Judicial District Crisis Plans Guidance
SB 337 (2023) requires the presiding judge of each judicial district to develop and implement a coordinated public safety unrepresented defendant crisis plan. Judicial districts with a total population of over 100,000 must convene a "Crisis Team” to assist in the development of the plan. The PDSC has produced guidance for these plans and that document can be found here.
Background
The Constitutions of the United States and Oregon and Oregon statutes require the appointment of competent counsel for those who have been charged with a crime or face other potential or actual deprivations of their liberty interests and cannot afford counsel. The Public Defense Services Commission (PDSC) and Office of Public Defense Services (OPDS) are responsible for maintaining Oregon’s public defense system and ensuring the availability of qualified, competent counsel for all those so entitled.
Even in the best conditions, there are, on any given day, a handful of persons entitled to court-appointed counsel in Oregon who do not currently have counsel appointed. Attorneys who provide defense services routinely have ethical conflicts that prevent them from accepting appointments, and the processes for bringing persons before the court lead to built-in, but relatively small, delays in the system. Typically, a person entitled to counsel is without appointed counsel for, at worst, only a few days as OPDS staff work with the courts and providers to locate counsel qualified and willing to take on representation.
Over the last year, however, Oregon’s public defense services capacity has experienced challenges in keeping pace with evolving representation needs. This has resulted in increases in the number of persons who do not have the court-appointed counsel to which they are entitled and/or the average number of days in which that circumstance continues.
This page is intended to provide information regarding unrepresented persons and the PDSC’s and OPDS’s efforts to increase public defense services capacity to meet representation needs throughout Oregon. If you have questions about the information provided on this page, please email
OPDS.Unrepresented.Persons@opds.state.or.us.
Available Data Regarding Unrepresented Persons in Oregon
OPDS Memo to Presiding Judges Re Unrepresented Persons
When a person is brought before the court for their initial hearing, the court will appoint an attorney from a contracted entity if one is available and, if not, may appoint a qualified attorney who provides public defense services at an hourly rate. If no attorneys in the jurisdiction are available, the court will “appoint” OPDS as a placeholder so the person and case will be listed on the OJD dashboard. Information from local jails is used to determine if persons are in custody or out of custody. The dashboard is updated at 8:30 a.m. each business day and reflects data from the prior day.
PDSC and OPDS Initiatives to Increase Public Defense Attorney Capacity
Recognizing that addressing unrepresented persons will require creative solutions, the PDSC authorized new programs directed at increasing public defense attorney capacity and reducing the number of persons who do not have the court-appointed counsel to which they are entitled.
The Temporary Hourly Increase Program is sunsetting. These increased rates will be available for cases assigned to attorneys through September 30, 2023. Any case assigned at an increased hourly rate will continue to be paid at that rate until the case concludes.
On June 8th 2023, the PDSC approved changes in the hourly rate program for persons on OJD's Unrepresented Individuals Data Dashboard whether they are in or out of custody. The new rates are divided by case type as shown below. Any attorney who has accepted representation of a client under the previous Increased Hourly Rate program will be automatically transferred to the new rate program for any work performed on or after July 1, 2023.
Attorneys should notify OPDS before exceeding the “soft cap”; $10,000 in billing on misdemeanors or minor felony cases: $50,000 in billing on A and B felonies, and other cases billed at that rate: $50,000 for Ballot Measure 11 and felony sex offense cases: and $75,000 on murder and Jessica's Law cases. Attorneys may be required to notify OPDS again before billing over certain other amounts throughout the life of the case. The entire Temporary Hourly Increase Policy can be found
here.
- Complete this form to request to exceed the soft cap on an increased rate case.
Expired Increased Hourly Rates for Unrepresented Policies:
- On March 16, 2023, PDSC modified its policy to make the above rates available to any qualified attorney willing to take cases on an hourly basis, including attorneys who contracted for a 1.0 MAC. Any contract attorney who would like to accept assignments beyond their contracted caseload limit will need to submit the Certification of Ethical Capacity to Accept Appointment Form for each client and each case. Multiple cases for the same client may be listed on the same form.
