“Public defense is in a crisis in Oregon.”
These are the words of Eric J. Deitrick, general counsel for the Office of Public Defense Services, the very agency charged with establishing and maintaining the public defense system for Oregon’s state courts.
Structurally and financially, Oregon’s justice system is set up to favor the prosecution and undercut public defense, jeopardizing the civil rights of people who can afford no other option but to rely on their fundamental and essential right to public representation.
Yes, changing hearts and minds is critical, but this is about rewriting state law.
Deitrick’s statement was testimony in favor of House Bill 3145, which would overhaul the state’s grossly underresourced public-defender system and improve oversight to ensure the right of all Oregonians to legal counsel. The bill is the byproduct of two intensive studies on our system – by the Sixth Amendment Center based in Boston and the American Bar Association – commissioned by the Oregon Legislature in 2018.
In addition to a gross lack of oversight and financial accountability, the studies called out the problem with how public defenders are paid, which they say is unconstitutional.
Unlike the state’s network of district attorneys and prosecutors, the state’s public-defender system isn’t an office of state employees. It’s actually composed of contracts with private law firms, nonprofit organizations and individual attorneys throughout the state. This complex bureaucracy, the Sixth Amendment Center concluded, “does not provide sufficient oversight or financial accountability. In some instances, the complex bureaucracy is itself a hindrance to effective assistance of counsel. Moreover, the report concludes that this complex bureaucracy obscures an 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, and is prohibited by national public defense standards.”
Public defenders – attorneys and investigators – earn between 25% and 50% less than their prosecution counterparts. The fixed-fee structure, which doesn’t take into account the complexities of a case, creates a disincentive for effective counsel.
We can fix this with HB 3145. If it were approved, Oregon would essentially create an autonomous public defense system, establish county and regional public defense offices, and bring on more attorneys and staff to handle the workload. It would bring it closer to parity with the state’s prosecution.
Carl Macpherson, the executive director of Metropolitan Public Defender, the state’s single largest provider of public defense services, told lawmakers that in some counties in the state, prosecutors are paid two to three times more than indigent defense providers.
“We cannot continue to expect more and more from dedicated defenders across the state while simultaneously giving them less and less to do their job,” Macpherson told lawmakers in written testimony.
Furthermore, HB 3145 would rectify at least one element of a racially unjust court system that disproportionately incarcerates people of color and people in poverty. Hannah Holloway, policy specialist with the Urban League of Portland, said black Oregonians are four times more likely than white Oregonians to have a case accepted for prosecution, and three out of every four black Oregonians whose cases are prosecuted receive court-appointed attorneys.
Oregon’s current system has its casualties among defenders as well. The Metropolitan Public Defender, a 70-attorney firm, reported a 30 percent turnover rate in 2018. In the past five years, it reported a 69% turnover rate. Those rates are even higher in less-metropolitan areas. The 12-attorney office of Umpqua Valley Public Defenders, for example, reported a 75% turnover rate last year and a 133% turnover rate in the past five years.
All of this means we are failing the people who need assistance the most. And in the process, not even pausing to learn from our mistakes. This bill would require the creation of new performance measures and specific standards for investigation, review and auditing public defense attorneys. And it would create foundational training for new public attorneys – none currently exists – and require ongoing training and continued legal education to support more complex cases.
To look at the potential in this bill is to realize the shocking level of irreverence we have given to the legal rights of the poor. In our series on court fines and fees, Street Roots documented how even minor infractions – often related to poverty and the inability to pay – are compounded into a lifetime of unnecessary and pointless legal entanglements. From the vantage of people who feel harassed, buried under fines and fees and crippled by unreasonable expectations, the system practically encourages a lack of cooperation or compliance, much less rehabilitation. And we all pay for this negligence in every step down the line.
“When defense attorneys and prosecutors are doing their best work, the citizens of Oregon reap the benefits: People feel that their voices are heard, their confidence in the system and their sense of procedural justice is fostered, and the public safety system is strengthened.” Those words come from the other side of the courtroom, in a statement to Street Roots from Multnomah County District Attorney Rod Underhill’s office.
We’re in the final grind of the Legislature’s 2019 session, a time when every bill hangs in the balance. Lawmakers can’t let this opportunity wither on the vine or fall victim to seasonal politics. Call your lawmaker today and urge support for HB 3145, its full funding and a commitment to public defense as a civil right – for all.