Indigent Defense Funding Gap
Combined Committee of the WSBA Blue Ribbon Panel on Defense
And the Court Funding Task Force
Estimate of Indigent Defense Funding Needs

Summary

This paper describes the estimated funding need for indigent defense services for felony and civil commitment (mental health) cases in the Superior Courts, offender, truancy, at-risk-youth, and children-in-need-of-services cases in the Juvenile Courts, and misdemeanor cases filed in the District and Municipal Courts.

The estimated funding needs for parental representation in dependency and termination cases in the juvenile courts are not considered here. It should be noted briefly, however, that the committee has adopted funding figures developed by the Office of Public Defense for parental representation in dependency and termination cases. The Office of Public Defense estimates that full funding would cost $19.8 million and that current funding is approximately $6 million, resulting in an estimated current funding shortfall of $13.8 million.

As described on the following pages, these costs were developed by applying WSBA/WDA caseload and staffing standards to calendar year 2003 case filings in the superior, juvenile, district, and municipal courts. The committee has a high degree of confidence in the cost estimates for attorney and non-attorney staffing costs. The level of confidence in expert witness costs is diminished by the lack of historical statewide expenditure data. The level of confidence in the operational overhead costs is diminished by the lack of accepted industry standards upon which to rely.

In comparison to estimated calendar year 2000 expenditures of $72¹ million by county and municipal governments, this estimate indicates a need for $116.8 million in additional funding to provide adequate representation of persons charged with crimes or involved in a civil commitment or “BECCA” case in Washington State. A separate report details the need for an additional $18 million for adequate representation in dependency and termination of parental rights cases.

For further information about the information presented in this paper please contact Jeff Hall, Executive Director, Board for Judicial Administration at (360) 357-2131.

Defense Attorneys

The estimates detailed in Table 2 are based upon straight application of the current WDA/WSBA defense standards to calendar year 2002 filings with the following notable assumptions:

• The 2002 case filings reports, except as noted below, actual case filings. The number of defendants requiring representation will be somewhat higher as some cases have multiple defendants.

• Non-Charge cases are excluded from the felony and misdemeanor case counts.

• Five percent of misdemeanant cases will be handled by Rule 9 Interns. Rule 9 Intern salary is calculated at $15 per hour for 2080 hours per year. Rule 9 Interns are anticipated to be part-time, non-benefited hourly employees.

• The right to counsel in Truancy cases attaches when a motion for contempt is filed and a loss of liberty is a possible outcome. The case “filings” reported for Truancy cases are contempt hearings scheduled.

• There are no caseload standards for the three juvenile “BECCA” case types. The misdemeanant standard is applied based upon the knowledge and expertise of the committee participants.

• The percent eligible is based upon national averages, limited King County data, and the expertise of the committee participants.

• Annual salary is weighted average of reported county deputy prosecuting attorney salaries from the 2002 Association of Washington Cities Salary and Benefits Survey. The salary reported was calculated at 75% of the reported salary ranges.

• Annual benefits are estimated at 23.5% of salary.

Non-Attorney Staffing

The estimates detailed in Table 3 are based upon application of the current WDA/WSBA defense standards and the expertise of committee participants with the following notable assumptions:

• One supervisory attorney (without an active caseload) is required for every 10 attorneys with a caseload. This assumption carries across all service delivery models, with “supervisory attorneys” being OPD oversight staff in jurisdictions that operate under the contract model.

• The staffing ratios for secretarial/paralegal and investigators is based upon the WDA/WSBA Standards.

• The social worker/mental health professional staffing ratios are based upon the expertise of the committee participants (WDA/WSBA standards 7.3 and 7.4 recommend access to social work and mental health professionals but do not delineate staff to attorney ratios).

• The annual salary for secretarial/paralegal staff is a weighted average of reported county legal secretary salaries from the 2002 Association of Washington Cities Salary and Benefits Survey. The salary reported was calculated at 90% of the reported salary ranges.

• The annual salary for investigator staff is 50% of the salary range for a Washington State Investigator 3 position classification (Washington State salary range 51).

• The annual salary for social worker staff is 50% of the salary range for a Washington State Social Worker 2 position classification (Washington State salary range 51).

• Annual benefits are estimated at 23.5% of salary.

Expert Witness Costs

Estimating expert witness costs was one of the more difficult tasks the committee addressed. Ultimately the lack of accurate historical financial data rendered the committee’s efforts to reliably predict future costs fruitless.

The committee therefore relied, again, upon the expertise of the committee participants in developing the costs in Table 4, which are based upon the following major assumptions:

• The longer a case is active without being resolved, the more likely that expert witness costs will be associated with the case. The committee initially indicated time triggers of 3 months for adult felony and 2 months for juvenile offender cases were appropriate. However, caseload data was only available at a four month time frame, so the committee adopted four months as the time trigger.

• Because non-charge cases are included in calculating the percentage of cases resolved in less than four months, they are included here for purposes of calculating the number of cases that exceed four months.

• One out of every three cases that reach the time trigger will employ an expert witness.

• The average cost of an expert witness in those cases is $2,500.

Operational Costs

Determining operational or “overhead” costs was also problematic with the Committee unable to readily locate an appropriate “industry standard” to apply.

Two major assumptions drove the committee’s decision to address operational or “overhead” costs:

• That some jurisdictions would likely move to a public defender model, either as a department of local government or through a contract with an independent not-for-profit defender agency. In which instance overhead costs would have to be budgeted for.

• That the preferred contract model includes a stipulation that an attorney not also maintain a private practice, in which case overhead costs must be built into the contract.

Having made the decision to include some estimate of operational costs, the committee finally accepted the following model:

Basic indirect costs can be calculated as a percentage of total salaries. Basic indirect costs include facilities, utilities, janitorial services, accounting, budgeting, payroll, personnel, telephone, photocopying, automobiles (fleet), etc.. The average of reported County Indirect Costs Rates as reported to the Washington State Office of Support Enforcement was used as the basis for setting an indirect cost rate of 14.43%.