PORTLAND, Ore. (PORTLAND TRIBUNE) — The statewide shortage of qualified public defenders — and a compounding backlog of criminal cases — hasn’t hit Washington County quite as hard as other parts of the state, but the court system in Oregon’s second-largest county is by no means immune to the ripple effects.
Attorneys say that defendants are sitting in jail waiting for representation so they can be arraigned on charges. Even with specialty arraignment blocks set up to process alleged offenders more quickly, there are still hundreds of cases pending in Washington County Circuit Court.
Legal experts are sounding the alarm. Some are calling the shortage a “constitutional crisis,” since all criminal offenders are guaranteed representation by the state if they can’t afford an attorney of their own. They’re also guaranteed the right to a speedy trial. Those rights are enshrined in the Sixth Amendment.
Both of these rights are threatened by the current shortage. While there are many contributing factors, experts say the crisis is straining the criminal justice system to its breaking point.
“I think that the people who choose this profession are people who want to help people,” said Mary Brewington, director of the Washington County branch of Metropolitan Public Defenders. “We’ve been fighting for increased funding for years … and when you ask for something over and over again and don’t get it, you either move on or try to do the best with what you have.”
While some of the current problems can be tied to the COVID-19 pandemic, officials say, others have been building for decades.
The first is what public defenders described as a chronically underfunded public defender system in Oregon.
While the Office of Public Defense Services (OPDS) oversees the public defenders who operate in every county, it doesn’t set its own budget. Instead, the Oregon Legislature chooses how much to budget for public defenders, leaving the agency struggling to compete with all the other things that demand taxpayer dollars every biennium.
As Brewington put it, “They distribute the money but don’t determine the size of the pot.”
But now, Oregon is seeing the effects of what has become a pronounced pattern of underfunding.
Just last week, four Oregonians facing criminal charges filed a class-action lawsuit in Multnomah County against the state for failing to provide them with public defenders.
Even privately practicing defense attorneys are seeing the impacts of a strained state system.
“These folks are just sitting there with no representation and no ability to get in front of a judge,” said Jacob Braunstein, a lawyer with Alexzander C.J. Adams in Beaverton. “It’s definitely raising constitutional issues with the right to a speedy trial and to the right to have an attorney.”
While the COVID-19 pandemic exacerbated a backlog of criminal cases, due to closed courts and added safety precautions, it is by no means the main cause of the public defender shortage. Attorneys say the backlog has strained a public defender system that was already at a breaking point due to lawyers working too many cases.
“I do think the other factor is just straight burnout … even though people went into public defense, and they knew they weren’t going to get rich off of this kind of work, they were eager to get into that public service,” said Autumn Shreve, government relations manager for OPDS. “The backlog was really the thing that really put this all over the edge.”
The other factor is that, for decades, Oregon’s policies have rewarded public defenders for working more cases — an effort to stretch the small number of public defenders further.
But a 2019 analysis by the Sixth Amendment Center found that Oregon’s case credits system was ineffective, both because it incentivized quantity over quality in representation, and because it failed to account for the complexities of certain cases.
“The ‘case credits’ system ultimately pays most contractors a fixed fee per case without regard to how much or how little time the case requires of the attorney,” the report states. “This compensation plan creates an incentive for most contractors and their constituents attorneys to handle as many cases as possible and to do so as quickly as possible, rather than focusing on their ethical duty of achieving the client’s case-related goals.”
While Oregon has since come up with new caseload limits for public defenders, as well as new oversight for the OPDS, lawyers say there are still larger issues to address.
A study by the American Bar Association released in January found that Oregon has less than a third of the needed public defenders to adequately represent poor Oregonians. In Multnomah County, the shortage has even led to low-level cases being thrown out.
While the problem hasn’t risen to that level in Washington County, the system is still strained. Public defenders have left their professions or left the area because of these factors.
“I can tell you that over the last several months, we’ve had four people leave,” said Brewington. “It’s not a single reason every time, but the issue we’re talking about is a big factor.”
