Funding Public Defenders: An Unfunded Mandate? Event Recap

L to R: Senator Steve O’Ban, Kanani Palafox, Mary Kay High, Chancellor Mark Pagano, Dawn Farina, Councilman Derek Young, Judge Elizabeth Martin.

On Thursday, April 26, 2018, PPPA hosted a panel discussion to address the funding of public defense in Washington State.

How is public defense an unfunded mandate?
This year was the 55th anniversary of the U.S. Supreme Court case Gideon v. Wainwright, which extended the constitutional right of indigent defense (attorneys for criminal defendants unable to afford their own representation) to criminal trials at the state level. By extending this provision to state court trials, the decision required that states themselves fund public defenders. This is called an unfunded mandate, meaning the federal government has required state or local governments to provide a service, but has not also provided the money for them to do so.

In Washington State, the legislature funds just 4% of this mandatory public defense, leaving counties to incorporate the remaining 96% of the cost of public defense into their own budgets, regardless of their ability to do so. This puts public defense in jeopardy, and it also affects other vital county-level services, since there is less money left to go around.

Who were the panelists?
Six representatives from local government and the criminal justice system convened to discuss at the University Y on Thursday: Washington State Senator Steve O’Ban, Pierce County Councilman Derek Young, Pierce County Prosecutor’s Office Chief of Staff Dawn Farina, UWT graduate and Pierce County Prosecutor’s Office Legal Assistant Kanani Palafox, Pierce County Superior Court Judge Elizabeth Martin, and Department of Assigned Counsel Chief Deputy Mary Kay High. The panel was introduced by UWT Chancellor Mark Pagano and Salvador A. Mungia, partner at Gordon Thomas Honeywell, and moderated by PPPA Assistant Professor Dr. Sarah Hampson.

What did we learn?
The panelists engaged in a collaborative and vigorous discussion that represented different, yet complementary, perspectives on the issue. Each panelist represented a particular role and responsibility in the realm of public defense or government, and, while the importance of public defense was not under debate, each expressed a particular viewpoint on how to move forward. Recurring themes were competing priorities for funding (such as mental health costs, homelessness, and the opioid epidemic), the need to enhance alternatives within the criminal justice system (such as alternative courts and diversion programs), and the challenge of raising additional revenue on both the state and county levels.

At the conclusion of the panel, participants were asked to suggest one action to take in light of this discussion.

Senator Steve O’Ban said that the state legislature should make funding for both public and mental health its priorities going forward, recognizing that mental health itself is a major factor in overall costs to the criminal justice system. “I’m guessing you’ll have a pretty sympathetic audience from most of us in the legislature, so keep the discussion going.”

Mary Kay High emphasized the need to a better job identifying who should not be in the system, especially juveniles, and addressing disproportionate effects on minorities. She also underscored the need to address root causes of crime in order to reduce the number of criminal cases overall. “With our mental health issues right now… all of us, everyone in this room here, is working to make a difference.”

Judge Elizabeth Martin urged continuing public discussion and expanding public education on the issue, including the particular resources and the operations of the system. People “may not understand the value that comes from an adequate system… it’s not just somebody you don’t know. Everyone is harmed by a system that does not work.”

Dawn Farina said that the Prosecutor’s Office is committed to continue investing in and developing diversion programs, especially juvenile diversion programs, as well as veterans court, drug court, mental health treatment referrals, and so on. “We continue to come up with innovative ways to not charge these low-level cases and to divert them into programs that are gonna help these individuals lead productive lives.”

Kanani Palafox recommended focusing on the community and doing more educational outreach, especially with young people, on how the criminal justice system works. “I think it’s important for us to create an environment of learning.”

Councilman Derek Young urged concerned citizens to contact their legislators. He pointed out that even investing in the aforementioned diversion programs and other measures can be a challenge, given the overall dearth of funds. “If [legislators] hear from their citizens that you want a more just system for people in the justice system, we may be able to make a little progress.”

Many thanks to all who attended, and to PPPA faculty Dr. Katie Baird, in conjunction with Councilmember Derek Young’s office, for organizing the event. If you weren’t able to make it, you can view a recording here.