Editorials from around Oregon

The Bend Bulletin, Dec. 18, on not mandating sweeping zoning change:

Oregon has an affordable housing problem. But the answer is not, as lawmaker Tina Kotek, D-Portland, apparently believes, a statewide requirement to allow four homes on what are now single-family housing lots in at least 61 Oregon cities.

Kotek, speaker of the Oregon House of Representatives, is floating the idea of ending the concept of single-family zoning in all communities of 10,000 or more. In Central Oregon that includes Bend, Redmond and Prineville. All of us, like it or not, would have to allow four houses per lot.

Or at least most of all of us in those communities would be subject to the change. Homes purchased in some planned developments in all three communities presumably would be governed, as they are now, by legally binding covenants, conditions and restrictions established when the neighborhoods were designed.

In a state worried about the growing gap between haves and have-nots, we’d be hard pressed to find a better way to make the problem worse.

For now, Bend is in the midst of adopting something akin to what Kotek proposes, as it should. Housing is in particularly short supply here, and one city response has been to work to change the zoning laws to allow duplexes and triplexes in single-family neighborhoods.

That’s our choice, however, not a rule being imposed from Salem. Local communities, not the Legislature, know best about how to tailor housing solutions to our communities.

As for the Legislature, if its members are as concerned about Oregon’s housing problems as Kotek is, there’s an easy solution at hand. Give cities more freedom to expand their urban growth boundaries quickly.

That would serve to lower housing costs and up housing supplies far more equitably than a state-imposed zoning change could ever do.

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The Eugene Register-Guard, Dec. 17, on rebuilding public defense system:

Justice by the dollar is not justice for all.

Yet that is how justice commonly is provided to criminal defendants in Oregon who cannot afford to hire their own lawyers. It is a system that the national Sixth Amendment Center suggests violates the Constitution and that Eugene Sen. Floyd Prozanski, chair of the state Senate Judiciary Committee, says makes the state vulnerable to lawsuits.

It is an unconscionable system, one that likely leaves many Oregonians with undeserved criminal records that can undo relationships; cause them to lose their professional licenses for work; and block them from obtaining student loans, employment or housing.

If mishandled, even the lowest level of misdemeanor cases can create unexpected consequences for indigent defendants, who disproportionately are people of color. Yet the state does not even monitor indigent defense in the municipal courts and county justice courts that handle many misdemeanors.

Oregon had the insight this year to hire the Boston-based Sixth Amendment Center to study legal representation provided at the circuit court level through the state Office of Public Defense Services. The center examined nine counties, including Lane, from July 30 through Oct. 4.

The Sixth and Fourteenth amendments intersect to require that indigent defendants have competent counsel in criminal cases that carry a potential sentence of imprisonment. But the preliminary report from the nonpartisan, nonprofit Sixth Amendment Center contends that Oregon’s system for providing that defense is badly broken. Experts from the center, who testified before the Senate and House Judiciary committees on Friday, essentially suggested that Oregon scrap its current system.

The report underscores what public defenders said in a recent Register-Guard story. Their low pay and high workload potentially undermine their ability to provide a competent defense. Once lawyers gain sufficient experience at such organizations as Public Defender Services of Lane County, they frequently leave for better jobs in the private sector or as prosecutors. As reported, salaries in the Lane County District Attorney’s Office can run 25 percent to 60 percent higher than in Public Defender Services.

Locally, the state also contracts for indigent defense with two consortia of private lawyers - the Lane County Juvenile Lawyers Association and the Lane County Defense Consortium.

Oregon’s convoluted system of indigent defense varies by county and among lawyers. In most instances, public defender offices, consortia and law firms are paid a flat fee for each type of case, regardless of the time involved or the quality of their work.

The Sixth Amendment Center said flat fees create an inherent conflict of interest between the counsel’s financial well-being and the client’s legal well-being. The more time a lawyer devotes to a case, the less money that he or she earns per hour.

In addition, Oregon does not keep tabs on whether indigent defense lawyers have the qualifications, experience and up-to-date knowledge for all the types of cases they handle. They often have broad portfolios, which take them into areas of law where they are less knowledgeable. Meanwhile, these lawyers are up against prosecutors who are better paid, who may have more experience and who have greater resources for investigations and other legal work.

