Oregon public defense report lays out plan for more hires, funds to address crisis

For years, Oregon has left thousands of people facing criminal charges without lawyers.

A draft report released Monday, funded by Oregon’s Office of Public Defense Services, offers an attempt to draw connections between policy decisions, laws and their costs. It points to policy choices like the prosecution of nonviolent crimes such as drug possession, and mandatory minimum sentences as costly aspects of public defense currently in Oregon.

The report, compiled by the consulting firm Moss Adams, found the state needs roughly 500 more attorneys to meet its public defense obligations. It notes that the state can accomplish that by adding 80 attorneys every year, over the next six years.

The report also notes that the agency’s budget would grow from $576 million in the 2023-2025 fiscal year to $1.3 billion in 2029-2031. The agency’s budget is already forecast to grow considerably next year.

During a meeting this week, the state’s public defense commission asked Moss Adams to reduce the number of hours public defenders can devote every year to cases, meaning a final report is expected to show a need for more public defenders and more money.

Both the U.S. and Oregon constitutions require the state to provide attorneys to anyone charged with crimes if a person cannot afford their own lawyer. Cracks in the state’s troubled system began to first show up during the fall of 2021, when it appeared there were not enough attorneys to cover all of the cases. As of Thursday, more than 2,500 people are without an attorney statewide, including more than 100 in custody, according to the Oregon Judicial Department, which updates those figures daily.

In 2022, Moss Adams and the American Bar Association released a report that found Oregon needed 1,888 public defense attorneys to meet its caseload for adult and juvenile cases, but the state had the equivalent of 592 full-time public defenders — a 69% shortage, or 1,296 public defenders.

Related: American Bar Association finds Oregon has just 1/3 of needed public defenders

This latest report finds the state needs far fewer additional public defenders than previously estimated. The Office of Public Defense Services currently has the equivalent of 506 public defenders, according to the report. It will need 986 total — 480 more — by 2031.

Simply adding staff is the most expensive way to address the shortfall, the report notes. But the office’s suggested cost-saving measures to reduce public defender workload would also likely prove controversial.

The report recommends decriminalizing nonviolent offenses such as drug possession, driving with a suspended license and criminal trespass. Doing so “would reduce the demand on the criminal justice system, which would in turn reduce the need for additional attorneys,” the report states.

Recriminalizing drug possession means more public defenders are needed

Just this month, Oregon lawmakers overwhelmingly passed House Bill 4002, which rolled back a 2020, voter-passed measure by criminalizing drug possession once again. Gov. Tina Kotek said she plans to sign the bill into law.

Criminalizing drug possession again is expected to require an additional 39 public defenders per year to the tune of $9.4 million, the report states. That’s something the agency’s leaders told lawmakers as they debated House Bill 4002.

The report also lists seven other bills lawmakers passed during this year’s session that “either create a new crime or increase the penalty of conviction,” thus adding to the total need for defense attorneys.

Another potentially controversial way to reduce the costs of public defense suggested by the report would be “repealing or reforming Measure 11,” the 1994 ballot measure passed by voters to add mandatory minimum sentences for certain crimes.

Related: Oregon’s drug decriminalization experiment appears dead

The report lists nine charges that range from second-degree assault to first-degree sexual abuse that, if removed from Measure 11, might further reduce public defense costs by an estimated in $12.5 million.

In the past, the Oregon District Attorneys Association has vehemently fought against any changes to Measure 11, arguing to lawmakers that since its implementation Oregon has become safer. Criminal justice reform advocates argue it gives prosecutors an advantage when negotiating plea agreements.

The Office of Public Defense Services paid Moss Adams $90,000 to complete the report.