Public defense shortage puts 'public safety at risk,' state official says

PORTLAND, Ore. (KATU) — The director of Oregon Public Defense Services – the agency responsible for providing legal defense to indigent defendants in the state – said lawmakers should dramatically overhaul how the state provides public defense if it wants to dig itself out of a shortage of attorneys.

That shortage of public defenders is leading to dismissed criminal cases and "an urgent threat to public safety," according to Multnomah County’s elected District Attorney, Mike Schmidt.

Oregon Public Defense Services director Jessie Kampfe's suggestions included funding for the training of public defenders, additional social services, investigative support, and a massive raise in the rate the state reimburses public defense firms and lawyers for a public defense attorney’s time.

Kampfe pointed to the Oregon Department of Justice’s pay rate – $242 per hour for attorneys, according to her – as a good starting point for public defense, which currently pays firms as low as $105 per hour for attorneys.

The money covers overhead and other costs outside of the attorney.

KATU's Wright Gazaway recently sat down with Kampfe for a wide-ranging interview on the public defense shortage, why it’s gotten so bad, and what she will do to fix it.

"At the end of the day, it will take funding from the legislature. It's probably going to be a tight budget year this year. How will you advocate and convince the legislature that this money's truly worth it?" asked Gazaway.

Oregon needs to go through a period of comprehensive and systemic change in the way that we do public defense," Kampfe replied. "It will require significant investments from the legislature, financial investments from the legislature to build a new system. I believe that it'll be incremental.

"We're not going to do it all in one legislative session," she continued. "But we need to start down that path now, because as we've seen, public defense is a critical part of our public safety system, and if we have an underfunded public defense system, it puts all of our public safety at risk."

Kampfe took over at OPDS in October. She said people who claim OPDS is exaggerating the problem for political reasons are wrong, and that the number of unrepresented people is a symptom of years of underfunding in public defense.

She said changes to how the state paid attorneys for cases changed in early 2021, when Oregon put a cap on the number of cases an attorney could take on.

"Under the old model, lawyers were encouraged to take as many cases as possible, and that created a conflict between the lawyer's interest in taking on a lot of cases and the client's interest in having their case fully litigated," Kampfe explained.

In 2020, the agency started down a process of buying the lawyer's time, and when we started to buy the lawyers' time, it meant that they couldn't take as many cases as they had been taken previously, and it really highlighted that we didn't have enough lawyers to do all of the work.

KATU followed up to this explanation, asking, "Given that timeline, why were your agency and the state not more aggressive in hiring more attorneys?"

Kampfe responded by highlight once more the long-term nature of the issue of public defense in the state.

We've been trying really hard to hire more attorneys, and we're running programs right now to do that specific thing, but public defense in Oregon has been under-resourced for decades, and so people are not making enough money and their caseloads are too high," she said.

"It's a problem that you can't hire your way out of. You have to stabilize the existing system so that you can retain the providers that are currently doing the work at the same time that you're building more capacity by bringing on more lawyers. Since July of 2022 until present, we have hired 41 lawyers into public defense, and so we've increased our capacity by 10% in just six months. But in order to really realize those gains in capacity, we have to stabilize the system so that we can retain the providers that are currently doing the work."

A 2008 American Bar Association report found Oregon’s public defense system was the fourth-highest funded on a per capita basis in the country. Kampfe said she was not aware where Oregon fell on that list now, but she said public defense attorneys in Oregon perform a wide range of work in criminal and civil cases outside of what other states do.

“Oregon is somewhat unique in the breadth of work that public defense does. And it may not be an apples-to-apples comparison with other states,” Kampfe said.

OPDS outlined plans in a January 19 meeting to use emergency funding lawmakers recently approved to increase pay to lawyers who take cases of unrepresented people. That includes:

• $125 per hour for misdemeanor, contempt, and probation violation cases
• $158 per hour for Class C felony and felony drug possession cases
• $164 per hour for Class A and B felony, juvenile dependency, termination-of-parental-rights, juvenile delinquency, habeas corpus, post-conviction relief, civil commitment, and Psychiatric Security Review Board cases
• $175 per hour for Ballot Measure 11 and felony sex offense cases; and
• $200 per hour for murder and Jessica’s Law cases

State court data shows prosecutors statewide filed nearly 20,000 fewer misdemeanor and felony cases in 2022 compared to 2019 – figures that seemingly would help the current shortage. Kampfe said fewer criminal cases did not necessarily mean improvement in the shortage, citing attrition among more qualified attorneys and a change in which cases were filed.

"When you look at the cases statewide, what we're seeing is that traditionally there had been more misdemeanors filed and fewer felonies filed, and what we have seen since 2019 or 2020 is that while the misdemeanor cases have gone down, the felony case filings have gone up. That's particularly true in Washington and Multnomah,” Kampfe said. “At the same time, the types of crimes that are being charged are more serious, we're seeing experienced public defenders leaving the system. So, we've got a workforce gap between the types of cases that are being charged and the qualifications of the lawyers that are available to represent people.”