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Public defender problem will involve more than money
By RANDY STAPILUS Of the Oregon Capital Chronicle
Oregon’s public defender problems have been getting much better and much worse at the same time.
Finding a solution that makes sense doesn’t involve doing what most people have long argued: spending more money on legal services. The answer lies in how the money is managed and spent, and how the workload is organized.
In all, it resembles any of several serious Oregon problems—drug abuse and homelessness among the—where the willingness to do the right thing, and the ability to pay for it, are not the bottleneck. The problem lies in smartly managing the problem-solving.
The problems with the public defense of people charged with a crime who cannot afford an attorney but have the right to one is not new, and legislators and the state execu- tive branch actively have been work- ing on it for years.
The Oregon Legislature has responded. The Oregon Public Defense Commission, which is assigned to manage and deliver public attorneys for at-need defendants, has been given a massive infusion of new money, its budget more than doubling in the past seven years.
The larger picture in defense caseloads looks better than even a couple of years ago. In January 2022, the American Bar Association pro- duced a report called The Oregon Project: An Analysis of the Oregon Public Defense System and Attorney Workloads Standards, which found that Oregon had fewer than a third of the attorneys, or more exactly attor- ney work-hours, needed to meet the the demand and ought to have the full-time equivalent of about 1,300 more attorneys.
Since then, other states have stud- ied exactly how much attorney time is needed in public defense, and when variations in the types of cases are factored in—a simple misdemeanor versus a knot of complex felonies, for example—it turns out Oregon’s need is far smaller than estimated by the Bar association. Those studies indi- cate it needs about 600 attorneys.
But the problem is more complicated than that.
There’s been more focus on providing counsel for in-custody defendants, but the problem seems to have worsened among the larger group of out-of-custody defendants, with the lack of counsel problem worsening overall.
Their ranks have swelled after a federal judge last October ordered that any inmate not assigned an attorney within a week had to be released from county jails.
On top of that, the average time an out-of-custody felony defendant now is without counsel is running upward of 100 days.
This has been happening even at a time when the numbers of Oregon crimes, notably property crime, have been trending downward.
Under terms of the state-attorney contracts awarded in June 2022, the defense attorneys are limited in the number of cases they can accept. By April of 2023, however, many attor- neys already had hit those ceilings and could not take on new clients as new defendants entered the sys- tem. In Multnomah County, private lawyers overall reported hitting 122% of the maximum caseload in recent months. So in the spring of 2023, the state throttled back the number of cases defense attorneys could take.
There have also been serious problems with billing by the ™com- mission. The amount of time elapsed for payment to attorneys has grown from just over a week in 2016 to more than 45 days this year – a situation bound to become unacceptable to many attorneys and other contrac- tors, such as private investigators.
More flexible rules for attorney contracting could help, along with a sharper focus on problem-solving and less on rule-making. But there’s a larger systemic block getting in the way of solving many state problems that both agency directors and the governor, and the Legislature, should start to consider more broadly.
Randy Stapilus has researched and written about Northwest politics and issues since 1976. He lives in Carlton.
Giving Dems a Senate majority is a bad idea
By GEORGE F. WILL
This year’s elections will decide not only the Senate’s composition, but also the institution’s character and, hence, the tenor of politics. If you think this tenor could not get worse, wait until a Democratic-controlled Senate, acting impatiently on a slender majority, at last abolishes the legislative filibuster.
Some say filibusters, which require 60-vote supermajorities to end debate on significant legislation, are unconstitutional because the Constitution mandates only five supermajorities (for ratifying treaties, endorsing constitutional amendments, convicting in impeachments, overriding vetoes and expelling members). But the Constitution does not permit only what it mandates. Besides, it empowers each chamber to set its own rules.
Quadrennial presidential elections, biennial House elections and staggered Senate elec- tions make divided government likely: It has existed more often than not for five decades. This strengthens the case for the filibuster as a means of forcing factional compromises.
Imagine a future without the filibuster: After abolition, the first Senate controlled by a slender Republican majority might pass a national right-to- work law, a national voter ID law and much more. The next Democratic-controlled Senate might repeal all this, before enacting a $20-dollar-an-hour national minimum wage, card check unionization elections and much more. Then, a sub- sequent Republican-controlled Senate would continue the ping-pong legislating and repealing. The “mutable policy,” “unstable government” and “public instability” that the Founders (Federalist 62) warned against would become normal.
Barack Obama’s 2020 canard that the filibuster is a “Jim Crow relic” is refuted by the unlimited Senate debate that preceded segregation laws (and even the Civil War), and filibustering
by progressives such as early-20th-century Wisconsin Sen. Robert La Follette. More recently, Democrats used the filibuster to thwart Republicans’ attempts to repeal Obamacare, block funding for Donald Trump’s border wall, force enrichment of the pandemic-era Cares Act, preserve taxpayer funding of abortion, block criminal justice reform, and for other progressive causes
In 2005, Obama, then a member of the Senate minority, warned that “if the majority chooses to end the filibuster,” “bitterness” and “gridlock” would worsen. Such situational ethics are not uncommon:
Without the filibuster, the Senate would be “subject to the winds of short-term electoral change.” (Democratic leader Chuck Schumer, in the minority in 2017.) Ending the filibuster would be wrong because “we have to acknowledge our respect to the minority.” (Assistant Democratic leader Dick Durbin, when in the minority in 2018.)
