Public defense agencies across the state struggle to attract and retain attorneys at the same time as evolving caseload standards mean each attorney can take on fewer clients.

In Island County, officials have started discussions on the idea of turning public defense into a county department instead of a contracted service, which could address many of the challenges facing the vital leg of the justice system.

It’s a change that many in the Whidbey Island law-and-justice community support. Island County Prosecutor Greg Banks said he’s been advocating for the action for years.

“It provides basic parity in salary, wages and benefits, between prosecutors and defense attorneys,” he wrote in an email. “That’s important both as a matter of actual fairness, and in communicating to the public that it’s not a ‘rigged’ system.”

Catherine Reid, the county Human Resources manager, recently provided the board of commissioners with a cost analysis of forming a “public defense district” to bring the department within the county organization. She said the issue will be discussed many times before any decisions are made, and the public will have opportunities to weigh in.

The county must provide indigent defendants with their constitutional right to an attorney. Under law, anyone who makes 125% of the federal poverty level or less qualifies for indigent defense.

Reid’s analysis found that moving to “in-house” public defense would be slightly more expensive but would come with many advantages. Reid said the county will likely approach the city of Oak Harbor about the possibility of working together under an interlocal agreement.

The county recently renewed a three-year contract with Island Defense for $778,000 a year. Moving the department in-house would cost an estimated $836,000, Reid estimated, with the additional costs related to providing retirement and benefits to the employees.

Island Defense currently has 3.5 full-time equivalent attorneys, an officer manager/paralegal, an investigator and a front desk person. Reid wrote that the lead public defense attorney should be paid similarly to the county’s chief criminal deputy attorney while the other defense attorneys would be paid in line with what deputy prosecutors earn.

The state funds only a tiny percentage of the growing cost of public defense. Reid noted that a couple of bills to increase the state’s contribution have been introduced in Olympia but did not move forward.

One of the main advantages of starting an in-house public defense office is simply that it would make it easier to attract and retain attorneys. The county would be able to provide pay and benefits that would appeal to candidates. In addition, attorneys who work under a Public Defense District would be eligible for a state public school loan forgiveness program.

The county could also fund training for in-house attorneys to allow them to handle more complex cases. And an in-house public defense office would have the support of the county’s payroll, human resources and IT staff.

Banks noted that while the prosecutor’s office has some regular turnover at the entry level, it’s “nothing like” what Island Defense has had to deal with. He said stability among defense attorneys would improve the overall function of the courts.

Reid said agencies across the country are struggling with a a shortage of public defenders. She pointed out that fewer people are graduating from law school nowadays. Of those who do, fewer are interested in criminal defense law.

New state caseload standards may help attract more attorneys to public defense, but it will come with a cost. The Washington State Bar Association recently adopted new standards of caseload limits, though the state Supreme Court has yet to act on them. The “dramatic change” would be phased in over a two-year period beginning in July 2025, according to the Municipal Research and Service Center.

Moreover, the current system of providing public defense in Island County has a problematic side, Banks argues.

“Awarding the contract to the lowest bidder, like we currently do, provides perverse incentives that theoretically could result in ineffective representation,” he wrote.

Reid said establishing a county department of public defense might also help with the challenges the county faces in hiring conflict attorneys. There are certain cases in which Island Defense is “conflicted” and cannot represent a defendant. If more than one person is accused of committing a crime, for example, the public defender can only represent one of the defendants. In other cases, the court might order the county to provide a new attorney if there’s a communication conflict between a defendant and a public defender.

Providing conflict attorneys can be very expensive and difficult. Last year, an attorney who was handling about 15 conflict cases died unexpectedly. The county struggled to find new attorneys; in some cases, more than 100 attorneys were contacted before a defense attorney could be assigned.

Reid said the county normally spends about $170,000 a year for conflict attorneys, but this year it will be much more because of the death.