State budget patch will shore up legal defense for now

The Portland Tribune is a KOIN 6 media partner

PORTLAND, Ore. (Portland Tribune) — Now that lawmakers have approved what is essentially a $13 million patch, Oregon leaders have several more months to chart a new course for how indigent criminal defendants get legal representation in court.

The chairman of the state Public Defense Services Commission, which oversees the system now, has even suggested that the state take over the web of public defender offices, nonprofit law firms, consortiums of individual lawyers and private law firms, and sometimes lawyers themselves.

Per Ramfjord made the comment at a meeting a week after the Legislature approved $12.8 million within a larger budget bill to pay for up to 36 new lawyers, plus support staff and investigations. The new positions — half now and the other half in July — would cover more populous counties where around 100 defendants have lacked legal representation, such as Multnomah and Washington counties, which are served by the Metropolitan Public Defender. Others are Lane and Marion counties (Eugene and Salem).

The Legislature already had withheld about $100 million from the Office of Public Defense Services’ two-year budget, allowing the legislative Emergency Board to release it. House Speaker Dan Rayfield, a Democrat from Corvallis whose most recent position was as House co-leader of the joint budget committee, said such withholding is not unusual — but also not common — for an agency facing difficulties.

In addition to Rayfield, Senate budget co-leader Elizabeth Steiner Hayward and Stephen Singer, the agency’s newly hired executive director, attended a pre-2022 session meeting that included Senate President Peter Courtney, Gov. Kate Brown and Chief Justice Martha Walters. The agency falls within the Oregon Judicial Department, which Walters leads; it is outside Brown’s budgetary control.

“We were trying to figure out those next steps we can do,” Rayfield told reporters when the Legislature closed its 2022 session. “You can’t throw a bunch of money at an agency and expect that you will get results. They need to be methodical and thoughtful to achieve what you are trying to accomplish.

“We sure could have thrown hundreds of millions at the Public Defense Services Commission in an effort to try to make things look good. But we wouldn’t be good stewards of public dollars.”

Rayfield, Courtney and Brown are lawyers, although Courtney is on inactive status with the Oregon State Bar.

‘I am embarrassed’

“This is an area I am embarrassed about,” Courtney, a Democrat from Salem, told reporters. “I didn’t realize the magnitude of this mess until this session. I’m glad we have an annual session, because we really made a run at it to try to get it under control.”

The U.S. Supreme Court established in a 1963 case that criminal defendants are entitled to legal counsel in state and federal courts. Oregon’s Robert Thornton was among the state attorneys general who filed their support for Clarence Earl Gideon, the petitioner in Gideon v. Wainwright.

“This is something the media need to ride us on, because if you can’t get the right to counsel, you can talk all you want about a civilized society, but you’re not there,” Courtney said.

“I don’t know if we threw money at it or not. Nobody seems to want to take it on.”

The cost and availability of lawyers for indigent legal defense have been issues almost since the Legislature approved the state takeover of trial courts in Oregon’s 36 counties back in 1981. The takeover took effect in January 1983. Before then, judges were considered state officials, but counties provided the staffing — and counties still provide the buildings and security, although there is a 50-50 fund for courthouse construction. Some counties, faced with rising costs for indigent defense, backed the state takeover.

Twenty years later, in 2003, the Public Defense Services Commission was created to oversee the network of contractors that provide indigent defense. But a 2019 report by the Sixth Amendment Center concluded that the evolving system resulted in problems.

“In doing so, the state has created a complex bureaucracy that collects a significant amount of indigent defense data, yet does not provide sufficient oversight or financial accountability. In some instances, the complex bureaucracy is itself a hindrance to effective assistance of counsel,” the report concluded.

“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.”

ABA report

A January report by the American Bar Association concluded that Oregon should have 1,888 lawyers to provide adequate representation for indigent criminal defendants, but has just 592.

“I believe that with the resources of the Emergency Board, we can tackle it with a Band-Aid,” Brown said. “The challenge is in hiring lawyers.”

Two Democrats voted against the end-of-session budget bill (HB 5202) that contained the extra $12.8 million for public defense services. They were Janelle Bynum of Clackamas, who leads the House Judiciary Committee, and Marty Wilde of Eugene, a lawyer. Both said the amount was insufficient.

As the 2022 Legislature adjourned March 4, Brown said she was not planning on calling a special session on indigent defense before she and Courtney leave office on Jan. 9, 2023.

“I’m trying to make sure that Peter Courtney stays alive through the end of his term,” Brown said half-jokingly.