Editorial: It may take hundreds of millions to resolve Oregon's public defender crisis

There were 2,865 individuals without representation in Oregon on Friday. Some committed felonies. Some committed misdemeanors. Some were being held in jail.

It undermines justice in Oregon. It slows the court system down. Delays make it more likely people will lose their jobs and put stress on their families, even if they may not be guilty. Overworked public defenders mean more burn out — overwhelmed by knowing they can’t adequately do their job. The cycle becomes more acute.

It’s not a problem of outright negligence. It’s been studied and discussed. Oregon’s Office of Public Defense Services continues to search for solutions. Legislators have listened to explanations and proposed fixes. There remains a gaping hole between the number of public defenders Oregon has and those it needs.

A new study prepared for the state says Oregon is down 564 contract attorneys for adult criminal caseloads. Another way of thinking about it is that the state has less than half of the attorney it needs for those cases.

It would cost big money to fix. If the state were to gradually ramp up hiring of attorneys by some 80 a year the budget for the Office of Public Defense Services would go from $576 million in 2023-2025 to $1.3 billion in 2029-2031. Of course, that assumes Oregon could find attorneys that would want the job.

There are other things that Oregon could do than just spend more money, the report said. They all come with tradeoffs. Oregonians may not find them acceptable.

Oregon could decriminalize some crimes. It’s an option for some low-level misdemeanors, such as driving with a suspended license, failure to appear and criminal trespass. Low level theft — theft 3 — could also be decriminalized when the item stolen is food or another basic need. And there are others. If the state decriminalized all these offenses and more and included some drug possession charges, it might reduce the need for public defenders by 198 a year, the report said.

Oregon also could do more sentencing reforms. The state could take another look at Measure 11. That ballot measure increased the length of sentences for a number of serious crimes. If Measure 11 were repealed or some crimes reclassified, there would be a caseload reduction from that as well.

Oregon could hire more support staff. Paralegals and others can help with public defender work at a lower cost than hiring more attorneys. Hiring about 192 non-attorneys alongside the 80 attorneys might be the right ratio, according to the National Association for Public Defense.

What appetite does the Legislature, the governor and voters have for these changes?

After what happened with Measure 110, we can hardly see much enthusiasm for embracing decriminalization, especially reversing anything the Legislature just did on drug possession. The turmoil caused by Measure 110 would also seem to make it even more difficult to make changes to Measure 11. We think Oregonians could get behind hiring plenty of support staff for public defenders. That just seems like a smart way to spend money.

March 18 was the 61st anniversary of Gideon v. Wainwright. That was the Supreme Court decision on the right to counsel. Justice Hugo Black wrote that attorneys are necessities and not luxuries. “...Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

Oregon has a clear, well-documented problem in living up to the obligation. Will our Legislature and our governor rise to the challenge? If you get a chance to question a candidate for the Legislature, consider asking them about the state’s public defender crisis.