Public Defense Crisis Deepens as Caseloads Overwhelm System, Supreme Court Weighs Reform

“WA Supreme Court weighs controversial step to solve public defense crisis” by Jerry Cornfield from Washington State Standard

Supreme Court To Hold Final Hearing on Defense Standards Nov. 13 by Washington Supreme Court Rules Committee

ACLU of Washington sues Yakima County for failing to appoint attorneys to indigent people charged with crimes in Yakima County Superior Court | ACLU of Washington

“WA counties lawsuit presses state to cover more legal defense costs for the poor" by Jerry Cornfield from Washington State Standard

“WA’s public defender system is breaking down, communities reeling” by Daniel Beekman from The Seattle Times

“Walking in Their Shoes” by Colin Rigley from Washington State Bar News

“‘Verge of collapse’: Washington public defenders swamped by cases” by Jerry Cornfield from Washington State Standard

 “Can smaller caseloads help Washington fill its public defender ranks?” by Jerry Cornfield from Washington State Standard

National Public Defense Workload Study | The RAND Corporation

“State Bar Adopts New Public Defense Standards” | Washington State Bar Association’s Council on Public Defense

“WA Supreme Court is told cutting public defender caseloads could incite ‘vigilante’ justice” by Jerry Cornfield from Washington State Standard

Washington State Supreme Court: Hearing on Indigent Defense Standards | September 25, 2024

“New Caseload Standards Aim to Improve Ailing Public Defense System, But Could Take a Bite Out of County Budget” by Erica C. Barnett from PubliCola

“King County Grapples with Public Defender Crisis” by Amy Sundberg from The Urbanist

 “Our public defender system is at the breaking point” by Anita Khandelwal and Girmay Zahilay for The Seattle Times

[00:00:00] Crystal Fincher: Welcome to Hacks & Wonks. I'm Crystal Fincher, and I'm a political consultant and your host. On this show, we talk with policy wonks and political hacks to gather insight into local politics and policy in Washington state through the lens of those doing the work with behind-the-scenes perspectives on what's happening, why it's happening, and what you can do about it. Be sure to subscribe to the podcast to get the full versions of our Friday week-in-review show and our Tuesday topical show delivered to your podcast feed. If you like us, the most helpful thing you can do is leave a review wherever you listen to Hacks & Wonks. Full transcripts and resources referenced in the show are always available at officialhacksandwonks.com and in our episode notes.

Washington state is facing a public defense crisis that affects everyone, not just those directly involved in the criminal legal system. When someone is charged with a crime and can't afford an attorney, they have a constitutional right to public defense. But right now, that fundamental right is breaking down across our state, leading to a showdown at the Washington Supreme Court that could reshape our entire justice system. The crisis stems in part from operating under caseload standards that haven't been updated since 1973. While the legal world has transformed dramatically since then - with each case now involving body cameras, cell phone data, surveillance videos, and complex digital evidence that takes countless hours to review - public defenders are still expected to handle the same number of cases as they did in the paper file era. It's a bit like asking someone to do their job with technology from the 1970s while meeting modern demands. The consequences are severe. In some communities, people are waiting weeks or months without legal representation. Some sit in jail without anyone to advocate for their release so they can keep their jobs or care for their children. Cases drag on for years, leaving victims without resolution and communities without accountability. Now, as public defenders burn out and leave the profession in record numbers, the State Bar Association is asking the Supreme Court to substantially reduce these outdated caseloads, setting off intense debate about justice, public safety, and the costs of ensuring constitutional rights.

Today we're joined by Jason Schwarz, Director of the Snohomish County Office of Public Defense and Chair of Washington's Council on Public Defense, who's been at the center of efforts to reform these standards. We'll explore how this crisis developed, what's at stake as the Supreme Court consider these changes, and why - despite warnings about costs and implementation challenges - many believe this reform is essential to preserve both individual rights and public safety. Because whether you're concerned about victims' rights, taxpayer dollars, or equal justice under the law, a functioning public defense system is essential to ensure justice is served for defendants, victims, and our entire community. Jason Schwarz, welcome to the show.

