‘This is going to get worse’: Oregon’s public defense system falters as pandemic continues

Dozens of criminal defendants in Oregon are currently facing charges without a defense attorney.

According to the Office of Public Defense Services, more than 45 people who qualify for a public defender don’t have one. As of Friday, 19 were in custody on pre-trial offenses.

An increase in crime in some counties and nearly two years of the global pandemic have contributed to a strain on Oregon’s criminal justice system. Though the larger issue, public defenders argue, is a public defense system that has long been under-staffed, overworked and inefficient.

“We do not have a sufficient number of attorneys willing to do public defense work to handle the number of cases that we have in Oregon,” said Steve Singer, who last month started as executive director of Oregon Public Defense Commission, the state agency responsible for public defense.

Indigent defense work is much more than just showing up in court to represent an indigent client, said Shannon Wilson, executive director of the nonprofit Public Defender of Marion County Inc. It’s often working through housing, substance abuse, or physical and mental health diagnoses. Wilson said that’s not reflected in the way the state supports public defense now.

“It’s just essentially shifting the liability back to the people that are trying to help: poor people,” Wilson said. “You either care for all people and you think all people deserve basic protections, including constitutional protections, or you don’t.”

The Sixth Amendment of the U.S. Constitution affords all defendants the right to effective counsel. Last fall, courts across the state began seeing an uptick in the number of defendants who didn’t have legal representation they’re constitutionally guaranteed. In December, there were more than 60 people charged with crimes who didn’t have a defense attorney, Singer said.

A history of issues

Historically, there have been times when criminal defendants have been briefly without an attorney, but several public defenders OPB interviewed reported never seeing the problem this sustained.

“It barely worked when everything was running smoothly,” said Jennifer Williamson, a former top Democrat in the Legislature who chaired the House Judiciary Committee. Williamson, who now works as a lobbyist, said she’s received calls from courthouse staff concerned about the numbers of people without a public defender.

“We have not valued this system,” Williamson said. “We do not have a Legislature that understands it. It is always the last thing that gets funded.”

At the circuit court level, Oregon’s public defense system is entirely contractual. The Office of Public Defense Services’ current two-year budget is $440 million. The agency relies on independent providers, nonprofit public defense organizations and groups of attorneys, known as consortiums, to provide services.

“It’s the largest coordinated law effort in the state, and yet we rely exclusively on independent contracts to carry it out,” said Eric Deitrick, general counsel for OPDS. “We are stuck in this contracting system.”

A report commissioned by the Oregon Legislature previously deemed the public defense system so bureaucratic and structurally flawed it couldn’t guarantee defendants were getting the defense they were entitled to under the Constitution. Under its previous contracting model, attorneys were incentivized to take as many cases as possible, rather than focus on the quality of representation.

For some that model proved lucrative, with one attorney netting $461,000 in 2020, Deitrick said. That’s far outside the salary for most public defenders at nonprofits, which range from roughly $60,000 to $95,000 depending on experience.

“It is clear that the contracts currently used in Oregon cause conflicts of interest between the indigent defense attorney’s financial self-interest and the legal interests of the indigent defendant,” the Sixth Amendment Center, a nonprofit the Legislature hired to examine its public defense system, wrote in the report on the system published in January 2019.

As part of the report’s recommendation, OPDS imposed case limits for the first time in January 2021. A full time public defense attorney was limited to 460 misdemeanor or 168 felonies, per year. Several executive directors that run defense nonprofits around Oregon still described those case numbers as being extremely high.

A study by the American Bar Association that’s expected to be released later this month is likely to recommend far lower case numbers, Deitrick said.

Rather than paying per case as it once did, OPDS decided it would pay $210,000 per attorney working full time. For Jessica Kampfe, executive director of Multnomah Defenders Inc., a nonprofit that does public defense work in Multnomah County, that translates into an entry salary of $65,000.

The state is “not funding any administration or management and training costs,” she said.

The funding also doesn’t cover other costs of having an employee, such as office space, health care or retirement.

“What you end up underfunding is professional development and advocacy,” Kampfe said.

Tristen Edwards, a public defender at Metropolitan Public Defender, said attorneys can’t effectively do the work they’ve signed up to do.

“I know so many people from my law school who are in law school now, other attorneys that I know in the community, who would love to do this work, who want to become public defenders,” Edwards said. “It is just not a sustainable and feasible profession.”

Oregon attorneys say the current lack of public defenders is concerning because it comes at the beginning of a new contracting cycle, when there would typically be enough defense attorneys to take indigent clients.

“I would anticipate that over the next weeks and months, this is going to get worse, not better,” Singer said.

A constitutional violation

As the pandemic has dragged on, courts have moved slowly with trials. That’s left public defenders with high caseloads and more cases coming in. For the next several weeks in Multnomah County, there will be fewer public defenders taking new clients charged with some felonies.

“We have an ethical obligation to our current clients and we would be concerned about our ability to provide high quality representation if we were to continue to accept minor felony appointments in Multnomah county,” said Carl Macpherson, executive director of Metropolitan Public Defender.

Prosecutors and criminal defense attorneys agree, there’s no shortage of concerns when it comes to having people charged with crimes and in custody without legal representation.

“The individuals that are without counsel, their constitutional rights are being violated,” Macpherson said. “Particularly people who are in custody.”

Public defenders are required to independently investigate cases they take. As time passes, the witnesses and evidence can become harder to find.

“There’s things that have to happen right away,” Macpherson said. “The system’s in peril when you have clients that do not have counsel.”

The Oregon District Attorneys Association said in a statement that not having a public defender for an indigent client can also delay justice for crime victims, and raises constitutional questions for the court.

Multnomah County District Attorney Mike Schmidt said public defenders play a critical role in the criminal justice system.

“Every defendant has the right to an attorney,” Schmidt said in a statement. “As prosecutors, we can’t do our jobs if that standard is not met. The system is already strained by record caseloads due to COVID-19 restrictions. For each defendant without an attorney, in most cases, there is one or more victims that deserve justice and the ability to move on with their lives who are left waiting.”