State plans to increase fees to ease public defender crisis
The Office of Public Defense Services developed a plan to allocate $10 million approved by the legislative Emergency Board last year
Oregon is one of the only states in the country that contracts with public defenders rather than paying them as staff. (Ron Cooper/Oregon Capital Chronicle)
Officials have approved a plan for spending $10 million of emergency funding to address Oregon’s public defender crisis, which has left hundreds of people languishing in jails or in the community awaiting legal representation.
Last month, the Joint Legislative Emergency Board allocated $10 million to help the state hire more public defenders. It asked the Office of Public Defense Services to come up with a plan, and in recent weeks, the agency and the commission that oversees it have been discussing the details.
Officials recently finalized the plan and will present it to the state Legislature at the end of the month. It includes increasing the hourly fees paid to public defenders, paying $15,000 to retain public defenders that currently contract with the state and adopting a program to pay lawyers to represent people charged with misdemeanors.
Oregon’s public defender crisis has dragged on for years, and the situation is more urgent than ever. According to the Oregon Judicial Department, about 80 people are in custody awaiting representation and more than 600 are in the community awaiting a lawyer to handle their case.
The lack of public defenders has forced judges to dismiss hundreds of cases, prosecutors say, to avoid denying defendants their constitutional right to representation. The Sixth Amendment requires the state to provide legal representation to those who can’t afford a lawyer.
According to Oregon’s public defense agency, violating the constitutional right to legal counsel and a speedy trial has serious consequences, including wrongful convictions, threats to public safety, and an increase in the number of cases returning to trial years after a conviction.
Until July 2022, attorneys who contracted with the agency on an hourly rate made $105 per hour for murder cases. Since then, the agency bumped up the rate to $158 per hour for attorneys taking on cases of people in custody. Now, the agency will implement a tiered hourly rate, ranging from $125 to $200 depending upon the seriousness of the case, regardless of whether or not the person is in custody.
The retention incentive program will dole out $15,000 over the course of five months, contingent on the attorney reporting back to the agency with data regarding how they are spending their time and money. The remaining budget will be put towards strategic reserves and a program that supervises attorneys outside of public defense who are willing to offer up their services.
Members of the commission that oversees the agency, the Oregon Public Defense Services Commission, have questioned whether the spending plan is the right approach. Max Williams, one of the nine people appointed to the commission by the chief justice of the Oregon Supreme Court, told the agency it needs to collect information about whether these incentives will improve the system.
“We’re betting on what we think is our best shot about behavior and how people react to it, but we don’t really know,” Williams said during a meeting in mid-January with the agency. “All that saying, we don’t have a better set of ideas.”
Jennifer Parrish Taylor, another commissioner, asked whether the agency had surveyed public defenders to gauge their interest in incentives, and other commissioners also expressed doubt whether raising rates and incentive pay would move the needle on the crisis.
Jessica Kampfe, executive director of the public defender agency, said officials lack a process to collect feedback from public defenders. The agency is planning a summit in February to gather ideas from the community.
A recent study showed that Oregon needs roughly 1,300 more full-time attorneys – or roughly three times the number it currently has – to represent everyone charged with a crime who cannot afford a lawyer.
Oregon differs from other states in that it relies entirely on contracts with public defenders rather than keeping them on staff. The agency currently has about 100 firms on contract.
According to the agency, the Metropolitan Public Defender – which has about 90 attorneys and is one of its largest contractors – reported losing nearly 50 attorneys since 2020. Most public defense attorneys reported leaving their practices due to low pay and high caseloads.
“With those losses, it’s difficult for us to hire our way out of this problem,” Kampfe said.
Jesse Merrithew, a longtime civil rights attorney who filed a lawsuit against the state on behalf of four people without representation, said the agency has had problems with retention for years.
“There’s been no accountability in terms of quality of representation,” Merrithew said.
But for Merrithew and other public defense providers, resolving the crisis will require participation from everyone in the criminal legal system.
“I don’t see how we get out of this without the prosecutors starting to be more judicious about the crimes they charge,” Merrithew said.
The lack of public defenders has prompted judges to dismiss cases, including nearly 300 in Multnomah County alone between February and October last year, according to the county’s district attorney, Mike Schmidt. Many were accused of low-level crimes but some involved assaults and personal violence.
Todd Sprague, a spokesman for the Oregon Judicial Department, said not all those cases were dismissed because of a lack of public defenders.
“We have found his numbers to include many cases not attributable to public defender status as well as other errors,” Sprague said.
Schmidt told the Capital Chronicle in an interview that he’s open to negotiating plea agreements at a faster rate and offering less punitive deals. But he said he is largely powerless to make an impact.
“I don’t control their funding,” Schmidt said. “I can’t hire more defense attorneys. I can’t enforce their caseload to see if they really are representing the number of people that they are committing to represent by contract when they take the state’s money. So I don’t really have, I don’t have any levers in this conversation at all.”
CORRECTION and CLARIFICATION: A previous version of this story stated the hourly earnings for a district attorney. The Capital Chronicle has deleted the sentence because it is not comparable to public defender fees. The Capital Chronicle regrets the error. The story has also been updated to make clear that the rates cited refer to attorneys who contract with the state on an hourly basis.
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