Reimagining Oregon’s Pity Party

The state’s “indigent defense” budget is out of control

Criminal defense attorneys who represent the poor are so used to pleading poverty that nobody has noticed how generous Oregon’s indigent defense fund actually is.

The latest pleading came a few days ago from state Supreme Court Chief Justice Martha Walters who called the situation a “crisis.”

There’s a crisis in this state, but it isn’t because we aren’t spending enough money defending accused criminals.

Oregon’s progressive politics have borne dangerous fruit in the criminal justice system: More crime, fewer consequences.

Criminals – and their attorneys – know how to game this system with continuous “settlement conferences” month after month with no resolution. Let the meter run. Too bad the state Supreme Court chief justice is clueless.

As widely reported in the mainstream media, Chief Justice Walters said the state’s inability to provide defense lawyers has “a real impact on defendants who have a constitutional right to counsel, on courts’ ability to resolve cases, on the safety of our communities.”

Multnomah County District Attorney Mike Schmidt, elected two years ago on a platform promising to prosecute fewer cases, has seen the political results in escalating crime. Now he claims he can’t prosecute because criminal defendants don’t have attorneys.

The fact is, Oregon spends a lot of money on indigent defense and has for years.  A 2015 study by the federal Bureau of Justice Statistics showed that of 23 states with 100 percent state funding – which Oregon has – only Alaska spent more per capita than Oregon on indigent defense. (The high cost of air travel in Alaska is probably why it ranked number one.)

In another study a decade ago by the American Bar Association, Oregon was ranked in the top four states for spending the highest amount on its defense system.

Yet three months ago, the state’s Office of Public Defense Services, with a budget of $355.9 million – a third of a billion dollars – issued a press release bemoaning its lack of resources.

If you try to sort through all the data and studies on indigent defense, you can come to any conclusion you want. States handle indigent defense differently. Keep in mind an important feature of Oregon’s indigent defense program: It offers all kinds of legal representation – not just criminal.

Here is a partial list from the Bureau of Justice Statistics study, revised in 2015, which looked at each state and noted all the services that Oregon provides under indigent defense: Termination of parental rights, dependency (adults and juveniles), civil commitment, Psychiatric Security Review Board, child support contempt, felonies, misdemeanors, juvenile delinquency, appeals and habeas corpus petitions.

The latter are referred to as “post-conviction relief,” which means even after a felon is righteously convicted and sent to prison, he can appeal and appeal and appeal. He won’t have to pay for an appellate attorney. The public will.

The indigent defense fund has grown into a gigantic bureaucracy. Once upon a time, there were court verifiers who made an effort to ensure that persons who applied for court-appointed counsel met income limits. Now unless someone is known to be well-off, the question isn’t raised.

To show how ridiculous it has become in Oregon, look at one of the parties the Office of Public Defense Services recently offered a six-month, $400,000 contract to as a communications consultant – former House Majority Leader Jennifer Williamson (D-Portland).

Her fingerprints are all over legislation that has enabled violent felons to leave prison early – or avoid it entirely. Because of her, the voter-approved Measure 11 requiring minimum-mandatory sentences for violent juveniles has been repealed – without ever going back to the voters. Violent juveniles can now be adjudicated in the secrecy of juvenile court where the records can more easily be expunged (never mind that it might make it easier to legally acquire a gun later). Williamson also authored the legislation that redefined the voter-approved death penalty so there will never be a death penalty.

Before she was elected state representative in 2012, Williamson, an attorney, worked with the Western Prison Project, a prisoner rights group. Later the organization changed its name to the neutral sounding Partnership for Safety and Justice.

Members of Partnership for Safety and Justice frequently testify before legislative committees on behalf of proposed laws favorable to criminal defendants and unfavorable to police, prosecutors and crime victims.

Williamson’s skills at communication were frequently on display as a member – and later chair – of the House Judiciary Committee. Small gestures can mean so much. On one occasion I saw her perform as a keeper of the Kleenex box, making sure that tearful young crime victims had fresh tissue – ignoring that the legislation she supported favored the older man who preyed on them.

In 2019, Williamson gave up her House leadership position to run for Secretary of State. She was regarded as the Democratic front-runner when Willamette Week publicized some suspicious campaign expenditures she made while serving in the House. Her campaign paid for more than $32,000 in airfare to Europe, Asia and Hawaii and $24,000 for hotels in Los Angeles, Boston, Hong Kong, Munich and Dublin.

Rather than explain herself and her expenditures, Williamson dropped out of the race.

Her duties under the contract with Office of Public Defense Services will involve government and public affairs strategy. Translation: Getting the legislature to give even more money for indigent defense.

How? By throwing a giant pity party and blaming crime – not on the progressive laws that have emboldened criminals who know what they can get away with – but because there’s not enough money to give proper legal representation to people who steal, rob, assault and kill.

At the end of the recent legislative session, Rep. Janelle Bynum (D-Happy Valley), who chairs House Judiciary – Williamson’s old spot – insisted that something desperately needed to be done about indigent defense. Bynum, who had hoped to become the first black Speaker of the House and may try again, has already suggested indigent defense should be taken up in the 2023 legislative session.

How does this play out in court on a daily basis in Oregon’s largest city?

The rate of prosecutions no longer represent the actual crime rates, said a former Multnomah County prosecutor. Police make fewer arrests because they know the district attorney will not prosecute certain crimes. The public follows suit and stops reporting crimes.

“The high crime rate does not get on the screen because the actual number of cases going into the system is much lower…,” the former prosecutor said. “Despite the crime rate, they find ways to keep people out of jail.”

Judges contribute to a steady churn of continuations in court cases. If defendants don’t like the legal representation they receive, they can ask for another attorney. Cases can drag on.

It is not in the interest of the defense bar to resolve cases, particularly if there’s a public meter running. Trials are more work for everyone – the judges, prosecutors and defense attorneys.

“We need somebody on the Supreme Court who actually dissents, a judge in Multnomah County calling BS on the way cases are being prosecuted” said the former Multnomah County prosecutor.

One promising sign came a week ago when the Clackamas County Commission officially withdrew its association with Reimagine Oregon, the name for a collective of black community organizations and leaders, who banded together after the death of George Floyd to demand a slate of racial justice bills.

Gov. Kate Brown, along with regional and local officials quickly signed on to Reimagine Oregon. Multnomah County Chair Deborah Kafoury promised to reform how the county-funded jail and district attorney’s office disproportionately hurt blacks. She said the county would close one of three jail dorms within a month and reallocate the $1.6 million to programs that work to keep blacks from getting involved in the criminal justice system. (Hint: Stop arresting them even when they have committed a crime.)

Two years ago nobody dared to question Reimagine Oregon. The legislature quickly handed it $62 million to offset effects from the pandemic lockdown.

But less than two weeks ago, the Clackamas County Commission voted 3-1 to withdraw from Reimagine Oregon. The commission cited its commitment to the public safety of all their constituents. Clackamas County Chair Tootie Smith, and Commissioners Mark Shull and Paul Savas refused to support Reimagine Oregon’s continuing push to defund police.

It’s unlikely any Multnomah County or Portland elected leader will step up and follow Clackamas County’s lead.

What is this new Oregon that is being reimagined? Here’s how it looks in my neighborhood:

There are two small mini-mart stores within walking distance of my home that for a while now have had boarded-up windows because of break-ins. In one case, the window replacement would cost $3,000. In both cases, there’s no rush to replace the windows because the boards offer more security. Ironically, there is an old sign on the front door of one of the stores warning, “Shoplifters will be prosecuted.”

Those were the days. Imagine.