Oregon facing severe shortage of public defense attorneys

Oregon needs about 1900 public defenders to ensure the constitutional rights of those in the criminal justice system, but the state has fewer than 600, a 69% deficit. That’s according to a new report by the American Bar Association. Advocates say the crisis is actually longstanding and has steadily worsened. The latest report echoes a 2019 report by the Sixth Amendment Center that found Oregon’s system for public defense was essentially unconstitutional. Advocates say all three branches of government are needed to address the crisis. Metro Public Defenders attorney Tristen Edwards represents indigent people accused of crimes. She says her clients are some of the most vulnerable and disadvantaged people, and she’s passionate about representing them. But even working six days a week — without taking on new cases — she can never do everything she needs to do. Edwards joins us to share her experience trying to keep up with day-to-day case loads, and about her restorative justice work to address systemic inequity.

The following transcript was created by a computer and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB, I’m Dave Miller. Oregon has fewer than 600 public defense attorneys right now. It needs more than three times that number to ensure that people accused of crimes get legal counsel; that’s according to a new report by the American Bar Association. It echoes an earlier report which found that Oregon’s system of public defense is essentially unconstitutional. Tristen Edwards is an attorney for Metropolitan Public Defenders, which represents clients in Multnomah and Washington counties. She joins us now to talk about what this means for her clients and the criminal justice system more broadly. Tristen Edwards, welcome to Think Out Loud.

Tristen Edwards: Thank you so much for having me.

Miller: Can you give us a sense for what an average caseload is like for a public defender in Oregon these days?

Edwards: Sure. So it does vary, it varies depending on what level of cases a certain attorney is taking. So of course in misdemeanors, attorneys handling those kinds of cases will have more, and that kind of goes down as you move into minor felonies and major felonies. Currently at my office, misdemeanor caseloads have regularly been over 100 cases. That has just been considered standard since I’ve been working at the office for about 4.5 years, and in fact, when I was in misdemeanors, it was closer to about 200 cases.

Miller: And that’s active cases, where all those are somewhere in the system in an active way?

Edwards: Frankly we rely on people to be in inactive status in order for that to even work. If not for the fact that certain clients fall out of touch, that some clients are kind of in a diversionary posture, it would be completely unreasonable and unmanageable, and in fact it still is. But I think that it just speaks to the fact that the system feels very comfortable with loading public defenders with what is objectively a simply unmanageable amount of work. The reality is, one individual simply cannot do all the things that are required of them. And now we know from this report that the public defenders in this stage are being required to do the work of three additional people.

Miller: As you noted there, there is a real diversity in the kinds of cases we’re talking about here, from relatively straightforward misdemeanors to really complex major felonies. How much time do you have to work on the more complicated cases?

Edwards: That’s a great question. So I am in the major felony unit at my office, which means that the cases that I get appointed on are almost exclusively serious violent felony offenses, where people are facing mandatory minimum prison sentences. To handle this workload, I have found that I have to have a six day week, if not a seven day week. And that is not to stay on top of my cases, that is simply to try and keep my head above water as best as I can. But there is always more work than could possibly be managed. And a lot of the challenge of working in this job is just the emotional difficulty of handling the guilt that is associated with knowing that I am not providing the representation for my clients that I wish I could provide. And I do think it’s important to note that the standard that the ABA study is working towards is adequate, constitutional representation. The attorneys that I know are very mission driven. They care about their clients. They’re very client centered. And we would hope to be able to provide not just adequate, not just constitutional, but excellent representation for our clients. And that is frankly what our clients deserve.

Miller: What’s the difference between those two? Maybe to understand that, maybe the earlier question is, what does the Constitution, in the Sixth Amendment, guarantee all of us?

Edwards: The Sixth Amendment guarantees us all adequate representation, for attorneys to be president and to be working up cases, and appearing at all of the different court appearances. But I think it’s really important to understand that the work of a public defender or any criminal defense attorney goes far beyond that, in part because our system captures so many people who are incredibly vulnerable, incredibly high risk. A lot of times, people are ending up in the criminal legal system because of some other exacerbating social issue, whether it’s homelessness, exposure to violence themselves, poverty, mental illness, addiction. And so when somebody is representing someone on that kind of case, their stability, their ability to function as a citizen and to receive services is also central to the representation. And I think that that is a piece that gets sacrificed when attorneys are asked to do far more than they should, than one person could possibly handle.

Miller: So the way you’re describing this is you’re always triaging, you’re dealing with a kind of crisis based on the disparity between the workload and the number of hours in any given week. What kinds of things fall by the wayside? If what you’re saying is you can provide hopefully, ideally something like the constitutional bare minimum of adequate representation. What can’t you do?

Edwards: Well, let me answer this question by explaining a little bit about how I go about my caseload. I’ll just take a screenshot of maybe where I was in August of last year, we can look at my caseload then.