[00:03:07] Jason Schwarz: Thank you, thank you. Happy to be here - thank you for having me.

[00:03:10] Crystal Fincher: Absolutely. Well, Jason, I guess starting out, what do public defenders do? What are they responsible for? And why do they matter in the system?

[00:03:20] Jason Schwarz: Thanks, that's a great question. So public defenders are, at a very basic sense, lawyers who are appointed to represent - usually the accused in a criminal case, but not always - at public expense. So they are a lawyer that usually is paid for by the government - they're free to the person involved. And they're there as your advocate, as your guide through whatever legal process you're encountering. Historically, that has been the criminal legal process. There is a very famous United States Supreme Court case called Gideon v. Wainwright from 1961, which says that anybody who is poor and accused of a crime has the right to a lawyer. But, that right to a lawyer actually also extends to other areas of the law - any place where a substantive right is being potentially deprived. So if the government is attempting to take your children from you - we call those child dependency proceedings - you have a right to a lawyer in those proceedings. Some places, the legislature or the court has extended a statutory right to certain individuals in certain hearings - so those are oftentimes public defenders as well. But largely, when we think about public defenders, we think about those lawyers and investigators and paralegals and social workers who work for the accused in a criminal proceeding at no expense to the accused. Why is it important? It's important because, like any legal system, ours is premised on this idea of fairness. And in Gideon, the case from 1961, the United States Supreme Court talked very eloquently about the challenges in getting fair results when the odds are not even, when one party is represented by a lawyer and the other is not. And then as time - as we've understood that right more - also when one party is represented by a well-funded lawyer, and the other maybe just has a lawyer. So over time, we've also taken a deeper understanding about what that means and extending that right to more than just lawyers, but to the staff and social workers and investigators who help a public defender do their job, as well as just the public defenders.

What we do on a daily basis is we're lawyers for the accused. Oftentimes when we see what we might imagine from the criminal legal process from social media or TV or movies, we see a lot of glorification of the legal investigative side - where law enforcement is tracking down the perpetrator of a crime, and maybe where the prosecutor or chief legal officer is then prosecuting that person for a crime. Public defenders come in after that, usually. After the crime is charged, we are there to help that person advocate for just outcomes. I think something - I don't have the statistic right in front of me - but something like 90% to 97% of criminal filed cases end up in a plea of some kind, or a negotiated resolution. So the other 10% end up in trials. And those cases that end up in trials, if you're a public defender - I mean, you're a trial lawyer - so I think folks can imagine what that looks like once we get into the courtroom. But prior to getting into the courtroom, it is a lot of work that is unseen. And done right - we are here to question the case against our clients, to investigate it, to use legal skills and legal methods to investigate it. And that could be subpoenaing evidence from a cell phone provider. That could be going out to the scene of the crime. It could be hiring a mental health expert to talk about the person's mental state at the time of the alleged crime. It could be any number of things. But that work that is oftentimes done by law enforcement, prior to a case being charged in the legal system, is oftentimes done by public defenders after it's charged. And that's not, there's not a mirror role necessarily on the prosecutor's side or attorney general's side, always. So it's a unique function that public defenders do. And we're really doing that to sort of help our clients, help ourselves understand our client's case, and to give them good advice about their possibility of winning or prevailing at trial, or the chances of getting some other good mitigated resolution to their case. So that's the basics of what we do. Day in, day out - we're in and out of jails, courtrooms, psychiatric hospitals - a lot. Bulk of our work is spent with our clients or with other legal colleagues - it's very rarely a job where we're sitting at our desk staring at the computer, that's just not how the public defender job usually works. And if it is, it's oftentimes after hours, just given the amount of work that I think a lot of folks have during the day with their clients and cases.

[00:08:00] Crystal Fincher: Well, and that amount of work is the topic of a lot of discussion. And public defenders are experiencing and having to be responsible for caseloads beyond what anyone thought was really realistic for so long. Can you talk about what is happening with the caseloads and why that poses such a challenge for the entire system?

