Pleading the Sixth: In a new lawsuit, the ACLU of Washington alleges that the right to counsel system for juveniles facing delinquency proceedings in Grays Harbor is so constitutionally deficient that the State of Washington must take action.
On April 3, 2017, the American Civil Liberties Union of Washington (ACLU-WA) filed a class action lawsuit in state court alleging a lengthy list of constitutional violations related to the representation of juveniles charged with delinquent acts in Grays Harbor. The allegations are a virtual checklist of violations against the American Bar Association’s Ten Principles of a Public Defense Delivery System. As defined in the complaint, juvenile delinquency representation lacks the necessary independence (in violation of Principle 1) and is performed by an attorney compensated under contract for a set flat fee (Principle 8) that does not take into account workload controls to permit the rendering of quality representation (Principle 5). The attorney begins work too late in the process (Principle 3) to be effective, advises clients in non-confidential environments (Principle 4), and advises them to plead guilty “even when meritorious defenses or legal motions are available, with inadequate investigation, and with inadequate understanding of the consequences of conviction and options available to ameliorate those consequences.”
More specifically, the ACLU-WA complaint alleges that defendants are being “routinely held in detention on bail amounts that are not challenged” and a “fail[ure] to have their rights protected through motions and trials and the use of expert witnesses.”
The complaint explains that the State of Washington and the state-funded Office of Public Defense are responsible for this systemic problem of ineffective assistance of counsel. To understand why requires a description of how right to counsel services are structured in the state of Washington.
Indigent defense services in Washington State
At first glance, Washington statutes and court rules appear to safeguard against the type of systemic indigent defense deficiencies alleged in the ACLU-WA complaint. For example, Rev. Code Wash. §10.101.030 requires the local adoption of standards related to, among others: compensation of counsel; attorney performance; training, supervision, and monitoring of attorneys; and attorney qualifications. Additionally, Washington State Court Rules of Professional Conduct 1.8 prohibits lawyers from entering into a contract to perform indigent defense services if the contract obligates the lawyer to pay for conflict services or “to bear the cost of providing investigation or expert services, unless a fair and reasonable amount for such costs is specifically designated in the agreement in a manner that does not adversely affect the income” of the attorney. However, there are simply little to no oversight or enforcement mechanisms in place at the state level to ensure that these standards are followed.
Rev. Code Wash. § 2.70.005 establishes a state government entity — the Office of Public Defense (OPD) — “to implement the constitutional and statutory guarantees of counsel and to ensure effective and efficient delivery of indigent defense services.” But OPD does not function like statewide commissions in other jurisdictions. Although there is a 13-member committee appointed by diverse authorities, the committee is advisory only. Indeed, OPD does not even hire its own director. Instead, the Washington Supreme Court makes this appointment.
In Washington State, trial level right to counsel services are funded and administered, in most instances, by local governments – both counties (felonies) and municipalities (delinquency and misdemeanors). OPD provides some direct representation, through contracts with private attorneys in direct appeals and civil commitment cases, as well as dependency and termination of parental rights in a limited number of counties.
Rev. Code Wash. § 10.101.050 directs OPD to distribute limited state funding to cities and counties for the purpose of “improving the quality of public defense services.” While local governments applying for grants must report indigent defense expenditures and attorney caseloads, as well as provide copies of contracts for indigent defense services, and although it is true that OPD has the authority to withhold funding from jurisdictions that do not substantially comply with these requirements, it has not done so. OPD itself has never been funded at anywhere near the level that would allow them to monitor and evaluate compliance in the state’s thirty-nine Superior Courts let alone the hundreds of juvenile and municipal courts across the state. Ultimately, state funding of indigent defense services only amounts to about 4% of the approximately $144 million spent statewide every year.
As a result, OPD simply distributes the limited state funding to all local governments according to a formula based on criteria such as city and county population and number of criminal and delinquency cases, and without regard to whether localities are meeting standards.
Why the ACLU-WA holds the state accountable
The provision of Sixth Amendment indigent defense services is a state obligation through the Fourteenth Amendment. As the complaint notes, “[c]ourts across the country have recognized that states cannot avoid their constitutional responsibilities by delegating such responsibilities to localities,” including courts in Michigan, California, New York, and Georgia. Synopses of these cases and other systemic challenges and federal investigations are available on the 6AC’s website.
