PORTLAND, Ore. – Oregon’s public defender system has shown cracks for years, but a post-pandemic glut of delayed cases has exposed shocking constitutional landmines impacting defendants and crime victims alike in a state with a national reputation for progressive social justice.
An acute shortage of public defenders means that at any given time at least several hundred low-income criminal defendants don't have legal representation, sometimes in serious felony cases that could put them away for years. Judges have dismissed nearly four dozen cases in the Portland area alone — among them a domestic violence case with allegations of strangulation as well as other major felonies — and have threatened to hold the state public defenders office in contempt of court for failing to provide attorneys.
Oregon sends out a weekly list of unrepresented defendants to private attorneys begging for help. Some of the accused have been jailed without a lawyer for months on charges of rape, sodomy, child sexual abuse or attempted murder, records show. Meanwhile, court proceedings for those not in custody are repeatedly pushed back, leaving defendants in limbo and the courts spinning their wheels.
“We’re overwhelmed. The pandemic is exposing all the problems that we have, the under-resourcing and the underfunding, and it just hit a breaking point," said Carl Macpherson, executive director of Metropolitan Public Defender, a large nonprofit public defender firm in Portland that temporarily stopped taking new cases when its attorneys couldn't keep up.
“It just became abundantly clear that we are broken. You cannot do your job when you have 130 open felony cases per attorney,” Macpherson said.
Public defenders warned that the system was on the brink of collapse before the pandemic. In 2019, some attorneys even picketed outside the state Capitol for higher pay and reduced caseloads. But lawmakers didn’t act and months later, COVID-19 shut down the courts. There were no felony or misdemeanor jury trials in April 2020 and access to the court system was greatly curtailed for months. There were, however, limited in-person proceedings and remote services were provided.
Now, the system is “buckling before our eyes,” said Kelly Simon, legal director for the Oregon American Civil Liberties Union, which is closely watching the situation and hasn't ruled out litigation.
Macpherson estimates there are now about 500 defendants going without public defenders statewide and that’s likely a significant undercount, because many are initially arraigned and then have their case deferred up to 60 days with plans to appoint permanent counsel later.
“If you do not have a lawyer, then your constitutional rights are being violated from the very beginning,” he said. “But if there's no attorney to appoint, what do you expect them to do?"
The crisis in Oregon, while extreme, reflects a nationwide reckoning on indigent defense, as courts seek to absorb a pandemic backlog of criminal cases with public defender systems that have long been underfunded and understaffed. From New England to New Mexico to Wisconsin, states are struggling to keep public defender services running amid an onslaught of cases and attorney departures.
After a lawsuit from the ACLU, lawmakers in Maine this month earmarked nearly $1 million to hire that state's first five public defenders, with a focus on rural counties where the system is overwhelmed. Maine until now has relied entirely on contracts with private attorneys, and many remote areas don't have enough qualified lawyers for the work.
In New Mexico, a recent report found the state was short 600 full-time public defenders. State lawmakers in New Hampshire approved more than $2 million in March to raise public defenders' salaries in a state where about 800 defendants were without attorneys. Three dozen public defenders resigned in the 2021 fiscal year due to low pay and high caseloads, the state Judicial Council said.
And in Wisconsin, where starting pay for public defenders is $27 an hour, there's a shortage of 60 attorney positions statewide while one-third of the private attorneys who contract out for cases have quit the system, according to authorities there.
“This is America's dirty little secret: Thousands of people in courtrooms all across the country go to jail every single day without having talked to a lawyer,” said Jon Mosher, deputy director of the Sixth Amendment Center, which studies state public defender systems, including Oregon's, and advocates for reforms.
“We see it all over the place. It happens in upstate New York, it happens in Mississippi. It’s everywhere.”
In Oregon, a report by the American Bar Association released in January found the state has 31% of the public defenders it needs. Every existing attorney would have to work more than 26 hours a day during the work week to cover the caseload, the authors said.
The situation is more complicated than in other states because Oregon's public defender system is the only one in the nation that relies entirely on contractors, Mosher said. Cases are doled out to either large nonprofit defense firms, smaller cooperating groups of private defense attorneys that contract for cases or independent attorneys who can take cases at will.
Now, some of those large nonprofit firms are periodically refusing to take new cases because of the overload. Private attorneys — they normally serve as a relief valve where there are conflicts of interest — are increasingly also rejecting new clients because of the workload, poor pay rates and late payments from the state.
For victims, the situation is devastating and it’s hurting the most vulnerable the hardest.
Cassie Trahan, co-founder and executive director of an Oregon nonprofit that works with teen and young adult victims of sex trafficking, said trust in the judicial system is fading amid minority and immigrant communities and the young people with whom she works. Victims no longer want to come forward when they see cases being dismissed or ending in weak plea bargains to reduce pressure on the courts.
One such young woman who is a victim in a pending trafficking case “lives in constant fear that it’s going to be dismissed,” Trahan said.