[00:08:26] Jason Schwarz: Yeah, I think there's two real things going on. One is the backdrop, which we're here to talk about - the standards that have existed for public defense work up until now. And also just the change on the ground of the nature of the work - how the work itself has changed. Historically, there have been standards for public defense in Washington and nationally since like the 1970s and 1980s. And we've had them in Washington since 2010 or so. I'm just going to give you by way of an example - these standards say that a public defender on a felony caseload could have 150 cases a year. Maybe that made sense in 1973 when the standards were promulgated, but now the work of those 150 cases is different. And it's different in a number of ways. When I started as a public defender, most of the evidence that I received was on a piece of paper in a manila file. Now, everything is on a computer, everything is digital - which I think seems like an efficiency, and it largely is. But it also makes it easier to create more evidence that we have to then review. So for example - in most cases, or in a lot of cases - there are body cams, dash cams for law enforcement officers. If you have one of those in your case, it's your job as a public defender to review it, make sure it's really your client on the video, and also show it to your client - get their feedback about what they remember from that incident. But here's why the job has also changed. In most instances, it's not one officer responding. It might be five. So five officers respond - now you have five hours of video to watch, not one. And in addition to that, if they suspected your client of a serious crime and got a cell phone extraction, i.e. all the data from their cell phone - well, that might be, depending on the person, 10 years' worth of websites to look through, text messages from every single person they know. It's a lot of information that you need to cull through to do a good job at your job. Every phone call my client makes from a jail I listen to - that's a lot of work to do. As well as just the work of counseling and advising, which has always existed in public defense. So the nature of the work has really changed.

Now putting those two together - the idea of the caseload standards and how the work has changed - what we're seeing with the old standards that existed since 1973 is they really didn't distinguish sufficiently between the kinds of cases and the complexity that they could have. So when a standard says that I can have 150 cases - is that 150 murder cases or 150 stolen vehicle cases? Because that's a big, big difference. The old standards assumed if a lawyer worked full-time and took no vacations, you could spend 11 to 14 hours on each case. That's pretty - we would not hire a lawyer, you would not hire a lawyer for a family member in a criminal case if they told you they were not going to work more than 11 hours. But that's been the standard. Now, obviously, public defenders are working more than that on their cases, but we're ultimately doing that at our own expense. And as we're learning, I think, and we'll talk here soon - at real cost to public defenders and to the clients that they represent. And so I think you're seeing this sort of dovetail of the old standards not creating enough nuance between the kinds of cases and not being able to differentiate between when the work gets heavier or not. And the new standards do create that difference.

[00:11:52] Crystal Fincher: So we have a situation now where caseloads are being assigned based on the old standards, sometimes beyond even the old outdated standards. And this is creating really a hardship for public defenders - it's really burning public defenders out. And this is a big challenge because when there is a right to have a public defender and you have public defenders who are burnt out, who don't have time, who are overworked, who sometimes are covering for other colleagues who've left because they've been burned out, that leaves a lot of people potentially languishing in the system or stuck without representation - which should never happen. This has resulted in a variety of legal actions, lawsuits, and a case before the Supreme Court to rectify this situation. What has been happening in that arena to try and right-size these caseloads - both in some of the county-based actions and also with the Supreme Court.

[00:12:57] Jason Schwarz: Sure. And there's a lot going on right now - I'll try to get the high level of this. You're totally right - the standards as they exist now are creating this problem that they don't reflect the workload, so public defenders are leaving the practice - in droves. It also means that as they leave, we don't have enough qualified lawyers to do the work that exists. So those cases - I'm calling them cases, but they're human beings, they're clients - are getting passed around from one burnt-out lawyer who doesn't have time to another burnt-out lawyer who doesn't have time. And I'm a public defender, I'm talking to us all about public defenders - but the real world impact is that I think, like in Yakima right now, under the current caseload standards, there are I think 320 people awaiting appointment of counsel. And 70 of them are sitting in a jail awaiting appointment of counsel. That's the current standards. So the solution is to create standards that really reflect the work public defenders do - so that people don't leave the practice, and so that we can recruit new lawyers into the practice as well. Law students are seeing what's going on - they don't want to enter this practice knowing that it's not really going to provide them the opportunity to excel and do their best work because of caseloads.

