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By one key metric, Multnomah County’s public defense crisis has never been worse.
The number of people with outstanding criminal charges but no attorney reached a new high Tuesday, Jan. 23, according to state officials: 645. (That doesn’t count people in jail, a tally that the state says has hovered around 10 to 20 people, although a spokeswoman for the Multnomah County Circuit Court disputes that number, saying it’s far closer to zero.)
The climbing number presents a puzzle for policymakers. On one hand, they’ve made progress in addressing the number of criminal defendants that lack defense attorneys by funneling millions of dollars—and likely millions more—in bonus payments to lawyers willing to take on those cases.
On the other hand, their efforts to address the root of the problem don’t seem to be paying off, at least not yet. State data shows Multnomah County added six new public defenders in the second half of last year. But the court is still having trouble finding lawyers willing to take on new cases—and the problem threatens to get worse as court filings return to pre-pandemic levels.
There’s widespread agreement that Oregon is short on public defenders. (The American Bar Association said in 2022 that the state has only 31% of the total it needs.)
Yet, to the consternation of policymakers, the available data doesn’t seem to show it. An internal court dashboard, reviewed by WW through a records request, puts the dilemma like this: “Why does it look like we have enough attorney capacity to resolve the unrepresented crisis?”
POSSIBILITY 1: Public defenders aren’t taking enough cases.
Oregon’s public defense system is unique. The state, until very recently, didn’t employ its own public defenders; it contracted the work out. Those contracts include caseload maximums, but leave it up to lawyers and their firms to decide how many clients they can ethically manage at once.
This, however, leaves room for debate over what exactly constitutes a full workload. Different lawyers define their ethical limit differently, “which makes no sense to me, whatsoever,” says state Rep. Paul Evans (D-Monmouth), who helped push through legislative reforms and was recently appointed to the new Oregon Public Defense Commission.
The biggest contractor in Multnomah County is Metropolitan Public Defenders, a nonprofit firm whose leadership pushed for many of those reforms. Last summer, court officials compiled a presentation that included data showing that MPD lawyers (and those at the other Portland nonprofit, Multnomah Defenders Inc.) weren’t taking their “maximum attorney caseload” as defined by the state contract.
The presentation, recently obtained by WW, has been raising eyebrows around the courthouse since. According to more recent data shared by the court with WW, nonprofit public defense firms took on only 72% of the “maximum attorney caseload” during their 2023 fiscal year. (MPD led MPI, 82% to 66%.) Private lawyers took on 122%.
POSSIBILITY 2: The state’s math is wrong.
But the head of MPD, Carl Macpherson, says the data compiled by the Oregon Judicial Department is misleading. In an August memo, he said maximum attorney caseload “is an arbitrary and inaccurate measurement of attorney capacity.” (For example, the maximum number of misdemeanors an attorney can take per year in Oregon is 300. The RAND Corporation published a report last year saying half that would be more appropriate.)
Furthermore, Macpherson wrote, the court’s calculations are wrong. The court assumed attorneys who’d only worked part of the year should take on a full year’s worth of cases, he wrote, among a litany of other errors. “OJD’s data does not account for attrition,” he tells WW. “Our attorneys, investigators, legal assistants, and case managers have high caseloads and work long hours.”
Stacey Reding, head of MDI, said her firm “remains committed to taking as many cases as ethically and logistically possible” and noted that high caseloads caused “an exodus of attorneys” in 2022.
The latest version of OJD’s internal dashboard admits the data comes with a major caveat: The state doesn’t track when attorneys are hired or resign, and therefore has overestimated the number of available attorneys. The Oregon Public Defense Commission, the state agency which oversees and funds public defense, “is working on tracking start and end dates in their database,” it says.
“The court’s data on public defense caseloads is imperfect,” acknowledges the Multnomah County Circuit Court’s spokeswoman.
OPDC will release its own dashboard in the coming months, director Jessica Kampfe says.
Meanwhile, the data has left lawmakers flummoxed. The Oregon Judicial Department presented statewide data to legislative committees last week, showing that as the number of attorneys rose, the weighted number of new client appointments fell.
“They say they’re making the best out of a crisis, but the caseloads aren’t showing that,” said Sen. Janeen Sollman (D-Hillsboro), who co-chairs the public safety subcommittee to which OJD presented its data.
Rep. Evans says lawmakers need to see better data—and one way to get it is to overhaul the state’s public defense case management system, which is woefully out of date. That project began in 2017, but has been repeatedly put on hold.
It remains a “top priority” of the OPDC, the state agency responsible for public defense, although it’s “putting a brief hold on it” following the retirement of its chief information officer, according to a spokeswoman.
Evans is disappointed with the delays, although he says the state is making overall progress in addressing the crisis.
He cites the creation of a new office of state-employed attorneys that began taking cases in December. It’s behind schedule, but is rapidly hiring new attorneys. “In 18 months or so, we’ll be able to show success,” he promises.