Effects of the shortage
Those who work in the field are clear: It’s more than just the pandemic that’s to blame. While they are thankful that this issue is getting renewed attention, it’s also not like this problem manifested overnight.
“Problems that are neglected over time usually become bigger problems,” said Brewington. “It’s the longstanding, chronic under-resourcing of the public defender system that was already in existence and just exacerbated during the pandemic.”
While the entire criminal justice system is threatened, Braunstein says that he notices the impact on low-income defendants most of all.
“The lower-economic-status individuals are the ones whose families are calling us more and more often,” he said.
He often hears from clients who are struggling to cobble together the money to get their loved ones an attorney, just so they can get arraigned and get out of jail, because the court-appointed system is too slow.
Although they find themselves on opposite sides in court, even prosecutors’ offices are having to find ways to address the shortage and process the backlog. Prosecutors agree that the problem is impacting their cases.
“Ensuring defendants have proper legal representation is a fundamental aspect of the American judicial system,” said Stephen Mayer, spokesperson for the Washington County District Attorney’s Office.
He said no cases have been dismissed in Washington County like they have in Multnomah County Circuit Court. Doing so, he said, doesn’t really address the root problem.
“We oppose dismissing cases because it presents a risk to public safety and violates the rights of crime victims,” Mayer said. “Additionally, dismissal fails to address the root cause of this issue — the failure by the state to ensure (the) indigent defense system functions.”
However, as of April 1 — the most recent tally available at the time of this report — there were at least 12 known defendants in Washington County who were awaiting public defenders to be assigned to them.
What’s being done
The critical lack of funding has been temporarily and partially addressed by the Legislature through a $13 million patch-over approved earlier this year. But experts say it’s still not enough, and it will take more drastic measures to solve the problem.
“I think that you want to have a consistent approach to the way that cases are handled, but when you have a crisis as significant as the pandemic, I think there’s a call for temporary measures,” said Brewington. “And some of the ones we needed were done, and some weren’t.”
Addressing the backlog is one area where solutions came. Experts say the backlog existed prior to the pandemic but was exacerbated by court closures.
In Washington County, the DA’s Office hopes that its auxiliary court at the Westside Commons — formerly the Washington County Fair Complex —has helped to address the backlog.
“We stood up a ‘Wingspan’ remote court in the fall 2020 where we processed over 1,200 lower-level cases and were able to resolve approximately 3/4 of the cases where defendants appeared,” said Mayer.
At the height of pandemic restrictions, the remote court served as a fast track for relatively quick court procedures like plea hearings, sentencing and more.
Mayer said the use of the Wingspan court — so-called because it was set up at the Wingspan Event & Conference Center in Hillsboro — helped lessen the impact of the backlog today. But with some 800 backlogged cases that have accumulated since then, he said, the DA’s Office is working to set up another version of the procedural court.
But on the defense side, experts say these measures are just one part of what needs to be a broader approach to make sure cases don’t just keep piling up.
“It has the potential to help resolve a part of the backlog,” said Brewington. “It’s an incomplete answer but it is something.”
She thinks, however, that with crime rising and modern criminal justice reform sorely needed to prevent such a crisis from mounting again, prosecutors really need to rethink their approach to charges.
“There are probably a lot of those cases that maybe shouldn’t have been charged in the first case or been prosecuted,” Brewington said. “Some of those lower-level cases where someone is clearly mentally ill, I question some of those charging decisions.”
People on both sides of case resolution equation all agreed that this problem is multifaceted and will require a lot more than just county-level solutions to address.
“I’ve always worked under the assumption that our court-appointed colleagues are vastly overworked and underpaid for what they do in our system,” said Braunstein, the privately practicing defender. “I think it’s pretty clear right now that crime in general is up. And I’ve seen that just in these last five or so months, I would see far more calls in two weeks than I would normally see in a month in prior years.”