PORTLAND, Ore. (KOIN) — Public Defenders, prosecutors, and now the Chief Justice of Oregon’s Supreme Court are now all sounding the alarm: The shortage of public defenders is stalling the state’s criminal justice system.
Chief Justice Martha Walters sent a letter Tuesday to Governor Kate Brown, Senate President Peter Courtney, and House Speaker Dan Rayfield to convene a “Three-Branch Summit” to bring immediate action to a problem Walters says “cannot wait for the deliberative process.”
“The current crisis is having a real impact on defendants who have a constitutional right to counsel, on courts’ ability to resolve cases, on the safety of our communities,” Walters said in the letter.
It comes amid a backlog of cases built up over the course of the pandemic that Multnomah County District Attorney Mike Schmidt estimates could take years to work through, in an op-ed in the Oregonian.
“This situation is unacceptable. As a result of the state’s inability to provide counsel to indigent defendants in most felony cases, and despite efforts of the attorneys in my office to assert and enforce crime victims’ rights, only the most violent felonies are being allowed to move forward at this time,” Schmidt said in a statement to KOIN 6 News.
Schmidt says the shortage has brought the justice system to a standstill.
In addition to the backlog, an increase in crime is adding more cases to the docket.
“The high case loads before have become absolutely excessive case loads now,” said Carl Macpherson, an attorney and executive director of Metropolitan Public Defenders, a firm that receives contracts to represent people charged with crimes.
Earlier this year, the American Bar Association released an analysis showing Oregon has 31% of the public defenders it needs to meet its current case load. That means hiring over 1,300 attorneys.
Macpherson estimates “hundreds” of people are sitting in jail without an attorney because of the crisis. State Statute prohibits the attorneys from taking more cases past what they can handle in an attempt to ensure adequate representation. Even if the law didn’t prohibit it, he says attorneys are already pressed with “unethical” case loads.
“You can’t overload an individual who’s already working 50-60 hours a week and say, well can’t you take one more case or two more cases? No, because you’re struggling to do the job 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 cell phone locations and sifting through body camera footage that he believes are ultimately good for justice, but arduous for attorneys to process.
He says morale among public defenders is extremely low, given the caseload and pay that can often times be half of what prosecutors on the other side of the courtroom are making.
“The non-profit defender officers are the lowest-paid member of the criminal legal system that does comparable work,” said Macpherson. “That makes it really difficult to recruit and retain.”
Walters notes that earlier in 2022, the state legislature dedicated $12.8 million to increasing the pay of public defenders however, Macpherson says that’s only part of fixing a problem he sees as structural.
Oregon is the only state in the nation that contracts cases to non-profit and private law offices. The contracts went through a massive change in 2020, but Macpherson believes the structures that were in place before the change are plaguing systems now.
Prior to 2020, part of the formula paid attorneys per case they took on.
“You had contracts that were set up in such a way to allow for, or even encouraged people taking excessive case loads,” Macpherson explained.
He believes the standard that work load created helped influence the changes made in 2020, and created an underfunded, under-resourced environment for the contracts public defenders are assigned to cases through.
“The foundation of how it was being done, which in my opinion was just overloading people intentionally, the way that was set up has led to this,” Macpherson said.
More generally, Macpherson says there are too many cases being charged anyway when many of the clients he sees, would be better served with some sort of behavioral, mental, or substance abuse treatment.
He noted “we as a society, as a community, should be doing better to assist every person that we choose to charge.”
“Of course, there are types of cases and charges that need to go through the criminal legal system, but there are many that do not. And there are many individuals that do not . And society would benefit better by finding, by helping the individuals and other means, particularly through behavioral health.” Macpherson said.
In a statement Governor Brown responded to the justice’s letter:
“Governor Brown believes strongly in supporting a public defense system that is fair, just, and ensures every Oregonian can exercise their constitutional right to legal representation. She remains concerned that, because public defenders carry high caseloads, are underpaid, and often face off against prosecutors who are better funded, those 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 in convening stakeholders around these longstanding issues. She believes it is critically important that we work collaboratively to address short-term concerns, while also looking towards long-term solutions, similar to her recent collaboration with the Chief Justice and legislature to dedicate additional funds this biennium to hire more public defenders. Our office stands ready to participate in the collaborative process.”