Oregon’s public defense agency has released a 90-day crisis plan to address a backlog of criminal defendants without attorneys that also calls for longer-term fixes costing more than $100 million in additional state funding.

The emergency plan would eliminate the number of people held in jail without a public defender by next March and eliminate defendants who remain out of custody without a lawyer by March 2026, according to the Oregon Public Defense Commission.

Gov. Tina Kotek in late May directed the agency to address the steady backlog as fast as possible, saying the state “cannot allow the current state of affairs to be normalized.”

As of Friday, 174 people were being held in jail without lawyer and more than 3,100 other indigent defendants were out of jail without a lawyer.

The state has long struggled to provide public defenders to criminal defendants who can’t afford an attorney, a crisis that has ballooned in recent years. Caps on public defense lawyers’ caseloads adopted in 2021 has exacerbated the crisis by not accurately utilizing attorneys who are available, the commission found. The commission is charged with establishing and maintaining a public defense system for the state.

Oregon provides public defenders in three ways: through hourly contracts with private attorneys, through public defense law firms that contract to the state such as Metropolitan Public Defender, and recently began to hire its own state-employed public defenders to take on some of the cases.

The immediate plan calls for the Legislature to shift money set aside for additional lawyers to handle cases under House Bill 4002, which recriminalizes small amounts of drugs starting Sept. 1, and instead assign public defenders for people in jail without an attorney.

That shift would require legislative approval.

The commission’s proposals also call for extending an increased hourly rate for lawyers assigned to the cases of people in jail without a lawyer, setting up special court dockets in order to resolve more of these cases at once, opening a new state public defense office in southern Oregon with six lawyers, hiring of more support staff to assign lawyers and additional money to recruit and retain attorneys.

“Despite numerous initiatives, the in-custody list remains consistent, while the out-of-custody list has grown. Thus, although the Commission has taken steps to address the constitutional crisis, the problem remains significant and will only fully improve when we have adequate funding,” Jennifer Nash, chair of commission, and Jessica Kampfe, the commission’s executive director, wrote Friday in a letter to the governor.

The HB4002 lawyer shift calls for using any of its assigned eight state defense attorneys to handle lower-level felonies as well as misdemeanor cases of people in jail without lawyers instead of having those attorneys represent people charged with low-level drug crimes.

“This is a policy question about whether the greatest public safety need is to provide representation for people held in jail pretrial and people charged with person crimes, or to provide representation to people charged with drug crimes. HB 4002 prioritizes representation for people charged with drug crimes,” the plan says.

The commission also intends to request through an emergency board $6.2 million from the Legislature to continue the higher hourly attorney rate through June 2025. The higher rate, ranging between $164 an hour to $200 an hour, began in August 2022 and is set to expire at the end of this December.

The projected cost for this continuing bump over a three- to four -year period is estimated at $19 million, because many of the cases these lawyers will accept now are likely to continue for three to four years, according to the commission.

The commission indicated it would return to the legislature to seek funding for the cases that continue through the 2027-2029 biennium, plus seek to turn the temporary rate to a standard higher rate for lawyers who are paid hourly to between $205 to $230 an hour.

The commission’s other proposals include:

– Getting buy-in from Oregon’s chief justice or the governor to direct courts to create special case resolution dockets to handle a large number of cases more quickly.

These hearings could help primarily deal with defendants who are without lawyers and out of custody. About 10% of the out–of-custody unrepresented defendants face driving-related charges, such as driving with a suspended license or reckless driving. A docket to handle impaired driving cases for people out of custody now without lawyers could clear up 25 cases a quarter, about 32% of the out-of-custody pretrial misdemeanor cases pending, according to the commission.

The commission urges courts to allow out-of-town attorneys to appear remotely, and sheriffs to allow remote or phone access to defendants in jail.

–– Open a state public defender office of six lawyers to serve Douglas County and the southern coast of Oregon at an estimated $1.8 million.

The in-custody lists of defendants without lawyers in Douglas and Coos counties is disproportionate to the counties’ size and continue to grow as recruitment of lawyers to rural areas remains difficult, the commission said. The state currently staffs a public defenders office in Medford serving Jackson, Douglas and Klamath counties, but the commute from Medford to Klamath Falls and Roseburg prevents lawyers from accepting more cases.

-- Add two non-lawyer staff members to the commission to help assign lawyers to in-custody defendants. The commission now has two assignment coordinators and one administrative staff person dedicated to finding lawyers for all unrepresented persons statewide.

“This is an overwhelming task and all staff members are working at full capacity,” the report said.

Adding the additional staff is estimated to cost $189,058.

–- Add 25 contracted lawyers who can take court-appointed cases to represent people facing lower-level felonies and misdemeanors. If funded, additional attorneys could join contracts by Oct. 1, 2025. Estimated cost is $4.2 million until end of June 2025. Continuing the positions into the next biennium would bring additional costs, the commission said.

“Each additional attorney position can be assigned up to 39 felonies or 75 misdemeanors per quarter, ensuring that up to an additional 975 felony cases or 1,875 misdemeanor cases each quarter would have attorneys assigned to them, keeping those cases off the unrepresented persons list,” the commission estimated.

–- More money to recruit and retain lawyers. Estimated cost: $29.3 million.

-- A state workgroup of leaders from the legislative, executive and judicial branches, along with the Oregon District Attorney’s Association, Oregon Public Defense Commission and the Criminal Justice Commission, to discuss short-and long-term systemwide solutions.

“OPDC believes you are in a unique position to bring public safety partners together to discuss systemwide issues that affect the crisis and the public safety of Oregonians,” Nash and Kampfe wrote to the governor.

A federal appellate court at the end of May upheld a ruling by U.S. District Judge Michael J. McShane that ordered counties across Oregon to release criminal defendants from jail if they’re not appointed a lawyer within seven days of their initial court appearances.

McShane’s order, referred to as the Betschart ruling after petitioner Walter Betschart, took effect on Wednesday, according to federal court records.

Of a total estimated $108 million cost for the commission-sought changes through 2027, the commission is seeking $12.4 million under its short-term, response plan.

That includes $6.2 million that state lawmakers already set aside for public defense in general but will need emergency authorization to put toward six more months of providing the temporary hourly increased rate for lawyers; $4.2 million for 25 additional contract lawyers, $1.8 million for the opening of a new state public defense office in southern Oregon , and $189,000 for more administrative staff to help the commission assign cases.

-- Maxine Bernstein covers federal court and criminal justice. Reach her at 503-221-8212, mbernstein@oregonian.com, follow her on X @maxoregonian, or on LinkedIn.

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