Oregon Supreme Court in Salem, Ore., May 19, 2021.
Kristyna Wentz-Graff / OPB
The acute lack of public defenders in Oregon has been nothing short of a constitutional crisis. An American Bar Association study released last year confirmed the state had only a third of the public defense attorneys it needed to ensure the civil rights of those accused of crimes. There were about 600, but about 1,300 more were needed. Defendants have had to be released because there were no public defenders available to take their case, and others are still in jail awaiting representation.
A year and a half later, the nearly $100 million that state lawmakers allocated to hire more attorneys and help restructure the system is beginning to have a positive effect. That’s according to the executive director of the Oregon Office of Public Defense Services, Jessica Kampfe. She joins us to talk about the progress and what’s still needed to ensure defendants’ civil rights.
This transcript was created by a computer and edited by a volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. More than 2,200 people are awaiting criminal trials in Oregon right now without legal representation. Another 143 people without lawyers are awaiting trial while in custody in county jails. A federal judge has intervened, public defenders in Marion County have brought suit in the State Supreme Court, and the legislature has allocated more money. But the immediate problem remains. Jessica Kampfe joins us to talk about this. She is the executive director of the Oregon Office of Public Defense Services, that’s the state agency that contracts with public defense attorneys. Welcome to Think Out Loud.
Jessica Kampfe: Thank you, it’s nice to be here.
Miller: How did we get here? Why is there a public defender crisis?
Kampfe: For decades, Oregon has under invested in public defense. Our caseloads have been too high, and the resources provided to public defenders to do their work have been too low. And as a result, we have seen people that come to this work because they have passion for it, because they want to make the world a better place, walk away from the work when they aren’t able to be effective in representing their clients. And so for a long time, we’ve lost qualified public defenders in Oregon, and we are now starting to try to build back out of that.
Miller: We have been hearing about this crisis for four or five years now. I’m sure the public defenders were talking about it for a lot longer than that, but there was national attention, a watchdog group saying that this is unconstitutional, it’s a crisis, for half a decade. Why are the numbers of unrepresented people still going up? We have many, many more now than last year. Why is it getting worse even though there’s been so much attention to it?
Kampfe: Well, we have invested heavily in bringing more lawyers into Oregon. Some years ago, there was a report that came out that said that Oregon had about a third of the number of lawyers that it needed to meet the need for all Oregonians. And in response to that, our commission has been working very hard to recruit more lawyers to come and practice public defense in Oregon. We started 15 months ago with about 401 full time caseloads of public defense work in Oregon, and we’re on schedule now to increase that by more than 23% fifteen months later. And so we’re looking at in October being able to contract with 493 full time caseloads. So we have been making concerted efforts to bring more public defenders into Oregon to address that ongoing need.
Miller: So that’s work that’s being done now. But why is it that there is something like three times more people without representation last month than 13 months ago? In one year, there was a gigantic increase. I’m wondering why that is?
Kampfe: Certainly, there was a gigantic increase in the number of people that were without counsel. And part of that has to do with changes in the way that public defense is allocated in the state. We went through a study that found that the way that we contracted with public defenders was unconstitutional because we were paying people for every case that they took, and we weren’t paying them very much for each case. And that pitted the lawyer’s interest in making a living wage against the client’s interest in having their case fully litigated.
Miller: Meaning there was an incentive for lawyers to take more cases, even if it meant they couldn’t actually do those cases justice, as opposed to paying them per hour just to work on cases?
Kampfe: That’s right. And we are moving to a system where we will be paying people per hour. Right now we’re in somewhat of an in-between space where we’re buying a portion of an attorney’s practice. So we’re paying for a full time public defender, or we’re paying for a part time public defender. And the state has set caseload standards, whereby we have an expectation that the maximum amount of, say, misdemeanor cases that a full-time public defender could handle would be 300 new misdemeanor cases in a year.
Our caseload standards are quite frankly high compared to other states and compared to what is expected to be new national standards that will come out later this fall. But when we moved from that system that actively incentivized lawyers to take too many cases to a system that paid people for the portion of their practice that they’re devoting to public defense, it really laid bare the lack of public defenders that we’ve had in Oregon. And that ended up resulting in people not having access to counsel. We are working to repair that by bringing more lawyers into Oregon, and by making efforts to retain the existing lawyers in the practice.
Miller: We so often call this a crisis, but I’m curious what this means for two groups of people in particular. First of all, what does this mean for people who are facing misdemeanor or felony charges who don’t have counsel?
Kampfe: Public defense clients are often very vulnerable people. And we know that, say, People of Color are overrepresented in our criminal justice system as well as among our public defense clients. And so any time that public defense clients don’t have access to a lawyer, it creates equity problems for Oregon, and it creates access to justice problems for Oregon.
For people with misdemeanors and minor felony cases that don’t have access to counsel, the consequences are real. If they are not in custody while they’re awaiting trial, they may have other restrictions on their liberty, things that say that they can’t go to certain places or can’t be around certain people. And those have real life consequences for them even if they’re out of custody. It means a lot of uncertainty until we’re able to secure a lawyer to represent that person.
Miller: What do you think this means for victims of crime?
Kampfe: For victims of crime, it means that they’re not able to have their cases fully adjudicated and it has consequences throughout the public safety system. Public defense is an essential component of public safety, and if we don’t have a high functioning public defense system, then we don’t have as safe of communities as we could.
Miller: As I noted briefly in my intro, this issue has been working its way through state and federal courts in different ways. I just want to take the federal one first. Can you give us a sense for what Judge McShane ruled, and what this means?