So I think the solution is the standards that we are proposing here. How we get from where we are to where we need to be is a challenge. And it's going to certainly be a challenge, but we're having it now. Yakima is facing this problem. Other jurisdictions have, at times, faced similar shortages. And again, we're talking about public defenders, but when we see situations like what's going on in Yakima about unrepresented individuals, it's worth taking note that this doesn't just impact defense attorneys or defendants, that in those 70 cases where somebody's in custody - I'm assuming they're more serious offenses - and there's probably the victim who would like to see a day where justice is served, and a defendant who probably wants the same thing. There's court judges, court systems trying to process their work that are impacted by this. So it really does have an overall sense of how this impacts the legal system and our sense of justice. If your idea of justice is justice delayed, then that's justice denied. And as we know, when we're talking about the people who this is impacting, I'm talking about public defenders, but they're lawyers - they are going to leave their crummy job to a better job. And what they're going to leave behind are their defendants who are not able to leave. Not to get on my high horse and preach, but like we know who these folks are too. They're largely folks with mental illness. They are by definition poor - that's how you get a public defender. They are largely BIPOC folks. And in some communities, folks who are immigrants or who do not speak English. So the challenge is even, in my mind, compounded by a language barrier. I mean, this poor person is in custody, not even knowing maybe why they're there. So real challenges exist - and real world impacts - if we don't fix this problem.

We've been talking about it like a public defense problem - and it is - but it is ultimately a systems problem. Because what we see in Yakima is a lot of folks going unrepresented, which is going to result in, like you said, litigation. There's a couple pieces of litigation that are going on. The ACLU of Washington has sued the Yakima County for folks going unrepresented. In addition, there is also a lawsuit pending - I believe it's on appeal in front of the Supreme Court - by the state association of counties, suing the state of Washington for public defense funding. I'm going to use an example - it's not a perfect example, but it's a lot like the McCleary lawsuit for education. It's not set up the same way, but it is similar in that it is the local jurisdictions asking the state to pay for what is an unfunded mandate. And to that point, for a moment - the counties had brought that lawsuit prior to the new caseload studies, prior to the bar amending its caseload standards - but we were certainly in the process of amending them. And so in some ways, what the counties are saying in this lawsuit is something that is similar to what we're talking about today - about public defense caseloads - but in some ways also something that is a totally different issue. And equally important and worth time - which is that public defense in Washington has largely been funded by local tax base. And when I mean local, I mean your city and county. The state of Washington does pay for some forms of public defense - I talked in the beginning about family defense and appeals, and the state does pay for a lot of that stuff. But when we talk about the bulk of public defense work - criminal trial practice, that stuff you think of when you watch Matlock or NCIS or whatever you're watching or reading - that is something that the state of Washington contributes very, very little to. So the bulk of the burden is on local tax base. And there's not always even the funding mechanism locally to increase taxes if the voters were to want to do that - to make the capacity to fund public defense.

