Oregon is in the midst of an ‘unrepresented crisis.’ Why?

For several years now, Oregon has been violating people’s constitutional rights to counsel.

The familiar refrain, “You have a right to an attorney. If you can’t provide one, one will be provided for you” is no longer guaranteed in this state.

And the problem is growing. The number of people without counsel recently reached an all-time high.

“I believe it is the single most important public safety challenge facing Oregon today and I don’t say that lightly,” Washington County Defense Attorney Kevin Barton recently told state lawmakers in a hearing in Salem. “It’s important because it relates to the rights of a defendant to receive an attorney. The rights of victims to have their day in court and the rights of our community to have a functioning justice system.”

Not everyone agrees why the system isn’t working.

But they largely agree it’s broken.

Here’s a closer look at how Oregon’s “unrepresented crisis” started and what is being done about it:

When we say ‘unrepresented,’ who are we talking about?

At the end of January, there were 4,178 individuals who didn’t have an attorney statewide. The highest number of individuals in this situation are in Multnomah (1,172), Marion (756), Jackson (754), Washington (628), Douglas (253) and Coos counties (99). The numbers are constantly fluctuating, but the end-of-January numbers were an all-time high.

There were about 730 people who had been without representation for more than six months. Most of the people waiting for counsel are not currently in jail. But, at the end of January, there were 191 people in custody who didn’t have an attorney.

The majority of cases are misdemeanors; driving under the influence of intoxication makes up about 17% of these cases.

This crisis impacts victims, who may fear for their safety and struggle to find closure when criminal cases are delayed. It also impacts the defendants, who may lose their jobs or housing, their ability to travel or even their kids while their legal status is in limbo.

And we aren’t only talking about misdemeanors. There are felony cases as well. Because those cases are more complicated, it can be even more difficult to get an attorney.

In Douglas County, one person was accused of raping a minor and spent nearly two years without counsel, stalling the case from moving forward. The person was released because no attorney was present. In Jackson County, a person charged with strangulation spent more than six months out of custody because they could not find counsel.

In addition to the human cost, many fear the current crisis is eroding the trust and credibility of the state’s justice system.

When did this problem start?

In 2018, a report by the Sixth Amendment Center, a nonpartisan nonprofit, found that Oregon’s system of state public defense is so bureaucratic and structurally flawed it couldn’t guarantee clients were getting the legal defense required.

The report said the state lacked oversight of the public defenders it contracts with and noted the pay structure didn’t encourage quality representation, but rather pushed attorneys to deal with cases as quickly as possible.

“This compensation plan creates an incentive for attorneys to handle as many cases as possible and to do so as quickly as possible, rather than focusing on their ethical duty of achieving the client’s case-related goals,” the report read.

Didn’t lawmakers already fix this?

In 2023, lawmakers made substantive changes to the system. But even at the time, legislators and advocates knew bigger changes were needed.

As part of the initial effort, the state’s public defense commission started hiring a group of public defenders who work directly for the state, rather than contracting through nonprofits or private firms. The idea behind the state trial division was to have attorneys who were state employees so there could be more oversight of the attorneys.

The commission currently employs 20 public defenders in its trial division. Their first office opened in December of 2023 in Portland. In 2024, they opened offices in Salem and Medford.

“When the state moved to create the Oregon Trial Division, they were looking for stability in the public defense workforce and oversight and accountability you get from having state employees and we have that with the state trial division,” said Jessica Kampfe, executive director of the Oregon Public Defense Commission.

Plus, Kampfe said, it’s easier to track metrics. She’s noticed that by adding more resource staff from investigators to paralegals, the state trial attorneys can handle higher caseloads. They are also not restricted geographically.

“At the end of the summer, Deschutes County experienced an acute public defense shortage when a bunch of defense contractors left a contract and we all of a sudden had an unrepresented crisis in Deschutes County,” Kampfe said.

Attorneys with the state trial division went to Deschutes County, Kampfe said, and took on a serious felony case.

The state commission estimates they need to hire another 79 attorneys per year, over a period of six years until they hit 474.

Who are the players?

