The recent unexplained “shadow docket” decisions of the U.S. Supreme Court have been discouraging and undercut respect for the court. In stark contrast, our Washington Supreme Court deserves respect for its recently issued order addressing the state’s public defense crisis.
Beginning in January 2026, local governments must phase in a reduction in public defender caseloads that within five years will cut the maximum caseloads in many counties and cities by more than one-third.
The state court wrote that “the crisis in the provision of indigent criminal defense services throughout our state requires action now to address the crisis and to support quality defense representation at every level.” Lawyers are leaving the field because of excessive workload, and in some places, the shortage means accused people must wait in jail for weeks without counsel.
The order is the court’s latest step in its efforts to ensure strong representation for everyone facing the potential loss of liberty. This effort gained momentum after the court in 2010 reversed the conviction of a 12-year-old boy whose lawyer spent less than two hours working on his case.
In that case, “A.N.J.,” the court wrote that while most defenders do sterling work, in some places inadequate funding and “troublesome limits” have made “the promise of effective assistance of counsel more myth than fact, more illusion than substance.”
The court also wrote that some contracts have imposed statistically impossible caseloads on public defenders.
After the A.N.J. decision, the court approved standards recommended by the Washington State Bar Association, limiting defender annual caseloads to 150 felony or 400 misdemeanor cases per lawyer. Those numbers were based on National Advisory Commission guidelines set in 1973.
Since 2015, the American Bar Association has overseen defender workload studies in several states. In 2023, the ABA, the RAND Corporation, the National Center for State Courts and veteran civil rights lawyer Steve Hanlon produced The National Public Defense Workload Study, using state data and the work days of 33 defense lawyers to determine how many hours different types of cases require. The WSBA Council on Public Defense Standards Committee spent more than a year reviewing the old NAC standards.
The Council on Public Defense knew that criminal practice had changed dramatically, with the addition of hours of police and other video recordings, DNA and other forensic evidence, major changes in sentencing and immigration law consequences, and greater understanding of brain development in young people. When the national study recommended lower caseload limits, the council agreed. The CPD and the state bar recommended that defenders be limited to 47 felony credits; 120 misdemeanor credits; or 250 civil commitment credits per year, on a three-year phased-in plan. The case-credit approach recognizes that complex cases, such as homicides and robberies, require more attorney time than possession of stolen property cases.
The court ordered that implementation of the standards “must be accomplished as soon as reasonably possible,” but allowed 10 years for full implementation. The court encouraged but did not require the use of the case-credit approach.
Some jurisdictions plan to implement the standards on the WSBA timeline. For others, the 10% reduction in case limits per year will result in improvements and in lawyers being more willing to remain in public defense.
The court should recognize the improvements and require the case-credit system when it evaluates the standards in three years.
The order can be a catalyst for the development of new and expanded diversion programs to reduce defender workload. It can spur recognition that the criminal legal system is not the place to address mental health, substance abuse and housing problems that affect many cases, particularly in misdemeanor court.
And the Legislature needs to recognize that local governments need more funding for public defense.
