SALEM, Ore. (AP) — Facing ever-mounting caseloads, dozens of public defenders in Oregon walked out of courthouses and into the Statehouse this week to lobby for a bill that would fix a staffing shortage and an outdated contract payment system that has some attorneys representing more than 200 clients at once.
A national watchdog report deemed Oregon’s fixed-fee contract system for paying its public defenders unconstitutional this year, and the ACLU has threatened to sue. But sweeping legislation that would fix the problem has been stalled in a state House committee since April — and now two weeks remain before lawmakers go home for the year.
Rep. Jennifer Williamson, a Democrat who sponsored legislation to overhaul Oregon’s system, described the situation as an “absolute crisis.”
“Public defenders are the linchpin to so many parts of our vulnerable communities,” she said. “If you care about foster care, health care, homelessness, our public defenders are at the heart of all of these issues.”
Public defenders play a vital role in U.S. democracy and are paid by the state to represent criminal defendants who can’t afford a private lawyer. Yet in a mounting number of states, as in Oregon, they struggle with overwhelming caseloads, erratic funding and paltry pay compared with prosecutors and private attorneys.
That leads to “massive turnover and burnout,” said Ernie Lewis, executive director of the National Association of Public Defenders, which was founded in part to address the issue.
Missouri, Louisiana and Kentucky are among other states where public defense attorneys have workloads that lead to high turnover, he said, while cities such as Seattle and New York have placed caps on the number of cases they handle.
Under Oregon’s system, the state contracts with a hodgepodge of nonprofit lawyer groups, individual attorneys and private law firms to work as public defenders and then pays a flat fee for each case. There are roughly 650 attorneys who work under 63 different contracts, although the state doesn’t track which attorneys work which cases once contracts are awarded, according to the report from the nonpartisan Sixth Amendment Center.
The amount paid to each contractor varies, and the amount paid varies by the type of case as well, from $565 to $626 for a domestic violence case, for example, to $221 to $255 for a probation violation.
The Sixth Amendment Center report, which was commissioned by the state and released this year, found the system involved a “complex bureaucracy” with a “stunning lack of oversight.”
In one instance, a public defense attorney in the Portland metropolitan area handled 1,265 misdemeanors in a year, not counting nearly 400 other cases such as probation violations and termination of parental rights. Such a caseload should be assigned to four attorneys, according to national minimal standards, the report found.
The center concluded the system’s complicated flat-fee payment structure threatens criminal defendants’ right to due process because contractors have a financial incentive to take as many cases as they can and pick plea deals over trials to churn through cases more quickly.
States such as Idaho, Michigan, Nevada and Washington have banned fixed-fee contracting because it creates a conflict between attorneys’ financial interests and defendants’ rights, according to the report.
“We’ve created a system where we tell public defenders that the only way to get more money is to take on more cases,” said Lane Borg, executive director of the Oregon Office of Public Defense Services. “We don’t measure the outcomes of those cases. In some ways, we’re monetizing failure.”
Williamson’s proposal would drop fixed-fee contracting and replace it with a statewide division staffed by full-time state employees, with technological infrastructure for tracking staffing levels and case outcomes. It would roll out a network of county-based public defender offices to handle 60 percent of all cases, with the rest going to private contractors who would be paid an hourly rate in cases of conflicts of interest.
States with systems similar to the one proposed in House Bill 3145 include Minnesota, Massachusetts, Wisconsin, Missouri, Kentucky, New Jersey and Connecticut.
Critics say the overhaul would add more people to Oregon’s Public Employees Retirement System, which has been accruing billions in debt over the years.
The measure would cost about $50 million to implement, according to a legislative analysis. It’s among a number of campaigns seeking a slice of the state’s meaty budget surplus this year, including proposals to boost funding for higher education, reform the struggling foster care system and improve infrastructure.
The cost of revamping the entire public defender system would likely be at least double that amount, and the legislation is meant to be followed up with another bill during a future session.
Still, any step toward better pay and lower caseloads has public defenders paying attention.
Dozens of public defenders and advocates met at the Capitol this week, lobbying lawmakers and rallying outside with signs reading “Fund justice” and “Support constitutional rights.”
Charlie Peirson, who works in Multnomah County, home to Portland, said last year he had 531 criminal cases, and he currently has 206 on his docket, about 10% to 15% of which are felonies. It sometimes takes him six weeks to meet a client in person, and he works every Saturday making jail visits for his most vulnerable clients, he said.
“My experience talking to my clients is that there’s really only one complaint: My clients don’t hear from me, or don’t hear from me fast enough,” Peirson said. “And I hate that I am, on some level, disincentivized to go to trial.”