By GARRET JAROS/YachatsNews
The passage of emergency legislation providing $96 million to restructure Oregon’s public defense commission may take a while to impact a shortage of public defenders and a significant backlog of criminal cases in Lincoln County.
What kind of impact the infusion of money from the 2023 Legislature will make, when that will happen and whether it will iron out the issues that created attorney shortages and constitutional issues remains unclear.
Spared for much of the past year, the shortage of defense lawyers for people who cannot afford them hit Lincoln County two months ago.
“I have not been able to appoint counsel for indigent defendants since May,” said Lincoln County Circuit Court Judge Sheryl Bachart. “The entire state is facing a crisis where defense attorneys are not accepting appointments on new cases.”
At the end of June, that meant 160 Lincoln County defendants remained in limbo – including eight of them in jail — while waiting for their day in court.
The Oregon Coast Defenders consortium is a pool of lawyers who represent indigent defendants in Lincoln County. It ran out of lawyers to handle the workload in the last half of April, under guidelines set by the state’s Oregon Public Defense Services Commission.
“In other words, the lawyers were tapped out under the system that the bureaucracy created,” said Guy Greco, retired longtime Newport criminal attorney and current administrator of the consortium. “They couldn’t do any more work. Given the workloads imposed they don’t have enough lawyers in the state to do the work.”
The shortage of defense attorneys did not affect Lincoln County until this year because the system has not been in place that long, Greco explained. Under the original paradigm, attorneys were paid by the hour and could work as many cases as they could manage. A later model shifted to a flat rate system which was then modified further to limit the number of cases a defense attorney could accept. While the intention to keep litigators from overwork was good – one of the consequences is shortages in a field already suffering from poor recruiting due to low pay, among other things.
Crux of the problem
The current system has guidelines that determine how many and what kind of cases public defense attorneys can take on during a set amount of time. And there are not enough of those attorneys to handle the number of defendants who need representation. Another issue, at least at the state level, is having lawyers who are qualified to handle the types of cases being charged.
Oregon Coast Defenders had seven attorneys to handle cases for defendants who cannot afford to hire their own lawyers until July 1, when it added another half-time attorney.
It is not enough.
“Given the amount of cases we have and given the amount of restrictions they’re putting on the number of cases people can take, we gotta have 10,” Greco said.
A 2022 analysis by the American Bar Association concluded that while Oregon had 592 contract public defense attorneys, it needed 1,296 to cover the workload.
But filling those jobs is not easy. Unlike attorneys working in the district attorney’s office, public defenders are not highly regarded by the public, Greco said, and they have out-of-pocket expenses to cover office space, insurance, supplies and staff. And they have no pension plan.
“The people who do criminal defense have probably the most stressful job of any, any lawyers in practice,” Greco said. “And the public defenders are probably the most underpaid.”
A pay scale comparison in Multnomah County reveals a new public defender earns about $73,000 while an entry level prosecutor starts around $98,000, according to a public defenders’ union representative.
Constitutional crisis
The shortage of qualified public defenders combined with Oregon’s fixed pay structure creates a constitutional crisis in several ways.
The Sixth Amendment guarantees the rights of criminal defendants to a lawyer and a public trial without unnecessary delay. The Sixth Amendment also cites “effective counsel” as an obligation of the states under the due process clause of the 14th Amendment.
The effective part means not only having lawyers qualified for the cases assigned, it also means not creating a conflict of interest between lawyer and client – whether by encouraging lawyers to work as many cases as possible, which could lead to clients getting short shrift or contracting under a flat-rate pay scale.
The Sixth Amendment Center is a nonprofit that provides technical assistance and evaluation services to policy makers and criminal justice stakeholders. In 2019 it provided a report for the Oregon Public Defense Services Commission which highlighted several problems within the commission.
Among them was that a complex bureaucracy obscured the attorney compensation plan that is “at root a fixed fee contract system that: pits appointed lawyers financial self-interest against the due process rights of their clients …”
Greco uses the example of defending a case that pays the same amount whether the lawyer spends two hours to reach a plea deal or 25 hours to defend the case in a jury trial.
“There is a conflict between the lawyer and the client, because the lawyer is incentivized to work as few hours as possible to make the most amount of money,” Greco said.
Senate Bill 337
Oregon legislators passed Senate Bill 337 in late June with the intention of addressing the shortage of public defenders. The bill, which passed along party lines with Democrats voting for it and Republicans against it, takes into consideration issues addressed by the Sixth Amendment Center.
A few of the measures outlined in the bill are as follows:
- Modify the composition of the commission and move it from the judicial branch to the executive branch;
- Reform the pay structure and increase pay for public defenders, while prohibiting models shown to lead to less effective representation of defendants;
- Set standards for public defenders and report regularly to the Legislature on standards and oversight;
- Update model for employing public defenders, including establishing a trial division within the commission that directly hires attorneys and allowing defense providers across the state to contract with the commission.
- Create regional hubs to address the crisis.
“Oregonians deserve justice, which isn’t possible if cases are thrown out due to lack of attorneys or defendants are forced to sit in jail for far too long without counsel,” said Sen. Floyd Prozanski, D-Eugene, in a release from the state Senate.
No easy fix
Growing fissures in Oregon’s public defenders’ system have been building for years, leading to felony-level defendants being released, picketing by defense attorneys who want better pay and reduced caseloads, and judges threatening to hold the public defenders’ office in contempt for not providing attorneys. Then came the pandemic which only exacerbated the problem.
The shortage of defense attorneys across the country has become endemic, according to the Sixth Amendment Center. A recent lawsuit brought by the ACLU resulted in Maine hiring its first five public defenders. A solution Greco would like to see in Oregon.
Greco is unsure where Oregon lawmakers wants to go beyond what is in SB 337, but said the big stakeholders, “the movers and shakers” in the world of public defense don’t want radical change, just more money, which doesn’t address the capacity issue.
“My suggestion, which may or may not work is many states just have agencies that are public defenders,” Greco said. “In other words, they’re state employees.”
In Oregon no public defender is a state employee. They all work through contracts.
“I’m talking about making public defenders like deputy attorney generals or prosecutors, where you get a paycheck every month from the state,” Greco said. “The state will pay for it for prosecutors, they’ll pay for deputy attorney generals but they won’t pay for it from the defense bar. Why? We are performing a public service just like everybody else.”
- Garret Jaros is YachatsNews’ full-time reporter and can be reached at GJaros@YachatsNews.com