Around Oregon, Local government

Lack of defense attorneys in Oregon raises constitutional issues as solutions prove elusive

VALE – Oregon needs more defense attorneys.

The shortage creates an environment where many remain in jail without timely legal representation, creating problems for courts and raising troubling constitutional questions.

A federal judge in Portland found the problem so troubling that on Nov. 2 he ordered sheriffs in the state to release people from jail who did not receive legal representation within seven days of their initial court appearance.

“Petitioners are being held in custody without counsel, and they have a right to the prompt disposition of claims concerning the ongoing violation of their rights under the Sixth and Fourteenth Amendments,” U.S. District Court Judge Michael McShane wrote in his injunction.

McShane’s injunction was to go into effect Nov. 23 but is in limbo after the 9th U.S. Circuit Court of Appeals issued a stay.

McShane’s injunction highlighted a lingering problem with the state’s judicial system as it grapples with more people charged with crimes then publicly-paid attorneys to represent them.

The Sixth Amendment ensures criminal defendants have the right to an attorney and to a prompt trial.

“While the reasons underlying the shortage of publicly funded attorneys in Oregon

are complex, all parties agree that the state is facing a crisis in its constitutional mandate to

provide qualified attorneys to those charged with crimes,” McShane wrote in order.

McShane’s injunction covered two types of defendants – those in custody in a jail and those who are free pending future court appearances.

McShane wrote that “of greater concern are petitioners who have been ordered detained in jail and are without an attorney or sufficient process to secure their release or defend their case. In essence they’ve been locked away without a voice, being too poor to afford an advocate to speak for them in the courtroom,” he wrote.

McShane’s order to release jail inmates wouldn’t impact Malheur County because local officials work to get those who request an attorney representation within a few days.

Malheur County Circuit Judge Lung Hung said last week all defendants in the Malheur County Jail who request an attorney receive representation within seven days. But it isn’t an easy task, he said.

Hung said he is often compelled to have his staff search hard for an attorney to represent a defendant sitting in jail, a process the requires “a lot of juggling.”

“It is a lot of begging and pleading,” he said.

Hung said the court uses a list of county attorney contractors available for defense work.

Hung will also search outside the county if an attorney can’t take a new case or they have a conflict.

“If we have some attorneys that don’t have a contract specifically with Malheur County but have worked with us, we’ll call them. Or call (the state) Office of Public Defense Services and say, hey we have an issue, is there anyone you can suggest?” he said.

The problem exists for two reasons. One, there are a lack of public defenders in the state.  Second, the state Public Defense Services Commission since 2019 has limited how many cases an attorney can take on each year. The commission oversees the government-funded public defender system.

Lisa Taylor, government relations manager for the Office of Public Defense Services, said attorneys are limited to 300 misdemeanor or 80 felony cases a year.

Attorneys, she said, usually have a mixed caseload of felonies and misdemeanors.

For example, a qualified attorney could contract to do 250 misdemeanor cases and 50 felony cases.

Those limits play a role in how many attorneys are available to serve indigent defendants, said Taylor.

Hung said the maximum attorney caseload also created new difficulties for his court.

“That case cap can be surpassed on a case-by-case basis, but in the past, we had been able to work locally with our attorneys and build trust with them. But now that goes through the statewide agency,” he said.

That change creates another challenge to find ways to resolve shortages in Malheur County.  

“Before the caps we would call the attorney and say, hey, can you take another case and the attorney would say yes or no. Now, not only does the attorney have to be willing to go over the cap, but the move must be approved by OPDS (Office of Public Defense Services),” said Hung. But Taylor insisted the cap wasn’t and isn’t that simple.

Geography, workload and fewer law school graduates are factors contributing to the lack of defense attorneys across the state. Taylor also pointed to a 2022 American Bar Association study that showed Oregon has barely 30% of the defense attorneys needed to meet current needs for representation.

“Specifically, Oregon needs an additional 1,296 FTE contract attorneys – more than three times its current level – to meet the standard of reasonably effective assistance of counsel guaranteed by the Sixth Amendment,” said Taylor.

Taylor said there are also “attorneys getting burned out because they are underpaid and over worked.”

“As we get away from the population centers is it more difficult to get people out there. People tend to settle in urban areas near their university,” said Taylor.

Hung said many “freshly-minted lawyers in their 20s want to live in medium to larger towns.”

Taylor said a top focus for the Office of Public Defense Services is retaining and recruiting more public defenders.

Attorney Kati Dunn, who is the director of Elkhorn Public Defender that works in Malheur County, said the cap is needed for a proper defense.

“In the past there wasn’t a cap and they (the state) just kept sending you cases. So, it might be three rape cases in two weeks and that is not the way,” she said.

Dunn manages offices in Grant, Malheur, Baker, Union and Wallowa and a workforce of 11 attorneys.

The cap ensures attorneys are not overloaded and fail to adequately defend a client, she said.

“You want a lawyer who has some time to investigate the case properly, to think about trial issues and legal issues that could come up,” said Dunn.

Many defense attorneys said Dunn, abandoned the profession because they were burned out.

“In the past we were kind of disregarded. When we said we had too many cases we were viewed as whining,” she said.

Before the cap, she said, a defense attorney in the state could be dealing with between 120 to 150 cases at any time.

“You can’t keep up with that volume,” she said.

Dunn said another challenge is the low pay for a defense attorney compared to a colleague who goes to work at a high-profile law firm after law school.

“Law schools are incredibly expensive. Lawyers come out with six-figure debt,” said Dunn.

The defense attorney matrix in Oregon works on a contract basis, said Taylor.

 “They are either not large or nonprofit. We have a portion of contractors who are either in private law firms or individual lawyers who group together under a consortium,” said Taylor.

Taylor said contracted public defense attorneys sell a portion of their time to the Office of Public Defense Services.

Hung said he faces a daily challenge to find legal representation for defendants.

“We triage,” he said.

That means the focus is on individuals who are in jail, he said.

“Basically, instead of appointing an attorney for everyone on the first day, we will make sure that we have at least an appointed attorney for the in-custody people and delay to the out-of-custody people because they are already released. We prioritize the higher value needs,” he said.

Hung agreed there is clear public defender crisis in Oregon.

“It obviously needs to be fixed. That’s next. We have to solve that,” he said.

One key, said Dunn, is “more money.”

That means added funding from the Legislature but Dunn said even a modest cash infusion now would help with outreach efforts to regional law schools to attract more attorneys to eastern Oregon.

“We are taking steps. I think the Legislature was more generous this time around and I think they want us to succeed, not fail,” said Dunn.

An attorney is critical not only because it is a constitutional right, Hung said, but also because the law can be a complex field.

News tip? Contact reporter Pat Caldwell at [email protected]

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