We can't just spend our way out of public defender crisis

Back in 2022, then Multnomah County District Attorney Mike Schmidt, fed up with Oregon’s pathetic patchwork of a public defense system, sounded a cry of alarm over the resulting lack of criminal accountability.

To underscore the stakes, he released a list of nearly 300 criminal suspects freed onto the streets of Portland in the previous year because the state could not provide them with a timely public defense.

In the state’s most populous county, Schmidt acknowledged, suspects were getting a free pass on charges of assault, burglary, identity theft, auto theft, domestic violence, drunken driving, weapons violations and hit and run.

He termed it an urgent threat to public safety, saying, “This sends a message to crime victims in our community that justice is unavailable, and their harm will go unaddressed. It also sends a message to individuals who have committed a crime that these is no accountability, while burning through scarce police and prosecutor resources.”

So here we are in 2025, and what has changed?

Schmidt has been replaced by a prosecutor promising to take a tougher stand. The Legislature has thrown tens of millions into a wrenching bureaucratic overhaul. And Gov. Tina Kotek has issued repeated demands for immediate action.

But one thing has not changed. The system is still freeing scores of unadjudicated suspects for lack of timely legal assistance — a fundamental right guaranteed in both the state and federal constitutions.

This is the kind of governmental futility that fuels the malignant tear-it-all-down crowd. It is utterly unacceptable.

If we want to save democracy in America, it is incumbent on us, first and foremost, to demonstrate that it works. And that hasn’t been the case for far too long when it comes to our state’s woeful public defense system.

The crisis comes as no surprise to the state’s beleaguered public defenders. Complaining for years of overwork and underpay, they went so far as to picket the Capitol back in 2019.

But their timing was bad, as the pandemic hit shortly thereafter. As a result, their cause got lost in the shuffle for a while before eventually resurfacing.

Ironically, the current gridlock seems to stem, more than anything, from something all too characteristic in Oregon — well-intentioned overreaction.

In an ideal world, the three branches of state government would have collaborated on a solution designed to ease the crisis with the greatest possible speed, efficiency and economy. That could probably have been accomplished simply by infusing enough money into the existing private contract system to boost the compensation, serving to attract more lawyers and thus ease caseloads.

But in the real world of Oregon politics, we got a complex, cumbersome, costly and slow-moving new executive branch bureaucracy — one promising a cadre of new state lawyers extraordinarily high pay for extraordinarily low caseloads, with unsustainably generous pension benefits thrown in.

It quickly proved impossible to fund, particularly with federal aid collapsing, gas tax revenue crashing and educational performance plummeting. Oregon’s public defense costs shot from $367 million per biennium to almost $600 million in short order, with little if any reduction in the state’s chronic backlog.

There’s plenty of blame to go around, but the biggest share should probably be reserved for Senate Judiciary Chair Floyd Prozanski of Eugene, chief legislative architect of the wholesale overhaul, and the Oregon Public Defense Commission, which recently produced a perhaps even more lavish revised version in response to a gubernatorial demand.

In its simplest terms, herein lies the problem: Asked to replace a Model T, they opted for a Rolls-Royce when something vastly more modest would have sufficed.

If anything, the commission’s revised plan serves only to make matters worse. It calls for putting 79 new lawyers on the state payroll every year for the next six years — a total of 474, most if not all presumably at six-figure salaries.

Incensed over the direction taken by the commission, the leading House player on the issue, Monmouth Democrat Paul Evans, asked the Oregon Judicial Department to conduct a formal analysis.

Released Feb. 18, that analysis was blistering. The Oregonian summarized its findings this way: “The state plan to address Oregon’s unchecked backlog of criminal defendants without court-appointed lawyers will not only fail to solve the problem, but is expected to significantly exacerbate the crisis.”

In full agreement, Evans told the paper, “I’m old school and military. If there’s an emergency, that means everything else stops. It is all hands on deck. It is bring people, bring the wagons together, and you get that problem and you beat that problem down.”

Sadly, we have no immediate counter plan to offer for Oregon’s longstanding public defender crisis. But we’re quite sure of one thing: The solution doesn’t lie in spending the next six years throwing wads of cash its way and hoping for the best.