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January 21, 2022

ABA SCLAID finds lack of resources in its study of Oregon’s public defense system

WASHINGTON, Jan. 21, 2022 — The American Bar Association Standing Committee on Legal Aid and Indigent Defense (SCLAID) and the Seattle-based accounting and consulting firm Moss Adams LLP released findings today of a joint study of workloads of state public defense attorneys in Oregon, showing a systemic deficiency exists for the residents of the state who need public defense.

The principal finding of the study determined that at an annual consistent workload, the Oregon Office of Public Defender Services (OPDS) is deficient 1,296 full-time-equivalent (FTE) attorneys for its adult criminal and juvenile caseloads. In other words, OPDS has only 31% of the FTE attorneys needed to provide reasonably effective assistance of counsel pursuant to prevailing professional norms to its adult criminal and juvenile clients.

The report also noted a lack of available data, which it said stems from the fact that Oregon employs a contracting system for its public defense that includes more than 100 contractors, which vary significantly in both size and organizational structure. Historically, OPDS has collected and maintained little data on public defense in the state and has had little role in oversight of attorneys engaged in public defense work beyond the contracting renewal process.

“OPDS should implement systems to reliably collect basic data from all contractors on qualifications, case assignments, caseloads and work completed in public defense cases,” the study recommended, noting the state has taken some preliminary steps in that direction.

The Delphi Method, used by Moss Adams in making its determinations, is a reliable and structured research method developed by the Rand Corporation in the 1960s. It has been employed across a diverse array of industries, including the legal system, to produce professional consensus opinions, as well as past ABA SCLAID reports. 

This is SCLAID’s seventh public defense workload study since 2014, when the inaugural report on Missouri was released. Other states in which studies have been completed are New Mexico, Louisiana, Colorado, Rhode Island and Indiana.

“Once again, our study of a state public defender system demonstrates that public defenders are daily put in grave jeopardy of violating their professional responsibility to provide competent counsel,” ABA President Reginald Turner said. “This time it is in Oregon. When this occurs, ABA policy and well-established legal principles support public defenders in assertively seeking relief from excessive workloads. Courts, in turn, should provide relief when excessive caseloads threaten to lead to representation lacking in quality or to the breach of professional obligations. To do otherwise, not only harms individual defendants but our entire justice system.” 

In 1963, the U.S. Supreme Court’s decision in Gideon v. Wainwright extended the right to counsel to felony cases in state criminal courts and, subsequently, the Supreme Court extended the right to counsel to misdemeanor cases ending with the defendant being imprisoned. The ABA believes these studies, besides suggesting that excessive public defender workloads are endemic, call into serious question the accuracy of the phrase “equal justice under law” engraved on the main entrance to the U.S. Supreme Court. 

The full report can be found here.

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