Oregon public defender crisis reaching into all corners of criminal justice system

Earlier this year, the American Bar Association published a report finding that Oregon barely had 31% of the public defenders it needed to provide adequate criminal defense to those facing criminal charges. That’s something that public defenders themselves have known and experienced first hand for many years. Carl Macpherson, executive director of the Metropolitan Public Defender, says the shortage that’s developed is unconstitutional and unethical. He says part of the problem is an increasing number of people who are entering the system because of a lack of other services, like mental health and substance abuse treatment. And, judges are dismissing cases if a needed public defender isn’t available.

“This is not a public defender crisis,” Macpherson told OPB. “This is a total public safety system failure.”

Multnomah county district attorney Mike Schmidt called the public defender shortage a crisis in an op-ed earlier this year. He recently began publishing the criminal cases that have been dismissed because an attorney couldn’t be provided to a defendant, which is a constitutional right.

We talk with Macpherson and Schmidt in turn to get more on how the shortage is affecting all corners of the criminal justice system and what could be done to help alleviate the crisis.

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. Earlier this year the American Bar Association published a report showing that Oregon has less than a third of the public defenders it needs to provide adequate criminal defense to people facing criminal charges. This was not news to public defenders themselves. They have known about this shortage and have been talking about it for years. But the shortage is getting a new burst of attention these days. That’s after Multnomah County District Attorney Mike Schmidt began publishing a list of criminal cases that have been dismissed by judges because defendants did not have access to legal counsel. That list includes violent crimes like assault.

We will talk to Mike Schmidt about this in a few minutes, but first I’m joined by Carl Macpherson, the executive director of Metropolitan Public Defender, which is based in Multnomah and Washington counties. It’s the largest provider of public defense services in the state of Oregon. Carl Macpherson, welcome back to Think Out Loud.

Carl Macpherson: Good morning Dave, thank you for having me.

Miller: Thanks for joining us. So the shortage of public defenders has reached crisis levels at this point, but as I noted, it is not new. How far back does it go?

Macpherson: Well, this is really a public safety system failure in my opinion. Public defense systems across the country have been under-resourced and overwhelmed, not just Oregon, but that’s across the country. It’s been this way for many years, if not decades. I think the first real recognition of this fact was in 2019 when the Sixth Amendment Center, which is a nonpartisan organization, did a legislatively funded report and study of Oregon, and concluded that the system here was unconstitutional and unethical as to how it was being implemented and run, and had been operating that way for many years.

That’s not something that you can fix overnight. The ability to transition away from that unethical and unconstitutional system that was overburdened and under-resourced was further complicated by the pandemic. I think the report in 2019 identified many of the root causes and issues, but there wasn’t enough time to fix those causes. And then the pandemic hit.

Miller: Well, let’s take those one at a time. What are the root causes?

Macpherson: The root cause is the way the system was designed and set up. Public defenders were being overburdened and overwhelmed with excessive caseloads, and that was occurring for many years. And so you had people that were carrying too many cases, that were representing too many clients, that were not practicing ethically. Our ethical obligations are very clear when you’re providing direct client representation, and that is you can not accept a new client unless you can do everything on that case for that client. And that means advise, counsel, and advocate for them. It means conduct an independent fact investigation, which you’re required to do as a criminal defense attorney. It means that you have to diligently communicate with them. And there’s always a point that’s really important for people to understand when you’re talking about the criminal legal system and public defense. Public defenders are providing direct client representation. And the workload studies that have been done across the country show that about a third of your time should be spent on client communication or related matters. I think that’s a big part of it.

Miller: Is client communication more complicated than it sounds? Is it different than just talking with clients?

Macpherson: Yes. For example, in Multnomah County, we have two separate jails. So if you’re going to Inverness Jail to see a client, that takes travel time to get to Inverness Jail to visit that client. It could be communicating with the client who’s in jail versus communicating with the client out of custody. It also involves communicating with your client’s family that are interrelated to the case. But also, family members are extremely important to clients when they’re trying to make really difficult decisions on whether to go to trial, whether to accept a plea. They need family involvement because their loved ones are the people they trust, and they certainly trust them more than an attorney that they didn’t choose.

In public defense, it’s kind of like an emergency room doctor. If you go to the emergency room, you didn’t choose that doctor, that doctor didn’t choose you. It’s very similar in public defense. So you need to spend a lot of time with your client so that they understand that you are on their team, and you are there to help. And that takes time.

