Oregon's Public Defense System 'Is Not Constitutional' Report Finds

By Conrad Wilson (OPB)
Portland, Ore. Dec. 12, 2018 10:13 p.m.

UPDATE (Thursday, Dec. 13, 3:17 p.m. PT) — State public defense systems are supposed to provide effective counsel for indigent clients — a requirement of the U.S. Constitution. But a draft report obtained by OPB concludes that Oregon's system is so bureaucratic and structurally flawed that it can't guarantee clients are getting the defense they're owed.


The report was completed by the Sixth Amendment Center, a nonpartisan, nonprofit organization, which studies how legal systems across the country are complying with the constitutional requirement.

This week, the report's authors will share the findings with lawmakers and other state officials in Salem.

"I think there are serious problems in the way the constitutional right to counsel is provided within Oregon," said David Carroll, executive director of the Sixth Amendment Center, who authored the report. "I believe it's time to re-evaluate how services are provided and there's a need to do a lot of legislative changes."

The Legislature authorized the money for the report, which cost $193,990. Carroll's group got to work in March, studying nine counties in depth that ranged from Harney to Multnomah.

The findings are bleak. The state lacks oversight of attorneys with whom it contracts to provide public defense services. And the way it pays attorneys encourages them to deal with cases as quickly as possible.

"This compensation plan creates an incentive for attorneys to handle as many cases as possible and to do so as quickly as possible, rather than focusing on their ethical duty of achieving the client's case-related goals," the draft report states.

The Constitution requires a defendant who cannot afford to hire their own attorney be provided counsel at public expense.

"Yet the state of Oregon has no mechanism to know whether it's fulfilling its obligation to provide counsel to the poor who face incarceration in the justice and municipal courts," the draft report states.

Lane Borg, executive director of the state's Office of Public Defense Services, sought financing from the Legislature to commission the report.

"It confirms what we suspected and gives us specifics, which is: The system you have is not constitutional," he said. "And what I mean by that is because the funding model creates an economic conflict between the client and the lawyer that would violate the rules of professional conduct."


Borg is a former public defender who also spent nearly a decade running the Metropolitan Public Defenders, a nonprofit that operates in Multnomah and Washington counties.

"The sole use of independent contracts at the trial level, is making it overly cumbersome to do quality control," he said.

The report recommends making public defenders state employees, or moving to an hourly pay system and away from the flat case rate model the state's been using for more than 30 years.

Oregon lawmakers said Thursday there will be bills in next month's session to address the report's findings, but with the draft report just coming out, they didn't have more details about what those bills might look like.

"We will be addressing issues with the public defense system in this session," Democratic House Majority Leader Jennifer Williamson said in an interview Thursday.

Williamson said lawmakers have not crunched the numbers, but acknowledged the findings as problematic and "unconstitutional."

"Depending on what happens with this report we may be forced to address it in the sessions," Williamson said. "Rearranging the public defense system in the state on its own timeline would take awhile."

The American Civil Liberties Union has sued a number of states over its funding of public defendants: Michigan in 2007, Washington in 2011, Louisiana in 2016, Missouri and Nevada last year, and Idaho this year.

In a statement Thursday, the ACLU of Oregon didn't rule litigation out as a means of addressing the state's public defense system.

"We are grateful to the advocates and legislators who took action to learn more about how our system is treating the poor in Oregon," said Sarah Armstrong, a spokeswoman for the ACLU. "The results are alarming. We support a legislative fix to ensure that all people in Oregon are treated fairly. We also will not rule out litigation."

Williamson said she suspects in one way or another the ACLU will be involved in the process.

"If there is a lawsuit brought by a defendant or any other interested party, I think it changes the timeline potential on getting a new system up and running," Williamson said. "If we are under pressure from the courts to do something faster then that changes the whole calculus."

Carroll presented his findings Thursday to a committee that includes representatives for Gov. Kate Brown and Attorney General Ellen Rosenblum along with district attorneys, state lawmakers, law enforcement officers, judges and public defenders.

On Friday, the draft report will be presented before the joint judiciary committee.

Editor's note: This article was updated Thursday with comments from the ACLU and state lawmakers.