Legal Deserts and Spatial Injustice: A Study of Criminal Legal Systems in Rural Washington

abstract. This Essay draws on empirical research to compose a sketch of the criminal legal systems of several sparsely populated counties in central and eastern Washington State. The study reveals how, at times, the dearth of attorneys available to do the work of prosecuting and defending criminal cases is subjecting system-involved individuals to delays and leaving them vulnerable to ineffective assistance of counsel. Another stressor is the overwhelming reliance on county governments to fund indigent defense, along with substantial portions of the prosecutorial and judicial functions. Rural counties, with typically weak and undiversified tax bases, are often less able to absorb the rising costs of running their justice systems. These factors result in spatial inequalities and injustices, as manifest in significant and concerning variations in how different counties’ systems work.

Rural lawyer shortages are typically associated with dwindling numbers of attorneys, which in turn tend to correspond to overall population loss in a given county or region. Historical data from Washington, however, suggest that the number of active attorneys in most rural counties has increased in the last 25 years, though rarely as quickly as population counts have risen. Thus, the ratios of attorneys to population have mostly declined in rural counties over a quarter of a century. Further, the particular problem on which we focus is the dearth of attorneys equipped and willing to provide indigent defense and to work as prosecuting attorneys, especially in the rural counties we studied. A statewide shortage of those very attorneys has local governments across Washington scrambling to hire or contract with the same shrinking pool of lawyers who have criminal law expertise. This fierce competition is occurring even as the total number of graduates from the state’s three law schools has declined in recent decades.

While shortcomings in indigent defense nationally are well documented, this Essay reveals what those deficits look like in rural contexts in which the constitutionally mandated service is provided by attorneys who are not only harried and overworked, but who also may be inexperienced and working with scant oversight as contractors. The Essay also highlights new challenges arising from the fact that contract attorneys doing this work increasingly live far from their clients and appear only remotely in the courthouses (and, indeed, even the counties) where their clients are. Deputy prosecutors, too, are increasingly physically absent from rural courthouses.

The Essay draws attention to a range of concerns. Some of the stressors and red flags we identify could be alleviated by increased funding from the state—funding that could be used to attract more attorneys to work in indigent defense and prosecution in the state’s rural reaches. Yet, given the possibility that financial incentives would be insufficient to draw enough lawyers to some of these areas, it seems likely that virtual appearances by defense counsel are likely to proliferate. This raises concerns about the adequacy and confidentiality of attorney-client communication, a necessity for effective assistance of counsel. While a federal district court in Washington specifically held inadequate the “meet ‘em and plead ‘em” practices often associated with indigent defense, the systems in the rural study counties raise the specter of just those sorts of practices—albeit without a single in-person, face-to-face meeting between attorney and client ever having taken place. Another concern is whether lawyers making remote appearances, often from the state’s urbanized west side, are culturally competent to provide effective assistance in rural contexts with which they may be unfamiliar.

The crisis in Washington’s criminal legal system has caught the attention of several institutional stakeholders, and we survey their responses. We also suggest other interventions that would be more responsive to rural needs in particular. Among these is more robust attention by state and regional law schools to the training that new lawyers need to hit the ground running in both defense and prosecution roles. Legal educators are also in a position to shift the dominant, urbanormative career narrative by holding out rural practice as a viable and rewarding option. Finally, law schools should do more to admit and support the students most likely to choose rural practice: those who hail from rural communities.

Introduction

The term “legal deserts” emerged in the last decade to describe places experiencing a shortage of lawyers, most of those places rural by some measure.1 Legal deserts have been discussed primarily in relation to access-to-justice issues, a concept associated with the civil justice system.2 This Essay, part of a broader Collection on procedural fairness, explores the relationship between the rural lawyer shortage and the criminal legal system.

We do so in the context of rural central and eastern Washington, where, since 2019, coauthors Jennifer Sherman and Jennifer Schwartz have been researching county-jail incarceration trends, the experiences of system-involved individuals, and indigent-defense delivery. More recently, coauthor Lisa R. Pruitt has researched the state’s rural lawyer shortage and its consequences for the criminal legal systems of the region. Drawing on rich qualitative and quantitative data, we sketch a criminal legal system in motion. More precisely, given the significant county-to-county variation, we sketch several criminal legal systems.

Our investigation reveals that some counties’ systems are quite fragile. With too few local attorneys able and willing to take up vacancies in local criminal legal systems, many county governments are frequently raising the salaries or fees they pay. Yet, despite the promise of better compensation, a growing number of attorneys now live in locations other than the rural counties where they work, appearing in court only remotely. This can have a serious impact on the quality of legal representation.

This Essay also sheds light on how several hot topics in criminal legal reform are playing out in rural places. These include delivery of indigent defense,3 the imposition of fines and fees (also known as legal financial obligations or LFOs),4 and the rural jail boom—the most recent manifestation of the nation’s carceral crisis.5 We also discuss the emerging challenges and opportunities associated with remote appearances by defense counsel.6

With the exception of the rural jail boom, the scholarly literature discusses these and most other criminal-legal-system phenomena in the context of urban settings.7 The focus of that work is often the impact of systems on people of color.8 In contrast, most system-involved individuals in the jurisdictions we studied are white, although our data show that these rural systems engage people of color at a rate disproportionate to their presence in the population.

Our data about criminal legal systems in rural Washington also reveal many similarities to what we know about the shortcomings of urban systems. In addition, we note some other challenges associated with the rural context. These include challenges arising from the high prevalence of acquaintanceship—the fact that rural residents are more likely to know one another.9 Another rural feature is high levels of social stigma regarding criminal behaviors, addiction, and mental-health issues.10 Some challenges arise from rural deficits such as a lack of services and infrastructure to support system-involved individuals, from drug-treatment programs to public transportation.11 In an era when courts are increasingly relying on remote appearances,12 broadband deficiencies loom large in rural places.13 Also in short supply are attorneys to help navigate the civil legal challenges that nearly always attend involvement with the criminal legal system.14

Our focus in this Essay skews toward misdemeanors, and the district courts where they are primarily adjudicated, in the State of Washington.15 We focus on misdemeanors because three years of jail-booking data reveal that the pretrial booking ratios of misdemeanors to felonies is much greater in rural counties—an average of just over eleven to one—than in urban ones, with an average of less than three to one.16 The data are shown in Table 1.

TABLE 1. misdemeanor and felony counts and ratio of misdemeanor to felony pretrial jail bookings in urban versus rural counties (2020, 2021, 2022)17

We are unsure why misdemeanors are charged at a much higher rate in rural counties. It may be that recent national critiques of misdemeanor charging and municipal courts have influenced practices in Washington’s urban jurisdictions,18 which are more left-leaning than the state’s rural counties.19 It may also be that rural jurisdictions are excessively policing and prosecuting minor offenses, a topic we return to below.20

This Essay begins by describing our methodology in Part I. Part II describes the demography and economics of the study area. Part III tracks where Washington State’s attorneys are—and are not. We next survey policy interventions responding to the state’s lawyer shortages, many of them aimed specifically at ameliorating deficits among the ranks of prosecutors and indigent-defense counsel. Part IV sketches the indigent-defense delivery methods of the six study counties. In Part V, we offer a profile of one of the study counties, Okanogan, to provide a fuller, more nuanced portrait of the various stressors on a rural criminal legal system. Part VI documents the relative fiscal strain of these deficits on local-government coffers. Part VII draws on interview data to give a sense of how system-involved individuals experience indigent-defense delivery in the six study counties. Part VIII discusses the policy implications of our findings.

I. methodology

The research project from which we draw began in mid-2019 when Sherman and Schwartz teamed up to conduct multi-methods research on rising rural jail incarceration in Washington State. The project—which remains ongoing—engaged with stakeholders including sheriffs, jail staff, and social- and medical-service providers in six rural counties in eastern and central Washington, who participated in focus groups, interviews, and community meetings. The project also collected quantitative data on jail bookings and releases for the six counties, as well as in-depth qualitative interviews with seventy-one individuals who had been incarcerated in at least one of the six county jails.

Additionally, we collected secondary data on court processes, provision of indigent defense, county expenditures on criminal-legal-system functions, and other quantitative data. We drew on publicly available information about local-government actions and budgets, as well as media accounts. Finally, to deepen our understanding of the situation in Okanogan County, Pruitt spoke to several stakeholders there about challenges straining the criminal legal system.

We acknowledge our differing disciplinary vantage points, and we see this marriage of sociological, criminological, and legal perspectives as enriching this project. More details on research methods are in Appendix A.

II. the study region: economy and demography

Our data come from six counties in predominantly rural eastern and central Washington: Asotin, Ferry, Grant, Kittitas, Okanogan, and Whitman. These counties tend to share a geographic and cultural isolation from Washington’s more urbanized “West Side.” That said, Kittitas County, which is contiguous to King County and the closest to the Seattle metro area, is gentrifying and to some degree straddles the two worlds.21

The study counties are poorer, on average, than the state as a whole. Whitman County is somewhat of an outlier, with a poverty rate that is higher than the other study counties, presumably due to a large college student population.22 Population densities in the study counties range from a low of 3.3 persons per square mile in Ferry County to a high of 37 persons per square mile in Grant County.23 Even though Grant County is the most populous of the study counties, hundreds of thousands of acres of its land area are remote and far removed from its larger population clusters.