So that lawsuit is largely premised on an uninvolvement by the state in public defense. It's an uninvolvement fiscally, but also we have a decentralized public defense system, which means all the responsibility for delivering public defense services is also local. So the state, whether it's the state Office of Public Defense or the state court systems, really have no metrics for what's going on in public defense. Give you an example - we do not know how many public defenders there are in Washington. We do not know how many cases get appointed to public defenders. We don't have systems for capturing this data. And the data is oftentimes local and captured in unique ways and unique systems. You mentioned at the beginning - I work in Snohomish County, I'm the director here. But some jurisdictions don't have lawyers who work as directors. And you can imagine in a small county - I always pick on Asotin County because they're so small - but in Asotin County, the county is so small, they probably have less than 100 total county employees. So hiring a public defense director to help sort out problems like this or be aware of issues as they arrive is also something that doesn't really exist. So when we're talking about local funding as well, there's oftentimes really also not someone at the local level whose job it is to be accountable for this. Most public defenders are contractors with the city or county, so they don't have union-negotiating leverage. They don't have a communication leverage between their funders such that when problems like COVID or like caseloads like this hit, that there is an institutional political mechanism to solve that problem. In some places - like bigger places like King County or Spokane - there are. But again, then it also faces a political system that is also not always receptive to public defense themes. We are generally, no surprise, like sort of the redheaded, freckled stepchild of government. In a way, we are being employed to question government - and that's a hard pill to swallow, and especially when it's expensive. So it's hard to get the voters and the tax base behind that message, particularly in lean years.

But I think that's the challenge - I mean, it's not just one challenge, right? It's not just the caseloads. It's really that the state has not contributed anything - the counties and cities are stuck with that bill. And also, there's really no support at an institutional level to assure that the delivery of the services are being done in a good way, in an accountable way. Let me give you one other example of a way that's not the caseloads. Oftentimes in smaller jurisdictions, you have someone running public defense who is not a lawyer and they're doing what they've done before - and that may have worked in the past. But I know, because I've talked to some jurisdictions, they're offering to pay their public defense lawyers $325, $400 a case. Now, the market rate for a lawyer in Seattle or even in Everett, where I practice, is like $500 per hour. So there's just simply no way they're going to find anybody, let alone a qualified person, to do this work given the compensation rates. So again, that's not about caseloads, that's not about delivery systems - it's just this other third thing that I think is also going on in public defense that makes this a big challenge and that hopefully could be addressed through one of these lawsuits or potentially through hopefully some sort of negotiated legislation or whatnot that is maybe more cooperative than litigation can be.

[00:21:11] Crystal Fincher: Yeah, I think you are correct, in comparing this in a very generalized way to the McCleary decision - where you have a right, a fundamental right that people of the state of Washington are entitled to, yet the state is not delivering on the services necessary to ensure that right. The state is not funding - in any way that is appropriate - the ability for the localities, as you talked about, because they're responsible for delivering that right. And I really do want to stress that Washington is a big outlier here. Other states - nearly half pay the total cost of public defense, and it doesn't rest on localities. Another 10 pay at least 50% of that cost. Washington state only pays for 50% of a prosecutor, 50% of a superior court judge, 3% for a public defender. And so those costs are shifted onto local cities and counties, while the state limits those cities' and counties' abilities to raise money to cover those increasing costs. And so, as we're sitting here, we're also discussing, in the broad sense, budget shortages and shortfalls from cities and counties - some hundreds of millions of dollars. And this is a factor in that. The costs - we've talked about lots of costs related to the criminal legal system, whether it's law enforcement - but this is another element that often flies under the radar that is incredibly costly. And also, as you pointed out, it's not just the public defender. Public defense now requires a team of people to do the work - so that is really a problem. And like McCleary, this has escalated to the Supreme Court to try and address this. Now, even though we're lacking a lot of information, there have been organizations really working through this issue - working to find standards that are appropriate - and they've made some recommendations. Can you talk about those?