In short, states that delegate the funding and/or administration of indigent defense services to local governments must still guarantee that local governments are not only capable of providing adequate representation, but that they are in fact doing so. This can only be accomplished if there is some state agency that actually oversees and evaluates defender services.
“The Office of Public Defense is a highly competent agency dedicated to improving public defense in Washington,” said Emily Chiang, Legal Director of the ACLU-WA in a press release. “But it has taken the position that it lacks the authority to provide meaningful supervision and oversight of county public defense systems.” Regardless of this institutional position, the state is aware through the funding application process that deficient services indeed exist. For example, Grays Harbor repeatedly renewed the contract with the former public defense provider despite serious concerns about the independence of the public defense function and that the selection process was merely “based upon the lowest and best bid.”
The ACLU-WA complaint finds especial fault with OPD when it comes to attorney caseloads. An attorney need only certify with a county or city that their caseload in the jurisdiction is reasonable. However, OPD does not cross-reference indigent defense certifications to determine if public defense attorneys hold contracts in multiple jurisdictions at the same time, allowing caseload violations to occur.
The 6AC notes that Washington State is well aware it fails its Fourteenth Amendment obligation to provide effective Sixth Amendment services. In December 2013, a federal district court found that two Washington cities were responsible for the systemic deficiencies depriving the indigent accused of their constitutional right to meaningful representation. Announcing that “adversarial testing of the government’s case” was so infrequent as to be a “non-factor in the functioning of the Cities’ criminal justice system,” the judge found the appointment of counsel in Mount Vernon and Burlington to be “little more than a formality,” resulting in plea bargains having almost nothing to do with the individualized nature of each case. To the federal court, this lack of adversarial testing of the prosecution’s cases was “natural, foreseeable, and expected,” given the deficient structure of indigent defense services. In granting injunctive relief, the court imposed a series of steps the cities would need to take to ensure that the criminal justice system functions in its appropriate adversarial manner. Of note, the court also required the cities to pay the legal fees and reasonable expenses of the plaintiff attorneys, in the total amount of $2,212,150.20. (Learn more about the Department of Justice call for an independent monitor and binding workload controls and the specifics of the federal court order in Wilbur v. City of Mount Vernon.)
Similarly, in another class action lawsuit seeking effective assistance of counsel for indigent people accused of felonies in Grant County, the state trial court determined in a pre-trial ruling that the indigent accused charged with felonies in the Grant County Superior Court had a “well grounded fear” that they would receive ineffective assistance of counsel due to excessive caseloads, a lack of effective supervision, and undue interference by prosecutors when defense counsel sought funding for experts and investigations. With trial just days away, the parties entered into a court-enforced settlement agreement requiring the county to hire supervising attorneys to enforce “caseload controls,” “attorney performance standards,” and “attorney qualification standards,” among others. As a unique incentive for compliance, the settlement required the county to pay plaintiffs $1,100,000 in attorneys’ fees and court costs and provided that, for each of the six years the county engaged in full compliance with the settlement, $100,000 of the fee award would be forgiven.
Unfortunately, as this new complaint states, although there has been “litigation challenging unconstitutional systems at the local level in Washington, and there has been progress in adoption of statewide public defense standards with help from Defendant OPD, the current regime permits systems with the worst constitutional violations—like Grays Harbor County—to violate the right to counsel with impunity.”
 The chief justice has 3 appointments; governor – 2; senate and house – 2 each; court of appeals – 1; state bar association – 1; association of counties – 1; and association of cities – 1.
 Duncan v. Michigan, 774 N.W.2d 89, 97-98, 104-105 (Mich. 2009).
 Phillips v. California, No. 15CECG02201 (Super. Ct. Apr. 11, 2016).
 New York County Lawyers’ Ass’n v. New York, 745 N.Y.S.2d 376, 381 (Sup. Ct. 2002).
 Flournoy v. Georgia, No. 2009CV178947 (Super. Ct. Dec. 14, 2011) (consent decree).
 Wilbur v. City of Mount Vernon, 989 F.Supp. 2d 1122 (W.D. Wash. 2013).
 Best v. Grant County, No. 04-2-00189-0 (Wash. Super. Ct. Kittitas County, Apr. 26, 2013) (dismissal).