Four people facing criminal charges filed a class-action lawsuit Friday asserting the State of Oregon has failed to provide them and hundreds of others with court-appointed attorneys. The plaintiffs argue the state is committing a “clear violation of basic standards of justice” by not upholding the protections afforded to everyone under the U.S. and Oregon constitutions. Black defendants have been disproportionately harmed by the state’s failures, according to the lawsuit.
“The court deemed each of them to be unable to hire a private attorney and eligible for a court-appointed attorney,” according to the 10-page complaint, filed in Multnomah County Circuit Court. “However, the state has not provided them with a lawyer nor dismissed the charges against them.”
For years, Oregon’s leaders have known that a lawsuit over the state’s public defense system was a possibility. By law, anyone arrested and charged with a crime should be informed of their right to a state-provided attorney if they cannot afford one. Since it can easily cost thousands of dollars to retain a private criminal defense lawyer, many people cannot afford to hire one.
Jesse Merrithew, one of the attorneys who helped file the class action, said the time immediately after an arrest is the most critical for the defense.
“It is the time where the client will either lose their job or keep their job, lose their family and their house or keep their family and their housing,” Merrithew said at a news conference Monday. “It is either the time where evidence is going to be preserved or evidence will be lost.”
Oregon courts began to see new signs last fall that the public defense system was overly stressed, leaving some people charged with crimes without an attorney. Since then, the problem has grown into a crisis.
According to the lawsuit, as of Thursday, approximately 500 people statewide who were charged with crimes were waiting for a public defender. Of those, 33 were in custody. Though, as the lawsuit states, the number of people without a public defender is “constantly changing as the State haphazardly appoints counsel.”
“The State may appoint counsel in a given case after the defendant has waited weeks or months for an attorney,” the lawsuit states. “But the number of unrepresented people in Oregon continues to grow as more defendants are subject to the deprivation of counsel each day.”
Black defendants in need of a lawyer are disproportionately affected by the shortage of public defenders, the lawsuit states. For example, last Wednesday in Multnomah County, 20% of the people without an appointed public defender identified as Black, despite Black residents making up less than 6% of the county’s population.
“Black indigent defendants are more likely to be subjected to pretrial detention, prosecuted, convicted, sentenced to jail or prison, placed on probation, and sanctioned with jail time for a post-prison supervision or probation violation,” the lawsuit states.
The lawsuit notes the Office of Public Defense Services, an independent state agency, is responsible for ensuring criminal defendants have access to public defenders. In addition to the State of Oregon, the lawsuit names Gov. Kate Brown and the public defense office’s executive director Stephen Singer, who started in December.
Brown’s spokesperson, Liz Merah, said the office “generally does not comment on matters of pending litigation.”
As of Monday afternoon, Singer had not been served with a copy of the lawsuit, though did speak to OPB prior to the litigation.
“Currently, Oregon’s public defense system is not able to fully meet its constitutional obligations to provide representation to everyone who is entitled to it,” Singer told OPB last week. He said the shortage of public defenders also means “that cases can’t move through the system, which means the courts, the district attorney’s office, victims, witnesses, and the community are not having their public safety needs addressed.”
In April, the Multnomah County District Attorney’s Office stated in a memo that the district attorney’s office “is unable in any meaningful manner to prosecute felony crimes other than the most serious person crimes” such as murder, assault, robbery and other violent offenses that carry mandatory minimum sentences.
The jury room at the Multnomah County Courthouse in downtown Portland, photographed on Jan. 25, 2021.
Courtney Sherwood / OPB
For years, state leaders have known Oregon’s public defense system was overburdened. But the pandemic made things worse as social distancing and other pandemic precautions forced courts to hold fewer hearings and trials, which created a backlog of cases. That’s left many public defenders with caseloads so high some say they cannot ethically take on more clients. Others are leaving public defense because they’re burnt out, which only exacerbates the problem for those who remain.
“It feels really crummy,” said Shannon Wilson, executive director of Public Defender of Marion County in Salem. “I think that’s why a lot of people leave public defense — because they realize ‘not only am I not going to be able to make a living doing this work, but I’m also not making a difference, I’m also not helping anyone.’”
Earlier this year, the American Bar Association released a report that found Oregon has just one-third of the public defenders necessary to meet current case levels. Studies the ABA has completed in other states have reached similarly stark conclusions.
“Public defense is in crisis throughout the country,” said Jason Williamson, executive director of the Center on Race, Inequality, and the Law at NYU School of Law. Like Merrithew, he’s one of the attorneys working with the Oregon Justice Resource Center to bring the lawsuit against the state.
“One of the things that makes this situation so urgent and so dire is that you have hundreds of people that don’t have access to a lawyer at all,” Williamson said.
Prior to NYU, Williamson worked at the ACLU where he helped sue states such as Michigan, Missouri, and Idaho over their inadequate public defense systems.
“What is required to get any sort of movement in the public defense world is often both a lawsuit and a robust, non-litigation advocacy effort where state lawmakers are being educated about why they should care about this,” he said.
Some of that appears to be happening in Oregon.
In February, state lawmakers agreed to spend $12 million to hire more public defenders in Multnomah, Washington, Marion and Lane counties, where the shortage has been felt the most. Those efforts have had mixed results.
Oregon’s chief justice, the governor and legislative leaders have also convened a working group to address longer term solutions for the state’s public defense system. It met for the first time this month.