The counties are all “rural” under the Washington State government’s definition,24 and all but Asotin are nonmetropolitan under the classification scheme used by the U.S. Office of Management and Budget.25 Tiny Asotin, with a population of just over 20,000, is nevertheless classified as metropolitan because it is economically embedded with Lewiston, Idaho, across the state line.26 Grant, which has roughly 103,000 residents, is the most populous of the six, with more than twice the population of each Kittitas, Okanogan, and Whitman.27 Ferry is the least populous of the counties, with about 7,000 residents.28 Okanogan covers the greatest territory; at 5,266 square miles, it is twenty percent larger than the State of Connecticut.29 Kittitas and Whitman, home to public universities, have the highest education levels.30 U.S. Census Bureau population, economic and race/ethnicity data are in Tables 2a and 2b.

TABLE 2a. population and economic data for rural and urban counties31

TABLE 2b. race, hispanic, and indigenous origins of people in rural and urban counties

While the counties share similarities, they also represent at least three distinct clusters with varying demographic compositions and economic drivers. Asotin and Whitman counties are heavily dependent on mechanized agriculture, and their populations are overwhelmingly white.32 These counties are highly economically and socially embedded with Idaho, with whom they share a state line. Grant and Kittitas counties’ labor-intensive agriculture draws larger Hispanic populations, though Kittitas’s Hispanic population (10.5%) is far smaller than Grant’s (44.2%).33 Kittitas and Grant counties also have higher median household incomes (in excess of $66,000) than the other study counties, but lower median household incomes than the state as whole ($94,952).34 Okanogan and Ferry counties have significant Native American populations and economies dependent on forestry and tourism.35

III. legal deserts in the state of washington

This Part details where attorneys are practicing in Washington State and—more importantly for our purposes—where they are in short supply. These data help us understand many rural counties’ struggle to provide indigent-defense services and to recruit prosecutors. We also survey the responses of various state institutions to the emerging crisis.

A. The Numbers

Attorney counts reveal that Washington, like most states, is suffering a shortage of lawyers in many of its rural reaches.36 Legal deserts are typically associated with dwindling numbers of attorneys, which often goes hand in hand with population loss in a county or region.37 The crisis facing rural Washington, however, goes beyond a mere lawyer shortage. Indeed, over the past twenty-five years, the number of active attorneys has increased substantially in three of the nonmetro counties on which we focus: Grant, Kittitas, and Okanogan.38 Meanwhile, population sizes also grew in these places.39

Two of the six counties, however, have suffered a loss of attorneys over the past quarter century.40 The number of active attorneys in Ferry County dropped from six to four.41 The number of attorneys in Whitman County also declined, from sixty-seven to forty-six, even as that county’s population increased by 25% over the same period.42

FIGURE 1. number of active lawyers (2024) and county population (2023) in rural study counties and urban comparison counties43

Beyond raw attorney counts, the ratio of attorneys to residents is also revealing. Urban counties tend to have a higher ratio compared to rural counties. In our study counties, the 2024 ratios of attorneys to residents range from a high of 1.58 attorneys per 1,000 people (Kittitas) to a low of 0.53 (Ferry).44 In contrast, the ratio of attorneys to residents in King County, home to Seattle, is 6.59 attorneys for every 1,000 residents.45 Ratios for the other five most populous counties, which range from 1.57 to 5.06 active attorneys per 1,000 residents, are shown in Table 3.

TABLE 3. active attorneys per 1,000 residents, 1999 and 202446

The ratio of attorneys to population has increased in four of six urban counties since 1999, the earliest prior year for which the number of active attorneys per county is available.47 That year, the ratio was 3.58 attorneys per every 1,000 residents nationally48 and 3.20 per 1,000 residents statewide.49 King County’s ratio in 1999 was already a robust 6.35, before rising to 6.59 by 2024.50 In contrast, growth in the number of active attorneys in metropolitan Spokane County, in eastern Washington, did not keep pace with population growth; consequently, the ratio of attorneys per 1,000 resident fell there by 5%, from 3.23 in 1999 to 3.06 in 2024.51

In the rural counties on which we focus, attorney ratios have also typically worsened in the last quarter century. Then, as now, these ratios were well below the state averages and significantly below those of their urban counterparts.52 On average, rural counties in 2024 had one-quarter as many attorneys per 1,000 residents (1.11) compared to urban counties in general (4.13) and one-half as many attorneys as urban counties when excluding King County (2.35).53

In 1999, the poorest ratio was in Ferry County, where there were 0.83 attorneys per 1,000 residents; the ratio eroded to 0.53 by 2024, a decline of over 36%.54 The highest 1999 ratio among the study counties was in Whitman County, at 1.75; its population has since risen significantly while the number of active attorneys there has declined considerably, leading to a ratio of 0.96 in 2024—a 45% loss since 1999.55 Except for Kittitas County, where the number of active attorneys nearly doubled and ratios improved by 33%, the already-low ratios in the other five study counties declined further. With urban ratios of attorneys improving during the same period, an even wider rural-urban gap in legal resources emerged.

B. Policy Responses

Amidst a burgeoning national awareness of the legal-deserts phenomenon,56 several Washington institutions and media outlets have turned their attention to the problem.57 The media has focused particularly on the state’s criminal legal system,58 and that system has become the subject of both litigation and legislation. Meanwhile, amidst struggles to finance and staff indigent defense in particular, the Washington State Bar Association (WSBA) proposed dramatically lower caseload limits for indigent-defense attorneys, a move that would increase the demand for such attorneys roughly threefold over just three years.

1. Broad Responses to the Attorney Shortage

Writing in a 2023 column in the Washington Bar News, then-WSBA president Dan Clark, a Yakima County deputy prosecutor, provided an overview of the state’s attorney shortage and some early responses to it.59 Clark observed that ten of the state’s thirty-nine counties had no more than thirty residents practicing law.60 He opined that rural areas are not attractive to most law graduates because of the relative lack of “restaurants, entertainment, and social opportunities,”61 suggestions consistent with the limited empirical data available on why young attorneys do not choose rural practice.62

Clark also addressed the pragmatic concern of student-loan debt,63 paired with the fact that “lower salaries in rural areas—particularly for governmental attorneys”—can make rural job opportunities less attractive to recent graduates.64 In fact, law-school tuition and attendant student-loan debt have risen quickly in the United States in recent decades.65 The average student-loan debt for a 2022 graduate from the three Washington law schools exceeds $110,000, with Seattle University graduates carrying the greatest average debt at $130,000.66

A few WSBA initiatives have sought to increase the number of lawyers in the state’s rural reaches. These include new, nontraditional ways to become a licensed attorney.67 Another program, a collaboration among the state’s three law schools, aims to get Black, Indigenous, and Latino students into the law-school pipeline.68

Meanwhile, the shortage of indigent-defense attorneys and prosecutors has drawn particular attention. A January 2024 survey of the county-level entities providing indigent defense showed that, cumulatively, the responding counties (thirty-one of thirty-nine counties responded) had 138 vacancies among a total of 894 attorney positions, a 15% vacancy rate.69 Some of the most dramatic deficits in Washington are in the counties on which we focus70: Asotin (67% vacancy rate), Okanogan (50%), Kittitas (27%), and Stevens (33%), which until recently had an agreement also to provide indigent-defense services in Ferry County.71 Vacancy rates were higher for contract positions (25%) than for institutional public-defense offices (10%), perhaps because the former do not come with benefits and do not make the attorneys eligible for public-service loan forgiveness.72 The greatest shortages were among attorneys qualified to handle adult felony cases.73 Survey results suggest that rural counties frequently lack a large enough local bar to cover indigent-defense needs, leaving them to recruit attorneys from other counties.74 Poor compensation and inadequate housing markets that inhibit attorneys from relocating were among the reasons cited for the recruitment challenge.75

Importantly, the attorney shortage and high turnover among prosecutors and public defenders affects both metro and nonmetro Washington counties. Metro counties east of the Cascades have drawn the lion’s share of statewide media attention. Yakima County in south central Washington, for example, has attracted particular scrutiny because of three- to six-week waits for counsel to be assigned.76 In an effort to eliminate the backlog, the county in 2024 increased salaries for deputy prosecutors and defense counsel by 22.4%, on top of an increase of 15% in November 2022.77 This brought full-time compensation for contract attorneys qualified to handle Class A felonies to as much as $190,000.78 The county also offers signing bonuses of $15,000 for both employees and contract defenders.79 Yet, despite the enhanced compensation on offer, as of August 2024 the “number of applicants for defense counsel ha[d] not materially increased.”80

With metro counties offering increasingly higher salaries, nonmetro counties find themselves competing for a shrinking pool of qualified attorneys. As the prosecutor in nonmetro Jefferson County wrote to the Washington Supreme Court in July 2024, “[S]mall, rural and remote communities like mine . . . will pay a disproportionate financial and social price as the more well-heeled communities in the state buy up all of the legal representation that is left.”81 This raises the question whether the three law schools in Washington, in addition to those in the wider region, are educating a sufficient number of lawyers.82

