How should Oregon compensate its public defenders? A flat fee for cases? By caseload? The debate is not over. Other states have been compelled to change the way they pay public defenders by lawsuits. Fortunately, Oregon is already taking action.
The issue is ensuring defendants get a fair trail. The U.S. Supreme Court has clearly declared that if someone is accused of a crime and cannot afford a lawyer they don’t get a fair trial unless they have one. Furthermore, the government must pay for the lawyer. And the lawyer’s representation must be effective.
Oregon’s system to do that has been challenged by critics. For instance, they highlighted in 2017 the difference in compensation. The difference in pay between prosecutors and public defenders can be substantial. In Deschutes County there was a $20,000 difference between the starting pay for a public defender and a prosecutor. The pay doesn’t guarantee it’s an unfair fight in court. But it surely doesn’t help.
This year, critics zeroed in on the broader system of compensation. Basically, Oregon pays public defenders by the case. That can create a perverse incentive for public defenders to handle as many cases as they can as swiftly as they can. You may remember the allegation that the Madras Indigent Defense Consortium was taking cases beyond its allocated quota was one reason it lost its state contract.
Oregon’s Office of Public Defense Services is now basing new contracts with public defenders on a target quotas of cases. The idea is that contractors wouldn’t lose money if they didn’t meet the quota and could stop taking cases if they can’t handle them. The office wants to also move away from fixed fees.
Oregon legislators need to continue to require the office to provide regular updates on its reforms and how well they are working.
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