Oregon Public Defense Commission details multi-pronged efforts to stem public defender crisis

In the last few years, the state has come under intense criticism from civil rights advocates for its failure to provide constitutionally mandated defense attorneys to people charged with crimes if they cannot afford them. A 2022 report by the American Bar Association found the state had barely a third of the lawyers it needed to represent defendants who qualified for a public defender. Since then, lawakers and state officials have significantly increased capacity and made structural changes aimed at remedying the crisis, including providing additional funding — but challenges remain. In May the 9th Circuit Court of Appeals affirmed an earlier ruling in the Betschart case that mandates that defendants may not be held in custody for more than seven days without a lawyer.

The Oregon Public Defense Commission, formerly known as the Oregon Office of Public Defense Services, has hired about a dozen trial-level public defenders in three offices around the state, the first such attorneys who work directly for the state as employees, not contractors. On Wednesday, Executive Director Jessica Kampfe presented a plan to the Commission that would increase that number by 40 in the next year and also extend a temporary program that raised the hourly rates of the defense attorneys the state contracts with to represent defendants. Kampe joins us to explain the changes that have already been made in the public defense system and the changes she expects over the next 10 years.

This transcript was created by a computer and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The state of Oregon has come under intense criticism from civil rights advocates in recent years for its failure to provide constitutionally mandated attorneys to defendants who cannot afford them. Over the last year or so, lawmakers and state officials have provided additional funding and made some structural changes. The Oregon Public Defense Commission has hired about a dozen trial-level public defenders around the state. And on Wednesday, the commission’s executive director presented a plan that would increase that number by 40.

Jessica Kampfe is that director. She joins us now to talk about the challenges the system is still facing and the efforts to address them. Welcome back to the show.

Jessica Kampfe: Hi, Dave. Thanks for having me. It’s nice to be back.

Miller: I want to start with one of the metrics that we’ve talked about in the past that folks have paid a lot of attention to because it’s a really striking one. It’s people who are awaiting trial, but awaiting trial while behind bars, while in county lockups, and don’t have representation. How many people fall into that category right now? And how many did in recent years at the height of these problems?

Kampfe: Currently, I believe we have about 130 people who are in custody waiting for a lawyer who don’t have one. At the height of the problem, it was significantly higher than that, I think it was around 300 or something.

One major improvement that we’ve made is that the amount of time that somebody is in custody waiting for a lawyer has come down significantly. Back in February of 2023, when it was at its worst, if somebody did not get a lawyer at their first court appearance, they were waiting on average 38 days in jail without a lawyer. According to the Oregon Judicial Department’s report for July of 2024, that wait time is now down to 10 days in jail. So we’ve put systems in place and brought more lawyers into the system in order to take representation on those cases, and been able to bring that number down significantly.

Miller: What are the systemic changes that are in place now?

Kampfe: So we have really attacked this problem from a number of directions. We have invested in bringing more public defenders into our contracts and stabilizing those public defenders by investing in training and supervision to be able to retain them in the work. And we are seeing that those training and supervision investments are helping to retain public defenders. Looking at retention, it is still a problem in the state. Statewide, our contracted public defenders brought in 113 new lawyers last year, and a year later, only 25% are still in public defense. But if we look at just the misdemeanor …

Miller: Wow, so a 75% attrition rate?

Kampfe: Statewide, for contracted public defenders, yes, but the numbers get a lot better when we look at the misdemeanor lawyers that were brought in. Statewide, we brought in 36 misdemeanor lawyers, and a year later, 28 are still in public defense. So we actually have the reverse. We have a 78% retention rate with those newer lawyers. And we’re attributing that in large part to the investments that we’ve made in training and supervision to support those folks and to keep them in the practice. So that’s one system change that we’ve made. We’ve invested in bringing more people into our contracts, and then invested in stabilizing those contracts through creating training and supervision programs.

Miller: Have you changed the way compensation works?

Kampfe: For our contracted providers, there hasn’t been a great deal of change in the way that compensation works, but that’s just one of three branches of our public defense system. So the second branch of our public defense system is our hourly panel attorneys. About a year ago, there was legislation passed that directed the agency to stand up an hourly panel and we’ve been working to do that. Historically, about 1% of public defense was done by lawyers hourly. Now we’re doing about 10% of Oregon’s public defense hourly.

Miller: Hourly, as opposed to by the case?

Kampfe: Hourly, as opposed to under a contract where a contract provider gets paid a lump sum and then they go out and hire people who are on salary to do those cases. So these are people that are working directly with the state. They have attorney agreements directly with Oregon Public Defense Commission. They’ve agreed hourly rates and we’re compensating them for the number of hours that they’re working on each case.

We have rolled out a new program called our Temporary Hourly Increase Program that targets in-custody persons who are unrepresented. We pay higher rates of pay for lawyers and investigators that are providing representation under that program. It’s been wildly successful and it shows that stabilizing our hourly rates has allowed us to bring a lot of new lawyers into public defense. We currently have 212 active lawyers that are working on this panel system, and they’ve provided representation on 6,200 cases and represented about 4,300 clients through this program since its inception. So that’s been a really targeted tool that we have used very successfully to reduce the time that somebody’s waiting in custody for a lawyer.

Then the third branch of public defense that we’re building up, that we’re really excited about, is a new program for the state of Oregon, which is state trial offices. We’ve stood up three state trial offices. We did that in about six months’ time, with the first one starting in December of 2023, and our third office opening in May of 2024. And we’re providing representation in sort of three geographic areas: Southern Oregon, the Mid-Willamette Valley, and the Portland metro area.

