A request for millions as state lawmakers consider major overhaul of public defense system

Oregon lawmakers are considering a major overhaul of the state’s beleaguered public defense system.

Ideas have emerged in discussions in a work group that’s been meeting monthly since April to discuss options for replacing the current system. Members include former legislators, public defenders, representatives of Gov. Kate Brown’s office and members of the state Judicial Department.

They’re looking at changing the status of public defenders and how they are paid and creating a new leadership structure. The proposals could radically reshape the Oregon justice system.

“I would not be involved, and I will not remain involved, if significant structural and systemic change is not a part of the equation,” said state Rep. Paul Evans, D-Monmouth, co-chair of the group. “Mere cosmetics and simply giving away more money are no longer an option.”

Evans is a communications professor with extensive emergency management experience, and his counterpart on the work group, Sen. Floyd Prozanski, D-Eugene, is a longtime municipal prosecutor in Lane County.

Prozanski agreed with Evans, saying he’d be very surprised if the work group didn’t ultimately propose reassigning public defense to the governor’s office. It is now overseen by the Judicial Department, which critics say constitutes a conflict of interest.

“That would mean a cleaner separation between public defense and the judicial department,” he said. 

At the same time, the office that oversees the state public defense system seeks more than $6 million from the Legislature to add administrative staff and expand a popular program that provides attorneys for parents and kids involved in custody disputes, according to a memo from public defense deputy director Brian DeForest to the legislative Emergency Board, a group of legislators that meets periodically to readjust agency budgets. 

Officials say this money would help the public defense office survive a chaotic period without a leader until major fixes can be made.

A shortage of public defenders has hampered courts across the country, but the crisis in Oregon is especially acute, with nearly 1,440 criminal cases on hold and 50 of defendants locked up in jail without representation.

Stacey Lowe, director Southwestern Oregon Public Defense Services in Coos Bay, said the impact of each stalled case runs deep. For defendants, it can mean an inability to obtain housing or a job.

Meanwhile victims can face months of uncertainty and a loss of faith in the justice system, Lowe said.

“I’ve had so many calls from random community members trying to find out what is really going on and why this is happening,” Lowe said. “There really is nobody in our community who’s not touched by this.”

States are required by the U.S. Constitution to provide attorneys to people charged with crimes who can’t afford them, though states are largely on their own in determining how.

Different system in Oregon

In most states, public defenders are employed by the government and provided benefits and stable hourly pay – an arrangement that’s similar to prosecutors in Oregon and elsewhere and offers stability. But Oregon has an unusual system for public defenders: The state contracts with a vast array of nonprofit defense firms, legal consortiums and independent attorneys around the state, offering essentially the same pay to everyone regardless of the difficulty of the case. 

Over time, Oregon’s contract system has become increasingly complicated with the addition of a wider array of cases, which has made tracking and managing cases difficult for state officials trying to understand the crisis.

Additionally, Oregon’s public defense office, the Office of Public Defense Services, is housed in the Oregon Judicial Department, which is headed by Chief Justice Martha Walters. Some observers say this arrangement represents a conflict of interest because Walters oversees the contracts of people who practice before her in court. Most states avoid this by housing public defense in the executive branch, under the authority of the governor.

Oregon also attempts to do more with its public defense system than many other states, according to a 2019 study by the Sixth Amendment Center. Over the years, the state has added categories of people who qualify for a public defender beyond what’s required by the U.S. Constitution, including clients filing appeals, inmates objecting to unlawful conditions and parents and kids involved in child dependency proceedings.

As lawmakers look for money to pay public defenders, options could include paring down who is entitled to a public defender in Oregon, according to Evans and Prozanski.

For years, public defenders have faced low pay and overwhelming caseloads. According to the Bureau of Labor Statistics, the average salary for an attorney in Oregon is around $119,000, or about $40,000 to $50,000 more than what many public defenders earn at many nonprofits firms around the state. And they report regularly working more than 100 cases at a time.

That led to an exodus of attorneys to other states and other careers, according to analyses of state public defense systems completed by the American Bar Association since 2014. 

Then the pandemic hit.

In 2020, Walters implemented Covid-related procedures for the courts which slowed hearings statewide, leading to cases piling up.

A report issued in January by the American Bar Association found that Oregon, with around 590 public defenders, had only one-third of the attorneys needed to provide adequate representation to all defendants. Shortly after the report’s release, a new public defense director was hired, and the Legislature approved $12.8 million in additional funds to hire more public defenders. The new director of the Office of Public Defense Services, Stephen Singer, is credited with turning around the New Orleans public defender’s office after Hurricane Katrina. But his time in Oregon was brief and rocky.

In July, public defenders around the state refused to sign the state’s latest annual contract. They were upset with provisions including one that would have required attorneys to travel to cover cases far from home.

The next month, Singer was ousted amid public clashes with commission members and Walters. 

For now, the office is being run by three senior staff members. A job description for the next director will soon be approved by a nine-member board that oversees the office.

Prozanski told the Capital Chronicle that all options are on the table for addressing the crisis. Probable scenarios include making public defenders government employees and relocating the Office of Public Defense Services to the executive branch, he said. 

“I personally feel the judicial branch should not be encumbered by having contracts over people who appear before them in court,” said Prozanski.

David Carroll, an expert in indigent defense structures in the U.S., agrees with that assessment. Carroll, director of the Sixth Amendment Center in Washington D.C., is advising the work group. His center studied Oregon’s system in 2018 and ultimately found its complex bureaucracy led to overloaded public defenders unable to provide adequate representation as required by the Constitution. He advised the state to do away with its contract-based system and pay public defenders more.

“I told your lawmakers, ‘Your system is a house of cards that could easily fall apart in a stressful situation,’” he told the Capital Chronicle.

Request for $6 million

The Office of Public Defense Services has asked for $6 million of the Emergency Board in its next funding round. A part of that is $300,000 to fund three additional staff members dedicated to improving tracking and managing cases, a recommendation of the Sixth Amendment Center study.

The office of public defense also wants $5.8 million to expand a program, the Parent Child Representation Project, that serves clients in child dependency cases – one of the legal fields facing the steepest attorney shortage. It pays public defenders so they can hire social workers and legal assistants to assist in child dependency cases. The program is credited with positive outcomes, including reduced foster care placements and increased instances of family reunification, and is popular with attorneys.

The money would enable the project to expand to four more that are among the most impacted by the attorney shortage, according to DeForest’s memo – Jackson, Lane, Josephine and Clackamas.

But Prozanski and Evans think the office’s Emergency Board requests show its priorities are in the wrong place. 

“I think the real priority is making sure we have more defense attorneys able to assist the people right now who do not have effective defense,” Evans said.

Evans also opposes funding the representation project. He said the state should first meet its constitutional obligations before providing public defenders that are not required by the U.S. Constitution.

“There are things that are important to do. And there are things that are necessary to do,” Evans said. “I’ve always been a believer that you do the necessary before the important.”

The Emergency Board meets next week. The work group will continue meeting monthly through the 2023 regular session, which begins in January.

“I’m very hesitant to say where we’re going,” Prozanski said, adding that he just wants to make sure the state gets it right and doesn’t have to address more problems with the public defense system in five years.

CORRECTIONS: After the pandemic hit in 2020, Chief Justice Martha Walters adopted Covid-related procedures that slowed judicial proceedings. A previous version of this story misstated that the courts paused hearings. Also, as director of the Office of Public Defense Services, Stephen Singer reported to the Public Defense Services Commission, which oversees contracts with public defenders. A previous version of this story wrongly stated that Chief Justice Martha Walters was his supervisor and that she oversees public defender contracts.