In criminal cases, inadequate defense representation can lead to innocent people being found guilty or, without realizing the lifelong consequences, taking plea bargains to avoid facing more serious charges and longer sentences. The Sixth Amendment Center acknowledges that Oregon’s fixed fees create an incentive for pushing clients toward plea bargains regardless of the facts and a disincentive for pursuing legal resources that must be paid from that flat fee.

Even with its current rate of payments for indigent defense, the state agency is strained financially, technologically and administratively. According to legislative reports, its antiquated financial management technology cannot handle the workload, forcing the Office of Public Defense Services to seek new technology. The indigent defense budget is running several million dollars short due to a substantial increase in juvenile dependency, misdemeanor and certain felony cases.

And, as recounted by the Sixth Amendment Center, oversight of the defense representation is vastly inadequate.

Oregon must invest in a new system of indigent defense. That will take planning and time, but the state must not stand still. The 2019 Legislature has a moral, ethical and legal obligation to invest far more in pay and resources for lawyers who serve poor Oregonians.

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Corvallis Gazette-Times, Dec. 17, on letting Oregon vote on the death penalty:

Oregon legislators are considering proposals to dramatically limit the types of crimes in which the death penalty can be applied - a roundabout way to essentially gut capital punishment in the state.

The proposals under consideration are clever ways to get around the fact that it would take a vote of the public to outlaw the death penalty in Oregon. But it’s been decades since Oregonians voted on whether to retain capital punishment, and it’s possible (perhaps even likely) that public sentiment has changed on the topic since then. Why not just refer the question to voters instead of finding ways to work around the will of the electorate?

Oregon Public Broadcasting reported last week on the proposals floating around in Salem. One proposal being discussed by Rep. Mitch Greenlick, D-Portland, and Sen. Floyd Prozanski, D-Eugene, would alter the definition of aggravated murder - currently, the only crime punishable by death in Oregon. Under current law, the crime of aggravated murder includes elements such as multiple victims, the inclusion of torture in committing the crime, or an exchange of payment for the killing.

The proposal Greenlick and Prozanski are considering would remove those factors and would limit aggravated murder to deaths resulting from acts of domestic or international terrorism.

Another proposal in Salem involves changing the questions that juries must answer in the sentencing phase of the trial, with an eye toward making death sentences less likely.

One change being eyed: Eliminating a question that asks jurors to determine if there is a “probability” that a defendant will commit violence in the future. Another change would increase the burden of proof jurors face when dealing with the question of whether a defendant should be sentenced to death; under the proposal, jurors would have to be certain beyond a reasonable doubt.

There may be some merit to these proposals, but they tiptoe around the main issue: Whether Oregon voters still believe in the death penalty. In 1984, voters approved a pair of death penalty-related initiatives. But those elections were more than three decades ago, and it’s possible that developments since then regarding the death penalty might have changed some minds on the issue. And there’s an entire generation of voters who haven’t had the chance to weigh in on the question.

In fact, we’ve been surprised that there hasn’t been more of a push on the part of state officials and lawmakers to refer the death penalty to voters. After then-Gov. John Kitzhaber put a moratorium on capital punishment in 2011, he made a halfhearted effort to goad the Legislature into action, but the proposal didn’t gain any traction. Gov. Kate Brown has continued the moratorium, but has otherwise been quiet on the issue.

Oregon hasn’t executed a prisoner since May 1997; the state has 32 men and one woman on death row. It’s not clear whether any of the legislative maneuvers now under consideration would retroactively affect any of those 33 cases.

This new discussion opens a new chapter in the state’s convoluted history with the death penalty: Capital punishment was outlawed by Oregon voters in 1964 and then was re-enacted in 1978. Three years later, the state Supreme Court ruled that the death penalty was unconstitutional, paving the way for the 1984 initiative in which voters reaffirmed capital punishment.

Since then, though, the topic has been rarely revisited in Oregon, even though there’s been action elsewhere: Since 2007, six states have ended capital punishment, although voters in Nebraska reinstated it in a 2016 election. Earlier this year, the Washington state Supreme Court ruled that the death penalty was unconstitutional, on grounds that it was administered in an arbitrary and racially biased manner.

Some of those arguments against the death penalty may be resonating now with Oregon voters. But the only way to be sure is to let them vote on the issue.