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The right to counsel in Oregon
Oregon’s first constitution was adopted in 1857 and became effective upon statehood on February 14, 1859. It guaranteed that, “in all criminal prosecutions, the accused shall have the right . . . to be heard by himself and counsel . . .” and that same right remains in Oregon’s constitution today. In 1960 in Oregon v. Delaney, the Oregon Supreme Court noted it was “very likely” that the state’s constitutional right to counsel did not confer on any court the power to appoint counsel, but rather protected the right of a defendant to be heard by any attorney he chose to hire. Nonetheless, the Court found that “all courts of this state have inherent power to appoint counsel for an indigent person accused of a crime when it is established that a need for counsel exists and provided that the situation is not met by” an existing statute.
In 1969 and three years ahead of the U.S. Supreme Court, the Oregon Supreme Court held that the Sixth Amendment to the U.S. Constitution guaranteed the right to counsel in misdemeanor cases just as in felonies. “We hold that no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment. This holding is applicable to all criminal prosecutions, including prosecutions for violations of municipal ordinances. The denial of the assistance of counsel will preclude the imposition of a jail sentence.” Importantly, the Court also held that the Oregon Constitution “mandates the appointment of counsel for all indigent defendants whose conviction may result in a loss of liberty.”
By statute today, an indigent defendant in a criminal case is entitled to appointment of counsel. A “crime” in Oregon is either a felony or a misdemeanor, and all Oregon crimes carry the possibility of incarceration. A “violation” is not punishable by incarceration, is tried by a judge without a jury, and interestingly prosecutors are not allowed to appear in violation proceedings unless the defendant shows up with an attorney. “Defense counsel shall not be provided at public expense in any proceeding in which only violations are charged.” However, failure to appear in response to a citation for a violation is a Class A misdemeanor which does carry the possibility of incarceration if the prosecutor or judge decides to pursue it.
Similarly, children in delinquency and criminal matters are entitled to public counsel.
Though the federal Constitution does not require it, Oregon statutorily provides public representation to indigent defendants in their post-conviction and habeas corpus proceedings from a criminal conviction or delinquency adjudication. Oregon also provides public representation to indigent parents in any termination of parental rights proceedings, to indigent parents and children in dependency cases, and to all people who are the subject of a civil commitment proceeding.
How the right to counsel is administered and structured
The Sixth Amendment right to counsel in Oregon’s circuit courts is primarily administered and funded at the state level, although the counties and cities remain responsible for the administration and funding of the right to counsel in any justice and municipal courts they have established. In 1983, the state took over all responsibility (with limited exceptions) for the administration and funding of all right to counsel services in the circuit courts. Nonetheless, there are still occasions on which a circuit trial court or an appellate court appoints a private attorney, outside of the state system, to represent an indigent defendant.
The Public Defense Services Commission (PDSC) is a state agency in the judicial branch of government. The seven members of the PDSC are all appointed by the Chief Justice, who serves as a nonvoting, ex officio member. Of the seven voting members, at least two must be non-attorneys, one must be a criminal defense attorney, and one must be a former state prosecutor. Voting members of the commission cannot be a sitting judge, current prosecuting attorney, current law enforcement employee, nor person primarily engaged in providing public defense services. The members are each appointed for a four-year term, and they may be reappointed for as many terms as the Chief Justice chooses. Despite the four-year appointment, a member can be removed and replaced at any time that the Chief Justice orders. From among the members, the Chief Justice chooses who will serve as the chairperson and as the vice chairperson, and these positions similarly may be reappointed for as long as the Chief Justice desires.
The PDSC is responsible for establishing and maintaining the public defense system for the entire state courts’ system, and at the trial level that is the circuit courts. PDSC does not, however, have authority over the provision of the right to counsel in any justice courts (established by counties) nor in any municipal courts (established by cities).
The Office of Public Defense Services handles the day-to-day management of the system. The PDSC appoints OPDS’s “executive director who serves at the pleasure of the commission.”
How the right to counsel is funded
Effective January 1, 1983, the state took over all responsibility for funding of the right to counsel in the state trial courts, though counties and cities remain responsible for funding the right to counsel in any justice and municipal courts they establish.
The methods used to provide public counsel
PDSC and OPDS are responsible for providing counsel to financially eligible adults and children in adult criminal, juvenile delinquency, dependency, and civil commitment proceedings in the state trial and appellate courts. The totality of this representation is provided through a combination of: state employed attorneys; contracts with individual attorneys, consortia of attorneys, for profit and non-profit law offices, and advocacy organizations; and individual attorneys appointed case-by-case.
For appeals, PDSC and OPDS provide representation most often through salaried state employed attorneys, then through lists of private attorneys appointed on a case-by-case basis and paid hourly, and in a small number of cases through attorneys paid under contracts.