[00:23:24] Jason Schwarz: Yeah, I am happy to do that - thanks for bringing that up. So what has happened - right around the same time as that lawsuit the counties had filed, the RAND Corporation, in conjunction with a number of other nonprofits, published a study about public defense caseloads. We've been calling it a Delphi study - Delphi is the kind of study, it is a study that's used in a lot of industries to determine staffing and other things. And importantly here, there have been 17 states that have done these studies. And the idea is not for a court or an outside system to determine what public defenders need, but really determining from public defenders how much time they need to do certain kinds of cases. So what this study has done - and again, there were 17 studies in 17 states - the RAND Corporation took these studies and conglomerated them into one study that was published in September, October of last year. And really, again, what this study does is it divides cases into certain case types and then assigns to them an expected number of hours with which we'd expect a public defense lawyer or a public defense lawyer team or whatever to work on a case. What we did locally in Washington is attempt to adopt those standards to Washington's law. We did it because the justices of the Supreme Court sent a letter to the Bar Association, the Washington State Bar Association - to the Council on Public Defense, of which I was the chair - and asked us to promulgate standards for Washington. So we spent some time looking at the RAND studies, mapping it with Washington laws, looking at what - there is, again, limited data, but looking at what data we did have about public defense work - like times per case. Largely the data comes out of the Puget Sound areas, but it's the data that we had. And largely the RAND numbers looked right. We also did our best to survey public defenders - and we got over 500, 400, 500 responses from public defenders - both about the appropriateness of the hours based on their workloads and their jurisdiction, as well as whether they thought they were appropriate for us to be adopting these standards. So we really did a lot to vet the standards. Our group, the Council on Public Defense, is made up of law professors, public defenders of all employment types, defense investigators, folks who are impacted by the legal system. But also, importantly, judges, prosecutors, and other folks who are involved in the legal system in various ways. So by the time that we went through the study - we made recommendations, we did change some of the categories from the RAND study that just didn't work in Washington - and we published a study that the Bar Association, after listening to a lot of testimony, approved and has passed along to the Washington State Supreme Court for adoption as a possible court rule around public defense caseload standards.

But really, the genesis from that was the study in 17 different states that created the RAND study. And if I could just sort of piggyback on that, there's been some questions about why we didn't just do our own Delphi study in Washington - Oregon did one, and I think California is in the process of doing one. The challenge that Washington has is twofold. One, we are in a public defense emergency right now. We have public defenders leaving the practice like crazy - I think 19% of the Class A qualified lawyers in King County left in 2024 - that means there's a lot of cases to get distributed to other people, people who now don't have lawyers to be juggled around. So the crisis is now. So waiting more time to study the crisis means that people are going to be getting some poor legal representation or no legal representation as we wait for public defenders to leave. But the other reason that we can't immediately do a study is that we don't have a centralized state public defense system that aggregates data to study. To study public defense, we would need to build a system to study it and then go about doing that. And so it would take a ton of time. There's also been some conversations about talking about sort of studying it within the whole court ecosystem. And again, that might be a very valuable thing to do. And so far as we talk about how public defense impacts other stakeholders - but in reality, what we know about public defense is what we've studied. There's very little that we could learn about the consequences that would change like how much time we actually need to represent somebody on a murder case or on a stolen vehicle case. Ideally, these standards make it so that public defenders can resolve their cases within a year - so that victims do not have to wait more than a year, so that courts are not going to send cases, continue to kick them down the road for forever. My wife is a public defender and there are cases in her jurisdiction - a murder case that's pending for five years. That should not happen. That's not good for anybody. So the idea behind these standards is that we staff public defenders enough so they can resolve cases in a timely manner. And that's, I think, good for everybody.

[00:28:17] Crystal Fincher: I agree that is good for everybody. And I just, you know - as I, a layman, am looking at these recommendations, it really does highlight how out of whack the current caseloads are. Because - to me, as I look at it - right now, the standard is, hey, you know, someone can handle 150 felonies a year or 300 misdemeanor cases if they're just doing those. Looking at the system of today - how much more complex and time-consuming each case can be, the differences between cases, which has only grown - now they're saying, hey, the caseload for a full-time attorney and doing felonies is 47 essentially cases. It can vary based on the type of felony, but roughly a third of what the current standard is. And for misdemeanors, 120 is the recommended versus the current 300 - so less than half of what the current standard is. And some people may look at that and go - Oh, they want to have vacation. It's going to be cushy. They're trying to get out of work. When really looking at the impacts of the system - the amount of people, as you talked about, who have been victims of crime, who are having to wait years to have that resolved, having to continue to go back to court. Challenges with people who just by virtue of their income can't afford a defender and so they're forced to attend a court hearing without an attorney and it gets rescheduled and rescheduled and rescheduled, so they have to keep going to court. It makes it hard to deal with that - if you have a job, particularly a low wage job, to get that time off. We're trying to make sure people can be productive citizens while they're not involved or incarcerated in the criminal legal system. And this just makes it tougher for everybody. And the icing on the cake - for public defenders - is they're incredibly overworked and extremely underpaid, compared to the rest of the profession. It looks like in many cases making 20% of what they can make elsewhere doing work they're qualified to do. Leading to a crisis of staffing - the numbers you talked about of public defenders who just left in the past year is staggering. And this is all really a crisis for the state. And the Supreme Court is now going to take feedback and have a hearing - and essentially determine what responsibility the state has to rectify this. Can you talk a little bit about what you're hoping to see as a result of that?