- $125 per hour for misdemeanor, contempt, and probation violation cases
- $158 per hour for Class C felony and felony drug possession cases
- $164 per hour for Class A and B felony, juvenile dependency, termination-of-parental-rights, juvenile delinquency, habeas corpus, post-conviction relief, civil commitment, and Psychiatric Security Review Board (PSRB) cases; waiver co-counsel; discretionary co-counsel
- $175 per hour for Ballot Measure 11 and felony sex offense cases; and
- $200 per hour for murder and Jessica's Law cases
- Investigator rate of $75 per hour remains the same so long as the CSS request states the $75 per hour rate
- In-Custody Persons Program - July 2022 - January 31, 2023
The prior rate structure, which separated case rates into two categories based on the custody status of the unrepresented person at the time of appointment, was active between July 2022 and January 31, 2023. That program similarly set a higher hourly rate for cases on the OJD Unrepresented Individuals Data Dashboard. During the time it was active, this program was expanded to include attorneys who already contract with OPDS but were below 1.0 MAC and to include increased rates for investigators working cases for attorneys assigned under this program.
Attorney attrition has been a leading cause of the unrepresented person's crisis. In January 2023, the PDSC approved a series of payments to current contractors to incentivize attorneys to remain in their current positions and add stability to the public defense system. Contractors received funds based on the total caseload for which they had contracted (Maximum Attorney Caseload or “MAC").
Each package of retention incentive payments totaled $15,000 per attorney with a 1.0 MAC, scaled for attorneys who were less than 1.0 MAC, and was paid in monthly installments:
- 12.5% of the total funds dispersed each month from February to May 2023
- 50% of the funds dispersed in June 2023
In October 2022, the PDSC approved lump-sum payments to incentivize new attorneys to join Oregon's public defense system. The new attorney incentive payments were available for any new attorneys added to a contract between October 1, 2022 and March 31,2023.
The addition of a new 1.0 MAC attorney to an existing public defense services contract or a new attorney who added a 1.0 MAC contract with OPDS to their practice prior to December 31st, 2022, qualified for a $20,000 incentive payment three months after the addition, plus an additional $20,000 incentive payment if that attorney continued under the contract for an additional three months.
The incentive was targeted at jurisdictions with the highest need for new attorneys. OPDS had discretion to designate high need jurisdictions.
The two installment payments were only available for the addition of attorneys prior to December 31st, 2022. Attorneys added before March 31, 2023 would only be eligible for a single $20,000 incentive payment.
Incentive payment eligibility expired after March 31, 2023.
Phase One of Supervised Civil Attorney Program Launched
The first phase of OPDS' Supervised Civil Attorney Program is now open to both interested civil bar attorneys and public defense providers in need of assistance.
This program is designed to connect public defense attorneys with civil bar attorneys to aid in their cases. Civil bar attorneys shall be associated with and supervised by qualified public defense providers. The civil lawyer will primarily provide legal research and motion writing support and may be asked to argue legal issues in court. Civil bar attorneys will be required to sign an attorney agreement with PDSC and to follow OPDS' performance standards in their representation; they will be compensated at a rate of $105/hour.
If you are a civil attorney interested in signing up to help please use this form.
If you are an attorney with a court-appointed criminal case please use this form.
For more information, please contact OPDS.Unrepresented.Persons@opds.state.or.us.
Phase Two
A second phase, designed to provide supervision and training to civil bar attorneys who are willing to accept misdemeanor court-appointed cases, is still in the process of being implemented. Participating attorneys will be required to meet certain requirements and standards. Supervisors who participate in the program will be members of the criminal bar with an in-depth understanding of all phases of the legal system, with experience representing clients in all aspects of serious criminal cases, as well as a familiarity with local practice and procedures. Supervising Attorneys shall be compensated at the rate of $200 per hour pursuant to an Attorney Agreement.
Adding capacity to the public defense system can be county or provider specific. The public defense provider community are best situated to present solutions at the local level to increase attorney capacity based on a contractors' unique circumstances or other external factors influencing the pool of qualified attorneys and access to court-appointed counsel. In October 2022, the PDSC authorized OPDS to solicit provider proposals to increase attorney capacity, evaluate those proposals, and recommend for PDSC approval any proposal deemed to have merit. In order to submit proposals, providers should follow the link below. Please be as thorough as possible when submitting proposals.
Provider Proposal to Increase Capacity Form
Please submit your proposal using this form