OPDS has approximately 44 salaried staff attorneys who handle only appellate court cases (including post-conviction). When conflicts arise or when the workload is of a type or greater than can be handled by these state employed attorneys, OPDS maintains two lists of private attorneys – the Criminal Appellate Panel (seven attorneys as of October 2018), and the Juvenile Appellate Panel (six attorneys as of October 2018) – who are available to be appointed on a case-by-case basis to handle appellate cases. Criminal appellate panel attorneys are paid a flat fee per case for the direct appeal based on the type of case, transcript length, and type of brief filed, with the per case fees ranging from a low of $370 to a high of $9,820. Juvenile appellate panel attorneys are paid a flat fee per case based on the type of case, transcript length, and whether the case involves a full appeal or appeal from a more limited type of decision, with the per case fees ranging from a low of $2,000 to a high of $4,500. For discretionary review by the Oregon Supreme Court, both types of panel attorneys are paid $55/hour with a presumptive 100 hour limit. For both direct appeal and discretionary review, both types of panel attorneys may petition OPDS for additional payment in an exceptional case. A small number of appeals in certain case types or certain areas of the state are handled by attorneys under contracts with PDSC that are more generally for the contractor to provide trial representation.
For trial level representation, there are no salaried state-employed attorneys. Instead, PDSC and OPDS provide all trial level representation through private attorneys, predominantly under contracts, and to a much smaller extent appointed on a case-by-case basis and paid hourly.
By far, most trial level representation in every type of case is provided by attorneys who are under contract, in one form or another, with PDSC. All PDSC contracts are either with an individual to be available for case-by-case appointments or with a contractor to receive a potential annual caseload of appointments. A given contractor may be one attorney, but in most instances a particular contractor is made up of multiple individual attorneys. Altogether statewide there are approximately 647 individual attorneys who are participants in one or more annual and/or case-by-case contracts with PDSC to provide some sort of trial level representation during 2018 and 2019. Of those 647 individual attorneys, at least 15 of them participate in more than one PDSC contract for 2018 and 2019.
PDSC has contracts for 2018 and 2019 with 29 individual attorneys to accept capital murder cases from anywhere in the state on a case-by-case basis, payable at $100/hour. Similarly, PDSC has contracts with 22 mitigation specialists for capital murder cases to work on a case-by-case basis, payable at $62/hour.
PDSC has annual contracts for 2018 and 2019 with 63 different contractors, each of which provides trial representation in one or more counties. Each contractor is composed of one or more individual attorneys. The contractors are:
10 public defender offices, made up of attorneys employed by the public defender office and who do not take other cases outside of the PDSC contract;
36 consortia, made up of private attorneys working out of their individual offices;
12 private for-profit law firms, made up of attorneys employed by the law firm;
1 non-profit law firm, made up of attorneys employed by the law firm; and,
4 individual attorneys.
Of these 63 annual contractors, two provide some statewide resources as a part of their contract with PDSC (one for support & training to juvenile defense attorneys, and one for attorneys representing veterans). For 2018 and 2019, OPDS additionally has annual contracts with three providers for purposes other than trial representation (one for immigration consultations, one for post-conviction appeal representation, and one for post-conviction & habeas corpus appellate representation).
Only the public defender office attorneys are prohibited from taking cases outside of the specific OPDS contract. The attorneys in all other contractor types can take as many other cases of whatever type and from wherever they wish, and they may participate with more than one contractor.
The “General Terms” of all of the contracts are exactly the same; but each of the 66 contracts has its own “Specific Terms” for the amount paid, the number & types of cases to be handled, any special services the contractor will provide, and any changes/deviations from the standard general terms. In short, OPDS does not paying the same amount per case / case type to each contractor.
When conflicts arise or when the workload is of a type or greater than can be handled by the attorneys under contract, OPDS maintains two lists of individual attorneys whom it has pre-approved as qualified to be appointed on a case-by-case basis and paid an hourly rate. As of June 26, 2018, there are 435 attorneys on the list that OPDS has pre-approved as qualified for cases other than capital murder. For trial level capital murder cases, as of June 26, 2018, OPDS has pre-approved as qualified 36 attorneys to be appointed as lead counsel and 57 attorneys to be appointed as co-counsel; many of these attorneys also appear on the non-capital murder list. Many of the individual attorneys who are pre-approved to be appointed on a case-by-case basis are also attorneys who participate in one or more individual or annual contracts with PDSC. Private attorneys who are appointed in a capital murder case are paid $61/hour as lead counsel or $46/hour as co-counsel. Private attorneys appointed in any type of case other than a capital murder are paid $46/hour. In both capital murder and non-capital murder cases, attorneys may petition OPDS for additional payment in an exceptional case.
OPDS has no responsibility at all for the provision of counsel in the justice and municipal courts. Counties (for justice courts) and cities (for municipal courts) determine for themselves how to provide and pay for indigent representation. The governing body of a county may, if it wishes, contract with one or more attorneys to provide public defense services in the justice court(s). If a county does not contract for public defense services in its justice courts, it must pay any appointed attorney at least $30 per hour.
Oregon Constitution, art. I, § 11
Oregon Revised Statutes, §§ 151.010 through 151.505
Source of data: original research conducted by Sixth Amendment Center staff, augmented by information included in the membership directory of the Oregon Criminal Defense Lawyers Association.