District attorneys across the region have been engaged in the issue from sitting in work groups to testifying in Salem. For them, not having public defenders slows down their ability to prosecute cases and, in their view, hold people accountable for crimes. Multnomah County District Attorney Nathan Vasquez recently made comments critical of the crisis, calling it a “work stoppage,” implying public defenders were simply not taking on as many cases as they could be.

Stacey Reding, executive director of Multnomah Defenders Inc., said Vasquez’s comments were insulting.

Multnomah Defenders is a part of the nonprofit public defender model, where the state contracts with attorneys. There are nonprofit models throughout the state.

Reding said she’s had high turnover in her office. New attorneys often have less experience, she said, and can’t take as many cases as the lawyers they’re replacing.

“Our district attorney’s office could take actions that would help with the public defense crisis,” Reding told OPB in an earlier interview.

“In Multnomah County, our attorneys prepare a lot of cases for trial that turn into dismissals on the eve of trial. If our district attorney’s office could identify those cases that are dismissals much earlier in the process and dismiss them, that would save many hours of defense attorney time that we could then turn around and focus on taking new cases.”

The other group of attorneys involved are part of the public “defense consortium.” They work for private law firms but contract with the state to take on public defense cases. During the 2023 legislative session, lawmakers agreed to phase out contracts with these attorneys who handle a set number of cases for a flat fee. But there has been significant pushback this legislative session on letting this type of representation end.

The judges and the Oregon Judicial Branch have also been engaged. They’ve kept a dashboard to show the changing numbers of people who are without public defense services. Some judges, like those in Marion County, have signaled that they will take a more proactive role by identifying attorneys who appear to have the capacity to take an additional case and appoint them to the case.

In 2024, U.S. District Court Judge Michael McShane weighed in on the issue, ordering jails to start releasing people within seven days if a public defender wasn’t assigned to their case. McShane said the situation was “an embarrassment to the state,” adding, “It’s a complete tragedy and nobody seems to have an answer. Literally, we suspended the Constitution when it comes to this group.”

At the heart of all of this is the Oregon Public Defense Commission. It’s the agency responsible for delivering public defense in Oregon. They are also responsible for contracting with all the state’s public defenders, from the nonprofit public defenders to the consortium, to the attorneys to those who take cases on an hourly basis. The commission itself has also undergone large transformations in recent times. The head of the commission was fired in 2022 and the commission itself was recently moved from being part of the judicial branch to the executive branch and is now overseen by Gov. Tina Kotek.

The other big players in this equation are, of course, lawmakers and the governor.

The governor’s budget does recommend spending $720 million for the 2025-27 budget cycle to the commission, representing a nearly 20% increase.

Kotek’s budget calls for a total of 313 positions — about 40 of those would be new state public defenders.

So, now what?

Former state lawmaker Peter Buckley, a Democrat from Southern Oregon, who is a member of the Oregon Public Defense Commission, said the issue is a simple math equation.

“We’re losing (public defense) attorneys from the system faster than we are replacing them,” Buckley wrote in an opinion piece and expressed similar sentiments in an email to OPB.

In an interview, Buckley said public defenders often have higher workloads than other attorneys and lower pay. He believes the state needs to pay public defenders more and continue to cap their caseloads.

Kampfe, with the public defense commission, echoed this, saying, “Ultimately it continues to be a workforce issue. We need to have enough public defenders to meet the need.”

The public defense commission said there are more than 980 attorneys currently providing public defense. Not all of them are full-time public defenders.

State Rep. Paul Evans, also a Democrat and a member of the commission, is frustrated with what he sees as the public defense commission’s lack of progress.

He’s questioned why the new state trial division attorneys aren’t tackling more complicated cases throughout the state with a greater sense of urgency.

In a letter to the Oregon Chief Justice Meagan Flynn, in December 2024, Evans said he couldn’t make sense of the public defense commission’s six-year plan, blasting it as “bureaucratic jibber-jabber.”

Evans asked the state’s judicial department to analyze the public defense commission’s plan. The analysis done by the Oregon Judicial Department said the public defense commission’s plan would actually make the backlog worse and deepen the crisis.

“To me, in an emergency you bring people together, you grind through the problem,” Evans said. “You go out and hire recently retired attorneys. You do anything and everything to expedite.”

He suggested keeping courts open on weekends and nights or deploying the National Guard to help lessen the case backlog.

Conrad Wilson contributed to this report.