PORTLAND, Ore. (Portland Tribune) — It’s a line repeated in a million hard-boiled police procedurals: “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
But in Oregon, unconvicted clients with nowhere to turn are represented by overworked public defenders incentivized to take on as many cases as possible, according to a new report.
Many do. One court-appointed lawyer working for Metropolitan Public Defender Services — a union shop operating in Multnomah and Washington counties — represented 1,265 misdemeanor defendants in 2017.
Those findings using state data were calculated by the Sixth Amendment Center, which dropped its 262-page statewide report, “The Right To Counsel In Oregon,” on Wednesday, Jan. 23.
“This goes to the core of who we are as Americans,” David Carroll, the national nonprofit’s executive director, said in a phone interview. “The Founding Fathers created the Sixth Amendment to ensure that no one’s liberty will be taken away by the government without due process.”
Carroll says part of the problem is Oregon’s compensation method, which generally pays public defenders a flat fee for each legal “credit” they take on. In most circumstances, one criminal case is worth one credit. The more they work, the more they earn.
The Sixth Amendment group suggests that the attorneys be paid hourly wages, so they can freely devote the resources necessary to provide effective assistance to each defendant. Time crunch is a complaint echoed by the actual public defendants grinding away inside the system.
“Being able to dive into the case law, having that substantial knowledge. I don’t have enough time to do that,” one anonymous attorney at Metropolitan Public Defender told the center.
“I can guarantee that every lawyer on this floor will be here working this weekend and the next and the next,” she said.
Authorized by the Oregon legislature in 2017 at a cost just under $200,000, the center’s study recommends reforming the Public Defender Services Commission so all three branches of state government have an equal say. Currently, the commission’s seven members are appointed solely by the state’s chief justice.
The commission has not adopted any limits for attorney’s caseloads, which allowed for the above-mentioned lawyer to represent more than 1,200 clients.
That’s the workload of 4.3 legal practitioners, according to guidelines set by the National Advisory Commission on Criminal Justice Standards and Goals.
The same attorney worked an additional three hundred cases involving probation violations, specialty proceedings and juvenile dependents, for which there are no national caseload standards.
The center used one word to describe the caseloads at Metropolitan Public Defender, as well as at the Clackamas Indigent Defense Consortium: “Troubling.”
The report also notes that Metropolitan Public Defender’s 69 attorneys suffer from “high turnover,” which DeAnna Horne, president of the nonprofit’s union, says stems from the lack of pay parity with prosecutors.
“This leads to many public defenders and their staff becoming overworked and required to take on cases beyond their experience level, a huge disservice to the people they represent,” Horne said in a statement.
Locally, other challenges are posed by the “cattle call” structure of Multnomah County Circuit Court, where hundreds of cases are scheduled to be heard at the same time by a single judge. Rather than pack the courtrooms with dozens of public defenders waiting for the judge to call up cases one-by-one, Metropolitan Public Defender regularly has one or two attorneys “stand in” for every case on the docket that day.
The end result is that defendants may work with a different defender at each step of the adjudication process — an assembly-line style of justice that the center says “poses serious ethical concerns and is prohibited under national standards.”
Charlie Peirson, an attorney at Multnomah Defenders, says the system is “overloaded and underfunded.” He added: “It’s obvious to everyone who has touched the criminal justice system that public defense in Oregon has been in a state of slow-moving crisis for decades.”