Oregon Public Broadcasting and OregonLive are both reporting today that a new study has found Oregon's Public Defense Program to be unconstitutionally poor, both in quality and in cash.
There are three basic problems with the public defense system and in this post I address these problems in turn.
Public Defenders Have Too Many Cases
Problem one: volume. The number of cases filed against indigent defendants - people who can't afford a lawyer - far outstrips the capacity of the public defense system to offer quality representation. When I represent someone charged with a crime, the absolute minimum amount of time that is required even for a simple matter like a DUI that would resolve in a plea is 10 hours. For something more serious, like the Sex Abuse case I'm trying with my colleague Ed next month, we have four entire work days set aside for trial preparation alone. That's 64 attorney hours dedicated just to preparing and organizing the information we have already spent many hours collecting. With the trial itself, the representation will likely surpass 300 attorney hours of time.
The Indigent Defense Task Force assumes that a public defender can handle 600 "units" of cases per year, with a misdemeanor generally counting as 1 unit and a serious felony counting for up to 15 units. Murders and other extremely serious crimes count as 100 units. Most public defense cases are relatively minor crimes. Drugs, DUIs, assaults, weapons charges, domestic violence, probation violations, and so on. That is, most public defense cases count as 1 "unit" and therefore most public defenders working in the trenches are expected to work as many as 600 cases per year.
How many hours do you think they have to dedicate to trial preparation?
Public Defense Pay Sucks
The highest paid public defender makes as much as the lowest paid District Attorney. This doesn't mean that public defenders aren't good attorneys, but it does mean that once a public defender decides to take their skills into the private sector, that they're never coming back. There are some excellent lifers in the public defense world - people who believe in the mission and provide awesome legal work, but these people are making sacrifices to follow that dream.
District Attorneys, on the other hand, need not make any such sacrifice. A career at the DA's office can quickly lead to a six-figure income and a manageable caseload in a high-prestige position. Experienced attorneys often move into the DA's office seeking that prestige, pay, and challenge.
Thus, the Oregon Public Defense system has the cards stacked against defendants because their attorneys are generally outgunned by higher-paid attorneys who are potentially more skilled and experienced and who also have lower case loads.
Public Defense Agencies Get Flat Rates
The reason public defense pay sucks is because the agencies who perform public defense are paid on a flat rate per case, and these rates are absolutely pitiful. A few hundred dollars for even a serious felony. Perhaps a few thousand for the absolute most serious cases. These flat fees incentivize public defenders to close out their cases as quickly as possible. If you go down to the courthouse and pick a criminal docket to observe, you can see public defenders with stacks of files entering guilty pleas with their clients like it's an assembly line.
While guilty pleas are useful tools to mitigate the risk of a case, we only counsel entering a guilty plea after a thorough review of the facts and available defenses and weighing the risks of losing at trial against the benefits of a negotiated and predictable outcome. Public defenders don't have the time to do this and make ends meet.
Lessons to Learn
Not everyone has a choice when it comes to affording an attorney. Some people simply can't do it. These people, if they have a serious case, are in real trouble in Oregon. Something clearly needs to be done.
Likely the best solution is to make public defenders State employees and to pay them on par with District Attorneys. We also need more overall funding for more defenders. I know that if an attorney could make $125,000 managing a public defense caseload, then the position would be very attractive to even experienced attorneys interest in practicing defense work without the hassle of running a defense law firm.
Of course, we love both business and criminal defense here. My days of public defense are long behind me. I hope it remains a place where young attorneys can cut their teeth while also becoming a place where experienced attorneys can make a career without sacrificing their earning potential to do it.