State public defense office out of money
Published 5:00 pm Tuesday, June 8, 2021
- courtroom
(Story updated 6/9/21 to reflect legislative panel approving funds on Wednesday that can be used retroactively to pay for the current shortage.)
The head of the state public defense office said his office is out of money with nearly a month to go until new budget funds would be available.
Lane Borg, outgoing director of the Oregon Office of Public Defense Services, did not provide a specific amount Tuesday morning while discussing the shortfall during a regular conference call to managers of Oregon public defense providers.
Borg attributed the shortfall in part to the pandemic and said his office, which is responsible for paying attorneys who represent criminal defendants who cannot afford their own attorney, will soon ask the Legislature for additional money.
“The agency is presently working on a plan to avoid delay of any kind of payment for the vast majority of providers while the rebalance request is pending,” Borg wrote in a letter dated Friday. “And we expect to have more information to share with you early next week.”
(Update: The Joints Ways & Means Subcommittee on Public Safety voted unanimously on Wednesday to appropriate nearly $8 million in the upcoming 2021-23 budget to cover the shortage in the 2019-2021 budget. The funds will not be available until after the bill is approved by the Legislature and signed by Gov. Kate Brown later this month.)
According to several people on Tuesday’s call, an expected impact of the shortfall is delayed payment for people providing “downstream” public defense work, such as private investigators, foreign language interpreters, social workers, psychologists and forensic scientists. These professionals, who typically receive payment in 30 to 60 days, could have to wait up to three months for compensation.
Following the call, Jennifer Kimble, administrator of 22nd Circuit Defenders, a legal aid consortium for Crook and Jefferson counties, started writing an email to members urging them to hold aside some extra money this month.
“It’s a tough thing to try to explain,” Kimble said. “To say to someone, I know you have staff and bills to pay and you have a family to support. And even though you’re Constitutionally mandated and even though you have a contract with the state, you might not get paid until July.”
Kimble said as a small consortium, any financial hit is a big hit.
“At least we know we’re going to get paid eventually,” she said. “It’s not the end of the world. It’s just frustrating. Someone should have been able to see that this was coming and we should have been able to avert it.”
The Office of Public Defense Services is housed in the Oregon Judicial Department and overseen by a 7-member commission. For the 2019-2021 biennium, which closes June 30, it was allocated $344 million by the Legislature.
Borg made the shortfall announcement alongside his successor, retired judge Ed Jones, and the two fielded questions for about 45 minutes. Some speakers expressed anger the budget hadn’t been more carefully considered ahead of time. Several thanked Borg for bringing up the matter as soon as he learned about it.
A call to Borg was not returned Tuesday.
In Deschutes County, three entities have state contracts to provide public defense: the law firms Deschutes Defenders and Kollie Law Group and the consortium Bend Attorney Group.
Joel Wirtz, co-director of Deschutes Defenders, said even if the shortfall only leads to delays, that’s still a form of injustice for clients.
“This risks our ability to quickly ensure our client’s constitutional rights are upheld,” Wirtz said. “We sincerely hope this budget crisis will be quickly resolved through legislative action so that we can continue to ensure all citizens are treated equally in court.”
The 6th Amendment to the U.S. Constitution grants a person charged with a crime the right to an attorney.
Public defenders on Tuesday’s call asked Borg and Jones why most other state agencies seem to be prioritized ahead of the Office of Public Defense Services, which is unique in providing a service guaranteed in the Constitution. Borg noted he did make a larger budget request last legislative session, but his request was shot down.
Some public defense attorneys are hopeful a new funding model championed by Borg will have a positive impact.
Prior to 2021, attorneys who worked public defense in Oregon were paid a flat rate per case depending on the type of case — more for a murder case than a DUI, for example. But under this system, attorneys were said to have no incentive to find the best outcome for their client, because they were paid the same for a conviction as an acquittal. Under the new system, firms are paid a flat rate per lawyer in each office, a model that also has its critics.
Underfunding of the state public defense office has led to a wide pay gap between prosecutors and public defenders in Oregon, said Shawn Kollie, head of Kollie Law Group.
Kollie said though the current shortfall is survivable, a funding crisis still looms, notably in the area of employee turnover at public defense firms.
In Oregon, district attorney offices are funded at the county level, while public defense firms receive funding from the state. This means public defenders receive the same payment whether they practice in metro Portland or rural Vale, while prosecutors receive payment more in line with their region’s cost of living.
“Next biennium, what are we going to do? Everyone wants more money,” he said. “That’s the reality of the game and OPDS has historically been low on the priority list when it comes to funding in Salem. And look, public defense has always been difficult to market, and that’s too bad because it’s one of the few professions that’s constitutionally enshrined.”
Oregon Capital Bureau reporter Gary A. Warner contributed to this report.
