Oregon public defender crisis far from over, as lawmakers consider different proposals

If you’re accused of a crime, having the right to an attorney - regardless of ability to pay - is one of your fundamental constitutional due process rights in the U.S. At least in theory. In reality, Oregon - like many states around the country - has long suffered from a shortage of defense attorneys. In 2018 the shortage had become so severe that the nonpartisan nonprofit Sixth Amendment Center, found the state’s system so flawed it could not provide citizens with this fundamental right.

Oregon has taken steps to restructure public defense and provide more funding for more public defenders, but the shortage remains. We talk about what state lawmakers are currently considering and more with Carl MacPherson, the executive director of Metropolitan Public Defender, and Kevin Barton, district attorney for Washington County.

Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. If you are accused of a crime, having the right to an attorney, regardless of your ability to pay, is one of your constitutional rights, at least in theory. In reality, Oregon, like many states around the country, has long suffered from a shortage of defense attorneys. In 2018, the nonpartisan Sixth Amendment Center said that the state system was so flawed it could not provide citizens with this fundamental right. In response, two years ago, lawmakers approved a series of changes to the system. But the problem persists.

According to the most recent state data, close to 4,000 Oregonians facing criminal charges do not have legal representation right now. Some of them are in county jails. About 1,700 more people who never had lawyers and did not appear in court are now facing warrants. We’re going to get two perspectives on this persistent crisis right now. Carl MacPherson is the executive director of Metropolitan Public Defender, which is the largest provider of public defense in the state. Kevin Barton is a district attorney for Washington County. Welcome back to both of you.

Kevin Barton: Thank you.

Carl MacPherson: Yeah, good afternoon.

Miller: Carl, first, last year when federal Judge Michael McShane ordered jails to start releasing people within seven days if a public defender was not assigned to their case, he said the situation was “an embarrassment to the state.” He added this, “It’s a complete tragedy and nobody seems to have an answer.” “Literally,” he said, “we suspended the Constitution when it comes to this group.” I want to just start first with both of you for what this means for various groups. Carl, first, what does this mean for defendants?

MacPherson: Well, it means the defendant’s constitutional rights are being violated. They’ve been violated for years now in Oregon, and they continue to be violated every day and every day that we go forth.

Miller: Kevin, what about for crime victims and for just for all of us, for society and our trust in the legal system?

Barton: Absolutely. In fact, I worry about three groups. I worry about the defendants that Carl mentioned because their rights are being violated. Over 30,000 of them in this crisis have not had lawyers over the years in time. I worry about crime victims, because victims have a right to have prompt resolution of their case and a right to seek justice. Then don’t worry about confidence in our system and also public safety because if we can’t move forward with the case, then we can’t prosecute that case and keep people safe.

Miller: What kinds of cases are we talking about? And, and I should say in the largest numbers ‒ not the edge cases ‒ but the meat and potatoes, the ones that really make up the bulk of this close to 4,000 people now?

Barton: The majority of the cases, the bulk of it, is lower level cases. These are mostly misdemeanors and what we call C felony crimes. And while there are outliers, as you mentioned ‒ significant outliers, examples where we’ve had some really significant crimes ‒ the majority of the cases are in that C felony and misdemeanor level.

Miller: Carl, we’ve been talking about this exact public defender crisis for a number of years now. I mentioned that report from seven years ago now, but not only has this not gotten better in that time, it’s actually gotten worse numerically. What makes this such a challenging problem to solve?

MacPherson: There are multiple factors as to why it’s a challenging problem to solve. Number one, we don’t have enough lawyers in the state of Oregon to do public defense. Secondly, the pandemic created a backlog of cases that we’re still quite frankly working through.

Miller: Still?

MacPherson: The effects of it, yes, most definitely.

Miller: Okay, so not the cases but the knock-on effects?

MacPherson: There are some cases that are still hanging in the system from that time period.

Miller: Wow.

MacPherson: You have had a situation where Oregon, for decades, underfund its public defense system. That is a fact. You have a situation where Oregon had a system in place in which providers were incentivized to be overwhelmed, to take on cases they could not ethically handle. That’s the way the financial structure was, which is what the Sixth Amendment Center report said, that we had an unethical and unconstitutional system. You don’t fix it overnight. And when you add in the pandemic, you add in the explosion of discovery that we’ve had in the state of Oregon and a shortage of attorneys that is all going to contribute to it. So, you have body cam footage, you have scientific evidence, you have cell phone extractions, you have computer extractions, you have this rampant increase in the amount of discovery.

