Crisis has led to a recent decision by Clark County District Court judges to drastically reduce the number of newly filed probation violations

A recent increase in the number of cases filed in Clark County District Court, combined with the lack of public defense attorneys to represent indigent criminal defendants, has led to a recent decision by District Court judges to drastically reduce the number of newly filed probation violations until this problem has been solved.

The decision was communicated to area members of the bar in a letter signed by six District Court judges. The dynamic has many in Clark County concerned about the impacts on public safety.

“From my understanding, there’s been a very significant increase in the number of cases filed in District Court,’’ said Vancouver Attorney Angus Lee. “It’s a lot more cases being filed than prior years, which may simply be reflective of the increased rate of crime we all see and experience. They just don’t have enough public defenders to take all those cases. That’s an issue. The lack of available attorneys to do public defense work is an issue in Oregon and Washington.’’

In their recent letter, the Clark County judges cited the dynamic that Lee referred to.

“Many jurisdictions in Washington have, in recent years, lacked sufficient attorneys to represent indigent defendants in criminal cases,’’ the judges wrote. “Unfortunately, this crisis now extends to Clark County. In Clark County District Court, there are currently no contracted defense attorneys for cases where the Vancouver Defenders law firm has a conflict under the RPCs. The most recent projections received by the court show that Vancouver Defenders caseload capacity for both city of Vancouver and county cases will be exhausted in a matter of weeks. This would result in a complete lack of appointed counsel for all criminal cases in Clark County District Court for the remainder of the year, with all the resulting disruption, delay and injustice this would entail.’’

The letter pointed out that the court has worked with the city of Vancouver and Christopher Swaby, the new director for Clark County’s Public Defense Office, to see if additional attorneys could be located to take contracts. 

“The court has met with Vancouver Defenders, Mr. Swaby, and the County and City prosecutors to seek potential solutions,’’ the letter stated. “However, to date, these efforts remain unsuccessful. Considering this, the court recently chose to drastically reduce the number of newly filed probation violations until this problem has been solved.’’

Lee stated the obvious, that this decision is an issue of public safety.

“If they are cutting back on probation violations, those are people who have already been convicted of a crime, they’ve been put on probation and they are not doing what they are supposed to be doing,’’ Lee stated. “It’s not good. I’ve been in the criminal law arena for almost 20 years now, on both sides, and I’ve never seen anything like it. If people on probation are not having their violations addressed, that’s a public safety issue for the community.

“When you’re having a problem causing you to look away from violations of probation, if you don’t address the problem it will only get worse,’’ Lee said. “Eventually, you will have to do even more and it won’t be enough.’’

The judges also reiterated the responsibility of the court to ensure indigent criminal defendants have counsel.

“As noted by the United States Supreme Court, ‘lawyers in criminal courts are necessities, not luxuries,’’’ the judges stated in their letter. “In keeping with this constitutional guarantee of counsel, the trial court is ultimately responsible for ensuring that counsel is appointed for indigent criminal defendants. This responsibility stems from the United States and Washington constitutions.’’

In what can be seen as a bit of a “Hail Mary” attempt to address the crisis, the judges asked area attorneys to “volunteer.’’

“To fulfill this responsibility, the court is now asking the local bar, particularly those attorneys who practice in district court, to volunteer to accept contracts to represent indigent defendants in criminal cases,’’ the letter stated. “Fortunately, unlike many jurisdictions where this problem has occurred, Clark County is a large metropolitan county with a sizable, dedicated and experienced defense bar. Volunteering in this temporary capacity would be in the very best traditions of the Clark County bar and in keeping with Section 8 of the Washington State oath of attorney to “never reject, from any consideration personal to myself, the cause of the defenseless or oppressed.’’ 

The letter said those attorneys who volunteer would be able to “negotiate compensation.’’ However, part of the reason why there are not more attorneys available is that the compensation, historically, has not incentivized them to add to their already bustling list of clients.

The judges stated in their letter that if they don’t get enough volunteers, they would be forced to appoint attorneys to represent indigent defendants.

“In the hopefully unlikely event that volunteers are not forthcoming, the court’s duty would be to appoint attorneys to represent indigent defendants pursuant to the authority provided above,’’ the letter stated. “Any attorney so appointed would, by law, be entitled to reasonable attorney fees as compensation. For many reasons, the court hopes this does not become necessary, but the constitutional right to counsel cannot be ignored.’’