In South Dakota, where the rural lawyer shortage has been closely tracked for more than a decade, employers in Sioux Falls and Rapid City are demanding an increasing number of law graduates, leaving fewer and fewer to take up rural practice, even when they hail from rural places and might be inclined to do so.83 A similar phenomenon may be contributing to the problem in Washington State, where the combined total student enrollment at the three law schools was 1,768 in 2023, down from a high of 2,248 in 2005.That 2023 figure is lower than for half the years since 1970.84 It seems likely that the demand in the Seattle area has grown during that time, as the population of King County alone has increased by 43% and the region’s status as a high-tech hub has grown.85

2. Litigation

The Washington Office of Public Defense (OPD) and other institutions have mounted additional responses to the state’s indigent-defense crisis, with particular attention to the rural lawyer shortage.86 In 2023, the Director of OPD asked the Washington Supreme Court for a ninety-day moratorium on assigning attorneys to felony defendants who were not in custody.87 The stated goal was to clear backlogs of jailed clients, but the court denied the request.88

Around the same time, several individual counties and the Washington State Association of Counties sued the State of Washington, alleging that the state could not shift to counties its responsibility for “providing a constitutionally adequate and uniform system of indigent defense.”89 The plaintiffs argued that the “resources available for trial court indigent defense functions, including representation and investigation, vary across county lines due to disparities in counties’ ability to raise funds through taxation.”90 The court did not reach the case’s merits, dismissing it in March 2024 based on a determination that the plaintiffs lacked standing.91

3. Legislation

Meanwhile, the Washington legislature responded to the emerging crisis in early 2024 by dedicating $1.6 million to internship programs for “aspiring public defenders and prosecutors in rural and underserved areas.”92 Called the “law student rural defense program,” the law—S.B. 5780—further directs state agencies to “provide training to early-career public defenders and prosecutors.”93 Significantly, the law does not raise wages for attorneys in either role.94 Further, while previous drafts of S.B. 5780 included a loan-repayment program, offering up to $120,000 for early-career public defenders and prosecutors, the provision was removed during committee markup.95 Removal of the loan-repayment program lowered the annual cost from $2 million to about $1.6 million.96 A separate bill to dramatically increase state funding for indigent-defense services, which currently hovers at about three percent of total expenditures on indigent defense,97 also made no progress in the 2024 legislative session.98 The two entities charged with the implementation of S.B. 5780’s training and retention initiatives, OPD and the Washington Association of Prosecuting Attorneys (WAPA), have begun to implement the surviving programs.99

WAPA, the other institutional actor upon which S.B. 5780 relies, has been delayed in launching its programs, in part because of a struggle to recruit attorneys to run them.100 Prosecutors are the hiring pool for the positions, which creates a challenge when the state already faces a shortage of prosecutors.101 WAPA was running a trial-skills training program even before S.B. 5780 passed, and it will now use funds allocated by that law to finance the program.102

4. Lower Caseload Limits for Indigent-Defense Attorneys

Amid this emerging staffing crisis, WSBA in early 2024 proposed new caseload limits to “provide public defenders with workable caseloads that allow them to effectively represent the accused.”103 The standards would be implemented in three phases, with the goal of ultimately reducing public-defender caseloads to one-third of the current levels. According to the standards, by mid-2027, the current limit—no more than 150 felonies or 300 to 400 misdemeanors annually—would be reduced to 47 felony case credits or 120 misdemeanor case credits.104 Thus, within a span of just three years, indigent-defense attorneys would be limited to handling a fraction of their current caseloads.105

WSBA characterizes the new standards as guidelines for cities and counties, which are required by state law to adopt standards for delivering indigent-defense services.106 Proponents see the greatly reduced caseload limits as necessary to curb attorney burnout and improve recruitment and retention.107 They would, of course, also be good for clients, who would benefit from more engaged, less harried counsel. At the same time, however, these tighter caseload restrictions would demand hundreds more qualified attorneys, even as the number of attorneys prepared and willing to do this work is dwindling. Implementing the lower caseload caps would be especially challenging for sparsely populated counties.

The caseload caps do not become binding unless the Washington Supreme Court adopts them or the legislature imposes them by statute,108 an outcome that looks increasingly unlikely. The Washington Supreme Court published the new standards for comment in mid-2024.109 As of October 2024, many stakeholders have weighed in to oppose them, with some noting the attorney shortage and issues like rising housing costs, even in rural areas, which inhibit lawyers from taking up rural jobs.110

IV. delivery of indigent defense in the study region

The vast majority of criminal defendants in Washington—roughly 80 to 90%—are appointed counsel due to inability to pay. Washington’s thirty-nine counties use four different models to deliver this constitutionally mandated service.111 The more populous counties have typical, institutional public-defender offices. Among the study counties, Grant and Kittitas are in this category. Some counties use specialized contract oversight by employing an attorney to manage all indigent-defense services.112 Others deliver indigent defense via contracts with large nonprofits that function much like institutional public-defense offices.113 The final group of counties manage indigent defense through an employee who has other responsibilities.114

Asotin, Ferry, Okanogan, and Whitman are in this last category. Even among these four counties, the precise arrangements vary from county to county, as detailed below.115 Importantly, because these contract attorneys are not classified as employees, they do not receive health insurance or any other benefits associated with employment. In addition, as independent contractors, only some qualify for public-service loan forgiveness.116

The details of these counties’ recent history and current practice of delivering indigent defense reveal a great deal of precarity, much of it associated with the dearth of attorneys available to do both indigent-defense and prosecution work. Indeed, a feedback loop of sorts exists between the two roles, as both are performed by attorneys with criminal-law expertise. Thus, when one county gains an indigent-defense attorney, a neighboring county may well lose a deputy prosecutor. Judges are also in the mix, such that one county gaining a judge often means that county or a neighboring one is likely to lose an indigent-defense attorney or prosecutor.117

A brief sketch of each county follows, drawing on publicly available data. Again, we offer no thorough legal analysis, but we note some red flags evident from the review. These include the relative inexperience of some attorneys, the lack of meaningful oversight in some counties, and the proliferation of remote appearances by defense counsel. Among other issues, the latter phenomenon may result in a lack of cultural competence, and thus lower quality legal representation, as attorneys from the urban West Side may not be well informed about rural realities east of the Cascades.118

A. Ferry and Asotin Counties

Ferry County, with just about 7,500 residents spread across an area larger than Delaware, has the simplest system among the study counties. As of early 2024, the county had a contract with a single firm—Orin Law Offices LLC, which is based in neighboring Stevens County—to handle all of the county’s public-defense work. In 2024, the firm handled “225 misdemeanor and felony cases” and was paid $201,000.119 The court passes all matters directly to the firm, staffed by its two attorney principals.120 Orin Law vets cases for conflicts and refers them to other firms when necessary.121 Pursuant to the contract, the attorneys must ask the county to finance experts and investigators when clients need them.122

Ferry County, whose indigent defense is overseen directly by the elected county commissioners,123 has long contracted with a single firm to handle its public-defense work. Orin Law Offices LLC is simply the most recent firm to hold the contract. When the attorney with the previous Ferry County contract retired in mid-2023,124 the county temporarily entered into an agreement with neighboring Stevens County, whereby the latter would “provide legal services to indigent criminal defendants” for six months.125 For these services, Ferry County agreed to pay $90,000 to Stevens County, “regardless of the number of defendants represented” by the Stevens County Office of Public Defense.126

These recent changes in Ferry County’s public-defense delivery illustrate the fragility of systems in low-population counties with few attorneys and no institutional public-defense office. Recall that Ferry County is home to only four active attorneys.127 The county’s annual report to OPD states that the county seat, Republic, “is geographically distant and difficult to get to, typically requiring travel over at least one mountain pass, which tends to keep our local pool of available attorneys very small.”128

Asotin County’s system, which is administered by the County Clerk and the Court Administrator, is similar to Ferry’s.129 The county currently contracts with only one attorney, a 2022 law school graduate.130 That attorney is associated with a Lewiston, Idaho law firm but lives in neighboring Whitman County.131 Asotin County pays the attorney $66,000 a year to handle up to forty felony equivalents, excluding only the most serious felonies.132

A salary of $66,000 to handle up to forty felony-equivalent cases is a volume discount of sorts because the court assigns all other cases to attorneys on a rotating basis, and those attorneys are paid $150 per hour.133 In its annual report and application for OPD funds, Asotin County reported having spent more in the prior year on “off contract appointed cases compared to contracts.”134 The report also noted that “[d]ue to the location and funding difficulties,” the county struggled to recruit attorneys “for contracted services” and had “spent more funds on advertising . . . in hopes of attracting individuals.”135 In 2021, Asotin County’s struggle to staff indigent defense resulted in an individual challenging his conviction when it was revealed that his appointed counsel, while licensed to practice law in Idaho, was not licensed in Washington.136

B. Whitman and Okanogan Counties

Whitman County’s contract system is somewhat larger and more complex than that of its neighbor to the south. Since January 2020, the county has had a sole contract with three attorneys at a total annual value of $400,000.137 The county pays the attorneys varying amounts for handling particular types of cases, and a provision was made for diverting cases when conflicts arise.138 The contract stipulates no numerical caseload limit.139 Another concern is that no county employee is “charged with supervising the work of the contract attorneys,” something the county plans to “review[] . . . in the near future.”140

Okanogan County contracts with a single law firm, Burica Law PLLC, to manage the county’s public-defense work.141 That management includes recruiting and contracting with other attorneys to provide indigent defense, as well as record keeping and reporting.142 Further details of Okanogan County’s system are provided in Part V.

