Pandemic stresses public defender system

PORTLAND, Ore. — A post-pandemic glut of delayed cases has exposed shocking constitutional landmines impacting defendants and crime victims alike in Oregon, a state with a national reputation for progressive social justice.

An acute shortage of public defenders means at any given time at least several hundred low-income 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 in the Portland area alone — including a domestic violence case with allegations of strangulation — and have threatened to hold the state in contempt.

“We’re overwhelmed. The pandemic is exposing all the problems that we have,” said Carl Macpherson, executive director of Metropolitan Public Defender, a large Portland nonprofit public defender firm. “It just became abundantly clear that we are broken.”

Public defenders warned the system was on the brink of collapse before the pandemic and some staged a walkout in 2019. But lawmakers didn’t act and then 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.

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.

Maine this month earmarked nearly $1 million to hire that state’s first five public defenders, with a focus on rural counties, after relying entirely on contracts with private attorneys until now.

In New Mexico, a recent report found the state was short 600 full-time public defenders. In New Hampshire, where an estimated 800 defendants were without attorneys, state lawmakers in March approved more than $2 million to raise public defenders’ salaries. And in Wisconsin, where starting pay for public defenders is $27 an hour, there’s a shortage of 60 attorney positions statewide.

“This is America’s dirty little secret: Thousands of people in courtrooms all across the country go to jail every single day without having talked to a lawyer,” said Jon Mosher, deputy director of the nonprofit Sixth Amendment Center.

An American Bar Association report released in January found Oregon has 31 percent of the public defenders it needs. Every existing attorney would have to work more than 26 hours each week day to cover the caseload, the authors found.

“It’s horrifying. I don’t want to mince words about this. I am not going to make excuses for this,” said state Sen. Elizabeth Steiner Hayward, who co-chairs the state Legislature’s Ways and Means committee. ”That being said, we can’t manufacture attorneys out of thin air.”

For victims, the situation is devastating, and it’s hurting the most vulnerable.

Cassie Trahan, co-founder and executive director of an Oregon nonprofit that works with teen and young adult victims of sex trafficking, said trust in the judicial system is fading, especially in minority and immigrant communities. Victims no longer want to come forward when they see cases being dismissed or ending in weak plea bargains to relieve pressure on the courts.

One such victim in a pending trafficking case “lives in constant fear that it’s going to be dismissed,” Trahan said.

Prosecutors can get an indictment from a grand jury when cases are dismissed for lack of a public defender and police will re-arrest the alleged perpetrator — but that’s small consolation to victims.

“In her mind, it’s like, ‘Now I’ve outed myself, now I’ve talked against him and what’s going to happen if he gets off ?’ ” Trahan said of the victim. “That’s what we’re seeing more of, especially in communities of color and groups that don’t trust the judicial system anyway.”

Often those going without attorneys are charged with heinous crimes that come with hefty prison sentences if convicted, making it even harder to find public defenders qualified to handle such complex cases. And those who handle misdemeanors are often young attorneys carrying 100 cases or more at a time.

Other public defender services, including private investigators and legal advisers, have also reached a breaking point.