The Supreme Court has long since stopped enforcing the Founders’ intention that the federal government be limited by the enumeration of Congress’s powers. So, the filibuster is increasingly important to protect federalism—the pluralism of disparate states. The filibuster is suited to the Senate, a non-majoritarian institution in which 576,000 Wyomingites have as much representation as 39 mil- lion Californians.
The 10 most-populous states have 53.173% of the population, the 10 smallest 0.745%—remarkably similar to 1970 (54%, and less than 3%). Of the 10 largest states, three are currently blue (California, New York, Illinois), three are red (Texas, Florida, Ohio), and four are purple (Georgia, North Carolina, Michigan, Pennsylvania). Had the Constitution’s framers not agreed on a Senate representing the states equally, there might not be a Constitution.
Some critics say the filibuster causes Congress’s procedures to frustrate the public’s expecta- tions of swift-acting government. But by forcing the legislative process to take time to “refine and enlarge the public views” (James Madison, Federalist 10), the filibuster encourages more judicious expectations.
The filibuster implements the Constitution’s premise that minorities shall not be at the mercy of “the wantonness of power” (Thomas Jefferson) wielded by majorities. The filibuster measures and accommodates intensity of feeling concerning legislation, rather than mere numbers. It is, like the separation of powers and a bicameral Congress, a “complicated check on legislation” (Madison, Federalist 62) that prevents untrammeled, simple-minded government-by-adding-machine majoritarianism.
Allowing the expression of intensity can defuse it, thereby furthering government’s primary function: to keep the peace among people who are opinionated and egotistical (they prefer their own opinions). The 1964 Civil Rights Act that ended segregation in public accommodations passed after Southern opponents waged, over 75 days, the longest (543 hours) filibuster in Senate history.
The act was enforced with remarkable speed and remark- ably little violence partly because Southerners, after the catharsis of protracted and intense resistance, felt they had suffered a dignified defeat.
This year, when you choose a senator, you might be choosing a new kind of Senate. In this season of anger, do you want a Senate that, without the filibuster, will be even more blown about by gusts of intemperate opinions, and will have less need to accommodate differences?
(Washington Post)
Media landscape changing in Oregon
By GENE H. McINTYRE
Congratulations to Lyndon Zaitz, the other journalists and Keizertimes staff on recognition granted them and our local newspaper upon winning first place awards in the 2023 Better Newspaper Contest by the Oregon Newspaper Publishers Association recently held at Eagle Crest Resort.
There were several recognition awards, including a first place for the Keizertimesas excellent at news reporting and one for Best Spot News Coverage that went to Keizertimes writer Quinn Stoddard for his story on Keizer’s “invisible” homeless population.
Meanwhile, my family and I recognize ourselves as being beneficiaries of a local newspaper when the current century to date has not been kind to their survival. In fact, since 2001, the state’s news- papers have lost three-quarters of their workforce. Then, too, unfortunately, workforce reductions therein continue underway as this column is read.
J. Brian Monihan, Carpenter Media’s Oregon publisher, has saliently remarked, “Without a local newspaper, a community loses its connection to the past, its ability to bring people together to resolve issues in a civil manner.” And “without them, we lose a common bond, celebrating our commu- nity and the people that make it special.”
Why is this change taking place? Fewer readers are willing to pay for a printed newspaper as information is often free to them on the internet. Advertising is expensive and those who use advertising of any kind expect a return on their investment by means that bring their products and services to the attention of consumers. Furthermore, new ways to communicate with the public can be seen through media organizations that now charge for online subscriptions.
Another comment that should receive our consideration comes to us from Kaitlin Gillespie, executive director of the Pacific Northwest Newspaper Guild. She has remarked that “We’re undermining our ability to sustain a functional democracy when local newspapers take the hits they’re taking.” Although a return to the full abundance of daily and even weekly newspapers appears unlikely now, news on the subject is not all dismal: Oregon Public Broadcasting (OPB) and the Oregon Capital
Chronicle have recently added jobs and thereby helped replace some statewide and local news coverage and opportunities by journalists to find work in their field of endeavor. Whatever the case with printed newspapers, they have been in steep decline but have not disappeared. My family and I, not in any way involved by a personal financial interest in the Keizertimes, we respect and value its presence and its coverage of local matters. It is our hope that current subscribers will continue in their support and new ones added.
(Gene H. McIntyre shares his opinion regularly in the Keizertimes.)
Contact Keizertimes Staff:
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Contact Keizertimes Staff:
[email protected] or 503-390-1051
SUBSCRIBE TO GET KEIZER NEWS — We report on your community with care, depth, fairness, and accuracy. Get local news that matters to you. Subscribe today to get our daily newsletters and more.