Prosecutors can get an indictment from a grand jury when cases are dismissed for lack of a public defender and police will re-arrest the alleged perpetrator, but that’s small consolation to victims.
“In her mind, it’s like, ‘Now I’ve outed myself, now I’ve talked against him and what’s going to happen if he gets off?’” Trahan said of the victim. “That’s what we’re seeing more of, especially in communities of color and groups that don’t trust the judicial system anyway.”
Other victims' advocates say that even when cases aren't dismissed, they are taking much longer because hearings are constantly pushed back and trials delayed. Victims can't move on because “you need to keep your testimony fresh ... and there's so much emotional preparedness that comes with that,” said Jessica Mindlin, director of the Oregon office of the Victim Rights Law Center, which provides free legal help to rape and sexual assault survivors.
Amid the crisis, the state Legislature passed $12.8 million in one-time funding for the state to hire 36 new public defenders in the four hardest-hit counties, as well as a suite of legislation to reform the state's public defender agency. New contracts to be finalized in July will institute lower attorney case caps and lawmakers are withholding $100 million from the agency's budget until it shows good faith on numerous reforms, including a restructuring, financial audits and performance metrics.
A working group of all three branches of state government will convene this month to begin tackling deeper reforms.
“It’s horrifying. I don’t I don’t want to mince words about this. I am not going to make excuses for this. It’s awful. I think it’s unconstitutional and I think it’s incredibly problematic,” said state Sen. Elizabeth Steiner Hayward, who co-chairs the state Legislature’s Ways and Means committee. ”That being said, we can’t manufacture attorneys out of thin air.”
Autumn Shreve, government relations manager for the state's Office of Public Defense Services, said the pandemic finally forced the hand of state lawmakers who haven’t taken a close look at public defenders in nearly 20 years.
“It’s been a rag-tag group of people trying to cover the caseloads year to year and because of that there’s been a lot of past papering over of problems, of just keeping the ship floating and not really being thoughtful about how the money is being spent,” she said.
“We’re working really hard,” she said. “We very much appreciate the attention and the help that all the branches of government want to provide, because we haven’t always gotten that.”
Meanwhile, the situation in the state's courtrooms and jails is dire. Often those going without attorneys are charged with heinous crimes that come with hefty prison sentences if convicted, making it even harder to find public defenders qualified to handle such complex cases in an overtaxed system.
And those who handle misdemeanor charges are often young attorneys carrying 100 cases or more at a time — and they also spend hours helping clients access mental health or drug treatment services and keeping their family informed.
“You can't keep everything in your head when you have that many clients at the same time. Even things like, you know, ‘What’s your current plea offer?' I can't remember that for 100 people. Or I can't remember, ‘What exactly does the police report say?’ said Drew Flood, a public defender with just eight months on the job at Metropolitan Public Defender.
"This is the scariest thing they have going on in their life,” he said. “It's hard when those people, you can tell, don't think you're giving their case the time and attention it deserves — and I feel that way too, sometimes.”
Other public defender services funded by the state, including private investigators and legal advisers, have also reached a breaking point.
Renardo Mitchell, who is jailed on attempted murder charges, said he chose to represent himself after he didn't hear from his public defender for five months. But his state-provided legal adviser — an attorney assigned by the court to help self-representing defendants hire expert witnesses and file motions — died unexpectedly in February and he's been without legal counsel since then.
Two years after his arrest, he still hasn't seen all the discovery in his case, said Mitchell, 37.
“We're all innocent until proven guilty. Nothing has been proven yet — I haven't been found guilty,” said Mitchell, who faces more than 22 years in prison if convicted on all charges. “Even if I did those things that they allege, I still have a right to due process of law. Period.”
In a surprising twist, the chief prosecutor in Portland has become an outspoken advocate of public defender reform for that very reason.
Multnomah County District Attorney Michael Schmidt recently penned an editorial in The Oregonian/OregonLive saying a lack of public defenders is hurting public safety, taxing an already overworked police force and re-traumatizing victims.
“The most important thing is everybody has a right to an attorney, it’s a constitutional right. There's a reason why we don’t want to win every single case that we bring. That's what protects everybody, that protects me and that protects you because the government unchecked has a lot of power,” Schmidt told The Associated Press in a phone interview.
“It’s an ecosystem, like a coral reef. If you take away one aspect of this system, then all the other aspects fall apart,” Schmidt said. “I can’t do my job without everyone else doing theirs.”
Associated Press writers David Sharp in Portland, Maine; Todd Richmond in Madison, Wisconsin; and Kathy McCormack in Concord, New Hampshire, contributed to this report.
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This story was first published on May 8, 2022. It was updated on May 10, 2022 to make clear that while there were no felony or misdemeanor jury trials in April 2020 and access to the court system was greatly curtailed for months, there were limited in-person proceedings and remote services were provided.