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Posts published in “Day: September 4, 2022”

On the defense

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One of the recurring plot points in the much-praised and just-ended TV series “Better Call Saul” concerned the stretched resources and minimal pay of public defenders, the attorneys who represent accused criminals who otherwise can’t afford to hire legal help.

The show was set in New Mexico (which does have public defender problems) but the issue is nationwide and has blown up in Oregon. Organizationally at least.

The state Office of Public Defense Services is led by a director and overseen by a commission whose members are appointed by the chief justice of the state Supreme Court. In the last month, Director Steve Singer (who has held the job less than a year) came under critical review by the commission, and Chief Justice Martha Walters said he should be fired. When he wasn’t – the commission deadlocked on the vote – Walters ousted all of the commissioners. Some of them were reappointed, other new members installed, and Singer was given his pink slip.

That may have been the right move (Walters did have specific complaints) or not, but the drama shouldn’t obscure what should be the larger point: That the whole system is in trouble. Singer was not wrong when he said earlier this year, “We didn’t get to this problem overnight. We got to this problem over the last two or three decades. The hard question is what do you do about the problem? How do you solve the problem?”

This gets into both the resources available and the system the state uses. This makes it a logical job for the next Oregon legislative session. For all the scope of the problem, this one could be legislatively solvable.

When the 1963 U.S. Supreme Court decision in Gideon v. Wainwright declared that the Constitution’s guarantee of a right to counsel included people who couldn’t afford to hire a lawyer, states that had done little in that area up to then (most of them) had some inventing to do. A long-standing idea about public defense (back to 1893) was that the defense system should mirror the prosecution system, but political sympathy has never aligned with putting that into effect. (Who wants to spend more money than absolutely necessary on a group of people who mostly are, in reality, guilty of crimes?) Nationally, the public policy ethic mainly has been: How little can we get away with?

A 2017 report on defender systems in the states noted, “Oregon is the only statewide system in the country that relies entirely on contracts for the delivery of public defense services. The statewide office lets individual contracts with private not-for-profit law firms (which look and operate much like the public defender agencies of many counties with full time attorneys and substantive support personnel on staff), smaller local law firms, individual private attorneys, and consortia of private attorneys working together. The actual contracts are the enforcement mechanism for the state’s standards, with specific performance criteria written directly into the contracts.”

That suggests a loose system with little opportunity for internal self-correction. The indicators of problems, in fact, have most often come from outside. One report in 2019 (paid for by the state Legislature) found that Oregon’s system is likely “unconstitutional.” (You can see the lawsuit coming.) An American Bar Association study released in January found that the state has only 31% of the defense attorneys it needs, and needs about 1,300 more.

Some of the problem, obviously, is money: More will be needed. But that’s not all. One group that studies how defense counsel systems work well and poorly around the nation last year suggested asking a series of questions: “Does an independent agency oversee public defense in your state? … Does your state shoulder the cost of public defense or leave the burden to local governments? [OR is one of 27 states that does.] … Does your state increase public defense funding when demands on public defenders increase? … Does the way attorneys are compensated create perverse incentives? … Are there meaningful, enforceable workload limits for public defenders? … Is counsel appointed before a client’s very first court appearance, or is appointment delayed until later in the process? (In Oregon, some indigents are jailed without access to an attorney.) Does your public defense system provide holistic defense for clients who need other legal (or even non-legal) assistance?” Oregon scores hit and miss.

The structural as well as financial questions point to this system as something the Oregon Legislature should review next session. And they suggest that what’s needed is not just a quick cash infusion or a little tinkering, but something more akin to an overhaul. Maybe the recent hire/fire drama will be the kickstart for that.

This column originally appeared in the Oregon Capital Chronicle.