Miller: Maybe this is hard to answer because there are three different ways of paying for these public defenders – three different systems – but in general, how does pay for public defense compare to prosecutors? Is there something close to parity?

Kampfe: For our contracted public defenders and our hourly public defenders, we are not close to parity yet, but we are achieving those goals in our state offices. Oregon has a statute that says that professionals that do similar work in different divisions need to be compensated similarly. And so our hourly lawyers are on track with the Department of Justice and with the appellate department. We are in a space of working towards parity within those offices, and we need to be working to elevate the rest of the system to the same space, because that’s how we’re really going to build stabilization in the future.

Miller: Because that’s really where the vast majority of this work is coming from, right? I think it’s something like a dozen state lawyers right now. But you’re talking about thousands of hours from the other public defenders. What have you heard from lawmakers in terms of an interest in raising the hourly rates for the other lawyers?

Kampfe: Well, the lawmakers passed a statute a while back – it was a big piece of reform legislation – and part of that statute required that the agency go out and do an economic survey. We completed that task and brought that economic survey in front of our commission. It looked at what the market match is for lawyers and looked at similar government entity lawyers that are doing this kind of work, and it came up with a market match rate for public defenders.

Our commission has adopted that rate and we’re going to be going to the legislature this session and asking them to invest in that new market match rate for public defenders. We would apply that rate both to our contracted providers and to our hourly public defenders. And that’s work that the legislature directed us to go out and do. So now that it’s completed, we’re going to be going back and asking for those investments.

Miller: Over the last year or so, we’ve had a couple conversations about Oregon’s changes to the paralegal system and the hope that that could – especially for family law or civil work – make various kinds of legal help more available for many Oregonians. Is there anything equivalent when we’re talking about public defense, other kinds of work that can be done by people who are not lawyers that can ease the burden we’re talking about?

Kampfe: Yes, absolutely. We’ve just completed a study on how we can build out a workload model for public defenders in Oregon. Now, our statute tells us that we have to implement a workload model. And so we’ve gone out and completed this study and we have a six-year plan to implement our workload study. That plan includes increasing the number of lawyers that we have that are working in Oregon so that we can adopt national caseload rates for public defenders, which is key towards being able to provide constitutionally competent and effective legal representation for our clients. But there’s two other parts of that plan that are equally important.

The second piece is building out the core staff for public defenders. These are professionals who are not lawyers that work in public defender offices. And they include investigators, case managers or social workers, paralegals and legal assistants. And by rounding out the skills that we have in public defender offices, we can move non-lawyer work that is critical for public defense advocacy to non-lawyers who are more effective and efficient in delivering that …

Miller: And cheaper as well, I imagine.

Kampfe: Yeah, they are. It is a cost savings writ large to the system to be able to diversify our workforce.

Then the third prong is looking at the intake valve for public defense and the kinds of cases that are getting charged, and making decisions about what our public safety priorities are.

Miller: That seems like a prosecutorial question, right? I mean, is that something that your commission has any say in – the spigot of who enters the criminal justice system to begin with?

Kampfe: You are 100% right. It is us swimming a bit outside of our lane. Public defense relies on a workforce of compassionate individuals that do this critical work, but we also rely on public safety partners like district attorneys, judges, sheriffs, police officers. And we’re never going to really get out of this crisis unless we have buy-in and support from our partners because we can’t control the intake valve.

Miller: Well, I’m sticking with this metaphor of the intake valve. It seems like the recriminalization of drug possession could just add more water to that pipe. I mean, how might that – the serious overhauling of voter-passed Measure 110 – affect everything we’re talking about?

Kampfe: We are bracing ourselves for a really large impact to our unrepresented crisis from the recriminalization. Our current total number of unrepresented persons in Oregon is around 3,000 – I think it’s about 3,200. And of that, 1,900 are misdemeanors. So more than half of the current list is already misdemeanors. People charged with misdemeanor crimes are waiting out of custody for lawyers right now. If we increase the number of misdemeanors charged in Oregon, we really don’t have the workforce in order to support those increased charges. We really need to partner with our other public safety stakeholders to decide what are the greatest public safety needs and where we need to put our limited resources. Because if we increase case filings, we’re going to see that list increase unless we make those kinds of hard decisions.

Miller: If you were talking right now to a DA instead of me, what would you tell them in terms of how you want the rollouts happening right now, as we speak, all across the state? What are you telling DAs in terms of what you want?

Kampfe: When the legislation first passed, there was a commitment from a number of district attorneys to create these deflection programs where people could get services before they got brought into the criminal justice system. I think emphasizing keeping people out of the criminal justice system and delivering services on the front end before they need a lawyer is going to be a good way to decrease the impact to the public defender shortage and to get people services quickly. If people have to wait a long time to get a lawyer, they’re also waiting a long time to get those services that they need and that’s critical. To the extent that we can front load it outside of the public defense system, that’s really good.

These are local public safety prioritization conversations and they should be happening with community members that are impacted. People need to be making hard choices about where they want to put their resources. If they’re going to put their resources on providing representation to people accused of drug charges, know that that means there are other case classes that we’re not going to be able to prioritize.

Miller: Jessica Kampfe, thanks very much.

Kampfe: Thank you.

Miller: Jessica Kampfe is the executive director of the Oregon Public Defense Commission.

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Editor’s note: An earlier version of this story misstated the number of state-employed defense attorneys the Oregon Public Defense Commission proposes to hire. The commission plans to hire 40 more for a total of 52.