So at that stage, I had about 50 major felony cases. These range from attempted murder, to various assaults, robberies. Your higher level cases where people are looking at really serious prison time. And one of the big challenges was that I would have all these complicated cases. I would have a list of tasks that I need to accomplish on all of them, from investigation, meeting with my clients, reviewing hundreds of pages of discovery on each case, and sometimes hours of audio and video recordings, as well as trying to attend to social service needs and a variety of different issues, along with figuring out what issues I can litigate, when I can schedule trials, who I need to subpoena for trials, a variety of different things. And I would be able to look forward and kind of map out what I needed to do, and then realize that, in that period of time when I’ve mapped out all these things that I need to get done on my cases, that I probably get assigned on 3 to 4 more very serious major felony cases in that time period, meaning that we’re always working up new cases, always having additional work piled on, which makes it seem like simply an impossibility to really complete and get on top of the cases that we do have.

I think one thing that sometimes gets missed is that these relationships are really complicated. We’re working with people who are very high needs, who have had a lot of difficulties in their history, and are currently struggling through some of the key social issues that face our society. And we are tasked with needing to build trust based relationships with these people, so that we can deliver hard news, so that they can trust us when we are talking them through what may be the most difficult situation in their lives. And that ability to build that trust becomes completely eroded when we don’t have the time to be having regular meetings with our clients, even to be having regular phone conversations with our clients. A lot of the communication that I do with my clients sometimes has to get passed through my legal assistant, because I’m simply in hearings or meetings or a variety of other things that I need to be doing throughout the day. And so it’s simultaneously emailing my legal assistant to constantly be contacting my clients and telling them different things while working up their cases, and just feeling really burnt out by the end of the day.

Miller: When I think about images of ineffective counsel that are in movies or books or that are most talked about in the most egregious ways in appeals, the image that comes to mind is a defense lawyer who is asleep during trial. What you’re talking about is really different. It’s less dramatic than that, but in some ways it’s more pervasive. I’m wondering if you think your clients or other clients would even realize that they’re not getting the best counsel that they could?

Edwards: Yeah, I think that they do realize it, and I think that it varies if they understand where the source of that is. I think that depictions of criminal defense attorneys in the media certainly have not created an accurate or positive picture of the kind of work we do. And what I know from the attorneys that I work with is that this crisis affects not only our clients, but it also affects the individual attorneys. The people that I work with are incredibly mission driven. They are dedicated to the cause. They are keenly aware of the social justice issues and racial justice issues that pervade the criminal legal system, and they got in this work as a desire to help people and try to fight against those systems. And on a personal level, there is a very severe amount of anxiety and guilt, a multitude of difficult emotions that someone has to work through when being tasked with constantly working, and never coming close to accomplishing everything that we are supposed to for our clients.

Miller: The Chief Justice of the Oregon Supreme Court recently sent out a letter to Oregon lawyers across the state, urging them to consider taking up some public defense cases. What did you think of her plea?

Edwards: I think that we’re trying to address an issue right now that has resulted from decades of chronic underfunding of the public defense system in Oregon. So, one email asking people to step up, though I think it is important since we have people who are going unrepresented, I think there are a couple issues. I think one is that sometimes the messaging around why we are in this situation can get lost. COVID, of course, has exacerbated so many of the social issues that exist in our society, and the crisis within public defense is certainly not alone in that. But I think it’s important to acknowledge that this crisis has existed for a long time. And frankly, we’ve been at a breaking point for a very long time. Now we see, with so many people across the state going unrepresented, that we can’t continue like this any longer, and really the critical issue is our need to fund public defense, and to fund the people who work closely the most closely with some of our most vulnerable people in our community.

I think another thing that I would just note about this request for other attorneys to step up. I do think that that is a great thing, if other attorneys are able and willing to do that. But I think it’s important to know that this is a really specialized skill, that it’s something that, if someone has past criminal defense experience, then yes that’s great. But it’s difficult when it feels as though, when asked of the legal community, that any lawyer can step into this position. It’s a very difficult job. People go through years of training, they focus on it in law school, do clinical experience to make sure that they’re well equipped, and I think it’s really time to start funding more positions, start increasing pay for the current public defense so that others will want to join and we can retain our talent. I think that those are where the real solutions lie.

Miller: What do you see as the political challenge in doing that? A couple of years ago, lawmakers in the state House did say yes on a bill that would have put more than $100 million dollars in new money towards public defense, and it went nowhere in the Senate. I’m curious how you see the politics here, putting more money towards public defense?

Edwards: It’s a very sad thing. I think that sometimes, our concept of public safety becomes very narrow. When there is an uptick in crime, there’s always a willingness to fund the prosecutor’s office, to fund police departments, and public defenders really get missed in that. It’s not even just about the fact that there needs to be an attorney to take those cases, that attorney needs to exist for the case to be moved through the criminal legal system at all. But I also think that it fails to acknowledge the important work that public defenders do in the service of public safety, in really trying to address underlying causes, linking their clients up with social services, trying to get at the root of what has caused them to be in this situation, and try to the best of their ability to address those things. And I do think that, in addition to constitutional representation, in addition to making sure that people have their due process, rights, that it is an issue of public safety, that public safety is better off when we are properly funding public defense, because again, we are the ones who are working most closely with the most vulnerable members of our society. The people who are most in need, who have slipped through every crack. And as a community, as a society, it is on us to support those people. They are still members, very important members, of our community.

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