Last week, the Clark County Council in Southwest Washington unanimously approved the creation of a new public defenders office to provide free legal counsel to criminal defendants who cannot afford hiring their own lawyers. Clark County is the largest county in Washington to rely on a contract model for public defense. As reported previously in The Columbian, the new office will initially consist of 10 positions, including six attorneys who will handle felony-level cases. The county will continue contracting with Vancouver Defenders to provide public defense for misdemeanor cases. Vancouver Defenders is also contracted to handle some of the felony cases heard in Clark County Superior Court. Amber Emery is the deputy county manager of Clark County and Christie Emrich is a defense attorney and the owner of Vancouver Defenders. They join us to talk about this new office and the benefits they hope it provides for the county, public defenders and indigent clients in Clark County.
Note: This transcript was computer generated and edited by a volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Last week, the Clark County Council in Southwest Washington unanimously approved the creation of a new public defender’s office. It’ll provide free legal counsel to criminal defendants who can’t afford to hire their own lawyers for felony cases. This will be a change. Until now, Clark County had been the largest county by far in Washington to rely on a contract model for public defense. Amber Emery is the deputy county manager of Clark County. Christie Emrich is a defense attorney and the owner of Vancouver Defenders, which has been contracted to provide public defense under the old model. They both join us now to talk about this change. Welcome to the show.
Amber Emery: Thank you, Dave.
Christie Emrich: Thanks for having us.
Miller: So Christie, first. First of all, welcome back. Can you remind us how the old model was supposed to work and also how it’s been working in practice?
Emrich: The old model is a pure contract-based system, which means every year the county tries to anticipate how many cases will be seen in Superior court, so those are felony-level cases, and then attempts to contract with local attorneys to provide indigent defense services for those anticipated number of cases.
Miller: When you say anticipated…so there has to be a guess as to how many felony cases are going to be in any given year or six month period? I mean, what’s the time frame?
Emrich: It’s a one-year contract. So, yes, essentially, we try to estimate what we think will happen in the following year based on what’s happened in years previous,
Miller: How has that been working in practice?
Emrich: It’s becoming more and more challenging. We are seeing higher level felony cases come through the system, especially when it comes to things like a homicide. It is very difficult to predict how many of those cases we would see in a year. And so it changes and the contracts have to be adjusted regularly. Either new contractors have to be brought in or we don’t have enough people to handle the work that is coming in the door.
Miller: Amber Emery, what is the pool of contract attorneys like compared to the demand, the number of indigent criminal defendants in the county?
Emery: I think Christie hit it on the head when she talked about anticipated. And when you’re talking about the number of indigent folks that we have in our county that need legal representation it varies, but I think we have seen it rise with our population growth that we’ve had over the last five to 10 years, and we’ll continue to see that grow. Our projected population for Clark County in 2045 is 750,000. We are over 500,000 now, we will continue to see that rise over the years and the need for services, indigent services, is one of them that we see that continue to rise.
And as Christie talked about the anticipated - when we’re looking at contracts every year and not knowing whether a homicide is gonna come in that could take one to two years through the legal system, or how we anticipate those changes. It also varies on how many law enforcement we have in our community. If they’re fully staffed, that drives up the numbers, how much our prosecutors are charging, so that drives up the numbers. So this system is really reliant on those other two factors that we have in our community.
Miller: The recent Colombian article noted that the number of contracted public defenders handling cases has actually decreased pretty significantly in recent years. How do you explain that?
Emery: I think we see that throughout the nation. We have attrition happening with public defense. They’re overloaded. We’ve seen that across the state in Washington, you’re dealing with that in Oregon, as your system collapsed over there. We are seeing an attrition and retirement from folks that have been practicing 20 or 30 years. We are extremely lucky, I said that in a press release, of the indigent attorneys that we contract with in our county because we’ve had some do it for 20 or 30 years. Those folks are getting ready to retire and you see that across the nation, there’s a shortage. We know that. So now we have to figure out how we get out ahead of that.
Miller: How much of this has to do with pay?
Emery: I think that’s a portion of it. But I think if you read the national articles, the workload systems for public defenders across the nation are overloaded. The caseload limits have not been adjusted, really since the seventies. You’re starting to have states look at that more closely. We have caseload limits that Washington State has set forth. But again, you have to watch that closely if you’re dealing, like what Christie said, with, say you have a large number of homicides or you have a large number of A or B felonies, those are serious workloads for attorneys. And as we have those numbers rise that overloads, and then your workload becomes just unattainable. So I think that is another portion. Not only the pay, which we’ve seen across the nation as well as many public defense offices are not on pay parity with the prosecuting offices that are in their county or state. So that is a principle that we are going to deliver on in our county is that it’s going to be pay parity with the prosecuting offices,
Miller: Meaning that, say, an entry level prosecutor will not be paid more than an entry level public defender?
Emery: Correct.
Miller: So how is that the new system, a county office, going to work?
Emery: Our county office is based on..we will have a public defender, the public defense director, who’s an attorney that will have oversight over the office. We will start out with a supervising attorney that will supervise the six attorneys that we have in the office to start with and we’ll start assigning felony level cases, I’m hoping in the middle of 2024. And that will truly be the foundation of this office. That’s by no means what we need or no means like the services that we contract with and provide.
Miller: Seems like this is a kind of transition period.