[00:31:07] Jason Schwarz: Yeah, I'm really hoping the justices adopt the proposed standards. And I hope that they are - and I think they will - they're open to working with the Bar and other stakeholders about getting these standards implemented as quickly as we can. I know there's a lot of restrictions on funding and resources, and also a lot of other needs in a lot of jurisdictions. But the reason this need looks so big now is because we have not attended to this problem for a long time. We're talking about public defenders who are working from standards from 1973. So it's been a long time coming, and I think the justices - they're not unaware of the backdrop. So the ideal situation is that these standards go into effect. And we start in local jurisdictions - being able to staff public defenders' offices in a way that allows the defendants and the victims and the cases to resolve in a timely manner. And frankly, for those public defenders to leave work at the end of the day and feel good about the work that they did, and feel good about their place in the system, and not walk away feeling that they had made it worse.

And I'll just share - we've been talking about workload, we've been talking about salary and delivery systems and these kind of very wonky things, but the people who become public defenders do it for none of those reasons, no surprise. To work in a system with traumatized people who want help and are probably going to spend the rest of their life in prison - I mean, it's hard to do. There are people who I care deeply about, who I have represented for years, who are in a prison for the rest of their life. And they call me and it's never - they're not gone to me - they can never be gone from my heart, from what I do, from motivating me to talk to you today. And that's true for every public defender - it has nothing to do with salary, has nothing to do with caseloads. But I think what we're experiencing now is public defenders feel that that empathy that has got them into the practice is being taken advantage of. Maybe not intentionally, but by a system that has not focused enough attention on this problem. That it's hurting public defenders, but it's really, truly hurting our clients and the sense of justice. It hurts me to think that I know I was one of these public defenders who had overwork cases, and I know as a result there are clients who are serving more time than they should because of my poor representation. I know there are victims who did not get a good experience in court because of my stress. And so we've been talking about cases, but this is a really stressful job - and we want people to be their most empathetic, we want them to be their most kind. And also in a courtroom, in front of other legal professionals, their most professional. It's hard to do that under stressful situations.

Crystal, I'll say that our justices of our Supreme Court promulgated a message after George Floyd's murder that really called upon all folks in the legal profession to step up and to know our biases, and to be engaged and aware of the biases in our system, and to do something about it. And I don't know any group of lawyers who have taken that on more genuinely than public defenders. This is serious business to us. Not doing this means the difference between guilty and not guilty. Like how we have to engage - the level at which we have to engage - the system is very nuanced. And is also not easy for people to hear - when you start talking about race in a system. So on top of caseloads, on top of salary, on top of delivery systems, on top of your secondary trauma - we are also a group of people who are trying to make change - and really trying to meet the mandates that I think our profession and the court wants of us. And query - where do I have time to pick up "Me and White Supremacy" to read it again? To make myself a little better today than I was yesterday? Or whatever book that is, or whatever moment that is for me to engage and really reflect about my work? That is really the challenge with the current standards. We're dealing with public defenders who do not have opportunities to reflect. They're not engaging in the training that they need to be really effective. So these standards also build that capacity to have professionals who can do good. And I mean that in the very John Lewis way of the words - to do good work. And I think this is what our public defenders want to do. And right now, I think they're really a little hamstrung - or a lot of hamstrung in some places.