Miller: The information that is shared from the prosecution that both sides are looking at as they’re figuring out how they’re going to approach a case. That’s what you mean by discovery ‒ all the evidence.

MacPherson: All the evidence, correct. And the difference between prosecution and defense is defense attorneys have a client and so we have an ethical obligation and about a third of our time should be spent on client communication, and that requires us to review every single piece of evidence. The American Bar Association says that, before you talk about plea negotiations with the client, you need to have read and reviewed all the discovery in a case.

Well, when that discovery is coming in, we have some counties ‒ not Washington County ‒ but some counties where we’re getting discovery late in cases, it’s not coming in timely, that contributes to it. There’s a lot to talk about this topic.The other issue is the way Oregon is structured as a state, everything gets set for trial for the most part, and there are very few off ramps. There’s very few diversionary programs and options for people outside of having the attorneys on both sides prepare these cases for trial. That is impossible. You can’t do that. You have an overloaded system. It’s overloaded for everyone.

Miller: Kevin, we just heard a lot from Carl. We could spend hours talking about a number of those individual issues, but I’m curious about the big picture, do you have significant disagreements with his diagnosis of the complexities of this problem?

MacPherson: I think there’s a lot that Carl is correct about and is highlighting some really significant factors that are true. There is more discovery now. A case today takes longer and is harder than a case 10 years ago because of the proliferation of digital evidence and things like that. When I look at this crisis, though, I think there’s two things happening at the same time. I think first, there are some long overdue and really important conversations that need to happen about how our public defense system is structured ‒ foundational things ‒ and Oregon needs to address those things. Our system was built decades ago for a reality that doesn’t currently exist today, and we need to have that conversation and make reforms. That’s true.

At the same time, I think there are significant mismanagement factors at play here by OPDC, the state agency that has really poorly managed our public defense system. And I think there are people who have used this crisis as a way, as a means to an end to try and accomplish goals that otherwise wouldn’t be accomplishable ‒ things like pushing for decriminalization once again of drug possession or reducing Measure 11 sentences. And so I think there are people taking advantage of this crisis and making it larger than it needs to be.

Miller: Okay, you’re also getting some issues which we don’t have the space on this show to talk about. We’re not gonna get into Measure 11 mandatory minimums for violent crimes, for example. But let’s stick with some of the basics here, because as you just said, Kevin, you say that this is a clear case where we need to rethink the way public defense is set up in the state. And I thought that’s what lawmakers did, or told us they were doing, two years ago. There were a number of changes that they did, but one of them was to create a new roster of trial lawyers employed by the state, not nonprofits and or not private law firms that are contracted as the so-called consortiums. There are now ‒ I saw in the Statesman Journal ‒ 20 lawyers who are now state employees in offices in Portland, Salem and Medford. Carl, first, what difference has this made?

MacPherson: Yes, so Senate Bill 337 did set a good foundation. The problem is some of the policies of that bill have not been implemented. And secondarily, it still doesn’t solve the problem of not having enough lawyers. In terms of state trial division, it has been mixed results at best. Eleven of those 20 attorneys came from full-time, nonprofit providers. So you had attorneys that were doing full-time work at nonprofit offices going to the state trial division for more money, better benefits, and quite frankly, more importantly, lower case loads. Because the state trial division was following Oregon project numbers, not the contract numbers that we are beholden to, so they had a third or a half the caseload that we do. So you took someone with a full caseload and moved them to a half caseload. That has contributed to the unrepresented.

The other thing that has contributed to the unrepresented population is the advent of the hourly program ‒ the temporary hourly program ‒ which as of March 19th or so, the state has spent $55 million on. That incentivized people to leave full-time public defense to go to the hourly program and take many fewer cases. And what we saw during about an 18-month period of time is that you lost approximately one-quarter of your full-time workforce. That is devastating and is a huge contributor to the situation we’re in now.

Miller: So, the state commission says they need to hire another 79 attorneys every year over a period of six years until they get to their goal of 474 state-employed public defenders. Do you think that would even… If you’re saying that the ones they’ve hired so far have actually led to a reduction in total hours of public defense, would hiring many more then just make the problem even worse or better? Now, this is just hurting my brain now.

MacPherson: A lot of this will hurt your brain. The American Bar Association, which has been around since the 1800s, says that the primary provider of public defense services should be public defender offices, and there’s a reason for that, because we are equipped to do full-time public defense. Metropolitan Public Defender is the primary recruiter in the state of Oregon for attorneys. We’ve brought in 160 attorneys in the last six years. We recruit, train, supervise, mentor, and develop them. So that’s why you want your full-time providers to be in that system.

