Oregon’s public defense leaders look to long term changes as shortage continues

By Conrad Wilson (OPB)
March 18, 2022 12:38 a.m.

Officials have long rejected a model that would hire public defenders as state employees, but that proposal may have new life as a constitutional crisis continues.

Commissioners who oversee Oregon’s public defense system want to examine and potentially overhaul how the state provides attorneys for poor people charged with crimes. One idea could include moving toward a state employee model, something lawmakers have pushed back against in the past.

During a meeting on Thursday, members of the Public Defense Services Commission said they wanted to take the next year to look at how other states provide public defense. The commission also expressed frustration with its own long-term planning process, led by a consulting group.

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It’s not the first time the state has studied its public defense system or public defense leaders have suggested alternatives, but the possibility of changes comes at a time when some estimates suggest the state needs as many as 1,300 more public defenders to provide constitutionally-adequate services.

An exterior of a window of a modern building.

A view of the Multnomah County Courthouse.

Courtney Sherwood / OPB

At the trial level, Oregon’s entire public defense system is contracted out to groups of private attorneys, called consortia, as well as several nonprofits.

The pandemic has worsened the situation in several counties and exposed significant weaknesses in the state’s current system. For months, Oregon has failed to meet its constitutional obligations to provide public defenders to people charged with crimes. That’s been especially true in Multnomah, Washington, Lane and Marion counties. At times, dozens of people statewide have been without an attorney, some of them in custody. For example, on Thursday, 150 people were without attorneys in Multnomah County alone, court staff said. Of those, 19 were in custody.

Members of the Public Defense Commission are appointed by Oregon’s Supreme Court chief justice. The commission oversees the Office of Public Defense Services, an independent state agency housed within Oregon’s judiciary.

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“I think there’s some interest in the commission to talk big picture stuff, not just finessing mission statements about striving for excellence in providing indigent defense services,” said Commissioner Thomas Christ, a partner at the Portland law firm Sussman Shank. “But considering how we provide them at all, including going to a state (employee) model for trial-level services, that’s big discussion stuff.”

Commissioner Steve Wax, the former federal public defender for Oregon, said he wasn’t sure he was behind a state employee model but said “we may get there.” Wax said the commission needed a facilitator to help them understand other public defense models.

“That person would be able to present to the commissioners and to the staff the experiences that have taken place, whether it’s in North Dakota, or Massachusetts, Mississippi or New York, with different delivery services models,” Wax said.

A 2019 study funded by the Legislature found Oregon’s public defense system was essentially unconstitutional and provided financial incentives for attorneys to take as many cases as possible. While the financial incentives have since been addressed, other concerns raised in the report have not, such as a complex bureaucracy that makes oversight impossible.

Oregon lawmakers have worried about the costs of adding hundreds of state employees to its ranks, especially how that could affect the Public Employee Retirement System, which has historically not been able to cover its financial obligations.

“We all, as a group, want to make some significant improvements in the public defense system in the state,” said Per Ramfjord, who chairs the Public Defense Services Commission and is also a partner at the law firm Stoel Rives.

“I am one of the many people who’s a big advocate for moving to a statewide public defender system. I think that if we’re going to do that, that is a multi-year planning effort.”

Ramfjord said the commission still must address the ongoing crisis, even as it makes long-term plans.

Last month, lawmakers allocated $12.8 million to hire more attorneys in the four counties that have seen the biggest shortage in public defenders.

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