Miller: You noted that this was already a very bad situation before COVID. How did the pandemic affect public defense in particular?

Macpherson: Our clients, and the majority of people that the state is arresting and prosecuting, have one of multiple factors involved, and that is serious mental health issues, substance abuse issues, houselessness, cognitive impairment, general instability. They’re often the victims of trauma themselves, so physical abuse, sexual abuse, emotional abuse. In our world, our clients are often victims one day and defendants the next. You have to understand that that’s who is being prosecuted as a baseline.

Secondly, Oregon is at least close to last when you take into account people’s need for services and services that are available. And that’s why I believe this is really a public safety crisis, because we don’t have the services available for the people we’re choosing to bring into the criminal legal system. That doesn’t help their underlying issues at all. And the pandemic exacerbated that, because the people who are disenfranchised and those individuals that are being arrested and charged are suffering more throughout the pandemic. Their underlying issues are being exacerbated. That’s how the pandemic did it.

And then you have to follow through from that. The case load started to swell, the system slowed down, particularly in Multnomah County. And it’s understandably so, it was the right, prudent thing to do, the responsible thing to do to make certain you’re keeping people safe. The unintended consequence of that is that caseloads got higher and continued to increase, and continued to increase. The backlog got bigger. And you have that situation where, because we have an under-resourced public safety system, and you have the fact that most people come into public defense because they want to help people, and when they get into the system, they start doing this work, they realize the criminal legal system is not helping people, there are not adequate resources to help people’s underlying conditions, and those situations have gotten worse throughout the pandemic, and it’s really stressful and upsetting to continue to stay within that field.

Miller: How many public defenders have left your office over the last few years?

Macpherson: We have about 90 public defenders on contract with the state to do adult criminal and juvenile work. And since January of 2020, we’ve lost 44 attorneys. So that’s about half of the attorney workforce in this office have left, and we’ve had to replace. And the reason why they have left is very clear based on information I have about people leaving. The number one stated reason is pay. We have the greatest disparity in the United States that I have found between public defense pay and prosecutor pay in Multnomah County and Washington County, where the prosecutors are making two to three times what the attorneys make at our office. That’s the number one reason people leave. And I know this not just because of talking to people, but also where people are going when they leave.

Miller: Where do they go?

Macpherson: Of the 44, only six stayed in state level trial public defense in Oregon. The majority of people went to civil law firms. We hire extremely qualified attorneys, but because of our pay scale, they’re almost always brand new attorneys, who then we train and provide them caseloads that are manageable and train them so that they’re doing excellent work for their clients. So they get this litigation experience they couldn’t otherwise receive. And then they go to civil firms because the civil firms pay them more than the maximum they could get paid if they stayed at our office for 12 years. So that ability to increase their salary and be able to pay for a family, if they have one or they want to have one, or be able to afford a home, is critically important.

Miller: What does that dynamic mean in terms of the likely experience level of public defenders compared to county prosecutors?

Macpherson: That one’s hard for me to quantify. I know that the prosecutor’s office has had issues with turnover as well, so I can’t speak to that necessarily. But what it means is that we miss out often on having a robust group of attorneys that are in that two to five year experience range, because that’s when we lose them. We have some experienced attorneys that are really dedicated to public defense and want to do this for a career. And then you have a lot of newer attorneys that we are working extremely hard to train up. I mean, they’re extremely well qualified. They could work wherever they want to in the country, but they’re choosing to come into public defense because this is a calling to them. But you have to train them. If it was a doctor, you wouldn’t have a doctor on their first day performing brain surgery. You have to train them, and allow them the opportunity to succeed so that their client gets the best representation possible.

Miller: You’ve been, for understandable reasons, focusing largely on the public defenders themselves, the lawyers, and the people that they are representing. But I’m curious about the flip side here. How do you feel about a number of serious assault cases being dismissed by Multnomah County judges because of this shortage? I’m thinking in particular about the alleged victims in these alleged crimes.

Macpherson: Sure, well I’ve been the victim of crime multiple times myself. I’ve had my home broken into three times, multiple property offenses, I’ve been the victim of an assaultive offense, I had a gun pulled on me. And I know as the victim of crime, and also through Daniel Sered’s work in restorative justice out of New York that what victims want to know is really two things. One “why me?” And number two, “How can this be prevented from happening to somebody else?” And what I know is that the criminal legal system doesn’t answer either of those questions, and does nothing for the person that causes the harm to actually help them. It doesn’t increase public safety. So that’s one component.