[00:35:27] Crystal Fincher: A lot of hamstrung, it seems like. Now, there are going to be some people who see this before the Supreme Court, who hear that this is a problem. And then they'll think - You know what, we're right now trying to keep schools from closing and fund our education system. We're trying to address climate change. We're trying to pay for the bare necessities in our public systems and with our taxes and they're too high already. And this is just to benefit criminals and they don't deserve it. This is not where we should be spending our money. How do you respond to that?

[00:36:05] Jason Schwarz: Yeah, I mean, they do deserve it. That's my response to that. The Constitution says they deserve it, and we as a people believe they deserve it. When you or I are in this situation, we are going to feel like we deserve it. And when our family members are in this situation, we are going to know they deserve it. I've had family members who've been incarcerated who've had public defenders. We all know somebody. And query whether we feel that they deserve substandard representation. And I'll say it - why do people deserve it? Why do people deserve a good representative? Because if you're a good representative, you can help. The cases that mean the most to me, the clients that mean the most to me are the ones who we work together to solve their problem - whether that is resolving the sense of injustice that they created, resolving a mental health crisis or poverty crisis that they were in. We can be helpful. We are oftentimes the last stop, the last dam in the river - but that doesn't mean we need to let the water flow over us. And we can really be helpful. I know we're in budget crisis - you know, to your real question, why now? Honestly, public defenders have been quiet about this for years. There is no right time to step up and say - We need more resources. We need more funding. If we'd waited until the golden years - I mean, we'd be waiting. And I don't mean to be disrespectful, but there's very rarely a time when the forces that control the purse strings are willing to deliver, particularly to marginalized folks, particularly to "criminals" - because as you said, that is the perception. But in truth, innocent people are brought into the system. We see all the time people prosecuted for very petty crimes. They are on the books, they are crimes, but query whether having an advocate who can help you get your driver's license and never be in the situation again isn't better for the system than someone who just helps you plead guilty and go on your way. It's not a good time to fix this. I think the Bar Association, public defenders are open to working with the justices and legislators and their local funders about ways to implement this that is responsible. Again, but the standards are, I think, what we think is necessary so that public defenders aren't paying the cost, so that defendants are not paying the cost, and that victims are not paying the cost - of a poor system that doesn't deliver timely or quality work. We are all the victims of this, not just the "criminal." If we don't do something, I've heard folks say that criminals will run free if we impose these standards. If we don't do something, people will not have lawyers and then cases might be dismissed and maybe "criminals" will be running free. But if we fund these standards and we give everybody a public defender and they go through the system and they go free - or they don't - we have the assurances that equity has been met, that there have been professionals on both sides who did their job vigorously, compassionately, and went in front of a judge and she decided how this should be resolved when we couldn't agree. That's fairness. That's equity. The alternative is injustice - and that is not what we want for a system. That is a system that is not a system. It's a system that avoids accountability. And I don't think that's what anybody really wants - for public defenders, for defendants, or for themselves.

[00:39:26] Crystal Fincher: Absolutely. Well, I certainly appreciate you taking the time today to help us understand this issue more. We will be adding resources in the show notes to address timelines, talk about how people can submit testimony and commentary to the court. And just sincerely appreciate your advocacy in trying to ensure that people get the rights that they're entitled to. Thank you very much, Jason Schwarz.

[00:39:54] Jason Schwarz: Thank you.

[00:39:55] Crystal Fincher: Thank you for listening to Hacks & Wonks, which is produced by Shannon Cheng. You can follow Hacks & Wonks on Twitter @HacksWonks. You can catch Hacks & Wonks on every podcast service and app - just type "Hacks and Wonks" into the search bar. Be sure to subscribe to get the full versions of our Friday week-in-review shows and our Tuesday topical show delivered to your podcast feed. If you like us, leave a review wherever you listen. You can also get a full transcript of this episode and links to the resources referenced in the show at officialhacksandwonks.com and in the podcast episode notes.

Thanks for tuning in - talk to you next time.