With just weeks remaining in Oregon’s legislative session, Gov. Tina Kotek is changing the course of a long-sought overhaul of the state’s public defense system. Kotek sent a letter to the Senate Committee on Rules this month requesting changes to Senate Bill 337, the bill meant to address a constitutional crisis that’s left thousands of people accused of crimes without attorneys.
Kotek’s letter comes after lawmakers and policy experts have spent more than a year crafting the legislation. Some public defense leaders say Kotek’s request for last-minute changes would force them to oppose legislation they otherwise support.
Senate Bill 337 would fundamentally change how Oregon provides lawyers to people who can’t afford them. It would create, for the first time, public defenders who are state employees, and phase out the use of contracted for-profit defense firms.
Among the changes is a provision that moves the Office of Public Defense Services, the state agency responsible for public defense. No longer would it be within the judiciary. National legal experts argue public defense must be independent of the courts and politics. The current version of the bill would do that by moving public defense to the executive branch, but with provisions to ensure no one person or entity can hire and fire the people in charge of the state’s public defense agency.
Kotek does not want the state’s failing public defense system as part of the governor’s portfolio of state agencies. If that move were to happen, Kotek’s letter states, the governor must have the authority to hire and fire the agency’s head and to remove its commissioners to achieve “true accountability.”
Kotek’s requests have received traction. After all, the governor has the authority to veto the bill. Based on her letter, Rep. Paul Evans, D-Monmouth, drafted amendments that lawmakers are poised to take up in committee on Tuesday.
“We have been sitting around following scenarios and talking about it for far too long, and we need to have structural, systemic change,” Evans said Saturday.
But Kotek’s request is also at odds with national recommendations as well as a 2019 report she took credit for getting funded, which laid out a series of structural changes necessary to make the public defense system independent of both judges and politicians.
The Kotek-backed proposed amendments have created a tension that could undermine the effort to solve problems that Kotek, lawmakers and the state’s public defense commission all say are deeper and more important than whatever branch of the government houses the agency.
For years Oregon leaders have known the state has too few attorneys and too little oversight to ensure people are getting the criminal defense they’re entitled to under the constitution. Over the past year and a half, the crisis has grown to include thousands of people accused of crimes without attorneys. Hundreds of them are in jails.
From mid-August to mid-March, more than 3,700 Oregonians charged with crimes were unable to get a court-appointed lawyer, according to data compiled by the Judicial Department at OPB’s request. As of Thursday, more than 1,600 people did not have attorneys, including more than 240 people in custody.
In her May 11 letter to lawmakers, Kotek said she shared their urgency to address the crisis, but said moving the agency would “distract from the core mission” of trying to provide adequate criminal defense.
“I have yet to hear anyone articulate how moving branches will get a single person an attorney,” the governor wrote. “Moving an agency that is not fully functioning from one branch to another is not, on its own, going to fix this long-standing problem.”
If lawmakers are determined to move the agency, Kotek stated, “it will be important to add changes to the bill” to treat public defense like other agency leaders who serve at the governor’s discretion. Kotek told lawmakers the governor should also be able to remove members of the Public Defense Services Commission, which sets policy and manages the Office of Public Defense Services through its executive director.
In 2019, the nonprofit, nonpartisan Sixth Amendment Center completed a report that the Oregon Legislature funded. It found Oregon’s public defense system, housed within the state’s judicial branch, was unconstitutional and structurally flawed.
One of the report’s recommendations was creating more independence so that the commission in charge of public defense is not entirely appointed by the chief justice of the state’s supreme court.
“There’s U.S. Supreme Court case law that calls for the defense function to be independent of government interference,” Jon Mosher, deputy director of the Sixth Amendment Center, told Oregon lawmakers at an informational hearing on May 11. “National standards point governments toward how best to implement structures to answer that question. Number one is creating an independent commission.”
While running for governor, Kotek touted the Sixth Amendment Center’s work.
“In 2018, I made sure the legislature funded a study conducted by the national Sixth Amendment Center, which ultimately revealed significant structural problems in the state’s public defense system,” Kotek said during her campaign.
But Kotek is now proposing authority for the governorship that would go against the recommendations of that same report, which says no single branch of government should have too much control over public defense.
On Thursday, the public defense community pushed back against the governor’s provisions, saying they would corrode independence that they say is fundamental to their work.
Public Defense Services Commission member Jennifer Nash told fellow commissioners Thursday that they should oppose any move that would put the agency under the governor’s office, a move the Office of Public Defense Services estimated would cost $15 million.
“My feeling is we ought to oppose the move, period,” Nash said. “We know the governor doesn’t want us, so let’s grant her wish.”
“Where it sits is less important than maintaining its independence and getting to the root causes of our inability to provide the level of defense service that we’re required to,” said Max Williams, another commissioner. “That’s where we ought to be spending our time.”
On Friday, the commission’s leaders sent a letter to lawmakers stating they would formally oppose Senate Bill 337 if the rules committee adopted the amendments Kotek wants.
“Oregon must not move backward and erode the core tenet that public defense remain independent from political pressures,” the commission’s letter stated, “so that is empowered to appropriately and zealously advocate against the government.”
Some of those closest to the bill are conflicted about what to do over the governor’s sudden interest in the legislation.
Related: Oregon lawmakers announce group to address public defense crisis
Sen. Floyd Prozanski, D-Eugene, co-chaired the work group that drafted the bill and chairs the Senate Judiciary Committee. Prozanski on Friday said he planned to support the governor’s amendments, despite having concerns about them.
“It’s got to be something that the governor is going to accept,” Prozanski said Friday.
But by Saturday morning the senator had a change of heart. In an email, Prozanski stated that after reading the public defense commission’s opposition letter and reflecting on the matter, he no longer supported Kotek’s amendments. Prozanski said he believes there should be a higher threshold for removing the state’s head of public defense than at the will of the governor.
Evans, who co-chaired the public defense work group with Prozanski, said he introduced the latest amendments because, even before her letter, the governor’s staff was clear with him and other lawmakers that Kotek did not want to add public defense to her office’s responsibilities.
“The governor has enough messes that she’s trying to work on and she didn’t want this in the executive branch,” Evans said. “Because it has been such a challenge, she wants a little additional capacity to be able to push people to do their jobs.”
Evans acknowledged that the legislation was a late departure from national recommendations. He said the compromise was a political reality.
Lawmakers and advocates for public defense have been trying to bring about systemic reform for years. In 2019, they failed to pass a bill that contained many of the same elements of Senate Bill 337. Any chance for legislation this year hinges on Senate Republicans ending a walkout that has stalled all work in the Oregon Senate since early May.
Related: Oregon voters tried to put an end to legislative walkouts. So, what happened?
Evans said that, after months working on the bill, he’s losing what patience he had for seeing a growing number of people charged with crimes go without a public defender.
“I am angry, very angry,” Evans said, “we can’t even make sure that the justice system is providing defense for people when we’re charging them with crimes. There are very few things that are more fundamental to trust in government.”