Pandemic pushes Oregon’s public defender system to the brink

Oregon’s public defender system has shown cracks for years, but a post-pandemic glut of delayed cases is exposing shocking constitutional landmines

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% 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.”

The Legislature recently approved $12.8 million in one-time funding for the four hardest-hit counties, as well as a suite of legislative reforms. New contracts coming this summer will institute lower attorney case caps. And lawmakers are withholding $100 million from the agency’s budget until shows good faith on numerous reforms, including restructuring, financial audits and performance metrics.

A working group of all three government branches will convene this month to begin tackling a “comprehensive and structural modernization” of the system.

Autumn Shreve, government relations manager for the state Office of Public Defense Services, said the pandemic finally forced the hand of state lawmakers who haven’t taken a close look at public defenders in nearly 20 years.

“It’s been a rag tag group of people trying to cover the caseloads year-to-year and because of that there’s been a lot of past papering over of problems,” she said.

Meanwhile, the situation in the state’s courtrooms is dire.

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.

“You can’t keep everything in your head when you have that many clients at the same time. Even things like, you know, ‘What’s your current plea offer?’ I can’t remember that for 100 people. Or I can’t remember, ‘What exactly does the police report say?’ said Drew Flood, a public defender at Metropolitan Public Defender.

“This is the scariest thing they have going on in their life,” he said.

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

Renardo Mitchell, who is jailed on attempted murder charges, chose to represent himself after he said he didn’t hear from his public defender for five months. The legal advisor assigned by the court to help him hire expert witnesses and file motions died suddenly in February and he’s been without legal counsel since then.

Two years after his arrest, he still hasn’t seen all the discovery in his case, said Mitchell, 37. His public private investigator — Mitchell’s only connection to his proceedings — recently had to petition the court to get more paid hours developing evidence for his defense.

“We’re all innocent until proven guilty. Nothing has been proven yet — I haven’t been found guilty,” said Mitchell, who faces more than 22 years in prison if convicted. “Even if I did those things that they allege, I still have a right to due process of law. ”

The chief prosecutor in Portland has become an outspoken advocate of public defender reform for that very reason.

“The most important thing is everybody has a right to an attorney, it’s a constitutional right,” said Multnomah County District Attorney Michael Schmidt.

“It’s an ecosystem, like a coral reef. If you take away one aspect of this system, then all the other aspects fall apart."

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Associated Press writers David Sharp in Portland, Maine; Todd Richmond in Madison, Wisconsin; and Kathy McCormack in Concord, New Hampshire contributed to this report.

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