PORTLAND, Ore. (KOIN) – Public defenders, prosecutors and now the Chief Justice of the Oregon Supreme Court are all now sounding the alarm: a shortage of public defenders is clogging the criminal justice system in Oregon. State.
Chief Justice Martha Walters sent a letter Tuesday to Governor Kate Brown, Senate Speaker Peter Courtney and House Speaker Dan Rayfield to convene a “three-pronged summit” to bring immediate action to a problem Walters said “ can’t wait for the deliberative process.
“The current crisis is having a real impact on defendants who have a constitutional right to counsel, on the courts’ ability to resolve cases, on the safety of our communities,” Walters said in the letter.
It comes amid a backlog of cases accumulating during the pandemic that Multnomah County District Attorney Mike Schmidt estimates could take years, in an op-ed in The Oregonian.
“This situation is unacceptable. Because of the state’s inability to provide counsel to indigent defendants in most felony cases, and despite the efforts of attorneys in my office to assert and enforce the rights of victims of crime, only the most violent crimes are allowed to proceed for the time being. “Schmidt said in a statement to KOIN 6 News.
Schmidt says the shortage has crippled the justice system.
In addition to the backlog, an increase in crime adds more cases to the docket.
“Heavy caseloads before have become absolutely excessive caseloads now,” said Carl Macpherson, attorney and executive director of Metropolitan Public Defenders, a firm that receives contracts to represent people accused of crimes.
Earlier this year, the American Bar Association released analysis showing Oregon has 31% of the public defenders it needs to meet its current caseload. This means hiring over 1,300 lawyers.
Macpherson estimates that “hundreds” of people are in jail without a lawyer because of the crisis. State law prohibits attorneys from taking on more cases beyond what they can handle in an effort to ensure adequate representation. Even if the law didn’t prohibit it, he says lawyers are already being squeezed by “unethical” workloads.
“You can’t overload someone who’s already working 50-60 hours a week and say, well, can’t you take one or two more cases? No, because you’re struggling to do the work you need to do for the people you already have,” Macpherson said.
Macpherson also points to the complexity of many cases that include things like the location of cellphones and sifting through body camera footage that he says is ultimately good for justice, but difficult for lawyers to process.
He says public defender morale is extremely low, given the workload and compensation that can often be half of what prosecutors on the other side of the courtroom earn.
“Not-for-profit defense officers are the lowest paid members of the criminal justice system who do comparable work,” Macpherson said. “It makes recruitment and retention really difficult.”
Walters notes that in early 2022, the state legislature allocated $12.8 million to raise public defender salaries. However, Macpherson says that’s only part of solving a problem he sees as structural.
Oregon is the only state in the nation to outsource cases to nonprofit and private law firms. Contracts underwent a massive change in 2020, but Macpherson believes the structures that were in place before the change are plaguing the systems now.
Before 2020, part of the formula was paying lawyers per case they took on.
“You had contracts that were put in place in a way that allowed or even encouraged people to take on excessive workloads,” Macpherson explained.
He believes the norm created by the workload has helped influence the changes made in 2020 and has created an underfunded and underfunded environment for the contracts that public defenders are assigned to cases.
“The basis of how it was done, which in my view was just intentionally overburdening people, the way it was set up led to this,” Macpherson said.
More generally, Macpherson says there are too many cases being charged anyway when many clients he sees would be better served with some kind of behavioral, mental or substance abuse treatment.
He noted that “we, as a society, as a community, should do better to help each person we choose to charge.”
“Of course, there are types of cases and charges that have to go through the criminal justice system, but there are many that don’t. And there are many people who don’t. And society would gain better by finding, helping individuals, and other ways, including behavioral health. MacPherson said.
In a statement, Governor Brown responded to the judge’s letter:
“Governor Brown is a firm believer in supporting a public defense system that is fair and equitable and that ensures every Oregonian can exercise their constitutional right to legal representation. She remains concerned that because public defenders have a high workload, are underpaid, and often face off against better-funded prosecutors, these goals are difficult to achieve.
The governor meets monthly with the chief justice, and during this month’s meeting, they discussed their shared concerns about public defense. She supports the Chief Justice’s efforts to bring stakeholders together around these long-standing issues. She feels it is extremely important that we work together to address short-term concerns, while looking for long-term solutions, similar to her recent collaboration with the Chief Justice and the Legislature to dedicate funds over the course of this biennium to hire more public defenders. Our office is ready to participate in the collaborative process.