PORTLAND, Ore. — A viewer recently reached out to KGW's The Story with multiple questions about the rules of Oregon's public defender system:
What are the parameters for a defendant to qualify for [a public defender]. Does everyone get a free public lawyer? At what point does the defendant have to prove his poverty level. Do they ever have to pay back the state/county/city for these services?
Those are all interesting questions, especially in light of Oregon's crisis-level public defender shortage. All criminal defendants have a constitutional right to legal representation at trial, and it's also illegal to jail them indefinitely without a trial, so the shortage results in many defendants being released because there's no one available to represent them.
Tackling the questions one at a time, here's what we can VERIFY.
THE SOURCES
THE QUESTION
Does everyone in Oregon get a free public lawyer?
THE ANSWER
No, they're only available for defendants who can't afford a lawyer.
WHAT WE FOUND
Court-appointed attorneys are only available for defendants in criminal cases, along with a few other circumstances like civil commitment or dependency cases — civil proceedings aren't eligible, according to the Oregon Judicial Department.
A defendant only qualifies if their financial situation would make hiring their own attorney a "substantial hardship" for them or their dependent family, according to ORS 153.050 and ORS 151.485.
The government agency that pays for a court-appointed attorney depends on the court in question, according to the Oregon State Bar; public defenders and court-appointed attorneys in circuit court are paid by the state, and in municipal court they're paid by cities or counties.
THE QUESTION
Does a defendant have to prove that they can't afford their own lawyer?
THE ANSWER
Yes, a defendant must formally apply for a public defender, and the court will review their financial situation as part of that process.
WHAT WE FOUND
The public defender application form requires the defendant to list all income and employment information for both themselves and their spouse, as well as a list of all their basic monthly expenses like rent, food, utilities, medical bills, insurance, child support, etc. They also have to list any owned real estate or other assets such as vehicles.
The form notes that if a defendant is later found to have lied about their financial situation, they could be required to repay the cost and potentially charged with a crime. ORS 151.485 also states that the court can withdraw the appointment of a public defender at any time if it learns that the defendant is financially capable of hiring their own lawyer.
THE QUESTION
Do defendants ever have to pay back the cost of their public defenders?
THE ANSWER
Yes, though only to the best of their ability.
WHAT WE FOUND
If the court reviews a defendant's public defender application and concludes they can't afford a lawyer, then the only thing they'll be required to pay is an application fee to cover the cost of the court assessing their application — and even that fee can be adjusted based on a defendant's financial situation, according to the Oregon Judicial Department.
But the application process can sometimes arrive at a financial middle ground where the court finds that the defendant does have some assets, but not enough to cover full cost. In those cases, the court may grant the request for a public defender but require the defendant to pay a fee, based on their financial means, as a contribution to the cost of their representation.
The defendant may also be required to pay back more of the cost after the trail if court later determines that their financial situation has changed and they're now capable of doing so, according to the Oregon State Bar.