Emery: Correct.
Miller: How do you go from six to whatever the number is that you actually think you’ll need?
Emery: I think that’s twofold. One, we monitor caseload. And as Christie said in the beginning statement, of anticipated of what we have in a year. We have caseload limits that are set by Washington State, which I talked about prior. And then as we transition in these two years, we will start to lessen contracts and bring people on full time in the felony realm. So that’s what we will do during these two years of transition. So there’s a lot of work that will happen in these two years, in this transition period, but it will start with the middle of the year when we get cases assigned to the attorneys that we have in house
Miller: Christie, you’ve been doing this work for close to 20 years now, is that right?
Emrich: Oh, let’s say 16 or 17. That sounds like I’m old.
Miller: Fair enough. OK. I think experience is a better word than old, I say that on behalf of myself.
But I’m just wondering, do you think that other defense attorneys who have been on their own but have worked under contracts, how many of them will want to really switch the way their employment works and become county employees?
Emrich: I think that’s a great question. I think we’ll have some people who probably have done this their entire career and will look to retire under a contract model. And then you’ll have some other attorneys who are either in the beginning or middle of their career who will be interested in participating in an office environment that can offer things like benefits, pay parity, and a little sense of stability that is not there with a yearly contract system.
Miller: What about you?
Emrich: I am happy with the firm that I am at right now, but I see what a value this new partnership will be, the new public defender’s office. We will have a central voice at the table to advocate for our clients and the needs of the indigent defense system. I mean, our justice system is only as good as the people at the table. So it’s your courts, it’s your prosecution and law enforcement and it’s your public defenders, your attorneys. And if one part of that system is underfunded or does not have an equal voice, then your system is going to fail. And so this new system with the public defender and having someone to advocate, having another attorney at that table advocating for us, only makes everything better
Miller: I’m curious to understand more fully what you mean by that, because there has been an attorney representing the client, the client who couldn’t pay for it, through the contract model. So what do you think is going to be the biggest difference under the new model?
Emrich: I think one benefit is the new model will have an attorney-led organization. So you will be able to have oversight on the work that is being done that we currently don’t have.
Miller: This is relatively unusual even in the state of Washington, right? To not even have an attorney, let alone somebody who is an expert on criminal defense matters, be managing the contract attorney. That has not been the case in Clark County.
Emrich: Not in the most recent years, no. And so this will be a great change for that. I think our county has been extremely lucky because we have had such a great group of contractors to handle this work and they are diligent and hard-working and they care. But as we continue to grow, you definitely need someone who can oversee this. And to ensure that the quality of work continues,
Miller: Is it a fair comparison, Amber, to say that the old model, even though it was contracts, was outside attorneys who were being paid by the county to provide the service, but it was as if there were a county prosecutor’s office that wasn’t led by a DA, it wasn’t led by somebody who, theoretically, hopefully, is an expert on prosecutions. Is that a fair comparison?
Emrich: Our contract, as Christie stated, changed in about 2018. So it’s recent years where we haven’t had an attorney with criminal law experience in charge of the contract model that we’ve had in our county. So we haven’t been without that the entire time. I will say, and add on to what Christie said, about how critical having a director that’s an attorney, that can prosecute, and has the criminal law experience to be that voice at the table. When you have legislative changes - let’s talk about the Blake decision that came down from Washington State with the drug laws - and if you don’t have a centralized voice at the table making policy decisions, sitting with the courts, sitting with the jail, sitting with the prosecuting office, that other half of the coin, there creates a deficiency that naturally happens. And to your question earlier to Christie, you don’t have the 28 contractors at the table having that conversation. So it’s that one centralized policy equally in the legal system, a partner that is the voice for that side.
I will just say I was lucky enough to be the district court administrator when I came to Clark County from Multnomah, and Christie was my counterpart on the district court side and she does that for that side. And the misdemeanor system runs smoother, as she indicated, because you have that voice and that centralization. So if the courts make a really substantial change to their docketing system, to anything that impacts a litigant and a member of the system, you have that voice for defense. We’ve been lacking that on the felony side and this is going to be a huge change for our county. A much needed change.
Miller: Amber, just briefly, in the time we have left, I want to turn to money, because I understand that you’ve told The Colombian that this could lead to cost efficiencies, maybe cost saving, certainly cost shifting. But I don’t totally understand how that’s going to work. If you’re going to be eventually, ideally, paying in-house lawyers more than you were paying contract lawyers, and if the number of cases is more or less stable, where do the savings come from?
Emery: I didn’t say savings because I don’t typically say savings because here’s why: As Christie indicated in the beginning, we are shifting costs. So as contract models dwindle, we will then shift those full-time employees to the general fund, which is our general fund balance, which is what that is in our county. It’s a cost shifting. And what Christie said at the beginning - as we’re anticipating, we never know what those levels are gonna be during the year. We often, mid-year will adjust contracts, add people, need more money from the council because, say we had 30 homicides in a year. We’re constantly shifting that cost. What we are looking for with this model, I’m not looking for cost savings. What I’m looking for is stability, efficiency and equal justice.
Miller: Amber Emery and Christie Emrich, thanks very much.
Emery: Thank you for having us.
Emrich: Thank you,
Miller: Amber Emery is deputy county manager at Clark County. Christie Emrich is a defense attorney and the owner of Vancouver Defenders.
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