C. Kittitas and Grant Counties

The two remaining counties have institutional, in-house public-defense offices. The Kittitas County Department of Public Defense, established in 2022, employs four attorneys, one of whom directs the department.143 The employed attorneys represent clients in addition to managing the remaining work, done by three contract attorneys.144 As of January 2025, the county was recruiting another in-house attorney.145

The three Kittitas County contracts are more detailed in terms of both caseload and compensation schemes than the contracts of attorneys in the less populous counties we studied.146 The Kittitas contracts also vary considerably from attorney to attorney, but all except one include the sort of “volume discount” seen in the Asotin and Whitman contracts.147 One contract, for example, specifies an additional per diem for jury trials, and all specify caseload caps.148 Only one sets compensation on a per-case basis—for example, $350 per gross misdemeanor.149

Kittitas’ move to an institutional public defender was probably influenced by past instability associated with a case-by-case assignment method,150 as well as high-profile litigation challenging the constitutionality of neighboring Grant County’s delivery system.151 That 2004 case, brought by the American Civil Liberties Union (ACLU) and Columbia Legal Services on behalf of three felony defendants, settled in 2005, with the court finding that the county’s system interfered with the defendants’ right to effective assistance of counsel.152 The plaintiffs’ motions for partial summary judgment were granted in part because the court “found that class members have a well-grounded fear of immediate invasion of their rights to effective assistance of counsel.”153 As part of a settlement, the parties agreed, among other things, to a six-year court monitor who would provide a quarterly report regarding Grant County’s compliance with the legal standard adopted by WSBA and endorsed by the Washington legislature.154

In response to the litigation, Grant County eventually established a Department of Public Defense,155 and it now has the largest and most institutionalized indigent-defense delivery system among the study counties. Its website explains that the entity “operate[s] as if . . . an independent law firm.”156 The office consists of seven staff attorneys and one felony supervising attorney, as well as ten contract attorneys.157

V. okanogan county as a case study

This Part takes a closer look at one county’s efforts to keep its prosecutor’s office and indigent-defense function staffed. It details the consequences of the rural lawyer shortage, including the considerable stress put on local coffers because of state structures that assign primary responsibility for these legal-system functions to county government. This Part also reveals how local stakeholders are grappling with proposed lower caseload caps for indigent-defense attorneys. In particular, one local stakeholder has expressed concerns about the potential over-policing of minor crimes and other effects on local prosecutors. We also encountered concerns about system-involved individuals’ preference for local counsel—as opposed to remote counsel—and the county’s inability to meet that preference.

As noted above, Okanogan County contracts with a single law firm, Burica Law PLLC, to provide indigent-defense services. Burica Law’s principal is solo practitioner Anna Burica, a 2015 law graduate who moved to Okanogan County in 2018 to do land-conservation work.158 When the grant funding for the conservation work ended, Burica began doing contract indigent-defense work for the county, and she eventually took on the management of the work.159

The average attorney in Okanogan County who carries a full caseload handles about thirteen felonies or thirty-three misdemeanors in a given month.160 Burica contracts with ten other attorneys to represent these clients.161 Burica’s base contract with Okanogan County is worth slightly over $1 million, and it requires her firm to pay investigators, office staff, and the other defense attorneys.162 After entering into that contract, the Board of Commissioners agreed to pay Burica Law additional funds “for the purpose of recruiting and retaining staff.”163 As of December 2023, the total amount Okanogan County was committed to paying the Burica firm for 2024 was $1.34 million,164 and the Board of Commissioners expressed an interest in bringing “their public defense office in house,” noting other counties had done so.165

The $1.34 million quickly proved inadequate, and in March 2024, the Okanogan County commissioners approved Burica’s request for an additional $139,500 for the remaining nine months of the calendar year.166 The record of the proceedings reveals the stress it placed on the county’s budget. The commissioners stated that they could only afford

up to X amount of dollars, and if the state doesn’t assist then the system is going to get more gummed up and it’s going to create major issues for the County, and people in jail will just have to be let go because they won’t get a court date because of the lack of public defense. Commissioners discussed the fact that these changes will cause the county to have to cut funding from other sections of the county budget and focus it to public defense, which will not work long term, and the state has to start helping more.167

Some of the rising costs stem from Burica’s struggle to recruit and retain attorneys to meet the need in Okanogan County. She advertised the contract indigent-defense work on offer there with the National Legal Aid and Defender Association (NLADA) in 2023 with these details:

Must commit to traveling to Okanogan at least two days per week for court. Contractors provide their own malpractice coverage. Low-cost office use and legal assistant available. Four Defense investigators are under contract for use at will by defense attorneys at no cost to contract counsel. All interpreter services are provided by the County at no cost to defense counsel.168

The notice’s specification that attorneys must travel to Okanogan twice a week for court anticipates that attorneys living outside Okanogan County will apply and that they will continue to reside outside the county. This is a logical assumption, given that only three of the ten attorneys providing public defense in Okanogan County live in the county.169 Two others live in neighboring Wenatchee (Chelan County),170 a ninety-minute drive away, and one lives in Douglas County, contiguous to both Chelan and Okanogan.171 Another lives in Spokane, which is about a three-hour drive from Okanogan, and three live on the West Side, one in Seattle and two on the Olympic Peninsula.172 Those living on the West Side are more than three hours away in summer and up to five hours away in winter, when a mountain pass is closed.173

According to Burica, “Judges allow [these attorneys] to appear in court via video, reluctantly.”174 In a 2024 interview with the Seattle Times, Okanogan Superior Court Judge Robert Grim echoed that regret: “You want that face-to-face contact before making a big decision, and a lot of people just don’t get that opportunity.”175

As for the frequency and impact of these remote appearances, Burica says the contract attorneys are expected to be in court for trial and “bigger motions,” although which motions require in-person appearances is to some degree up to attorneys’ own discretion.176 “Settlements are in person and obviously trial[s are] in person.”177 Attorneys are also expected to be present for pleas in superior court, where felonies are heard, but not in district court, where misdemeanors are heard.178 Attorneys are also expected to be present for arraignments,179 which are held weekly in Okanogan County.180 Burica encourages the contract lawyers to “regularly . . . visit, to meet with their clients,” but those attorneys, she adds, “manage their schedule[s].”181 Burica explained that it “boils down to your professional discretion as an attorney. But is it important that you have counsel sitting next to your client in that courtroom? Like, if my client has to testify, I want to be in the room with them.”182

Burica reported that some clients have complained about having appointed as counsel a defense attorney who is only available remotely. She explained:

They want an in-person attorney, they want a local attorney. And I understand that. But I do believe that having someone is better than, hey . . . there’s only three of us here in person, so your options are buckle up and wait for an attorney or deal with a person who’s remote, because turns out, we need to sleep. And so we can’t take everyone.183

Asked if the judges are concerned about attorneys appearing remotely, Burica responded:

Superior court is being very accommodating. They understand. I think all of the judges understand that this is the world we live in, and that basically we’re going to have to get used to it, that . . . getting people to move out here is very difficult.184

The court exercises discretion over whether out-of-custody defendants are permitted to appear remotely.185 Okanogan County’s district court judges have expressed a strong preference that defendants appear in person, especially when they enter pleas.186 Nevertheless, one Okanogan County District Court judge led the push for a change in the Washington State District Court’s procedures to permit attorneys to appear on behalf of their clients in limited circumstances, with the client’s consent.187

When asked about recruiting defense attorneys to work in Okanogan County, Burica explained:

Even if we had all the money, there aren’t enough defense attorneys and getting them [is hard]. You know, if I have a choice between Bellingham and Okanogan, 90% of the people are going to choose Bellingham. So it’s really hard . . . to find people who want to live in rural Washington. I mean, rural anywhere. But it takes a certain type of person to live, I think, in a rural community.188

In the recruitment notice she placed with both NLADA and WSBA, Burica nevertheless touted the community’s beauty. In a sense, she also touted Okanogan’s poverty, linking the latter to the social-justice motivations of some lawyers: “Great opportunity to live and work in a beautiful rural setting and serve a poverty-stricken diverse population. Spanish speaking attorneys encouraged to apply!”189 The best-compensated attorney among the full-time attorneys who contract with Burica to provide indigent defense in Okanogan County is paid $8,500 per month ($102,000 per year) and lives in Okanogan County.190 Several other contract attorneys are part-time; most certify that they devote 95% to 99% of their practices to indigent defense.191

Burica also linked the challenges she faces in recruiting attorneys to the dearth of housing in Okanogan County:

The housing situation is very difficult. So even if I can find someone who wants to live out here, finding somewhere for them to live is . . . there aren’t a lot of options. And you have to pay [for] that, or you have to pay enough for them to be able to buy a home.192

Burica has partially solved the short-term housing problem by renting an apartment, at her firm’s expense, where any contract attorney can stay when in town for court appearances or to meet with clients.193

The lower caseload limits proposed by WSBA have naturally attracted the attention of Okanogan County stakeholders. The county commissioners discussed the proposed lower caps on public-defender caseloads and the “huge burden” it will put on counties across the state.194 These local elected officials spoke of the need “to hold the state more accountable” and planned to get legal advice on how to do so.195

Ryan Feeney, a part-time contract lawyer from Douglas County who provides indigent defense for individuals charged with misdemeanors in Okanogan County, opined that the new lower caseload limits are not “happening soon enough.”196 He reasoned:

It’s going to force governments to pick and choose what kind of charges they’re going to focus on and to let some of the other ones go . . . . Just because the case load number goes down to 120 doesn’t mean necessarily the police are going to not arrest folks, and so from the defense side, the prospect is, “Okay, we got to bring in a whole bunch more attorneys. How are we going to do that?”

