PORTLAND, Oregon. – District attorneys in Oregon are once again sounding the alarm about the state’s critical shortage of attorneys for indigent defendants. The lack of public defenders strains the criminal justice system left more than 700 people across the country without legal representation.
Judges in Multnomah County, where Portland is located, were suspended almost 300 cases this year due to lack of advocates capable of prosecuting cases. Chief District Attorney Mike Schmidt said the shortage creates “ urgent threat to public safety ” and published this week a count of closed cases. He promised to release new issues every week to draw attention to the crisis.
More than two-thirds of dismissed cases are felonies; 53% had a property crime as their primary charge. Weapons crimes were the next most common primary charge, accounting for 16% of dismissed crimes, while crimes against the person, including assault and robbery, accounted for 12%.
“Months into this crisis, many are still waiting for their day in court, while others see their cases completely dismissed,” said Schmidt, a progressive prosecutor who was elected in 2020 on a platform of criminal justice reform. “This sends a message to the victims of crime in our community that justice is not available and their harm will go unheeded. It also sends a message to those who commit crime that there is no accountability when using the limited resources of the police and prosecutors.”
The statement reflects an increasingly popular tactic used by Oregon prosecutors. Not having the strength to solve the problem on their own, they tried to force the hand of the state. Earlier this month, Washington County District Attorney Kevin Barton said his office would seek a court order requiring the state’s public defense agency to appoint its own in-house attorneys to represent defendants if no other attorneys are available.
The head of the Oregon public defender’s office said she will work with Schmidt “to address this systemic access to justice emergency.”
“Public defenders are a critical component of the public safety system,” Jessica Kampfe, executive director of the Office of Public Defender Services, said in an email, adding that “public defenders need significant investment to maintain existing staffing levels and increase capacity.”
As of Wednesday, there were 763 low-income defendants statewide without legal representation, according to the state Judicial Department.
The Oregon Legislature is set to tackle the issue when the next session begins in January. A task force that includes lawmakers has been meeting for months to consider major reforms that could overhaul the system. In response to criticism of the conflict of interest, the Office of Public Defender Services is to be moved from the Justice Department, where it currently resides, to the governor’s office.
Oregon’s system for providing attorneys to criminal defendants who can’t afford them has been riddled with loopholes for years, but a backlog of cases significantly worsened since the coronavirus pandemic. The shortage of public defenders overburdens courts, frustrates defendants and affects crime victims, who experts say are more traumatized when cases are dismissed or take longer.
The state has been sued twice this year for allegedly violating the defendants’ constitutional rights to a lawyer and a speedy trial. While the original lawsuit was dismissed, a similar second lawsuit was filed in Multnomah County Circuit Court last month.
American Bar Association the report released in January found that Oregon has only 31% of the public defenders needed to do the job effectively. Every existing barrister would have to work more than 26 hours a day during the working week to cover the workload, the report said.
Oregon’s public defense system is unique in that it is the only one in the nation that is entirely contractor-owned. Cases are assigned to either large nonprofit defense firms, small collaborative groups of private defense attorneys who are contracted to handle cases, or independent attorneys who can handle cases at will.
The public defender shortage is a “predictable end result” of the unique contract system, said John Mosher, deputy director of the Sixth Amendment Center. According to Mosher, contracting out and subcontracting public defense services makes it difficult for the state to keep track of which attorneys are assigned to which cases.
“On any given day, the State of Oregon cannot know with certainty the identity of the lawyers who provide services, which means that Oregon cannot know whether those lawyers are qualified to handle the cases and whether they have enough time to handle their cases effectively.” he said. “It creates a tremendous amount of … lack of oversight, lack of accountability.”
Public defenders say uncompetitive pay, high stress and overwhelming workloads also affect staff numbers.
“As a public defender, you’re asked to be a lawyer, a social worker, a counselor, an investigator,” said Carl McPherson, executive director of the Metropolitan Public Defender, a large nonprofit public defender firm in Portland. “The criminal justice system does not help people with serious problems. It’s a short-term punitive response to a bigger problem.”
McPherson said the crisis extends beyond the public defense system and involves “multiple system failures.”
“It doesn’t just affect people who don’t have representation,” he said, before mentioning crime victims, prosecutors, police and the public. “It affects everyone.”
Claire Rush is a staff member of the Associated Press/Report for America Statehouse News Initiative. Reporting for America is a nonprofit national outreach program that places journalists in local newsrooms to cover underreported issues. Keep an eye out for Claire Twitter.
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