Pleading the Sixth: On July 13, 2023, Governor Tina Kotek signed sweeping legislation into law that overhauls right to counsel services in Oregon. The new law adopts many of 6AC’s recommendations from its 2019 study: it abolishes flat fee contracting in favor of a hybrid staff public defender and private assigned counsel system, and it provides greater systemic oversight and structural independence. Even as lawmakers should be applauded for crafting consensus legislation in line with most national standards, Oregon’s delayed response to reform represents a cautionary tale for the nation.
In a major overhaul of trial-level indigent defense services in Oregon, Senate Bill 337 addresses structural deficiencies at the root of the state’s current unrepresented defendant crisis. Most notably, SB337 consolidates oversight functions under the Oregon Public Defense Commission (OPDC), a nine-member executive branch commission with all three branches of state government holding equal appointing authority. The legislation clarifies and expands OPDC’s power to set and enforce standards.
In addition, SB337 abolishes flat fee contracting and instead creates a hybrid government employee staff public defender and private assigned counsel system. OPDC is tasked with setting reasonable hourly pay for private assigned counsel, with hourly pay rates tied to state employee salary increases. To control costs long-term, the statute calls for staff public defenders to handle at least 30% of the state’s total trial-level indigent defense caseload by 2035. With reforms staged over multiple years, the legislature has appropriated $90 million to OPDC for the first biennium and sets dates for OPDC to report on its progress in developing and implementing a coordinated statewide plan.
Oregon’s path to reform: A cautionary tale
At the request of the state legislature, 6AC conducted a statewide evaluation of trial-level indigent defense services in Oregon. Our report, published in 2019, revealed that the state’s indigent defense system was an unnecessarily complex bureaucracy obscuring a statewide flat fee private contract system that pits lawyers’ financial self-interests against the rights of their indigent clients. Our evaluation found lawyers routinely failing to communicate with their clients, failing to conduct investigations, and handling cases for which they were unqualified. Moreover, the commission overseeing the system had undue judicial interference because all commission members served at the will of the chief justice of the Oregon Supreme Court, in violation of national standards on defender independence. The 2019 6AC study reported that Oregon was not fulfilling its right to counsel obligations under the Sixth and Fourteenth Amendments.
To solve these deficiencies, we recommended the State of Oregon abolish flat fee contracting in favor of hourly pay or hiring government employee staff public defenders, and reforming the oversight commission’s composition to ensure independence and structural accountability over direct services.
Instead of implementing structural reforms, from 2019 to 2022, the state legislature enacted various bite-sized, compromised legislation, each making only minor adjustments to the existing private flat fee contract system while taking no steps to implement necessary state accountability and oversight. Instead of implementing structural reforms, the legislature left the non-independent commission in place and tasked it with fixing its own deficiencies. That commission’s policy approaches during these years led to too few lawyers representing too many clients, and too many defendants being denied counsel altogether. It led the systemwide constructive denial of counsel documented in 2019 to devolve into a statewide crisis of actual denial of counsel reported in many counties in 2022 and 2023.
In passing SB337, Oregon finally adopts many of 6AC’s 2019 recommended reforms and, in doing so, moves closer to ensuring that every indigent defendant in the state receives an effective lawyer. Under SB337, OPDC must adopt and implement important standards of indigent defense, such as attorney qualification, training, and supervision standards, that are necessary to ensure meaningful state oversight of direct services. If implemented successfully, SB337 will entice more qualified lawyers into representing indigent defendants by creating government employee staff public defender positions, and by requiring OPDS to pay private attorneys a reasonable hourly fee.
Although a massive and applaudable step in the right direction, SB337 does not fully comply with national standards and does not adopt all 6AC recommendations. The legislation prioritizes accountability over independence by temporarily giving the governor exclusive power to appoint and remove all commission members and the OPDC director at will until 2027 (after which commissioners are removable only for cause, and hiring and firing authority of the OPDC director is reverted to the independent commission). The legislation also excludes misdemeanor prosecutions in justice and municipal courts from OPDC’s oversight authority. The Sixth Amendment Center stands ready to assist future Oregon lawmakers in continuing to work hard to ensure the state is meeting its constitutional right to counsel obligations.