Governor Kotek Seeks Changes to Legislature's Overhaul of Public Defense System

SALEM, Ore. (AP) — Oregon Gov. Tina Kotek is asking a state legislative panel for changes to a Senate bill that would address a constitutional crisis that has left thousands of people accused of crimes without attorneys.

Kotek’s letter comes after lawmakers and policy experts have spent over than a year crafting the legislation, Oregon Public Broadcasting reported. Some public defense leaders say Kotek’s request for the changes would force them to oppose a bill they otherwise support.

Senate Bill 337

Senate Bill 337 would fundamentally change how Oregon provides lawyers to people who can’t afford them. It would create a system with public defenders who are state employees, and it would eventually end the use of contracted for-profit defense firms.

One of the provisions would move the Office of Public Defense Services, the state agency responsible for public defense. The bill moves the office out of the judiciary department, which legal experts say must be done to keep public defense independent of the courts.

The bill now says public defense would move to the executive branch, but would not allow one person or entity to hire and fire the people in charge of the state’s public defense agency. Kotek is against the move, saying if the office is in the executive branch, the governor must have the authority to hire and fire the agency’s head and to remove its commissioners to achieve “true accountability.”

System refesh

Based on her letter, Rep. Paul Evans, D-Monmouth, drafted amendments that lawmakers are planning to discuss in committee on Tuesday.

“We have been ... talking about it for far too long, and we need to have structural, systemic change,”

Evans told OPB Saturday.

However, Kotek’s request goes against national recommendations as well as a 2019 report she took credit for getting funded, which listed structural changes necessary to make the public defense system independent of both judges and politicians.

Oregon's public defense system

Oregon’s system for providing lawyers to criminal defendants who can’t afford them has shown cracks for years, but case backlogs significantly worsened during the coronavirus pandemic. The public defender shortage has overwhelmed the courts, frustrated defendants and affected crime victims, who experts say experience added trauma when cases are dismissed or take longer to be resolved.

In her May 11 letter to lawmakers, Kotek said she shared their urgency to address the crisis, but she said moving the agency would “distract from the core mission” of trying to provide adequate criminal defense.

If lawmakers are determined to move the agency, Kotek stated, “it will be important to add changes to the bill” to treat public defense like other agency leaders who serve at the governor’s discretion.

In 2019, the nonprofit, nonpartisan Sixth Amendment Center completed a report that the Oregon Legislature funded. It found Oregon’s public defense system, housed within the state’s judicial branch, was unconstitutional and structurally flawed.

Criticism of the ammendments

The public defense community is against the governor’s changes, saying they would corrode independence that is fundamental to their work. On Friday, the Public Defense Services Commission leaders in a letter to lawmakers said they'd formally oppose Senate Bill 337 if the rules committee adopted the changes Kotek is seeking.

“Oregon must not move backward and erode the core tenet that public defense remain independent from political pressures,” the commission’s letter stated, “so that is empowered to appropriately and zealously advocate against the government.”

Some of those closest to the bill are conflicted over the governor’s sudden interest in the legislation.

Sen. Floyd Prozanski, D-Eugene, co-chaired the work group that wrote the bill and chairs the Senate Judiciary Committee. Prozanski on Friday said he planned to support the governor’s amendments, despite concerns.

“It’s got to be something that the governor is going to accept,” Prozanski said.

But on Saturday Prozanski said in an email that after reading the public defense commission’s opposition letter and reflecting on the matter, he no longer supported Kotek’s amendments. Prozanski said he believes there should be a higher threshold for removing the state’s head of public defense than at the will of the governor.

Evans, who co-chaired the public defense work group with Prozanski, said he introduced the latest amendments because, even before her letter, the governor’s staff was clear with him and other lawmakers that Kotek did not want to add public defense to her office’s responsibilities.

“The governor has enough messes that she’s trying to work on, and she didn’t want this in the executive branch,” Evans said. “Because it has been such a challenge, she wants a little additional capacity to be able to push people to do their jobs.”

Evans acknowledged that the legislation was a late departure from national recommendations. He said the compromise was a political reality.

Lawmakers and advocates for public defense have been trying to reform the system for years. In 2019, they failed to pass a bill that contained many elements of Senate Bill 337. This year, passing the bill also hinges on Senate Republicans ending a walkout that has stalled work in the Oregon Senate since early May.