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Who's Best Interest?

Public Defense in Deschutes County

Oregon operated a flat-fee indigent defense system its own commissioned investigators called unconstitutional. The incentives that system created, and the pretrial pressures that surround it, shaped how cases were resolved in Deschutes County for years.

For a person who cannot afford a lawyer in Deschutes County, the quality of the defense they receive is not primarily a question of which attorney they draw. It is a question of how the system paying that attorney was built. The documented record of how Oregon constructed its public defense system, and what the state's own commissioned investigators found, shows that thin defense was a predictable product of the structure.

A system built on flat fees

In 2019, the Sixth Amendment Center, a national nonprofit that studies the right to counsel, delivered a statewide evaluation of Oregon's indigent defense system at the legislature's request. It found a flat-fee contract system with high caseloads, thin supervision, and little accountability. The state could not reliably say which attorneys were handling which cases in which counties.

The payment design was central. Oregon paid contracted defenders a fixed amount per case regardless of hours worked. In one county, contractors earned roughly $913 per Class B felony credit, out of which they covered their own overhead. The report identified one Portland-area attorney who handled 1,265 misdemeanor cases in a single year, a load national standards would divide among four lawyers.

The Sixth Amendment Center concluded that the structure created a financial incentive to take on many cases and resolve them quickly, favoring pleas over trials, and that it pitted appointed lawyers' financial self-interest against their clients' due process rights. It found Oregon failing its Sixth and Fourteenth Amendment obligations. Idaho, Michigan, Nevada, and Washington had already banned fixed-fee contracting because of this conflict.

Under that design, investigation is the first casualty. A defender paid the same amount whether a case takes four hours or forty has no financial reason to interview witnesses, pursue inconsistencies in an accuser's account, or read deeply into the existing record. Work that generates no revenue is work the structure discourages, without anyone needing to instruct any individual lawyer to cut corners.

Deschutes County's structure

Deschutes County has no public defender office. Indigent representation runs through a small set of contracted private firms, principally Deschutes Defenders, the Atlas Law Group, and the Bend Attorney Group, with no public office to absorb overflow.

In 2024, as defenders left and felony filings rose, Deschutes Defenders temporarily stopped accepting new cases, and Atlas reportedly neared the same point after taking on 35 cases in one week. By October, roughly 150 people in the county faced charges without a lawyer, and the presiding judge said the county had passed a tipping point. By late December 2024, officials reported the unrepresented count had reached zero, and court and prosecution officials described the local shortage as resolved in early 2025. The recovery, however, came from distributing more cases across the same small set of firms, which does not address, and may worsen, the time available per client.

Joel Wirtz, executive director of Deschutes Defenders, has attributed the caseload pressure partly to factors outside the defense system, citing Oregon's low national ranking on mental health and addiction treatment and Bend housing costs that complicate attorney recruitment.

What the research shows

The research does not support a claim that public defenders as a category perform worse than other lawyers. Anderson and Heaton's Yale Law Journal study of Philadelphia murder cases found that defendants assigned full-time institutional public defenders did substantially better than those assigned appointed private counsel: a roughly 19 percent lower murder conviction rate, a 62 percent lower probability of a life sentence, and 24 percent less expected time served. The variable is resourcing. Caseload studies find that lighter defender caseloads are associated with less pretrial detention and shorter incarceration, because time is what allows a lawyer to interview witnesses, test the state's evidence, file motions, and build mitigation.

Pretrial detention and pleas

Roughly 90 to 95 percent of criminal defendants nationally plead guilty. Part of the explanation is the trial penalty, the documented gap between plea offers and post-trial sentences. A larger factor for detained defendants is custody itself.

Malcolm Feeley documented this in 1979, finding no trials at all in a study of sixteen hundred lower-court cases because the pretrial process itself was punishing enough that defendants avoided it. Later research quantified the pattern. In Harris County, Texas, detained misdemeanor defendants were 25 percent more likely to plead guilty, 43 percent more likely to receive jail sentences, and received sentences more than twice as long as comparable released defendants. Dobbie, Goldin, and Yang found that even three days of pretrial detention left people about 9 percent less likely to be formally employed three to four years later, with an estimated long-run loss near thirty thousand dollars per person in earnings and benefits.

Detention also interacts with jobs, housing, custody arrangements, and family stability in ways that make a plea ending detention today a rational choice even for defendants maintaining innocence. Time-served credit reinforces this: a guilty plea allows detention already served to count against a sentence, while an acquittal or dismissal credits nothing, because there is no sentence to credit it against.

Oregon law shapes the timeline. In 2013 the legislature repealed the hard statutory speedy-trial deadline in favor of a reasonable period standard, under which courts have found delays of more than two years neither unreasonable nor prejudicial. A ninety-day rule exists for in-custody defendants who demand early trial, but crowded dockets can constitute good cause to exceed it, and a continuance for an evaluation resets the clock. The continuances a thorough defense requires are the same continuances that extend a detained client's custody.

What changed

In July 2023, Governor Tina Kotek signed Senate Bill 337, which abolished per-case flat-fee contracting in favor of a hybrid model combining staff public defenders with assigned private counsel and added oversight and structural independence, adopting much of what the Sixth Amendment Center recommended.

The law did not reopen convictions entered under the old system, and the transition coincided with an ongoing defender shortage. In early 2026, the Oregon Supreme Court ruled in State v. Roberts that charges must be dismissed when the state fails to appoint counsel within 60 days for a misdemeanor or 90 days for a felony, resulting in the dismissal of more than 1,400 cases statewide.

For people who resolved cases under the flat-fee system, the record establishes that the incentive structure was documented by the state's own investigators years before reform, and that the state continued operating it in the interim.

Sources

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