From the government side, the question will be, “Okay, well, are we going to keep prosecuting the law in the same way.”197

Feeney continued:

From a policy and political standpoint, it’s more conservative here. There’s more focus on public safety . . . You know the government is going to have to take a look at well, now we’ve got to employ 20 public defenders rather than 10. They’re not going to take a pay cut, so we have to either increase our overall budget to be able to fund that level of public defense or we have to change the way that we enforce the laws.198

Feeney suggested the high arrest rates for misdemeanors might need to fall. As an example of crimes that should perhaps not be charged, Feeney explained:

[T]he annual Omak Stampede brings in a lot of people on one or two weekends a year and we’ll see just massive numbers [of misdemeanor charges] come through. And we’ve got to deal with that. Now there’s petty crime that occurs. I don’t know if I would say petty, I mean. They’re not minor, but they’re misdemeanor. They are like assaults and thefts, malicious mischiefs, disorderly conducts, drinking in public.

. . . I would say like the lowest level crimes that I deal with are “no valid operator’s license.” You can get charged with a crime in Washington for driving a car from a dealership without a demonstration permit, and I’ll get cases like that and it’s like, why, what are we doing?199

Similarly, law enforcement officials are concerned that the proposed reforms would undermine their efforts. Deputy Prosecuting Attorney Teddy Chow expressed opposition to the dramatic changes proposed to indigent-defense caseloads because, he reasoned, they will put prosecutors out of jobs. His thinking was that prosecutors will have to drop many cases when public defenders are not available to meet the speedy-trial guarantee, eventually leading to a drop in employment of deputy prosecutors.200 Chow also discussed what he perceived as the need to better screen individuals for their entitlement to indigent defense. He described a recent meeting with Burica and Okanogan County judges regarding this matter, reporting a lack of progress toward solutions.201

In fact, Okanogan County has in recent years also struggled to retain an elected prosecuting attorney and deputies.202 The turmoil began when the man elected prosecuting attorney in 2018 resigned from office just two years into his term, citing budget woes that made it difficult for him to run the office effectively.203 That elected prosecutor, Arian Noma, who identified as Black and Native American, also alleged that members of the community engaged in racially motivated intimidation of him and his family.204

Regarding the budget, Noma said his office faced a backlog of cases due to inadequate funding.205 When he resigned, Noma wrote a letter to the citizens of Okanogan County asserting that “Okanogan County’s budget crisis is one of the most pressing dilemmas and threats to public safety.”206 Citing the excessive caseloads carried by two deputy prosecutors handling felonies, Noma asserted that his office needed “at least seven more attorneys and three more support staff to carry out their duties.”207 Noma said he had repeatedly asked the Board of Commissioners for additional funds to hire these attorneys, but without success.208

After Noma resigned, the Okanogan County commissioners hired a local attorney who had at one time worked as a contract attorney providing indigent defense.209 She lasted one year in the post.210 The commissioners next encouraged a lawyer who had previously advised the county on civil matters to apply for the prosecutor’s job.211 When that attorney, Albert Lin, was hired, three deputy prosecutor positions were vacant.212

During the process of interviewing Lin and other applicants for the position, the commissioners raised the salary of the county’s elected prosecutor.213 The Board of Commissioners did so out of recognition of “the county’s difficulty in recruiting attorneys to fill vacancies, the complexity of the work, and compensation for similar positions in comparable counties.”214 What one commissioner referred to as the “stop-the-bleeding” resolution215 passed in November 2022, raising the portion of the elected prosecutor’s salary that the county pays by about $10,000.216 With a state contribution to the elected prosecutor’s salary of just over $114,000,217 the total salary for the position rose to more than $180,000.

Like their indigent-defense counterparts, deputy prosecuting attorneys increasingly live far from the counties where they work. Chow, for example, who heads the prosecution of misdemeanors, lives in metropolitan Benton County, a three-hour drive away.218 He travels to Okanogan once a month, where he typically spends three days working in the office.219 Regarding compensation, Chow commented that he’s never been paid as much as he is earning from Okanogan County, though he previously worked as a deputy prosecutor for several metropolitan counties in the region.220

Okanogan County’s judiciary also illustrates a sort of multi-county round-robin phenomenon with criminal-legal-system personnel in rural Washington. Both of the county’s superior court judges, one appointed in 2022 and one in 2023, are relatively young.221 Both grew up in Okanogan County, and both did contract indigent-defense work in the region early in their careers.222 The 2023 appointee to the bench was serving as elected prosecutor in neighboring Ferry County when she got her judicial appointment.223 When that happened, a Ferry County deputy prosecutor took over there, but he was in that role only a short time before he became the district court judge in Ferry County.224 At that point, a deputy prosecutor from neighboring Stevens County became the indigent-defense contract attorney for Ferry County, leaving a vacancy in Stevens County, which has also struggled to keep a full complement of attorneys.225

Indeed, as this Essay was in production, Anna Burica gave notice that she was terminating her contract to manage Okanogan County’s indigent defense in order to accept a judicial position with the Colville Confederated Tribes, whose territory straddles Ferry and Okanogan County.226 Nearly two months into a 180-day notice period for terminating the contract, the Okanogan County Commissioners voted to bring the indigent-defense function in house.227 In February 2025, they hired the only applicant for the role, who previously worked as a contract indigent defense attorney for the County.228 These recent events in Okanogan County convey a sense of the struggle to keep the legal systems staffed in a sparsely populated county where relatively few attorneys live and work—and where even fewer practice criminal law.

VI. the impact on county government

The situation in Okanogan County—with its knock-on effects in neighboring Ferry County—is unique in some ways, but it is also representative of the challenges playing out in many Washington counties. While the attorney shortage is an important factor, another cause of this crisis is fiscal: county governments bear the lion’s share of responsibility to fund indigent defense, and they also fund substantial portions of prosecutorial and judicial functions. The result is spatial inequality in the provision of indigent defense, which stems in part from variations in each county’s ability to finance this constitutionally mandated service.229

To illuminate these impacts, this Part explores Washington State trends in county-government spending on indigent defense, prosecution, and the judiciary. The data reveal that the rural counties, on average, spend more per capita on indigent defense than their urban counterparts. Nevertheless, the six study counties underspent on indigent defense relative to prosecution to a greater degree than the six largest urban counties. That said, the averages are less telling because of several outliers. Okanogan County and Grant County were outliers at the high end of indigent defense spending relative to prosecution spending, and Ferry County was an extreme outlier at the low end. Rural and urban counties spend roughly the same proportion of their budgets on judicial functions. Finally, revenue from fines and fees made up a miniscule portion of revenue all along the rural-urban continuum.

A. Indigent Defense

Data from the Washington State Auditor and the Washington State Association of Counties reveal that indigent defense is more expensive to deliver in the study’s rural counties than in urban ones, with per capita expenditures about 20% higher in the former. Further, costs have been on the rise in recent years: from 2010 to 2022, per capita spending on indigent defense rose in the six rural counties by 47%.230 Indigent-defense costs escalated at a slightly greater pace in urban counties, by 52%, during the same period.231

FIGURE 2. county share of per capita public defense expenditures in rural and urban counties, 2010-2022232

Meanwhile, state contributions to indigent-defense expenses remained low and unchanged over time, at about $0.77 per case in urban counties and $1.00 per case in rural counties.233

In the six rural study counties, total spending on indigent defense increased more than 50% between 2010 and 2022, from $4.1 million to $6.2 million, while state contributions were virtually unchanged.234 Given the larger populations and caseloads, the six urban counties collectively spent about ten times as much as the six rural counties, but the trend remains the same. Indigent-defense spending increased more than 50%.235 Meanwhile, the state’s contribution increased only marginally.236

As of 2022, the most recent year for which data are available, Asotin County was bearing the greatest per capita cost for indigent defense among the study counties, at $33.65.237 Recall that Asotin has just one contract attorney (volume discount, fixed cost) but pays many others $150 per hour for overflow work.238 Meanwhile, neighboring Whitman County’s cost was an outlier at the bottom end, spending just $8.77 per capita.239 Among urban counties, King County was an outlier at $37.12 per capita.240 These details are in Table 4.

TABLE 4. yearly county figures for per capita spending on indigent defense, 2018-2022241

The rising cost of providing this constitutionally mandated service has caused growing concern among rural county governments. This is reflected, for example, in our detailed description of additional fund allocations in Okanogan County.242 We see similar stresses expressed by officials in other counties.243

Some counties have imposed higher taxes to cover rising costs, but raising revenue through taxation can be a challenge in rural areas. When indigent-defense costs in Asotin County rose 43% in 2023, for example, one commissioner reported that the county would raise its sales tax rate.244 But given that most retail activity in the area is across the state line in Lewiston, Idaho, the commissioner acknowledged that “the revenue bump will be modest.”245 Another nonmetro official, this one on the West Side’s Olympic Peninsula, noted that his county’s revenue-generating potential was limited by the fact that 80% of its land area is owned by state and federal governments.246

Meanwhile, the resultant fiscal constraints on nonmetropolitan court systems have a range of consequences. Budget woes not only hamstring counties’ ability to recruit indigent-defense attorneys and prosecutors, but they also prevent counties from making other criminal legal system investments that could enhance procedural fairness.247 For example, many criminal defendants do not receive mailed notices of court dates due to housing instability.248 While many urban courts have invested in systems to send phone and text-message reminders of upcoming court appearances, none of the rural study counties have this capacity.249 As a result, many defendants miss their court dates. This leaves rural indigent-defense attorneys yet another task: ensuring their clients know of upcoming court appearances.250

Budgetary constraints also prevent local governments from investing in social services that could help prevent involvement in the criminal legal system251 and support system-involved individuals in extricating themselves from the system. Particularly important are services that help individuals navigate the criminal legal system after an arrest,252 including those that provide housing, transportation, and recovery support.253 These appear to diminish the likelihood of recidivism, but they are very often absent from rural areas due to lack of funds.254

B. Prosecution

The fiscal strain that indigent-defense provision puts on county governments is aggravated by the fact that those governments are also responsible for funding significant portions of the prosecutorial and judicial functions. The State of Washington contributes to each county an amount equal to half the salary of a superior-court judge to pay the county’s elected prosecutor.255 The remainder of the costs, including those associated with employing deputy prosecutors, are borne by the county.256

This Section analyzes spending disparities between prosecutorial and indigent-defense functions across jurisdictions to assess whether defense services are adequately funded. First, we looked at parity or lack thereof between the prosecutorial and indigent-defense functions because a lack of parity signals concern that indigent defense may be underfunded.257 We found the spending imbalance between prosecution and indigent defense was greater in rural than in urban areas. In other words, there is a lower degree of parity in the six rural study counties combined than in the six most populous counties combined.

Importantly, in Washington State, each county’s office of the prosecutor also provides counsel to the county on civil matters.258 The data we analyzed, provided by the Office of the State Auditor, do not disaggregate the civil and criminal functions. Thus, we refer to the amounts used in our analysis as “prosecution/legal services” while noting that this category overstates the county expenditures on criminal prosecutions.

Figure 3 compares spending on indigent defense relative to prosecution/legal services in the rural study counties, as well as in the state’s six most urban counties. Specifically, it shows the amount spent on indigent defense per dollar spent on prosecution/legal services.

FIGURE 3. amount spent on indigent defense per dollar expended on prosecution and legal costs in rural and urban counties, 2020-2023259

While indigent-defense spending has increased in recent years, spending on prosecution has risen at a much higher rate, widening the expenditure imbalance.260 In 2020, the study counties spent $0.50 on indigent defense per dollar spent on prosecution/legal services. By 2023, that figure had dropped to $0.30. Meanwhile, urban areas spent about $0.70 for indigent defense per dollar spent on prosecution/legal services.

That said, some rural counties spent a great deal more on indigent defense relative to prosecution, even compared to several of the state’s most urban counties. Grant and Okanogan counties were among the highest spenders on indigent defense per dollar spent on prosecution/legal services. The increased spending in Grant County might be due in part to the ACLU lawsuit, discussed above, alleging that the county’s indigent-defense delivery violated the constitutional rights of defendants. Grant County now has a large and well-staffed Department of Public Defense and currently spends more on indigent defense than on prosecution/legal services—$1.07 to $1.00.261

We have already detailed in Part V how Okanogan County has responded to recent, frequent requests for added funds to support its indigent-defense needs. Indeed, it has done so even as it has also added staff to its prosecutorial/legal services and raised the salary of its elected prosecutor.262 Okanogan now spends $0.81 on indigent defense for every prosecution/legal services dollar—a higher ratio than metropolitan Thurston, Clark, Snohomish, and Pierce Counties.

Meanwhile, Ferry, Asotin, and Kittitas Counties were among the lowest spenders of the twelve rural and urban counties we compared, as shown in Figure 4. Ferry County is not shown in Figure 4 because its reported spending on indigent defense was negligible, just $0.03 to $0.04 per dollar spent on prosecution. Whitman County is not shown because it did not report data to the State Auditor.

FIGURE 4. amount spent on indigent defense per dollar expended on prosecution and legal costs (average of 2020-2023)263

C. The Judiciary

While the state government contributes some funds to the judiciary, counties still bear significant financial responsibility for operating their court systems. The cost of salaries for superior-court judges is split evenly between state and county,264 but county governments fund the entire salaries of district-court judges.265 By one measure, the State of Washington ranks last in the nation for its level of investment in trial courts.266 Regarding judicial expenditures, the data revealed modest differences across the rural and urban counties, with rural counties typically devoting a slightly greater share of their budgets to judicial functions. Roughly 6% of rural counties’ total budgets was spent on judicial functions compared to 5% or less, on average, in the most urban counties. These data are shown in Figure 5.

FIGURE 5. judicial function expenditures as percent of total spending, rural versus urban counties, 2020-2023267

Overall, more than one-tenth of county budgets went to judicial and legal functions (both prosecution/legal services and indigent defense). Differences between rural and urban counties were not substantial. Rural counties usually spent more than 11% of their budgets on these functions, while urban counties typically spent less than 11%, yielding a difference of less than 1% on average. Rural-urban differences in spending on judicial and legal functions were even slimmer when King County was excluded because that county spends less on judicial/legal functions as a share of its total spending, compared to other counties.

FIGURE 6. expenditures on judicial, public defense, and prosecution/legal functions, 2020-2023268

County spending on detention and corrections eats up another 8% or so of total county expenditures. Combined judicial, legal, and detention/corrections thus account for about one-fifth of total county spending, with relatively little variation along the rural-urban continuum.

D. Legal Financial Obligations

Finally, we wanted to understand the role that fines and fees, now sometimes referred to as “Legal Financial Obligations” or “LFOs,” play in financing county governments. We were especially interested in this issue given recent attention by scholars and activists to the incentives local governments have to levy fines and fees as a means of raising revenue.269 Analysis of budget data revealed that court-ordered “Fines and Penalties” for criminal or civil misdeeds (e.g., traffic violations) typically made up less than 1% of 2023 total revenues, across rural and urban counties.270 Although the percentages—and thus the dollar amounts—are very small, court-ordered fines, penalties, and cost-recoupments made up a larger share of rural than urban revenues. On average, these were 0.7% of rural-county revenues and 0.3% of total revenue in urban counties. Yet the variations among the rural counties were dramatic, from about 1.6% of revenue in Whitman County to just about 0.02% in Asotin. The variations among urban counties were far smaller, as depicted in Figure 7.

FIGURE 7. court-ordered fines and penalties as a percent of total county revenue, 2023271

Criminal cases brought in a relatively small share of all revenues from fines, penalties, and cost recoupments—just one-fifth or less, on average.272

VII. how system-involved individuals experience indigent-defense services

Our data suggest that the shortage of attorneys available to provide indigent defense—and perhaps also personnel deficits in prosecutors’ offices—are undermining the fairness of the criminal legal systems in the study counties. In short, the consequence is a certain form of spatial injustice. In interviews, many system-involved individuals described being detained for lengthy periods before they got to appear before a judge.273 Lack of attorneys was not the only cause of delays, with at least one also caused by a judicial vacancy. These deficits aggravated the delays caused by the pandemic.274

The July 2024 experiences of one system-involved individual, observed under the National Institute for Justice grant, illustrate how delays accumulate, including due to the harried and unprepared state of indigent-defense counsel.275 The in-custody defendant was charged with driving on a suspended license and without the required ignition interlock. Because of outstanding warrants in another county, he was charged with a felony. The individual entered a not-guilty plea on July 1, without the advice of counsel, and remained in custody. His next hearing was scheduled for July 9, but he still did not have an attorney appointed. Counsel was finally appointed on July 16, but the attorney mistook the individual for a different client, and he did not realize this new client was in custody. The attorney requested a one-week continuance to permit him to speak to the client; that request was granted, leaving the client in custody an extra week, until July 23. Such custodial periods—due to legal system deficits—are highly disruptive to system-involved individuals’ efforts to stabilize and keep on track their work and personal lives.

Indeed, the jail-booking and release data we analyzed showed that those detained pretrial in a rural jail tended to be confined longer than those held in urban jails.276 For example, among those accused of a misdemeanor and jailed pretrial, 25% in rural jails stayed longer than one week, while 14% remained in urban jails longer than one week. Similarly, for those jailed on felony-level accusations, 36% stayed longer than one week in rural jails, compared to 22% in urban jails. Bail amount, if set, along with ability to pay, are among the factors playing into these differences in length of pretrial confinement. So, too, are attorney shortages and associated backlogs.

Our interview data also provide a textured window into the experiences of system-involved individuals.277 The interviews reveal indigent-defense shortcomings similar to those documented in studies of primarily metropolitan places.278 Among the interview data, fifty participants (71%) discussed working with indigent-defense counsel. Among those fifty, twenty-three (35%) indicated a positive experience with their indigent-defense attorney, while the remainder did not have a positive experience. Reported problems included unprepared attorneys and inability to communicate with one’s assigned counsel until just before a court appearance. Sometimes that appearance was to enter a plea.

This practice is often referred to colloquially as “meet ‘em and plead ‘em.” Interestingly, a federal district court in the Western District of Washington held the practice constitutionally inadequate a decade ago, and it did so using that same colloquial phrase.279 The court there observed that “indigent defendants had virtually no relationship with their assigned counsel and could not fairly be said to have been ‘represented’ by them at all.”280

Sadly, several system-involved individuals reported experiences that closely resemble “meet ‘em and plead ‘em.” Aaron Johnson, a thirty-five-year-old white man living below the poverty line, for example, described the struggle to communicate with his assigned indigent-defense attorney:

The very first public defender I got was completely lousy. He had never met me. . . . I tried, for, like, two weeks to get a hold of him on the phone. . . . I didn’t get to talk to him until, like—like, I showed up to my court date and, like, 10 minutes before I actually went in front of the judge is when I got to see him and talk to him, finally . . . .

Most of the time, if you have a public defender . . . you are probably not going to be able to talk to them on a regular basis. And you are probably only going to be able to talk to them, like, right before you go in front of a judge when you are already at court. So in that respect, the experience has not been positive.

Johnson continued:

And my first [defense] attorney, the first time that him and I even saw each other, he looked at my record—my one theft three charge—and looked up to me and just goes, ugh, you got to—you got to stop stealing. And those were his exact words. . . . And, to say the least, he was not the best public defender I have ever had. And ever since then, I have just stuck with one public defender who seems to like me and has been willing to actually try and stick up for me. She hasn’t always been the most effective at that, but the fact that she is willing to has been great.281

Brenda Huff, a forty-six-year-old Native American woman living below the poverty line, similarly spoke of talking to her public defender only on the days of court appearances.

Lucille Quinn, a sixty-five-year-old, low-income white woman, complained that her appointed counsel didn’t give her advance notice of what would happen at a particular court appearance:

When I went in and was sentenced in court and I had a court appointed attorney and she didn’t even let me know that I was being sentenced that day because there had been continuances and bullshit—you know? And so I didn’t even have a chance to write up something to say to the judge. So it was all, like, extemporaneous speaking.282

Another individual, thirty-three-year-old Brian Armstrong, a white man living below the poverty line, complained that public defenders “don’t even answer the phone when you call.”283 Cora Gibson, a forty-one-year-old white woman also living below the poverty line, commented on both her attorney’s lack of communication and their unfamiliarity with her case:

It is all confusing. Like, my attorney sucked . . . he never talked to me or anything. And, like, when I went to go down to court, he was like what are you doing here? I’m like—And then they called my name, and he was like that’s not my client—oh, wait. Yeah, it is.284

When asked if she had other attorneys who were helpful, Quinn responded:

He was hard to get ahold of. I couldn’t get—you know, he just didn’t know anything about me or my case or anything.285

Several of the system-involved individuals were knowledgeable about the typical pressure on indigent-defense attorneys to plead cases quickly, including the financial disincentives to take cases to trial. Some expressed skepticism that their attorneys’ priority was to represent their best interests. Alan Robbins, a forty-one-year-old low-income white man, commented that his indigent-defense attorney

is doing his job. I don’t want to bad mouth anybody but they are public pretenders is what I call them— you know? Ultimately, they are there to do the bare minimum to push you through the court system. . . . They are just there to basically get you the best plea bargain they can get you . . . basically it is just the attorney there to, you know, more or less be a mediator between you and the prosecutor.286

Robbins concluded that the lawyer is “basically an employee of the court and they act like it.” Thus, he felt the attorney was not really working for him, but instead served the interests of the court. Robbins reasoned that, given what he assumed the attorney was being paid, it was not worth the attorney’s time to prioritize what might be in the client’s best interests.

Another system-involved individual, Clay Nash, a thirty-two-year-old low-income white man, explained:

They appointed me counsel, but the problem is . . . that [a] public defender is not there to defend you. They are there to represent you, get paid, and move to the next case. They are there to make a plea bargain with the prosecutor, because that’s exactly what they are going to do. They are going to walk in and go, “Hey, this is what he did. What can we do to get him to plea out so we can move this along?” . . . So we call them public [pretenders].287

Notably, four system-involved individuals interviewed used the term “public pretender” to refer to the lawyers who provided their indigent defense.

Not all interviewees had bad experiences with legal counsel; some individuals had mixed or inconsistent experiences. Danielle Hunter, a forty-five-year-old mixed-race Native American and white woman living below the poverty line, reported on her positive experience with a public defender, only to lose that representation when the attorney’s contract ended:

I had two different attorneys in [this] County because one public defender—he was doing really good and helping get evidence and everything. But then his contract ended and they wouldn’t renew his contract because they only do contracts in [the] County for public defenders every year. And then they don’t have to re-hire you.288

Hunter was less fortunate with the second public defender:

So it was lucky that I already had [an attorney] working on my case and had all the evidence and then I had friends on the outside that went and got more evidence and, you know, proved stuff. And then basically I ended up presenting everything to the prosecutor and the judge outside of my public defender because, yeah, it was pointless to have him even—when you gave him evidence and stuff, you know, it mysteriously got lost, or this, or that.289

The issue of conflicts of interest also arose in the interviews—in particular, the optics of attorneys playing different roles in neighboring jurisdictions.290 For example, Aaron Johnson, quoted above, recounted how the same attorney who worked as a prosecutor in his county seat served simultaneously as a judge in the municipal court in another town that is just a fifteen-minute drive away.291

VIII. policy implications

A decade ago, the Chief Justice of South Dakota, speaking about the shortage of attorneys in rural areas of his state, commented: “A hospital will not last long with no doctors, and a courthouse and judicial system with no lawyers faces the same grim future.”292 A decade on, we see rural criminal legal systems in some eastern and central Washington counties perilously close to just the fate Gilbertson pondered. In fact, at times when key personnel are lost, some systems seem barely to limp along until the next multi-county, round-robin shuffle of attorneys and judges. Some counties’ systems—typically those of the least populous and most remote counties—are especially vulnerable and unstable. To say there is not a deep bench of legal professionals would be an understatement. In some counties, there is no local bench at all.293

The shortage of local lawyers with criminal-law expertise is only one of the many stressors on these criminal legal systems. Another major stressor is the spatial inequality created by local funding of indigent-defense, prosecution, and judicial functions. When attorneys are reluctant to practice in rural places, higher salaries provide added enticement. Yet nonmetropolitan counties typically have weaker tax bases and struggle to achieve economies of scale in service delivery, leaving them least equipped to bear rising costs. The situation is aggravated by a statewide shortage of attorneys with criminal-law expertise and the need to compete with more populous counties—including those east of the Cascades—some of which are quickly raising pay and offering significant recruitment and retention bonuses.294

One solution that stakeholders have generally embraced is increased use of remote appearances by counsel. This is happening even as defendants are typically required to appear in court in person.295 This hybrid model, where the client is in court but the lawyer is not, or vice versa, can preclude confidential communication between attorney and client because virtual breakout rooms are not an option.296 Further, consequences of attorneys living and working far from their clients seems likely to aggravate the sort of “meet ‘em and plead ‘em” practices a federal district court in Washington has held constitutionally infirm.297 Indeed, in this contemporary, high-tech iteration, defendants may never get the benefit of even a brief face-to-face meeting with counsel, let alone meaningful and confidential communication.

Other deficits associated with the fiscal strictures under which these rural legal systems function may also undermine fairness and equity for the individuals caught up in them. For example, nonmetro counties cannot afford electronic systems, standard in urban locales, that provide reminders of court appearances.298 Meanwhile, other rural service and infrastructure deficits (e.g., in housing, transportation, and drug treatment) further hamstring efforts by defendants to extricate themselves from the criminal legal system.299 Many of these individuals also face civil-justice-system challenges, again with little legal assistance available.300

While institutional stakeholders from the Washington legislature to the Washington State Bar Association are aware of these stressors on rural criminal legal systems, the few actions taken to date have done little to mitigate the problem. As a state, Washington tends to embrace progressive causes, driven primarily by the political dominance of the state’s “blue” West Side. For example, the National Center for Access to Justice assessed Washington as the best state for the progressiveness of its “legal financial obligations” regime,301 an accolade that predated even the state’s reform of its fines and fees regime.302 The data we presented about the meager role LFOs play in financing local government supports this conclusion.303

Even more striking, Washington was the first state in the nation to institute a right to counsel in housing cases,304 and it did so at an annual cost of over $17 million.305 Compare that to the mere $1.6 million associated with S.B. 5780, the legislation passed in early 2024 that aims to improve the pipelines for prosecutors and indigent-defense attorneys.306 Indeed, the legislature recently declined to increase state funding to counties to support indigent defense, and it pared back S.B. 5780 by declining to provide debt relief for attorneys in these roles.307 Yet we have reason to believe that student-loan debt relief308 and benefits associated with employment, such as health insurance, are the sorts of policies most likely to attract recent law graduates to rural prosecutorial and indigent-defense roles.309 So are higher salaries. Indeed, the one state that, for more than a decade, has paid five-year stipends to attorneys to practice in rural locales—South Dakota—has seen a high number of those attorneys remain in rural areas after their commitments to do so ended.310

Most recently, the Washington State Bar Association has proposed to dramatically lower caseload limits for indigent-defense lawyers. This proposal is certainly well-intentioned but, if adopted, would compel rural counties to hire more attorneys to provide the representation remotely, a practice that already raises red flags. Remote appearances by defense counsel are not yet subject to rules that specify what is required in terms of the adequacy of their representation.311 That said, some promising case law is emerging from Washington courts on the right to counsel and confidential communications in virtual proceedings.312 The Washington Court of Appeals in 2023 held that a trial court’s failure to set any “ground rules” for the defendant “to exercise his right to privately confer with his counsel” placed an “unreasonable expectation on a defendant to interrupt a proceeding to assert their right to confer with their counsel.”313

Washington’s established practice of evaluating legislation’s health impacts offers a model for assessing rural equity concerns. Since 2006, the state has regularly examined proposed legislation to assess its health impact.314 The state performed one such assessment on recent legislation reforming Washington’s fines and fees scheme.315 The state could similarly assess legislation or policy proposals for their likely differential impact on rural places, which is also an equity issue. The European Union, for example, engages in the practice of “rural proofing,” which it defines as “reviewing policies through a rural lens, to make these policies fit for purpose for those who live and work in rural areas.”316

Rural proofing the new caseload limits would further highlight the crisis facing rural indigent defense and might prompt greater state investments in this sector. It might also draw attention to another potential solution: the possibility that police cite fewer people for minor infractions and that prosecutors bring fewer charges for the misdemeanors that are consuming so many legal-system resources in some rural counties. Lastly, it would shine a spotlight on the differential burden on rural counties, which typically have fewer means of raising revenue, when such a substantial portion of justice-system costs are borne by county governments. All of these are aspects of spatial justice.

Meanwhile, law schools in the state and region have an enormous opportunity—indeed, a responsibility—to train and produce practice-ready attorneys, specifically including those prepared to go into court as deputy prosecutors and indigent-defense attorneys. This function need not fall to institutions such as WAPA and OPD. The money the legislature has allocated to that pipeline work creates more bureaucracy, and it might be better spent defraying student-loan debt and raising salaries. Law schools should also attend in their admissions to applicants most likely to “go rural,” including those who hail from rural places and are thus often most open to returning to them.317

There is other low-hanging fruit for the state and the counties. Most obviously, employing more attorneys full time instead of merely offering them part-time contract indigent-defense work would have two obvious benefits: it would make them eligible for federal student-loan forgiveness after a decade and for valuable employment benefits like health insurance and retirement schemes. While such a shift would have some costs to counties, the return on investment in the medium-to-long term could be considerable if the changes enticed more newly minted attorneys to give rural practice a try.

Conclusion

Solving the travails of rural criminal legal systems in Washington State will require an all-hands-on-deck approach that engages a wide range of institutional stakeholders, including both state and county governments. This is a moment when many of the institutional actors are aware of the interlocking crises of rural attorney staffing deficits and the acute burden placed on local governments. The State of Washington should prove its commitment to the state’s rural reaches by taking meaningful action—and devoting sufficient resources—to solving both crises.

Lisa R. Pruitt is Distinguished Professor of Law, University of California, Davis. Thanks to Tessa C. Bryce and Madeline M. Cooper for managing the manuscript; to Elizabeth H. Glenski, Simran Chahal, Chloe Fearey, Courtney Patton, Odilia Barr, and Paul Hamann for research assistance; to Refugio Acker-Ramirez and David B. Holt of the Mabie Law Library for indefatigable assistance. We are also grateful for the librarians at the Gallagher Law Library, University of Washington School of Law, who helped us navigate various Washington state institutions. The Washington State Auditor’s Office was particularly responsive to our requests for data. Charlie Alison created the map. For comments on earlier drafts, we are grateful to Jordan Gross, David Raupp, Margaret Raymond, Hannah Haksgaard, Jason Walker, Katrin Johnson, Laurel Arroyo, Keith Moore, Carl McCurley, Brenden Higashi, Brian Farrell, Elizabeth Chambliss, Andrew Davies, Michele Statz, Jessica Shoemaker, Renee Danser, Alison Guernsey, Greg Brazeal, Beth Colgan, Agnieszka McPeak, Jenia I. Turner, and Irene Joe. We also appreciate feedback from participants in the 2024 Law and Rurality Workshop at the University of Iowa College of Law.

Jennifer Sherman is Professor of Sociology, Washington State University. This work was funded by the Vera Institute of Justice, Arnold Ventures, and the National Institute of Justice (Advancing Research on Rural Justice Systems, Award #15PNIJ-21-GG-02805-RESS to J. Schwartz & J. Sherman). The opinions, findings, conclusions and recommendations expressed in this publication are those of the authors and do not necessarily reflect those of the Department of Justice.

Jennifer Schwartz is James F. Short Distinguished Professor of Sociology, Washington State University.

APPENDIX A. methods

The larger research project began by securing participation from those responsible for running county jails and providing law enforcement (i.e., sheriff’s departments) in six counties in eastern and central Washington. Sherman and Schwartz also engaged with others working in the criminal legal system (e.g., judges, prosecutors, defense attorneys, probation officers, social service and treatment providers) and with system-involved individuals who spent time in one or more of the participating jails. For the first wave of data collection, sponsored by Vera Institute of Justice and Arnold Ventures, Sherman and Schwartz began with formalized agreements with sheriffs’ departments to provide local data and for staff to participate in Zoom focus groups and interviews. In subsequent waves, sponsored by the National Institute of Justice, Schwartz and Sherman met regularly with broad stakeholder groups across the study region, conducting periodic meetings that included sheriff’s departments; legal system staff including judges, defense, and prosecuting attorneys; local medical staff; social service providers; and recovery navigators in each county.

This Essay also draws on data from interviews with those who had been incarcerated. The qualitative interview data with system-involved individuals was collected by Sherman in two phases, from July 2020 to August 2021 (n=37) and from November 2023 to May 2024 (n=34). The original study design called for in-person interviews to be conducted at two of the six jails, but the COVID-19 pandemic and subsequent statewide lockdowns forced a pivot to phone interviews with participants who were previously or currently incarcerated in jails across the six counties.

The interviews were open-ended but maintained a similar structure, including sections on participants’ personal histories, criminal-legal involvements, experiences with domestic violence, and background information. At the conclusion, all participants were asked three “reflection” questions that prompted them to think more broadly about themselves and how criminal-legal involvements had impacted them.

Participants were recruited through fliers posted by jails and social-service providers and handed out upon release from participating jails; ads placed in local newspapers, Craigslist, and Facebook community pages; referral by social-service agencies; and snowball sampling. Most interviews lasted between one and two hours. All participants were offered gift cards to either Wal-Mart or Amazon.com, sent electronically immediately upon completion.

Interviews were transcribed verbatim and analyzed with NVivo software, using a modified grounded theory approach that derived coding categories from the themes that arose throughout the study. Multiple rounds of coding were used to create the final schemes, including first focusing on broad categories, then on variation within those categories, and finally on variations in meaning within and between categories. These included coding categories for specific issues like jail conditions or criminal charges; specific experiences like domestic violence or addiction; and interpretations of meanings, such as shame or self-worth.

In the project’s second phase, Schwartz obtained detailed jail data covering 2020-2022 through a data-use agreement with the Washington State Office of Financial Management and Washington Association of Sheriffs and Police Chiefs. The team developed a unique dataset from the administrative jail booking and release information for the six counties and, for a comparison group, the six most urban counties in Washington State. We excluded King County because we do not have jail data for Seattle. The dataset captures each booking (including all charges, categorized by most serious), admission classification (e.g., pretrial, sentenced), and entry/release dates to calculate length of stay. We analyzed pretrial jail bookings, 110,870 in all, which comprised about 75% of the total. The Institutional Review Board restrictions under which the individual-level data were collected required this Essay’s coauthors to restrict access to the data. The data were not viewed nor verified by the editors of the Yale Law Journal.

APPENDIX b. number of active attorneys and population by county, 1999 and 2024318