Oregon lawmakers agree to $12 million band-aid for ailing public defense system

Oregon lawmakers have reached an agreement to temporarily patch the state’s public defense system, which for months has failed to meet its constitutional obligations and instead left some criminal defendants without an attorney.

Gov. Kate Brown and legislative leaders plan to spend an additional $12.8 million through the end of 2023, OPB has learned. The money would go to the Office of Public Defense Services, an independent state agency that’s part of the Oregon Judicial Department. A recent report by the American Bar Association found Oregon has around 1,300 fewer public defenders than it needs to adequately provide criminal defense for people who cannot afford an attorney.

The extra funding would pay for the equivalent of 36 full-time public defense attorneys, as well as support staff and money for criminal defense investigations. Those resources are expected to target the counties where more than 100 indigent criminal defendants don’t have a public defender.

“This is a civil rights crisis,” Rep. Tawna Sanchez, D-Portland, who co-chairs the Joint Committee on Ways and Means, said in a statement. “There are Oregonians who don’t have access to any legal representation and our public defenders are completely overwhelmed. The $12.8 million we are sending to OPDS will help address this urgent problem.”

The funds are a fraction of what’s needed to address the larger systemic failures surrounding the state’s public defense system, which has essentially run out of public defenders in several of the most populous communities. At times that list has including in Lane, Marion, Washington and Multnomah counties.

“We still have a huge amount of work to do to address the chronic underfunding and structural issues that are plaguing our public defense system,” Sanchez said.

A growing crisis

Last fall, courts across the state noticed an uptick in the number of defendants who didn’t have the legal representation they’re constitutionally guaranteed. In December, officials with the Office of Public Defense Services said there were more than 60 people charged with crimes who didn’t have a defense attorney.

Since then, the crisis has ballooned. In Multnomah County alone, more than 80 people were without a defense attorney as of Tuesday, according to court staff. As of Monday, at least 20 people were in custody. In Marion County, court staff said Tuesday 21 people were unrepresented, including three people in custody. In Washington County, eight of the nine people without attorneys are in custody, including one person charged in 2019 with attempted murder. That person has not had an attorney since November.

“Our system is not set up to work well for defendants or lawyers,” said Sen. Elizabeth Steiner Hayward, D-Portland, who co-chairs the Joint Committee on Ways and Means. “We are working on a variety of strategies including addressing some very acute needs related to high caseload in four counties.”

A combination of factors has led to the state’s current public defense crisis. For two years, the pandemic has slowed hearings and trials in parts of the state. At the same time, police and district attorneys continue to make arrests and investigate crimes — which have increased in some communities — leaving some public defenders with hundreds of open cases. Several public defense firms have stopped taking new clients charged with certain crimes, saying the current loads are so high that attorneys risk violating their ethical obligation to adequately represent clients. Still, many in the public defense community have said today’s problems long predate the pandemic and are the result of chronic underinvestment, mismanagement and a lack of political will.

Oregon’s rules of professional conduct as well as the American Bar Association’s Criminal Justice Standards, require defense attorneys to perform tasks such as establishing trust with their clients, keeping them informed and independently investigating the case.

“You’re not to be recommending a plea to your client, which after all affects his or her liberty, without completing your investigation and study of the case,” Stephen Hanlon, the ABA’s project director for its report on Oregon, said last month during a public meeting on the findings.

Put another way: public defense is more involved than an attorney simply showing up to court to represent a person.

‘More work to be done’

Public defense leaders welcomed news of the additional $12.8 million in funding, even if it is far short of a permanent fix. They said the situation in some counties is so dire that they’ll take any help the Legislature is willing to provide.

“Your brain, your body cannot sustain that level of trauma for an unlimited amount of time,” said Shannon Wilson, executive director at Public Defender of Marion County. “By bringing more attorneys in, we’re going to help improve retention for the attorneys who stayed … It’s a glimmer of hope.”

Wilson said their office has had considerable turnover and no applications. They said they recently re-wrote a job description and noted the office is dedicated to reducing the caseload so the public defenders can provide effective counsel. After changing that, Wilson said, they got six applications.

“We have a lot of appreciation for all the folks that are making this happen because it’s so vital for public defense,” said Autumn Shreve, government relations manager for OPDS. “We are in a crisis state and I think these dollars are going to be extremely important for addressing that. There’s more work to be done. For now, it’s a step in the right direction.”

Gov. Brown, who as the head of the executive branch has no oversight of public defense, “convened a meeting” Feb. 7 via video about the ongoing failure to provide a constitutional right to Oregonians.

Brown, Senate President Peter Courtney, House Speaker Dan Rayfield, Steiner Hayward and Sanchez were all in attendance, according to the governor’s staff. Oregon Supreme Court Chief Justice Martha Walters, who oversees the judicial branch, also attended.

The meeting was to discuss “short term funding solutions” for OPDS “in light of the challenges that public defenders continue to face,” Brown’s office said in a statement. “The Governor is supportive of devoting additional funds this biennium to the agency to hire more public defenders.”

Oregon’s chief justice, too, has expressed concerns about public defense in the state. After the ABA study, Walters released a statement, saying public defense “is in desperate need of improvement and support.”

Pay raises

Despite Walters’ stated support for public defense, privately, some attorneys have questioned whether leaders in the judiciary appreciate the harm playing out in many of Oregon’s courtrooms.

On the same day Walters met with the governor and legislative leaders, she testified before lawmakers on behalf of SB 1581, which would raise the salaries for judges, including her. When adjusted for the costs of living, Oregon’s judges are paid the lowest of any state, according to the National Center on State Courts.

“This bill addresses a structural imbalance in Oregon’s justice system,” Walters testified before the Senate Judiciary Committee. “It increases the salaries of judges to make them comparable to the salaries of experienced public-sector lawyers who appear in your courts and to help us recruit and retain a highly-qualified and diverse bench.”

The bill before lawmakers would increase the salaries of judges by roughly $40,000 between now and Jan. 1, 2023. For example, circuit court judges would see their salaries increase to $197,868 at the start of next year. If the bill passes, appeals court and supreme court judges would see salaries that top $209,000 and $213,000, respectively. In total, the bill would spend an additional $26 million on judge salaries through 2025.

Like judges, public defenders argue they are underpaid and overworked, and the public defense crisis is playing out at a time when the state is awash in cash due to higher-than-expected revenue.

The Joint Ways and Means Committee is trying to figure out how to spend an additional $2.5 billion during the ongoing 35-day legislative session. That figure does not include the $750 million the state is carrying over to the 2023-2025 biennium. Steiner Hayward said there are structural issues in the state’s public defense that she wants to fix after this session.

“There are a lot of legislators who care deeply about doing this right,” she said. “I’d like to count myself in that group.”

Without additional funding, it’s unclear how the state could begin to address the tenuous state of public defense in Oregon. In late January, Walters emailed members of the Oregon State Bar and asked attorneys to pitch in and represent defendants who are without counsel.

Of the thousands emailed, OPDS said seven attorneys who responded were qualified to take on criminal defense work. When the agency asked how many clients those attorneys were willing to take, none replied.