Public defense
You have a right to a public defender funded by the state if you are facing criminal charges and cannot afford to pay for an attorney yourself. This right is essential to our concept of justice. The State of Oregon is required under the Sixth Amendment and the Oregon Constitution to provide you with a lawyer. Without good legal representation, there is a serious risk that you will not receive a fair trial. Your public defender’s job is to investigate and research your case, to advise you of your options, to make sure your case is presented properly, and to take into consideration the potential impact of a plea or conviction in your criminal case on your immigration status if you are a non-citizen.
When defendants do not receive good legal representation, the system breaks down. People who are eligible for pre-trial release wait needlessly in jail at public expense, innocent people are convicted and the guilty are never investigated, people do not receive the help of a public defender to enroll in alternatives to incarceration; and prisons overflow with people who should not be there.
“More than 90 percent of people charged with crimes in Oregon depend on a public defender.”
History
Before 1983, responsibility for appointing trial counsel for people who could not afford a lawyer belonged to individual counties who also had to fund that defense. In 1983, the state took over and created the indigent defense program. In 2001, the legislature merged organizations to create the Office of Public Defense Services Commission (PDSC) which supervises the Office of Public Defense Services (OPDS). Public defense falls under the judicial branch of Oregon’s government.
The warning signs of the current crisis in Oregon’s public defense have long been apparent. Public defenders have been saying for decades that they are overloaded. They are given too many cases to be able to offer each client the time and attention needed to adequately represent them. (See the reports section below for more sources of information.)
How does Oregon’s public defense system function?
Oregon’s public defense system is made up of larger nonprofit public defender organizations, private firms or consortia that contract with the state and assign cases to individual attorneys, and individual contract attorneys who take cases that cannot be handled by the nonprofits, private firms, or consortia. OPDS also funds experts, interpreters, investigators etc. that are part of the cost of defending a case. At the nonprofit public defender organizations, some of the money is used to cover training, sick leave, insurance, and other overhead.
“Our constitutional rights should not come with a waitlist.”
Oregon’s public defense crisis
Oregon’s public defense system is in crisis. While a backlog in the courts resulting from the pandemic may have accelerated the breakdown, the roots of this problem stretch back decades. We have never properly funded, staffed, or provided resources for public defense, particularly by comparison to policing and prosecution. Our state’s public defense system is hugely understaffed and firms are struggling to recruit more staff due to low pay and heavy workloads. This has led to a situation where some people facing criminal charges have waited months for a public defender to be appointed including, in some cases, being held in jail without counsel. The crisis has reached the point where there are simply not enough public defenders to provide even a basic level of representation to everyone facing charges.
The public defense system has been criticized in a series of reports as well as by people working within the legal system for numerous failures. In particular, the American Bar Association report published in January 2022 concluded that Oregon has only 31% of the needed number of contract attorneys to provide adequate representation to all defendants. That shortfall means the state would need to find 1296 more attorneys at current caseload levels.
Across the US, there has been a tendency to allow public defense to be inadequate, but Oregon’s problems are more serious than in almost any other state. To entirely deprive people of their constitutional right to an attorney for months is outrageous.
Although public officials are talking about an emergency, they are presently offering only slow-moving work groups and minor reforms.
Everyone who relies on a public defender lives on a low or moderate income. Many are BIPOC Oregonians. The State’s failure to provide representation in a timely manner disproportionately harms Black and Brown Oregonians. The RED Report on Multnomah County’s criminal legal system shows that Black people are more heavily impacted by the criminal justice system than white people at every stage, including arrest; referral for prosecution; rates of prosecution, diversion, and conviction; length of sentences; and monetary penalties. Black defendants lack the financial resources to hire private counsel at a higher rate than white defendants. Therefore, Black defendants depend more heavily on court-appointed counsel than white defendants do to protect their constitutional rights, and as such, the public defense crisis has been particularly damaging to communities of color.
Neglecting public defense allows our system to perpetuate the monitoring, control, and marginalization of members of our community. We tend to be so acclimated to the legacy of white supremacy in our state that we accept this betrayal of the promise of equality and justice for all. Our history has conditioned us to accept a ratcheting up of control as the first response to any instability.
“Everyone – defendants, victims, attorneys, courts, and the wider community – is harmed by inadequate defense.”
What we are doing
We filed a lawsuit on behalf of a group of plaintiffs, each of whom was facing criminal charges, could not afford to hire an attorney, and was waiting for a public defender. We are asking the court to certify the case as a class action on behalf of all Oregonians whose right to counsel is being denied. We are also asking the court to declare that it is unlawful for the State of Oregon to continue leaving people without an attorney while they are charged with a crime and to stop the State from prosecuting anyone whom it cannot provide with a public defender.
A solution to this crisis is urgently required, but it will not be found in a recruitment drive. For one thing, there aren’t enough attorneys experienced in public defense available to hire. Even if the number of public defenders could be tripled, this would only allow the overgrown system of prosecution and mass incarceration to expand and squander more lives and resources. District attorneys must also acknowledge their role in repeatedly opposing sensible reforms to our legal system. All three branches of government must work together to invest in healthier, more stable communities; to use tested interventions to tackle root causes of crime; to prosecute fewer people; and to adequately fund public defense for everyone who is prosecuted.
Further reading
Legal briefS
Benjamin et al. v. State of Oregon et al.
First Amended Complaint (May 2022)
MEDIA
OJRC Statement on Oregon Public Defense (6.15.22)
Defendants Sue State of Oregon Over Failures of Public Defense Provision (5.16.22)
Reports
Coraggio Group: Public Defense Services Commission Strategic Insights Report (February 2022)
American Bar Association: The Oregon Project: An Analysis of the Oregon Public Defense System and Attorney Workload Standards (January 2022)
The Sixth Amendment Center: The Right to Counsel in Oregon: Evaluation of Trial Level Public Defense Representation Provided Through the Office of Public Defense Services (January 2019).