Adding state trial employees is important if they’re going to do full-time work and equivalent work, and you’re going to eliminate the disparities not just in case loads but also in compensation. But you still want your nonprofits to be your full-time providers as well as consortia because they’re doing the majority of the work and the reality is they are professionals in doing it and it’s more cost effective. To have an entirely state trial division, in my opinion, would be cost prohibitive for the state of Oregon.

Miller: Kevin, another of the changes that lawmakers made two years ago ‒ and that we can talk about this in a way that makes it clear to our listeners about what’s at stake and in a way that’s understandable ‒ but my understanding of what lawmakers did is they said, ‘okay, a part of this patchwork of public defense, especially in rural areas outside the Portland metro area,’ for example, the majority of public defense work is done by private attorneys who have been getting contracts for public defense, and the state said, ‘okay, this is not a great system because they’re getting a flat fee for a set number of cases. So instead, we’re going to get rid of that whole system and say you’re going to now get an hourly rate for the work you do and we’re gonna basically get rid of this private lawyer system.’ What do you think about this idea and what has been happening in the last year and a half since it started being implemented?

Barton: It was a really, really bad idea, and I think the legislature now recognizes that because they’ve moved away from that and it looks as though they’re going to push out the end date for that system that you described. So that private lawyers that are doing really important public defense work throughout Oregon and even in the Metro area. We have those lawyers in Washington County. They’re here in Multnomah County. Clackamas County only uses those lawyers. Clackamas County does not have a public defense law firm. Clackamas County also does not have a public defense crisis. So those private lawyers are really what’s helping Oregon get through this crisis right now, and they play an integral role. So I think that the idea to get rid of them was really bad, and the idea now to give them some more space and to see how that works is a really good possible development the legislature is currently considering.

Miller: Carl, what do you think was wrong with the theory of this? If I recall correctly, the idea was that the flat rate could lead to the exact kind of perverse incentives that that 6th Amendment group was talking about seven years ago, that it may lead to lower quality defense because you can just bump up your numbers as opposed to bumping up the quality of your representation. That was the idea behind this. And now if there’s a bipartisan sense that actually this was not a great idea. What went wrong?

MacPherson: Right. So, the Senate Bill 337 was, I believe, philosophically accurate and correct, and it was a response to the Sixth Amendment Center and constitutional principles that Oregon at the time lacked oversight over the consortia. Because you have individual attorneys that could have individual offices with zero oversight from the state, and because they’re independent contractors, the state was hesitant to assert any oversight over them for fear that because of a lawsuit in Washington called Dolan, that that would make them state employees subject to PERS. So there’s a lot of history here on this topic.

Consortia are important. They’re important because they do work that is necessary for the state. There needs to be an additional layer of oversight, however. With nonprofit public defenders, the state delegates and pays for supervision oversight to us in terms of supervision and training and mentoring, which is necessary, with consortias not set up the same way and so there needs to be an added level of oversight. So I agreed with Senate Bill 337 and what I was trying to do.

The problem was that the timeline was not possible given the unrepresented crisis we’re in and trying to move to an entirely public defense state trial division hourly program, it wasn’t feasible under the circumstances. So that’s why you’re pulling back from it. And we also have data to show the hourly program is extremely expensive and that where unrepresented has continued to increase, so we need the consortia going forward.

Miller: Kevin, let’s set aside then some of the current bills in the legislature. If you could just change this policy yourself, what would you push for? What are your solutions?

Barton: Great. I’ve thought about that quite a bit as we’ve been in year three of this crisis?

Miller: Year seven.

Barton: Well, year seven of the larger crises and three of the acute crises where we have so many people unrepresented. So DA Vasquez and I actually have come up with a list of proposals that we think would give some room to address this issue and create some immediate relief. And perhaps the most important thing is changing what’s called the MAC, maximum attorney caseload. It’s a one-size-fits-all rule that’s been imposed recently by the state on defense attorneys to say that there’s certain limits to the amount of cases that attorneys can cover. We don’t want anyone to be handling more cases than they can ethically handle or more cases than they want to handle, but we know there are many attorneys out there with experience and desire and ability to handle more cases, and right now their hands are tied.

Miller: So you’re saying that right now there are attorneys who say, ‘no this is what the state is. I’m telling you I could ethically and effectively take on more clients,’ and the state is saying you’re simply not allowed to?

