April 17, 2013
Vol: 20 No: 16


Defending the defenders

By Aaron Burkhalter / Staff Reporter

The lawyers and social workers who represent the poor may soon become King County employees. Critics of the shift say it could harm those most in need of help

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Sue Wood waded through 1,000 pages of medical documents to help one client explain the psychological factors that may have contributed to his criminal charges. To secure treatment for another client, Wood spent hours compiling evidence of the client’s brain injuries. Three years ago, she spent 18 months studying another client’s genetic disorder to successfully make the case that he be sentenced to community protection instead of prison.

Wood is a social worker for the Associated Council for the Accused (ACA). She starts by looking at the legalities of a defendant’s case on paper, but Wood goes beyond that, assessing the personal circumstances of her clients and determining what kind of help they need outside the courtroom. Her work often helps explain why a defendant has entered the criminal justice system in the first place, which may prevent the person from being drawn back into the system.

“If the social worker goes in and is able to discern what underlies the behavior of the client, we can address it in a way more meaningfully than jail,” Wood said.

ACA is one of four nonprofit agencies that manage King County’s public defense system: The others are the Defender Association, the Northwest Defenders Association and the Society of Counsel Representing Accused Persons. Each of these agencies contracts with county government and negotiates with the county on how to deliver services.

King County Executive Dow Constantine plans to make all the defenders direct employees of King County this year. If the King County Council agrees, the work of people like Sue Wood could undergo some drastic changes.

Critics of the plan, including social workers, public defenders and academics, say defendants would lose valuable representation if the agencies are incorporated into the county. Social workers and attorneys who help defendants would face greater budget limitations. They’d be subject to top-down supervision with the county executive at the top. They also fear they won’t have the time necessary to help clients.

King County’s four-agency defense system is seen as leader in the country and should be replicated, not changed, many say.

“King County is one of the richest areas for defender practice,” said Edwin Burnette, vice president of defender legal services at the National Legal Aid & Defender Association in Washington, D.C.

Forced to change?

County officials say a 2011 court decision makes it impossible for the system to stay the same.

In 2006, ACA attorney Kevin Dolan filed a lawsuit on behalf of all public defenders, arguing that they deserved the same pension benefits as county employees. The state Supreme Court agreed and ruled in late 2011 that the county owed former employees retirement benefits.

That ruling means the contracted defenders are already employees of the county, said David Chapman, director of the King County Office of Public Defense. Allowing them to work as independent contractors could be a legal and financial liability to the county, he said.

“I just haven’t found a model where a government turns 300 employees over to a nonprofit,” Chapman said.

County Executive Constantine is urging the King County Council to pass legislation that would bring these employees under control of the county. He hasn’t always felt this way. Constantine told KUOW earlier this year that he preferred the contracted model.

But the lawsuit stands, Chapman said, so Constantine’s hands are tied.

“He didn’t want to do this, he didn’t ask to do this,” Chapman said.  “He looked at other ways to go around and do this. We can’t unring the bell. The new reality is that they are employees.”

Chapman said King County’s public defenders and social workers do great work now, but he thinks they can do better.

“I just want to continue to do miracles at a higher level,” he said.

At a minimum, he said, this change will not harm defendants. The good work defenders do now is due to the county’s commitment to minimizing caseloads and fully funding defense services.

Of the 25,000 cases King County handles in a year, each attorney takes on about 400 cases, close to the state standard. And under the county, defense attorneys and social workers will have direct access to county-run social services programs to help their clients.

Holding the county accountable

Those opposed to this change say the system isn’t broken, largely because defense attorneys and the nonprofits exist to hold the county accountable for funding and caseloads. When King County Councilmembers vote on a budget, these four organizations have attorneys there to fight against cuts to public defense.

“Almost every executive has recommended at one time or the other that the budget be cut,” said Robert Boruchowitz, a Seattle University law professor and former attorney at the Defender Association. “The defenders have been able to lobby, advocate, persuade the county to provide more funding.”

Working under the county, attorneys answer to Chapman, who answers to Constantine. He proposes the county’s budget.

That hierarchy can cause problems, said Pam Pasion, an ACA defense attorney. Independent of the county, Pasion was able to help one client handle a DUI charge and put in extra time to help the client work out custody for his children. Working independently, she can file motions and continuances that can help the client, but this costs more money.

Pasion suspects she won’t have that same latitude as a direct employee of the county.

“I don’t want someone looking over my shoulder and telling me you can’t do this and you can’t do that.”

Another model

There are alternatives, Boruchowitz said. While the Supreme Court’s decision effectively turns public defenders into county employees, he believes the new system can retain its independence.

In Washington, D.C., attorneys are government employees but answer to an independent board. A similar system could retain the region’s rich history of strong public defense, Boruchowitz said, and it’s worth preserving.

“There’s no reason to throw that away because now you have to give [attorneys] retirement benefits,” he said.



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