Oregon lawmakers agreed to overhaul the state’s criminal defense system, but their solution left many unanswered questions about how to solve the crisis of thousands of people accused of crimes with no lawyer.
Senate Bill 337 passed the House 17-8 on Wednesday and now moves to the governor’s desk for final approval. Along with the funding package House Bill 5532, which also passed in this week’s late-session flurry, lawmakers have approved a restructured Oregon’s Public Defense Commission, with new rules for how attorneys are provided to indigent clients and roughly $108 million to build up its trial defense services.
“The legislature, through its passage of SB 337 and with significant increased investments, empowered the Oregon Public Defense Commission to ensure constitutionally competent and effective legal representation to persons who qualify for public defenders,” said Jessica Kampfe, director of Oregon’s Office of Public Defense Services. “This is a step in the right direction towards a more sustainable approach to public defense in Oregon.”
Oregon has a shortage of public defenders, a reality that has left hundreds of people without the adequate counsel they’re guaranteed by the state and U.S. Constitution. The state’s system for providing criminal defense is the only one in the country relying entirely on private contracting. Oregon’s public defense structure has been deemed such a complex and inefficient bureaucracy that it can’t guarantee adequate counsel even for those with attorneys.
The bill approved this week requires district judges to develop crisis plans for the more than 300 people currently sitting in Oregon jails with no lawyer, and the hundreds more who are out of custody but still without representation.
But beyond asking for new plans, the legislation takes no concrete steps to secure additional attorneys for unrepresented people, calls for reforms that are several years away and sets a target for hiring new trial lawyers that is more than a decade into the future.
Public defenders within the state are conflicted about whether some of the immediate impacts of the bill will solve the state’s constitutional crisis, or exacerbate it.
Lawmakers, for example, agreed to end the use of state public defense contracts with business consortia, which are made up of private attorneys who handle a set number of cases for a flat fee. Oregon leaders wanted to move away from that model because national experts recommended against offering flat fee public defense contracts, with little oversight, to attorneys who might be working only part-time as public defenders. That system pits the financial incentives for lawyers against the best interests of their clients.
Those consortia currently handle more than half of all criminal defense cases in the state. Under the changes lawmakers approved this week, lawyers in those consortia would have to switch to hourly contracts with the state by 2027 or reorganize as a nonprofit firm.
Jonathan Sarre, director of the Oregon Defense Consortia Association, said he expects the disbanding of consortia will drive some people away from public defense. He sees the nonprofit, state employee or hourly models as less attractive options for many lawyers because they offer less freedom and more bureaucracy than private business.
“At least in the short term, if not the long term, it’s going to result in a net loss of people,” Sarre said.
Sen. Bill Hansell, R-Athena, warned fellow lawmakers about that prospect in May when the bill was in the Senate Committee on Rules. Most of the providers in rural areas like his, he said, operate under the model the state aims to eliminate.
“I’m just scared to death that — the system needs help — it’s just going to make it worse,” Hansell said.
Also unclear is how the state will address the issue of pay to encourage lawyers to serve as public defenders. The bills passed this week include money to provide raises for public defenders, who historically earn less than their prosecutor counterparts. But lawmakers haven’t provided details on the process for determining how that money will be spent.
Ultimately, the legislature opted to move toward a new system that gives the state closer oversight of the quality of representation public defenders provide their clients. That new system includes a new roster of trial lawyers employed by the state. The bill calls on Oregon to provide 30% of all public defense, but not until 2035.
Lawmakers and advocates have been attempting to revamp Oregon’s criminal defense system for years, and they said Senate Bill 337 represents the most comprehensive change they could realistically accomplish.
“There’s much hard work that still needs to be accomplished,” said Carl Macpherson, executive director of the Metropolitan Public Defender in Portland. “But this sets a better foundation for accomplishing that.
The bill was developed in a workgroup formed in response to a 2019 report from the nonpartisan nonprofit Sixth Amendment Center. That report, commissioned by the state Legislature, found Oregon’s system was so structurally flawed that it cannot guarantee clients are getting the defense they’re owed under the Constitution.
After several failed attempts, passing Senate Bill 337 marks the biggest step Oregon has taken toward addressing the public defense crisis.
“We can’t do nothing. We’re not going to get to perfect. But what we have right now gets us a whole lot closer and is designed to pivot as we need,” Rep. Paul Evans, D-Monmouth, who helped draft the bill, said during the Senate floor vote. “I give my word that we will continue to make sure this work in progress gets us closer to a justice system we can all be proud of.”