Kampfe: Sure. It is a new space for Oregon to be in to have people sitting in jail without access to a lawyer for an extended period of time.
Miller: Sometimes for weeks and weeks or months, that’s what the state data shows.
Kampfe: That’s correct. And because this is a new space, there hasn’t been any legislation or previous judicial opinion saying how long somebody could wait in custody without a lawyer before they need to be released from custody. And so the new federal case ruling gives us a deadline essentially, that if a person is being held in custody without a lawyer for more than 10 days, the court needs to release them from jail. That doesn’t end the prosecution. The charges aren’t necessarily dismissed. But the person can’t be detained without a lawyer.
Miller: There’s also a case brought by Public Defender of Marion County, which is asking the Oregon Supreme Court to direct circuit courts to dismiss criminal cases when public defense attorneys are not available. And I should say to dismiss them without prejudice, meaning that they could be brought again. Do you support this?
Kampfe: I think that the issue is one that’s pending in front of the Supreme Court and one that I’m not in a position to take an opinion on at this point in time.
Miller: As the leader of the state agency, you can’t. Okay. You were once a public defender. What would you have thought about it then?
Kampfe: I would say that being without a lawyer has important consequences for somebody’s liberty, whether they’re in jail or not in jail. And that at the point that a person is charged with a crime, that’s a critical stage in a proceeding in which they are entitled to counsel, and that there are very good reasons why they ought to have a lawyer at that point in time.
Miller: I want to turn to the legislature because in the most recent session at the last minute, which is the case for so much of what lawmakers did this year because of the Republican walkout, lawmakers allocated around $100 million as part of an effort to deal with this problem. They also made some structural changes which we can get to in a second. What is that money going to go towards?
Kampfe: We were very fortunate that the legislature saw the need to really make a systemic investment in public defense, and we’re incredibly grateful for that investment. About $40 million of the $100 million is going to the trial level services. And within that spectrum, we have an 8.8% inflationary increase that our intention is to pass along to current providers to be able to stabilize the workforce. We saw public defenders leaving the practice because they were under-resourced. Our commission made efforts to increase compensation for public defenders using one time emergency funds through retention and hiring incentive bonuses. We’re hoping to be able to make those kinds of increases more permanent by passing through that inflationary cost of 8.8%.
Miller: Is the pay for Oregon public defenders very different from those, say, in Colorado or Washington State or California?
Kampfe: It’s really difficult for the state to say what the pay is for public defenders, because we contract for all independent contractors to perform public defense work. And those contractors, while they may get a set amount of money to do the work from the state, they have to then decide how they’re gonna staff their offices. So the amount that we pay for a public defense caseload includes all of the overhead expenses that a public defender has. The state has invested in creating state employees for public defense, this will be the first time we have trial level public defenders who are state employees, and that will allow us to have an apples-to-apples comparison with other states and within our state with groups like the Department of Justice lawyers.
Miller: What’s the timeline for that? Because you’re talking about setting up and staffing a whole new set of state employees.
Kampfe: The legislature gave us very tight timelines because this is a priority. And so we are hiring for a director for those offices right now. The intention is to have the first office that is serving the Metro region in October of this year, and the second office that will be in Southern Oregon in December of this year.
Miller: Are you on track to do that?
Kampfe: We are on track to do that.
Miller: What’s the difference between public defense nonprofits and private firms known as consortia when it comes to this work, and when it comes to state contracting?
Kampfe: So both the private bar and the nonprofit public defender offices are critical parts of our current service delivery system. The nonprofit public defender offices tend to be larger law firms, and they employ lawyers who are doing 100% public defense work. The consortias are a mix of what types of practitioners they have. There’s some solo practitioners, some smaller law firms, and they are all private bar lawyers who do a mix of private retained cases and public defense cases.
Miller: I saw from a rural Oregon lawmaker who voted against these changes the concern that the changes in state contracting, which I think he said are well intentioned, could mean that some private law firms that currently have been getting contracts to do defense work may decide to opt out of it. And so an effort to sort of stabilize the system could in fact upend it, that was his argument. How concerned are you about that?
Kampfe: Well, we’ve certainly heard that concern voiced. The new legislation is modeled after legislation that was passed in Massachusetts some time ago, whereby we would continue to work with the private bar and the part time public defenders, but through an hourly billing model instead of through a flat fee contracting model. And hourly billing is something that already happens in the private bar very commonly. Most Oregonians when they go to hire a lawyer are gonna pay that lawyer hourly. And by paying the lawyer hourly, that gives the customer accountability and transparency for what they’re buying. That’s really important because in public defense, the public defense clients don’t get to choose their lawyer, the state appoints a lawyer to represent them. And that means that the state is responsible for providing that kind of consumer protection. And so by moving to an hourly model, the state’s gonna be able to ensure better accountability, transparency, and oversight, not only for the clients, but also for the taxpayers.
Miller: What’s the chance that a year from now, there will actually be fewer people who do not have legal representation, either awaiting trial in jail or out in the street? That things are actually truly going to be visibly better one year from now?
Kampfe: I think that we are on track to make significant improvements in the unrepresented persons crisis. We saw at its peak Oregon had 397 people in jail without a lawyer. And that was just this past June. Now in August, we’re down to 144. That’s way too many people without a lawyer in jail. But it’s progress.
In addition to creating state public defender offices that are targeted at representing people who currently don’t have counsel who are in jail, we’re increasing the number of public defenders that are coming into Oregon and increasing the compensation for public defenders. And we think those efforts will pay dividends.
Miller: Jessica Kampfe, thanks very much.
Kampfe: Thank you.
Miller: Jessica Kampfe is the executive director of the Oregon Office of Public Defense Services.
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