Idaho’s system of public defense, which means taxpayers paying lawyers to defend criminal defendants who cannot afford to pay one themselves, is going through a major change, for the better.
That means, at least, the state has taken an essential step toward getting to something that works better. But there are potential pitfalls. Oregon, which made a similar change a few years ago, already has encountered many of them, and it has fallen into several, and Idaho would be well served to take a look at where those trouble spots materialized, and how Oregon is trying to solve them.
Traditionally, the counties have paid for public defenders in a patchwork of systems for cases within their borders. The system is a recipe for failure, especially in smaller counties which can ill-afford the costs of prosecution alone, let alone the defense as well.
After action by the Idaho Legislature – count this one as a surprise – a restructuring in the badly-functioning public defender system got underway last year.
The new system sets up a single State Public Defender office, which already is running and staffed; it moves into full operation on October 1. Attorneys for indigent clients will be arranged through that office rather than through local courts. It’s funded to $49 million, and that amount could be increased with supplemental money by the next legislative session, if needed.
It’s a much better system than Idaho has had up to now.
But there are no guarantees it will work as intended. Sometimes, for all the good intentions, public defender systems in a number of states have gone awry. To get a sense of this, take a look west across the border to Oregon.
The Oregon Public Defense Commission, which oversees and assigns public attorneys for at-need defendants in that state, was started about seven years ago, emerging from a system much like Idaho has had. Its intent was much like Idaho’s now.
Within its first few years, the Oregon system was running seriously behind in both funding and the number of attorneys assigned. Searching for answers, the American Bar Association developed The Oregon Project: An Analysis of the Oregon Public Defense System and Attorney Workloads Standards, in 2022, to evaluate the depth and cause of the problem. It said Oregon had fewer than a third as many attorneys (more precisely work-hours) that it needed. These numbers were large: The attorney shortfall, it said, was about 1,300 lawyers. That estimate was later scaled down, but still is considered large.
The Oregon Legislature increased funding for attorneys, but that didn’t turn out to solve the problem. The lack of attorneys was still being felt even as crime – and therefore criminal cases – in Oregon trended downward.
So what gives?
A lot of the problem turns out to be structural, the way attorneys are able to bill and the limits places on how many hours a specific attorney is allowed to bill within a certain period of time. (Some drastically exceed their limits, which raises questions about the job they may be doing for clients.) On top of that, the agency has had serious problems with paying attorneys and otherwise managing its finances. The details – which sometimes involved pushing for perfection at the expense of carrying out the core mission – got in the way.
The structural, process issues involved have tangled into knots a system that ought to be working much better. Oregon isn’t the only state experiencing some of these difficulties, either.
Oregon is in the process of trying to solve those issues, and making some progress. Idaho would be well advised, as it gets its generally similar system underway, to pay close attention to what is and isn’t working for its neighbor. It may be able to avoid some of the headaches in the process.
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