Oregon Overhauls Its Public Defender System

Until recently, a major problem was Oregon’s ​“flat-fee model” for paying public defenders like Peirson, which meant that no matter how much time an attorney spent on a case, they received the same rate. Low pay attracted few new attorneys into the system. Flat-fee contracting also created a compensation structure with poor incentives: lawyers took on too many cases and spent little time on quality representation.

Over the last few years, the situation became a crisis, with hundreds of people sitting in Oregon jails without representation.

“It was really hard to keep our heads up, take pride in our work, and feel like we were doing a good job by our clients,” Peirson says.

In a landmark effort to address these problems, the Oregon legislature passed a bill, signed into law in June by Gov. Tina Kotek, that overhauls the way the state provides lawyers to people who can’t afford them. The new law increases the number of public defenders available and improves transparency and oversight of the system that provides counsel.

While Oregon is the most recent state to pass such sweeping legislation, other states across the country — from Pennsylvania to North Carolina, Mississippi, and Michigan — are also taking various measures to reform their public defender systems. 

“The state has so much power to arrest and prosecute you, and good defense is the key protection from that huge power,” says Rebecca Silber, director of criminal justice for Arnold Ventures (AV). ​“It’s a liberty issue, an equal protection issue, a due process issue, and an individual rights issue. What’s so exciting about the bill in Oregon is the comprehensiveness and size of the reform, including funding and restructuring the system.” 

“A good moment for the right to counsel”

Oregon’s Senate Bill 337 establishes greater structural independence and systemic oversight of the state’s public defender system while also creating fairer pay to attract more attorneys.

To craft the bill, the state established a tri-branch working group, led by Sen. Floyd Prozanski and Rep. Paul Evans, to ensure that all three branches of state government received information and had input into the policy. These lawmakers followed recommendations from the Sixth Amendment Center, a national advocacy organization and AV grantee that conducted a 2019 study outlining the problems of Oregon’s public defender system and that served the working group in an advisory role. 

The group’s efforts were supported by Peirson and many other public defenders who advocated for legislative change, especially after a previous bill failed in 2019. They attended lobbying days, staged walkouts, and contributed public comment at every available session.

The new law consolidates oversight functions under the Oregon Public Defense Commission, a nine-member executive branch commission in which each branch of state government holds equal appointing authority. In the past, only the judicial branch held authority to appoint or remove members of the commission, with or without cause, undermining the commission’s independence. 

This oversight structure ​“gives equal weight to all three branches, where none of them has more commissioners appointed versus the others,” says Sen. Prozanski, who co-sponsored the bill. ​“That is one of the important provisions — equity throughout the state government.”

The legislation also abolishes flat-fee contracting in favor of a hybrid model that incorporates both in-house public defenders and contracted private counsel. The commission will set hourly pay rates for private assigned counsel and reasonable salaries for staff defenders. By 2035, in-house public defenders must handle at least 30% of the state’s indigent defense caseload. The legislature appropriated $96 million to the commission to help meet its goals for the first two years after the law takes effect.

Under the new system, these in-house public defenders will work for the state’s Office of Public Defense Services (OPDS), which will also be responsible for collecting data and performing oversight. 

“For people who qualify for public defense, this will create a more consistent and stable system of public defenders,” says Jessica Kampfe, executive director of OPDS. ​“It will allow us to recruit and retain more public defenders into our system, and it will give us the ability to evaluate and ensure that we are providing high-quality public defense.”

It also ensures greater state oversight of the right to counsel and creates a clear pathway toward stronger individual rights and due process where these were previously lacking in Oregon, explains Jon Mosher, deputy director of the Sixth Amendment Center.

“This legislation sets the agenda for Oregon’s policy priorities,” Mosher says. ​“It gives the commission direction and truly rejects the status quo of flat-fee contracting. That’s a good moment for the right to counsel for indigent defendants.”

“It’s common that reform requires a crisis”

With the law’s passage, Oregon leads the way for other states that are struggling with problems in their public defender systems. 

“It’s common that reform requires a crisis in public defense,” says Malia Brink, a senior policy attorney at Southern Methodist University Law School’s Deason Criminal Justice Reform Center who has advised Oregon and other states making efforts to address attorney shortfalls. ​“Public defense does not generally have the political will behind it to secure the dramatically needed change absent a crisis, unfortunately.”

In Pennsylvania, a bill is currently moving through the legislature that would create an indigent defense advisory committee to create oversight rules, develop training standards, collect data, and distribute grant funding to counties. North Carolina’s budget includes funding to expand its public defender offices. And Mississippi made a rule change in the court system to provide earlier access to counsel for indigent defendants.

Michigan, a state that has transformed its public defense system over the last decade, has made additional reforms. At the end of June, the state legislature approved a budget fully funding the Michigan Indigent Defense Commission at an increase of $72 million, bringing the total investment in indigent defense services to more than $220 million. The increase abolishes flat-fee contracts and creates a fair hourly pay rate for private assigned counsel for trials and appeals.

Federal action has also been brewing around improving public defense. The Ensuring Quality Access to Legal (EQUAL) Defense Act, introduced during this congressional session by Rep. Susan Bonamici of Oregon and Sen. Cory Booker, would invest $250 million per year through a new federal grant program to reduce public defender workloads and create pay parity between defenders and prosecutors. Originally developed and introduced in the Senate by now Vice President Kamala Harris, the bill has yet to receive a hearing, but Brink says its provisions are promising. 

“It provides a roadmap for future federal support to reduce caseloads and, in turn, address public defender shortages,” she says.

“Bending the curve”

In Oregon, the Deason Center is working with OPDS on implementing the new law. That includes determining how to build data systems most effectively and efficiently and working with other agencies. It also includes helping them plan for the longer-term growth and expanded role of the agency.

“Change on this level does take time, and it takes a little bit of experimentation and learning as you go,” Brink says. ​“Setting it up in this fashion, where they are making transitions gradually, was incredibly smart. This way, everybody has that room to walk before they have to run.”

Peirson believes that further changes are needed, but he says the new law is ​“bending the curve” toward a system that better serves people who can’t afford an attorney. 

“The stuff that I’m really hopeful about,” Peirson says, ​“is that it provides funding and structural changes that should make it easier for us to bring attorneys into public defense and keep them in public defense for the long term.”