As Oregon Tries To Fix Public Defense, Potential Lawsuit Looms

Earlier this month, Multnomah County Circuit Court Judge Kathleen Dailey took the bench in her seventh floor courtroom in downtown Portland.

“Make sure you talk with your lawyer,” Dailey said. “There are only a couple lawyers helping all of you. They can only do one case at a time, so this process does take patience.”

Dailey was overseeing treatment court, a program for nonviolent offenders with drug related arrests. The idea is to keep these defendants out of jail and use the threat of criminal charges to make sure they go through treatment.

“Quiet please,” Dailey said, raising her voice.

For the usual order of courtroom, the proceeding was chaos.

Multnomah County Sheriff’s Office deputies brought in a half dozen men chained together wearing blue jail scrubs. Several dozen other defendants who are out of custody sat in rows of benches along the back of the room, waiting their turn.

Many of the defendants were meeting their lawyers for the first time.

The U.S. Constitution guarantees everyone accused of a crime the right to have an attorney – even if they can't afford it. But many in the legal community say Oregon’s public defense system has been broken for years. Despite record revenues and a relatively low-price tag needed for a fix, state lawmakers are struggling to agree on a path forward.

At the center of the courtroom circus in Portland is Kacy Jones, a defense attorney with the Metropolitan Public Defenders, a nonprofit that provides legal services in Multnomah and Washington counties. She usually has around 200 clients and is responsible for making sure they make it to court.

“The people I’m representing are typically deep in their addiction. Not all, but the vast majority certainly are usually houseless,” Jones said. “Keeping track of dates, times, phone numbers is a challenge for them.”

There used to be two attorneys who split the caseload, each working on it part-time. But now, Jones works alone.

“This is my whole world,” she said. “This is what I do.”

A lot of Jones’ job looks more like that of a social worker than an attorney. She spends most of her week calling people – often without success — to make sure they show up at court.

That leaves little time for the legal work. Jones said if there was a second attorney who was also working full-time on the caseload, she would have more time with each client.

“We can do more peremptory investigation and researching motions and just working up the cases a whole lot more,” she said. “As it is, my main goal is quickly assess the cases so I know loosely what we’re working with, and then trying to contact people. The time for the other things is a luxury.”

Earlier this year, a 238-page report from the nonpartisan Sixth Amendment Center outlined major issues with Oregon’s public defense system, showing in essence the state was violating the U.S. Constitution.

“When we got looking at how these contracts actually function, we really found some big problems,” said David Carroll, the center’s executive director.

At the trial level, public defenders in Oregon are contract employees with the state. Even nonprofits like Metropolitan Public Defender get the bulk of their funding from a state contract.

The problem, Carroll said, is that the state pays a flat fee per case, essentially putting the interests of the attorney in conflict with their client.

No matter how complex the case, or how long a trial lasts, public defense attorneys are paid the same for most felonies and every misdemeanor. The model incentivizes attorneys to take on as many cases as possible and work through them quickly.

“The state of Oregon created this complex bureaucracy to oversee the right to counsel,” Carroll said. “But that bureaucracy, at its root, was hiding the fact that they really had no oversight either of the quality of representation or of the financial accountability to taxpayers.”

In February, the state agency that administers contracts for trial-level public defenders, the Public Defense Commission, adopted the Sixth Amendment Center’s findings. Starting next year, Oregon will do away with flat fee contracting.

A bill working its way through the Legislature would go even further, codifying the change in law. Under House Bill 3145, the state would create county and regional public defense offices. Over the course of several years, the state would essentially hire more than 900 public defenders, paralegals and other staffers.

“But that’s not the biggest change,” said Lane Borg, executive director of the state’s Office of Public Defense Services.

“By getting in line with constitutional mandates around caseload standards and training and data collection, it will change our understanding of what our public defense model is really doing in the state,” he said. “Like a few other states, we’ll be able to see whether or not representation is effective.”

Borg said statistics like recidivism rates can show whether there’s improved public safety. He also argues tracking case outcomes will demonstrate whether public defense clients are better off because of representation.

If the bill was approved, the state would need to develop caseload standards. Most attorneys would get better pay, too, on par with attorneys at the Oregon Department of Justice. They would also get better training when they start.

And that type of training, according to attorneys, is crucial in preparing new staff taking on public defense.

“I had my first trial I think my third or fourth week on the job,” said Tristen Edwards, an attorney who works in the misdemeanor unit at Metropolitan Public Defenders. Degrees from Harvard and NYU Law School hang on the wall of her office. She said she went to law school to become a public defender.

“Everyone was so overworked, no one could even come and supervise me,” she said of her early days. “I have never experienced a level of stress that immense.”

Edwards said the jury at that first trial found her client guilty.

“If I had had just even a supervisor, or even a more senior attorney sit council table with me and just make sure that I wasn’t doing malpractice,” Edwards said, “it would’ve been really helpful.”

The bill to fix Oregon's public defense system passed out of the House Judiciary Committee with bipartisan support last month. It's now sitting in the Legislature’s budget committee.

“It does need to pass,” said Sen. Floyd Prozanski, a Democrat who chairs the Senate Judiciary Committee. “We do need to start taking steps that many of us realize should’ve been taken sooner than 2019.”

If it passes, Borg said funding public defense is going to cost around $160 million in new money over several budget cycles to fully rollout. That money would be in addition to the office’s roughly $340 million budgeted for the next two-years.

The Office of Public Defense Services is asking the Legislature for $50 million for the next two years to get changes started in seven counties.

But the request is competing with a lot of other budgetary priorities for state lawmakers, such as education and infrastructure.

A May 16 letter from House Speaker Tina Kotek indicated that lawmakers may be looking to spend less on the project than many lawyers had hoped. In the letter obtained by OPB, Kotek asked what Borg’s agency could accomplish with $20 million to $25 million in new money.

Borg responded, saying they could start the process of turning Yamhill and Marion counties into offices staffed by public defenders who are state employees.

A spokesman for Kotek said they haven’t yet seen the response, but added $50 million may not be feasible.

It’s not clear if $25 million would be enough to put Oregon’s public defense system in compliance with the Constitution.

“I am frustrated by the letter and concerned,” said Carl Macpherson, executive director Metropolitan Public Defenders.

He said his clients have been historically oppressed and marginalized. And he noted the state has record revenues. Oregon is expected to take in $2.1 billion more this year than economists predicted two years ago, though, $1.4 billion might be returned to taxpayers through Oregon’s kicker law.

“Public defense for decades has been underfunded and under-resourced,” Macpherson said. “It reiterates we truly do not have equal access to justice in this country. We have two justice systems: one for the wealthy and the privileged, and one for those who are not.”

The American Civil Liberties Union has sued 15 states over public defense issues. While they have not said yet whether Oregon could be next on that list, they are watching how things play out here.

“There are big problems in Oregon’s current system and we need lawmakers to enact a solution that address all of its existing deficiencies,” Mat dos Santos, the legal director of the ACLU of Oregon, said in a statement.

House Majority Leader Jennifer Williamson also supports the legislation.

“We know that our system is unconstitutional,” she said. “If we don’t pass something in the Legislature, it will go to the courts.”

Williamson said she would rather see her colleagues act than have a federal judge oversee how the state rebuilds a system designed to make sure the least wealthy defendants are treated fairly.