Meaningful fixes to deficiencies in Oregon’s public defense system will have to wait until another Legislative session — or a court order.
Lawmakers on Wednesday stripped much-sought changes from a bill that would have fundamentally altered how the state represents indigent defendants, a system that a nonpartisan group recently found was likely unconstitutional.
In place of those reforms, House Bill 3145 will now create a task force to further study the issue and report back to lawmakers about the state’s best options for improving its system.
Though the amendment moved forward with little discussion in a hearing of a budget subcommittee on capital construction, it represents an enormous blow to public defense advocates, who believed this was the session Oregon might take meaningful steps.
“Every good defense attorney has experienced defeat and loss, and I would be disappointed in myself if I was not feeling bad about this loss,” said Lane Borg, executive director of the state’s Office of Public Defense Services.
The gutting of the bill might raise the likelihood that groups like the American Civil Liberties Union of Oregon or the American Federation of State, County and Municipal Employees Council 75 will sue Oregon to force improvements. Similar lawsuits have spurred changes to public defense in states around the country.
The issue of inadequate public defense has long been a topic of worry in Oregon. But it became more urgent earlier this year when a report from the nonpartisan Sixth Amendment Center found that the state is likely denying poor defendants the defense they’re owed under the U.S. Constitution.
Among its findings, the report found the state had inadequate oversight of the public defenders it contracts for services and that flat per-case fees incentivize lawyers to take on more cases than they can responsibly handle.
Public defense providers have complained for years that the system was inadequately funded, leading to poor pay, high burnout rates and a risk of poor representation. To register the urgency, public defenders in Portland have walked off the job and temporarily stopped accepting misdemeanor cases in recent days.
“We’re just at the breaking point,” said Daniel Bouck, executive director of Umpqua Valley Public Defender in Roseburg. “I keep losing attorneys to private practice.”
As it stood before Wednesday’s hearing, House Bill 3145 would have implemented many of the Sixth Amendment Center’s recommendations, directing officials to establish limits on the number of cases that public defenders could take on, and to move away from flat-fee contracts.
But the bill would also have fundamentally reshaped the state’s defense system. It would have moved oversight of public defense system to the governor’s office, rather than the judicial branch. And it could have resulted in the state hiring up to 900 new employees, as Oregon moved away from contracting for public defense and instead employed more of its own attorneys. Beginning that changeover could have cost the state up to $50 million in the next budget.
The magnitude of the shift, it appeared, was too great for lawmakers to tackle in a session where a new business tax, changes to the state pension system, new efforts to fight climate change and other weighty — and controversial — issues have dominated. Advocates learned Tuesday evening of an amendment that would replace HB 3145.
The bill now merely creates a 17-member task force that will study Oregon’s best options for improving public defense, with a report on the matter due by the end of 2020. It will need to pass out of the full budget committee before moving on to the House and Senate.
The amendment drew the rebuke Wednesday from Rep. Mike McLane, R-Powell Butte.
“I’m in a bad mood because we know what we need to do and we’re not doing it,” McLane, a lawyer who is leaving the House soon to become a judge, said in the subcommittee hearing. “And the public defense service needs to be funded. It needs to be funded because it’s our constitutional obligation.”
He pointed out that the state had just commissioned a detailed study of its public defense system — the $193,990 Sixth Amendment Center report that had helped spur action this session.
“We’ve already done this work,” he said.
House Speaker Tina Kotek said she was providing a “courtesy yes” on the changed bill — a signal she’d go along with the change but did not agree.
“I believe the House has been very clear this session on the need to send a message to our folks in public defense that we need to do more,” Kotek said.
The speaker also hinted in her remarks that there would be more action on public defense this session. An additional $20 million for public defense services is expected to appear in a “Christmas tree” bill, essentially last-minute legislation tying up a number of budgetary loose threads before lawmakers adjourn. That could help quell concerns over inadequate funding, but wouldn’t address more fundamental shortcomings in the state’s system.
Kotek said after the hearing that sweeping changes to public defense might have been unpalatable for lawmakers who didn’t feel “up to speed or in the loop.”
“The advocates have been asking for a very large amount of money,” she added. “Then it becomes, ‘Well how much could we do?’”
Kotek said she would support pushing another bill addressing the matter in next year’s abbreviated legislative session — ahead of the report from the proposed public defense task force. “But we’ll see.”
Public defense advocates were still huddling to plan next steps in the wake of Wednesday’s changes. Both the ACLU of Oregon and AFSCME Council 75 have said they could opt for a lawsuit to force lawmakers’ hands, but there was no suggestion one was imminent.
Borg, meanwhile, worried the new wording of the bill could preempt his office from making improvements to the public defense system for another two years.
“The agency still has a responsibility to run a public defense system, but given the language of the amendments I think there is an interpretation that mandates staying with the case rate system that was discredited by the [Sixth Amendment Center] report,” Borg said. “That is something I need to determine very soon.”