Barton: Yes, there is a path now where those attorneys can take on more, but it requires them to go through a number of bureaucratic hurdles, and many of them are simply saying, ‘look, the state’s having us jump through these hurdles and hoops that we’re not going to do that. We want to do more, we can do more, let us do more.’

Miller: Are you talking about a voluntary situation, or would a judge or some state commission say to lawyers, you have to take on more cases?

Barton: No, I’m talking right now. The first thing I would do is let people voluntarily – with capacity, ability and experience ‒ let them take on more cases so that it’s not a one-size-fits-all rule. So if you have a 20-year veteran attorney, that person can handle more cases than a five-year veteran attorney.

Miller: Before we hear your other ideas, Carl, your thoughts on that?

MacPherson: Well, I think what I would put forth is the public defenders of Oregon have solutions. We have a website and solutions that we’ve put forth for months now that also the Oregon Criminal Defense Lawyers Association have also put forth that deal with both policy and budgetary solutions that would help in the short and long term. So I would point people in that direction.

Miller: OK, and I appreciate that and folks who do that but for this particular point that Kevin is making about increasing this MAC here, what’s your response?

MacPherson: I have a lengthy and a short one. I’ll try to do the quick one.

Miller: Okay.

MacPherson: The MAC is a maximum. The MAC greatly exceeds the Oregon project numbers, the National Public Defense Workload Study. It’s much higher than that, double that. It’s double or triple higher than the Washington State Bar Association says should be appropriate for an attorney to handle, and MAC is an arbitrary number. It was based on mostly budgetary concerns. A new attorney in a trial-heavy jurisdiction like Washington County and Multnomah County cannot start their career and handle 300 cases in a year. That’s not possible.

The other thing that MAC doesn’t account for is that you have an open, full caseload coming into the contract year. So on July 1st, when the new contracts start, you’re going to have a full caseload at that point. It’s not like it zeroes out. You still have all those cases,  now they’re expecting all these cases on top of it. My concern is this – we had a system in Oregon that incentivized people economically to take more cases than they could handle, and we had that system up until 2019. Saying that we’re going to exceed MAC, which is already a high number, and allow you to get paid to take more cases, incentivizes people to do ineffective assistance of counsel for clients to get more money. I’m sorry, but it does. Not only does it violate principles of the American Bar Association but it also violates the current statute in Oregon which says explicitly that Oregon Public Defense Commission cannot enact policies that create an economic incentive or disincentive regarding effective representation of a client. So that is my baseline concern.

Miller: Kevin, your other top recommendation. Then I want to hear Carl, your top one.

Barton: Sure. So another idea is, if we have defense firms that are being paid to handle a certain number of cases but they’re coming nowhere near their maximum capacity, their full capacity, they shouldn’t be paid a full amount. So we know there are several defense firms throughout Oregon. I just looked yesterday. There’s some that are handling around 70% of their full capacity, and yet they’re receiving compensation from the state as though they were handling full capacity cases. That’s something that we would never stand for in any other environment where we pay full freight, but we get less than what we’re paying for. And what I would say is if a firm is not willing or able to do what we’re paying them to do, we shouldn’t pay them as though they are, and we should pay them less for that so we can free up those funds to pay other attorneys to come in and handle cases.

Miller: Carl, your response to that and then what you see as the single most effective piece of this large set of solutions.

MacPherson: The single most effective piece would be a focus on policy that reduces the overwhelming nature of this overloaded system we have. There’s multiple policies that go to that. And also focusing on recruitment and retention, which would mean reducing caseload disparity, compensation disparity and also reducing the strain on unnecessary work from public defenders that does occur. There’s a survey that shows the top three reasons why we lost all those individuals from full-time public defense. Number one was compensation, number two is caseloads, and third was emotional strain. You have to focus on that, and I think Kevin and I would agree that there needs to be a greater dialogue statewide and certainly in these jurisdictions with unrepresented crises of the people who are on the ground and really understand the focus of the problem and have those individuals come to the table and sit down and dissect the issues and compromise and understand that there are solutions that we can enact now. We can all do better. There’s no doubt about it, so we all have to agree to that and move forward in that direction.

Miller: Carl and Kevin, thanks very much.

Barton: Thank you.

MacPherson: Thank you.

Miller: Carl MacPherson is the executive director of Metropolitan Public Defender. Kevin Barton is the Washington County district attorney.

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