SALEM — A bill that would’ve boosted Oregon’s public defenders died as a result of the derailed legislative session in Salem.
House Bill 4004 would’ve established performance and case standards, and eliminated a requirement for the state to run a public defense system built around being as cost effective as possible.
“That had been, I think, originally thought by people to mean the cheapest,” said Lane Borg, executive director of the state’s Office of Public Defense Services.
The bill passed in the state House overwhelmingly. But like almost every other bill in the 2020 legislative session, it stalled after Republicans walked out because of a climate change bill, denying the Oregon Legislature a quorum necessary to conduct business.
The public defense bill also would’ve expanded the commission that runs the Office of Public Defense Services from seven members to nine, and required one of the members be an individual who had received public defense services.
Last session, lawmakers failed to pass House Bill 3145, which would’ve overhauled the state’s public defense system and started the process of turning some public defenders into state employees. At the trial level, all public defenders in Oregon are contract employees of the state. Some of the attorneys work at nonprofits, while others are self-employed or work with other attorneys in consortia.
In 2019, lawmakers received a report from the nonpartisan Sixth Amendment Center, which found Oregon’s public defense system was structurally flawed and effectively unconstitutional.
The commission that oversees public defense addressed some of the largest concerns raised by the report, including a flat fee contracting model that paid attorneys per case, regardless of the hours it took. While lawmakers didn’t pass HB 3145, they pumped an additional $38 million into the system for the 2019-21 budget; that led to about 30 additional attorneys and pay increases across the state.
Borg said there was an additional $20 million possibility attached to the short session’s budget bill, which also did not pass after the Republican walkout. He said he hopes to get the money released through the state’s Emergency Board, which is made of a group of lawmakers who can allocate funds outside of the legislative session. There are also rumors of a possible special session.
Some public defenders said they’re disappointed lawmakers didn’t pass HB 4004.
“It does hurt morale in that public defenders are hoping, we’re counting on this to pass,” said Carl Macpherson, executive director of Metropolitan Public Defender, a nonprofit that serves indigent clients in Multnomah and Washington counties.
If Oregon fails to adequately provide a public defense system that meets the needs of its clients, the state could face a lawsuit.
“With the failure of House Bill 3145 in 2019 and the failure of 4004 in the short session, I think it’s possible it could move us closer to a lawsuit,” said Carl Macpherson, executive director of Metropolitan Public Defender, a nonprofit that serves indigent clients in Multnomah and Washington counties.
The American Civil Liberties Union has sued a number of states over a lack funding to public defense: Michigan in 2007, Washington in 2011, Louisiana in 2016, Missouri and Nevada in 2017, and Idaho in 2018.
Kelly Simon, interim legal director at the ACLU of Oregon, said it’s good to see the state investing in the public defense system. But, Simon added, there remains the potential for costly litigation.
“Until we know that people in the state are treated fairly and their right to have an attorney represent them is fully provided … the state’s liability is always going to be in question,” Simon said. “All options are on the table until Oregon gets this right.”