Secondly, when it comes to dismissing cases, the law in the United States and Oregon requires that if you’re going to charge someone with a crime, an attempt to take away their liberty and convict them of a crime, then they’re entitled to an attorney. And if they can’t afford one, the state must provide one. I grew up, and spent a lot of time with depression-era grandparents, and they had a saying, “You don’t write a check unless you can cash it.” And what’s happening now is you have 31% of the lawyers that you need, you have a huge retention problem, people are leaving the profession for the reasons I stated, and you have a recruitment problem. So if you don’t have enough lawyers to represent them and their constitutional rights are being violated, then the only answer is to dismiss the case.

Miller: Are you at all concerned that the highly publicized dismissals could actually lead to the reverse kind of response from the public from what you want, could lead to a kind of law and order backlash clamoring from the public for, say, harsher sentences as opposed to more money for public defenders?

Macpherson: Fear based politics has been used in the United States for a long time. Fear is a very powerful emotion to get people to act, and that’s been done for a long time. You have Willie Horton, multiple examples of how that’s used.

Is there concern? Certainly. It’s shortsighted, and it doesn’t work for short or long term public safety. But we already have a problem in Oregon with Measure 11, which is a mandatory minimum sentencing component, which entangles people that should never be facing that kind of time. You have people who plead guilty to crimes when they’re actually innocent because they don’t want to face 9, 10, 12 years in prison, and they’ll take a lesser result because of the fear of this larger sentence. Fear already plays a role in our criminal legal system in the United States and Oregon, and I’m sure it will continue to do so.

Miller: Just briefly, legislative leaders have formed a working group as of this past spring to introduce bills when lawmakers come back to Salem in a month and a week or so. Are you expecting any meaningful solutions to come from lawmakers?

Macpherson: I am on the tri-branch work group. I think you have to wait and see. I’m hopeful. We’ve had this public safety system crisis for multiple years now, so I’m hopeful that yes, that something will come out of this legislative session. But I think you have to wait and see.

Miller: Carl Mcpherson, thanks very much.

Macpherson: You’re welcome. Thank you.

Miller: For another perspective on this shortage, I am joined by Multnomah County District Attorney Mike Schmidt. Welcome back to the show.

Mike Schmidt: Thank you Dave.

Miller: What is the most recent count as of today of dismissed criminal cases in Multnomah County?

Schmidt: As of today, we’ve hit 297, just three shy of 300 cases being dismissed by the courts.

Miller: Can you give us a sense for the kinds of cases that are included in that nearly 300?

Schmidt: They range. The majority of the cases are actually what I would describe as mid-level felony cases. A lot of property crimes. Cases like stolen car cases, theft cases. A large number of misdemeanors have also been dismissed. But also on the high end of what I would consider severity, all the way up to a domestic violence case and felon in possession of firearm cases.

Miller: It’s judges, not prosecutors, who are responsible for dismissing cases. It’s not your office. But you’re intimately aware and involved in these cases, obviously. Can you give us a sense for the process, how it happens that a judge would dismiss a case?

Schmidt: When we make a charging decision, let’s say a felony case, we take it to the grand jury. A grand jury returns a true bill, and then an individual who’s been indicted at that point would appear in front of the court to be arraigned on the indictment. At that moment, a judge will ask, “is there a defense attorney available for this individual who’s being arraigned?” And if the answer is “no judge, there are no defense attorneys available,” then typically what’s happening at that point is the judge is setting the case over for the person to come back and appear again in 60 days, with the hopes that 60 days from now, there will be a public defender available to represent the case. When they do that, they’re not putting release conditions on the individual because they don’t have an attorney there to represent them. So it’s really just the court saying “please come back in 60 days and we hope that we’ll have an attorney then.” 60 days goes by. If the person does show again and there is no attorney at that point, many judges are dismissing the case.

Miller: What do prosecutors say to alleged victims in cases that are dismissed?

