by Ben Botkin, Oregon Capital Chronicle
October 2, 2024
Thousands of Oregonians face criminal charges and do not have an attorney to represent them.
About 160 of them are sitting in jail. Another 3,550 people are out of custody with no representation as they face charges. The figures underscore a persistent problem: Oregon has a shortage of public defenders, who represent people when they are charged in court and cannot afford an attorney. It’s a constitutional crisis because people have the right to an attorney when charged if they cannot afford one.
Without representation, cases are delayed or dropped – or defendants are not well represented. When an overworked public defender cannot thoroughly review police camera footage or other evidence, the defendant does not get an adequate defense.
In recent years, state lawmakers have tried to address that by restructuring the Oregon Public Defense Commission and temporarily raising the hourly rates of public defenders. In 2023, lawmakers put $96 million toward the crisis. But more work is necessary to shore up a frayed and complex system that often struggles to recruit and retain attorneys, both because of high caseloads and low pay.
New commission programs have increased the number of public defenders and more people are being represented, but little progress is being made.
“Despite numerous initiatives, the in-custody list remains consistent, while the out-of-custody list has grown,” Jessica Kampfe, executive director of the Oregon Public Defense Commission, wrote in a July report to Gov. Tina Kotek. “Thus, although the commission has taken steps to address the constitutional crisis, the problem remains significant and will only fully improve when we have adequate funding.”
Kampfe echoed the need for more money in a briefing with state lawmakers on the House and Senate judiciary committees last week.
Long-term goal
The commission aims to eliminate the number of in-custody people who lack representation by the end of March 2025 and end the out-of-custody backlog of unrepresented people by the end of March 2026.
In the short-term, the commission has a 90-day plan that includes redirecting eight trial attorneys the agency received for drug cases through House Bill 4002 to help with the backlog. The law created a new misdemeanor drug possession charge that took effect Sept. 1. The commission also wants to extend a temporary increase in hourly rates for attorneys, which would cost another $40 million for the rest of the current budget cycle.
Public defenders are paid and work through a variety of formats, such as contracts, nonprofit public defender organizations and the commission’s trial division.
Since 2023, the commission has opened three trial division offices throughout Oregon to help the backlog in different regions, including the Portland area, southern Oregon and the mid-Willamette Valley. With 14 attorneys, they have closed 180 cases and have another 359 open cases.
But overall, the plan is for the number of attorneys to grow, from the equivalent of 506 full-time attorneys now to 986 in six years. That’s another 480 attorneys, or an average of 80 annually.
For the next two years, the commission wants to hire 160 attorneys to work in a variety of ways, whether as state employees for the commission or attorneys who work on contract.
Through House Bill 4002, lawmakers intended for people to access drug treatment programs and avoid misdemeanor drug possession charges. But not everyone will access those programs, and more people will be charged because of the recriminalization of low-level drug possession.
When the bill was debated early this session, the Oregon Criminal Justice Commission analysis estimated it would lead to nearly 2,300 more convictions annually.
“What we will be looking at and I think what we have to be considering is what is that impact and how do we address that?” said Sen. Floyd Prozanski, D-Eugene and chair of the Senate Judiciary Committee.
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