PORTLAND, Ore. (KOIN) — A federal judge for the District of Oregon has ordered officials statewide to release detainees from police custody if they don’t have a lawyer seven days after their initial court appearance.
According to U.S. District Judge Michael McShane, 135 defendants statewide were in police custody without access to an attorney on Oct. 31. Another 2,657 defendants had been released on restrictive conditions without an attorney as of Sept. 21.
McShane said these pre-trial defendants are “locked away without a voice, being too poor to afford an advocate to speak for them in the courtroom.”
He attributed this to Oregon’s public defender shortage, which state lawmakers attempted to address with a Senate bill over the summer.
However, the judge says the staffing crisis is a complex, institutional issue that still needs some remedying. And in early 2022, the American Bar Association estimated that Oregon needed an additional 1,296 attorneys to meet the need for public defenders.
“A lasting fix will require systemic change and legislative resolve,” McShane wrote in his order on Thursday.
“And while judges, district attorney offices, and defender organizations are frustrated by having to witness such a calamity, the solution to the crisis will take time. But the luxury of time, unfortunately, is not something that many Petitioners have when faced with a criminal prosecution,” he added.
As of Sept. 21, the judge said that 63.4 was the average number of days that pre-trial defendants were on conditional release without legal representation. He also alleged that some individuals had been awaiting counsel for more than a year.
“We knew that the state of Oregon was having problem with the defender system,” said Fidel Cassino-Ducloux, Assistant Federal Public Defender with the District of Oregon. “But we couldn’t let these folks sit in custody and have restraints placed upon their liberty without bringing it to the federal court.”
Under the judge’s new order, which goes into effect on Nov. 16, everyone in custody and future pre-trial defendants will be released after one week without an attorney.
The judge implemented a similar order in August, but it only applied to pre-trial defendants in Washington County who had been detained for 10 days without legal representation.
“Reality is, Oregon needs to do a better job managing the resources we have and paying the defense attorneys we do have a market rate so that they’re willing and able to do the work,” said Washington County District Attorney Kevin Barton.
Barton also added the Oregon Department of Public Defense Services has somehow done a better job of appointing public defenders in that time, which he is frustrated about.
The Oregon Department of Justice says they plan to appeal the McShane’s ruling.