund a uniform system of indigent defense, a crucial part of our justice system. The counties are willing to continue their work on behalf of the State but cannot do so without statewide funding. WSAC stands ready to work with the State at the executive, legislative, and judicial levels on any solutions that bring our system into constitutional compliance and serve our residents.

Read the complete Complaint for Declaratory and Injunctive Relief.

At a Glance…

Counties have been compelled to sue the State because Washington’s current indigent defense system is unconstitutional. “Indigent defense” refers to the State’s constitutional obligation to provide adequate legal counsel to those facing criminal charges if they cannot afford their own attorney.

• Funding for the State’s indigent defense system is inconsistent, varying from county to county, resulting in inequities across the state.
• The State has improperly shifted its indigent defense responsibilities to the counties.
• Counties cannot individually fix what is supposed to be a uniform statewide system.
• By relying so heavily on the counties’ existing revenue sources, the State has neglected to adequately fund its indigent defense system.
• Suing the State was a last resort - counties have tried for several decades to work with the State to remedy the problem, but it has only worsened over time and the State continues to shirk its responsibility. The counties’ position is that this problem needs to be fixed and they will work to fix it either through the legislative process or through court action.
• Justice should not depend on the budget of the jurisdiction in which charges are brought. The right to effective counsel should not vary from county to county because of funding. Just as with the McCleary education case, there is a fundamental state responsibility to fund the system consistently.

The provision of indigent defense is not optional. There is a constitutional right to court-appointed counsel for indigent defendants in criminal prosecutions that all states must provide. Counties believe that the State fails to provide equal access to justice when the State delegates that obligation to counties without a sufficient funding source. Very generally, the State has tried to meet its constitutional obligation by mandating a statewide system of performance, but it fails to provide consistent statewide funding to support that system. Instead, the State requires counties to fund the system piecemeal from local revenue sources, which vary from county to county. Such a scheme makes uniform indigent defense difficult, with historically marginalized populations and those within the lowest income brackets likely being the most impacted.

The State has failed to give counties the resources or funding necessary to furnish constitutionally adequate trial court indigent defense services and is, therefore, in violation of Article I, Sections 3 and 221 of the Washington Constitution. Just as in the McCleary education funding case, uniform baseline state funding is essential to ensuring a consistent statewide system of justice.

Commissioner Mary Kuney, WSAC President, Spokane County, believes that counties had no choice but to file a lawsuit. “The State has consistently and systematically failed to provide counties with the authority or funding to provide the constitutionally adequate trial court indigent defense services. Counties have asked the legislature many times over the past 30 years to correct this systematic failure in our justice system.”

Commissioner Kuney noted, “Washington’s 39 counties pay 96.78% of the cost of trial court indigent defense, which is more than $174 million annually, and the State pays 3.22% of the cost of trial court indigent defense, amounting to less than $6 million.”

Over the past several decades, there have been multiple Washington State studies conducted, resulting in reports that have described systemic and structural deficiencies in the State’s trial court indigent defense system and have recommended that the State fund trial court indigent defense. However, the State has repeatedly failed to provide sufficient state funding, leaving counties no choice but to bring the matter before the courts for resolution.

Skagit County Commissioner, and WSAC First Vice President, Lisa Janicki, asserted that, “counties are very open to discuss and find a solution outside of litigation,” but also noted, “the legislature has simply not responded at all to counties’ requests for a meaningful increase in the State’s contribution to constitutionally guaranteed indigent defense.” Commissioner Janicki pointed to a 2004 The Seattle Times’ investigative report entitled “An Unequal Defense: The failed promise of justice for the poor.” The report noted many deficiencies in the system, including the fact that Washington ranked in the bottom seven states nationally in public defense funding. The report further stated, “Washington state has ignored pleas to help local governments fund public defense. Nationally, states average 50% of those costs; Washington pays 3.22%.”

Eric Johnson, Executive Director for the Washington State Association of Counties, explained that “[t]he resources available for trial court indigent defense functions, including the provision of representation and investigation, vary from county to county because of the wide disparities in each county’s ability to raise funds through the local taxing options authorized by the State.” As a result, the outcomes will differ based solely on where, geographically, indigent defendants are charged. Thus, the current system perpetuates inequities in indigent defense services across Washington.

Yakima County Commissioner Amanda McKinney highlighted the significant growth in the cost of delivering indigent defense services across the state. She noted that, “counties’ public defense costs increased from about $105 million in 2012 to $174 million in 2021—an accumulated growth rate of more than 65%. The Washington Supreme Court’s adoption of the Standards for Indigent Defense in 2012 is one-factor driving costs higher.” That included caseload limits that required counties to pay for more lawyers and provide additional resources for investigation and experts. State funding, on the other hand, has remained about the same, rising from $5.6 million in 2012 to $5.8 million in 2021—an accumulated growth rate of only 5.4%. Yet, counties are forced to implement state-imposed standards and requirements with little additional funding.

Pacific County Commissioner Lisa Olsen stated that, “counties are asking the courts to agree that the ultimate constitutional and statutory obligation to provide indigent defendants with effective assistance of counsel rests with the State. While the State may delegate this function to counties, it cannot do so without the funding necessary to effectively meet this constitutional obligation.”

Commissioner Rob Coffman, WSAC 2nd Vice President, Lincoln County, described how multiple state studies and resulting reports over the past several decades, “have all described the systemic and structural deficiencies in the State’s trial court indigent defense system and all recommend that the State fund trial court indigent defense.” The State, however, has repeatedly failed to provide any additional state funding to counties for this purpose.

Simply put, the State’s ultimate responsibility for providing a constitutionally adequate and uniform system of indigent defense cannot be shifted to counties without sufficient funding.

Media Contact:

Eric Johnson, Executive Director, WSAC

Juliana Roe, Senior Policy Director, WSAC

1 State and federal case law have consistently established a right to indigent defense. See, for example, THE CONSTITUTION OF THE STATE OF WASHINGTON - SECTION 3, PERSONAL RIGHTS. No person shall be deprived of life, liberty, or property, without due process of law. | SECTION 22, RIGHTS OF THE ACCUSED. In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel.