Amid a judicial crisis, Oregon lawmakers consider reshaping the public defender system
The proposal would set up an hourly payment system and put public defenders on staff to bolster their ranks to represent the hundreds of people without legal representation
Oregon lawmakers are working on a plan to address the state’s dire need for public defenders who represent people who cannot afford to hire an attorney.
A person’s constitutional right to an attorney to defend them against criminal charges – and a speedy trial – is at the heart of the issue: 1,000 Oregonians facing criminal charges lacked representation, according to state data as of Friday. Of those, 114 were in county jails, facing charges ranging from misdemeanors to murder. Heavy caseloads and inadequate pay have long put public defender firms at a competitive disadvantage in recruiting and retaining attorneys.
“Oregon’s public defense system is broken,” Jessica Kampfe, executive director of the Oregon Office of Public Defense Services, told lawmakers.
Senate Bill 337, discussed Thursday in the Senate Judiciary Committee, would reshape Oregon’s public defense system by increasing compensation. It would enact an hourly pay structure for some attorneys and hire trial-level public defenders as state employees.
The Public Defense Services Commission, which oversees the public defenders’ office, would hire trial attorneys who usually work under contract, a move that could bolster their ranks.
Oregon has about 600 contracted full-time public defense attorneys, according to a 2022 report by the American Bar Association. That report found Oregon needs nearly 1,300 more.
Kampfe said the bill is a move in the right direction – and one that’s needed.
“The change will be difficult to implement,” Kampfe said. “The timelines are ambitious and we are ready to meet that challenge.”
The bill, if passed, would not change the system quickly. It bill would require the commission to conduct a survey and analysis to set an adequate hourly pay rate for public defenders by April 1, 2024.
The bill also would require the state to hire more public defenders to handle cases at trial. Under the bill, at least 20% of public defenders would need to be employed by the commission by 2031. Currently, trial-level public defense work is usually contracted out, though state attorneys do handle appellate-level work.
By 2035, at least 30% of trial-level public defenders would need to be employed by the state.
Sen. Floyd Prozanski, D-Eugene and chair of the Senate Judiciary Committee, said the state needs to adequately fund the existing system so people are represented while shifting to the new model.
“We need to get attorneys into the courtrooms and assigned to people and have them actually working on those issues as soon as we can,” he said in an interview with the Capital Chronicle.
It’s unclear how much funding – or attorneys – would be needed. The Senate committee is scheduled to vote on the bill on Monday. The budget-setting Joint Ways and Means Committee will need to approve the funding.
Meagan Flynn, chief justice of the Oregon Supreme Court, thanked lawmakers during Thursday’s hearing for their work on the bill.
“I don’t need to tell you that we need to act,” Flynn said.
The bill comes four years after a report by the Massachusetts-based Sixth Amendment Center, which advocates and researches court representation rights. Ordered by the Legislature, it recommended Oregon abolish fixed-fee contracting and the low rate paid to attorneys who don’t have contracts – and pay an improved hourly rate that reflects overhead and the amount needed for pay.
The state of Oregon has a complex bureaucracy, without effective oversight, said Jon Mosher, deputy director of the Sixth Amendment Center.
Commission weighs in
Max Williams, a member of the public defense commission, which would be renamed Oregon’s Public Defense Services Commission under the bill, told lawmakers it supports the changes, provided they are properly implemented.
“We agree that defense attorneys should be compensated on an hourly basis,” Williams said. “That is the most fair and just model for providing representation to the people of this state who find themselves facing criminal accusations and are unable to pay the cost of their own defense.”
Williams added that for the system to work, public defenders need adequate support, including compensation to cover the administrative costs of a transition to hourly billing.
The commission also recommended a phased approach to hourly billing, which would start on July 1, 2025 so the state has more time to develop a system.
The commission also supports the move to hire public defenders as salaried state employees, saying this would support the system.
“The commission encourages the creation of a state salaried strike force to assist providers and courts where there is a gap in service or where caseload and complexity require additional resources,” Williams said.
Williams said the 2035 target for having 30% of public defenders on staff could work, but recommended the Legislature and commission do more research to determine the long-term costs before committing to that date.
Prozanski said the target dates in the bill may be overly aggressive and could change. He said he’s open to considering what else could be done to shift the state toward a model that works.
The changes necessary for the system will cost millions, he said. Lawmakers in December approved $10 million to help the state address the crisis, but acknowledged they needed a long-term plan.
Public defender views
The move to have trial attorneys on staff and paid at rates similar to other state lawyers would help close the pay parity gap, said Michael Rees, a public defense attorney and president of the American Federation of State, County and Municipal Employees Public Defenders Local 3668. The union represents about 80 attorneys in the Metropolitan Public Defender law firm, which serves defendants in the Portland area.
In an interview, Rees said public defenders need better pay.
“You have to make the work more attractive,” he said. “You have to make it more attractive day by day and more attractive as a lifelong career. As it is, our attorneys are disrespected. Every time this comes up in the public debate, there’s some grumbling about the fact that indigent defense providers are refusing to take cases as if we’re just supposed to absorb all of the caseload regardless of the fact there’s too few of us and we’re undercompensated.”
In Coos County, Stacey Lowe runs the public defender’s office.
Recently, she was able to get the starting annual pay for new attorneys raised from $54,000 to about $74,000. That’s enough to attract applicants, but still a challenge, she said in a recent interview.
“Prior to raising it by that $20,000 a year, we had months of zero applicants,” Lowe said. “We just could not get anybody to apply, and we are still down two attorneys from where we would ideally like to be.”
She’s been able to hire a couple more attorneys, but she said, but she’s not been deluged with applicants. Lowe said the contracts limit how many cases an attorney can handle, but the caps are “still ridiculous.” For example, one requires a full-time attorney to handle up to 300 misdemeanor cases a year. That would be the equivalent of trying to resolve nearly one case every workday, which is unfeasible when factoring the time to review police reports and, often, lengthy footage from police officer body cameras, Lowe said.
The heavy caseloads discourage new attorneys who start out enthusiastic about public defender work and then burn out.
“What you end up doing is just crushing the life out of them and they leave absolutely defeated and they don’t want to look at public defense ever again,” Lowe said.
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