Schmidt: It’s one of the hardest conversations that we’re having almost on a daily basis, between our victims’ advocates and our attorneys, because it really is not intuitive. When you’re talking to a victim and you’re having to explain “your case just got setover because there’s not a defense attorney” or worst case scenario “I’m sorry to let you know that your case has been dismissed,” what we hear from victims is “But where are my rights? What about me, I’m the victim of this case. So you’re telling me that because the defendant doesn’t have an attorney, my case gets dismissed?” It’s just not intuitive for a lot of victims who are lay people, they’re not necessarily constitutional law experts. It’s a challenging conversation to have. And I think it leaves a lot of our victims, and quite frankly our attorneys and victims’ advocates feeling pretty bad about how things are going.

Miller: Is the shortage of public defenders affecting charging decisions, one level upstream?

Schmidt: We have throughout the last couple of years decided when we can bring charges in certain cases. We’ve known that bringing especially those mid-level felony charges would likely result in the case being dismissed because of no defense attorney. What happens in that situation is we end up having to do double work, because even if the case is dismissed, we can still bring it back. But that means we have to go through the grand jury again, we have to call victims and witnesses and police officers to testify again, and then a warrant will go out for an individual’s arrest, effectively making the police officers arrest the same person twice for the crime. So we have, as we have considered charging cases, decided to hold some cases back temporarily while we try to spread them out through the system. So it has delayed some of our charging decisions.

Miller: And just to be clear, meaning that you would make the decision to deprioritize some cases, to not bring charges that you otherwise would bring because you think those are going to be dismissed anyway, and you don’t want to load up the system with those cases, making more serious crimes also be dismissed. Is that a fair way to put it?

Schmidt: Yeah, that’s a fair way to put it. We don’t want to especially bring victims through this process when we know that the likely outcome is getting to be having the case dismissed. We don’t want to do it twice.

Miller: Why did you make the decision a few weeks ago to publicly release the list of dismissed cases, and to and to talk about this?

Schmidt: We’ve been dealing with this issue since early 2022. I think maybe the first case was dismissed in February of 2022. And at the time, we really thought this is gonna be a short term problem, that maybe in a month we’ll get this squared away, caseloads will start to right-size. We’ve tried every intervention that we can possibly think about with the courts, with the defense bar, to resolve as many cases as we can, thereby trying to reduce caseloads and make more defense attorneys available for additional appointments. We’ve tried everything we can think about. And here we are now 10, 11 months later and we’re still dealing with dismissed cases on a daily basis.

I just got to the point where it’s not apparent to me that help is on the way. And I think the only thing that I can do at this point is to raise awareness in the community that this is a true threat to public safety, and that we need to have this situation remedied.

Miller: What help are you looking for? What remedies are you seeking?

Schmidt: Really, this is a pretty simple, straightforward issue from my perspective, which is we have more cases than we have attorneys. And so there are only two ways to remedy that. You either have less cases, or you have more attorneys that are able to do the work. We already have done as much as we can to resolve as many cases as we can. There aren’t any other ways for us to reduce the number of cases coming into the system. So at this point, the only way that we can do this is to get more people to do the work, which means more attorneys who are able to take on defense cases. That’s the kind of help that we need immediately.

Miller: And it means more money, right? More taxpayer money going to public defense?

Schmidt: Yeah, and there’s a legislative three-branch work group that’s going on that’s looking at all of these issues. But at the end of the day, it’s the state’s responsibility to supply enough public defenders to handle the number of cases going through our system. And that’s not happening right now. So whether that means increasing money, and I think there’s a lot of good arguments for increasing pay parity, which will help with recruitment and retention in the defense bar, or whether that’s looking at efficiencies in our system, which is kind of a patchwork system of public defense agencies and consortium attorneys who do this work as part of their other practice, looking at system wide changes and the contracts that we have, it’s all of those things at once.

Miller: You mentioned the 60 day period, that judges say could come back in 60 days and if you have legal representation we’ll go forward with this case, I imagine that means that you have a pretty good sense for the next two months in terms of potential dismissals. What are you looking at right now in the near future?

Schmidt: You’re right Dave, because we know that there are a certain number of cases that are in that holding pattern. I don’t know right now how many are pending off the top of my head. But when we look at the number of cases that have received these types of setovers, we’re talking in the thousands. 300 have been all ultimately dismissed, which will tell you that a large percentage of those cases will in fact have an attorney available to them. But a smaller percentage will not. So I don’t have the numbers, but we absolutely know that we are going to continue to see cases be dismissed for the next couple of months.

Miller: Mike Schmidt, thanks very much.

Schmidt: Thanks so much, Dave.

Miller: Mike Schmidt is a district attorney for Multnomah County.

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