by Mark Wilson
Oregon’s 592 contracted public defenders, in a state with more than 4.2 million citizens, amount to just 31% of the attorneys needed to represent the state’s indigent criminal defendants, according to a two-year study by the American Bar Association’s Committee on Legal Aid and Indigent Defense (“ABA”) and accounting firm Moss Adams, which was funded by the Oregon Legislative Assembly. The state needs an additional 1,296 public defenders to provide constitutionally adequate representation, researchers determined.
The findings come as no surprise to the state’s public defenders. “We need more than three times as many attorneys as we currently have to do a constitutionally effective job on cases or we need the prosecutor’s offices around the state to file fewer cases—or both,” said Brook Reinhard, executive director of the 26-lawyer non-profit Public Defenders Services of Lane County. “We have too many cases.”
The ABA agrees. It analyzed Oregon’s historical public defense caseloads, calculated the average time public defenders should spend on specific types and determined whether more resources are needed. The study ultimately found that the state’s public defenders risk violating state legal ethical rules every day due to their excessive caseloads.
Oregon is the only state in the nation that contracts out nearly all of the state’s public defense work to more than 100 non-profit organizations and private attorneys, through the state Office of Public Defense Services (“OPDS”). This has proven problematic, as the state’s per-case public defender compensation plan created “an incentive for most attorneys to handle as many cases as possible and to do so as quickly as possible,” the ABA found.
OPDS moved from the flat fee per case contract model to paying public defenders to cover a certain number of cases. But problems persist. “Unfortunately, in practice, the flaws in the old system are still present,” said Reinhard. “This report further emphasizes why the government should be playing a more active role in public defense, whether-that means running public defense directly or providing more robust funding so we can do the job the Constitution tells us we have to do.”
Reinhard estimates that at least a half-dozen people have been confined in the Lane County Jail without an attorney for more than two months. This trend exists and is often worse in Oregon’s 35 other counties.
Once they finally get an attorney, most Oregon criminal defendants are quickly pushed into pleading guilty. Nationally, about 94% of public defense cases are resolved by plea bargain. In Oregon, fewer than 4% of cases proceed to trial, according to the ABA. The study identified different kinds of cases that should be going to trial more often than they do.
“What a high plea bargain rate means is that prosecutors and police officers are the ones deciding who is guilty of crimes,” said Reinhard. “Far more people plead than they should.”
Noting that OPDS lacks data necessary to provide meaningful oversight, ABA researchers recommended that the state create a centralized data system for all public defense attorneys.
“There is no way that this vast gap can be closed quickly or with a single-pronged solution such as only providing additional funding,” said Steve Singer, OPDS executive director. He acknowledged that in addition to more money and resources, a more efficient system of delivering public defense services must be developed.
The ABA’s findings should surprise no one in Oregon. A 2019 legislatively funded report of the non-partisan Sixth Amendment Center made similar findings, concluding that Oregon may have been violating the constitutional rights of indigent defendants for many years. Yet nothing changed but the passage of another two years, as lawmakers continued to “study” the problem.
The ABA study gives public defenders like Reinhard “hope for a better future.” Yet, “it’s going to take a strong commitment for our legislature to get that done,” said Reinhard. “And a strong commitment from everybody in the system to look at the cases we charge to make sure that we’re doing what’s actually going to be the best for justice and public safety in the long term.” Such a commitment remains to be seen in Oregon. But we’ll certainly report on it if it every materializes.
Source: Eugene Register-Guard
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