Pandemic pushes Oregon public defender system to the precipice
PORTLAND, ORE. >> Oregon's public defender system has shown cracks for years, but a post-pandemic glut of delayed cases has exposed shocking constitutional landmines impacting defendants and crime victims alike in a state with a national reputation for progressive social justice.
An acute shortage of public defenders means that at any given time at least several hundred lowincome criminal defendants don't have legal representation, sometimes in serious felony cases that could put them away for years. Judges have dismissed nearly four dozen cases in the Portland area alone — among them a domestic violence case with allegations of strangulation as well as other major felonies — and have threatened to hold the state public defenders office in contempt of court for failing to provide attorneys.
Oregon sends out a weekly list of unrepresented defendants to private attorneys begging for help. Some of the accused have been jailed without a lawyer for months on charges of rape, sodomy, child sexual abuse or attempted murder, records show. Meanwhile, court proceedings for those not in custody are repeatedly pushed back, leaving defendants in limbo and the courts spinning their wheels.
“We're overwhelmed. The pandemic is exposing all the problems that we have, the under-resourcing and the underfunding, and it just hit a breaking point,” said Carl Macpherson, executive director of Metropolitan Public Defender, a large nonprofit public defender firm in Portland that temporarily stopped taking new cases when its attorneys couldn't keep up.
“It just became abundantly clear that we are broken. You cannot do your job when you have 130 open felony cases per attorney,” Macpherson said.
Public defenders warned that the system was on the brink of collapse before the pandemic. In 2019, some attorneys even picketed outside the state Capitol for higher pay and reduced caseloads. But lawmakers didn't act and months later, COVID-19 shut down the courts. Now, the system is “buckling before our eyes,” said Kelly Simon, legal director for the Oregon American Civil Liberties Union, which is closely watching the situation and hasn't ruled out litigation.
The crisis in Oregon, while extreme, reflects a nationwide reckoning on indigent defense, as courts seek to absorb a pandemic backlog of criminal cases with public defender systems that have long been underfunded and understaffed. From New England to New Mexico to Wisconsin, states are struggling to keep public defender services running amid an onslaught of cases and attorney departures.
After a lawsuit from the ACLU, lawmakers in Maine this month earmarked nearly $1 million to hire that state's first five public defenders, with a focus on rural counties where the system is overwhelmed. Maine until now has relied entirely on contracts with private attorneys, and many remote areas don't have enough qualified lawyers for the work.
In New Mexico, a recent report found the state was short 600 fulltime public defenders. State lawmakers in New Hampshire approved more than $2 million in March to raise public defenders' salaries in a state where about 800 defendants were without attorneys. Three dozen public defenders resigned in the 2021 fiscal year due to low pay and high caseloads, the state Judicial Council said.
And in Wisconsin, where starting pay for public defenders is $27 an hour, there's a shortage of 60 attorney positions statewide while one-third of the private attorneys who contract out for cases have quit the system, according to authorities there.
In Oregon, a report by the American Bar Association released in January found the state has 31% of the public defenders it needs. Every existing attorney would have to work more than 26 hours a day during the work week to cover the caseload, the authors said.
The situation is more complicated than in other states because Oregon's public defender system is the only one in the nation that relies entirely on contractors, Mosher said. Cases are doled out to either large nonprofit defense firms, smaller cooperating groups of private defense attorneys that contract for cases or independent attorneys who can take cases at will.