Oregon Supreme Court in Salem, Ore., May 19, 2021.
Kristyna Wentz-Graff / OPB
This past weekend marked the 60th anniversary of the U.S. Supreme Court ruling that requires the state to provide and pay for an attorney if it charges a person with a crime. The promise of Gideon v. Wainwright is particularly poignant in the midst of a nationwide public defender shortage. In Oregon, both prosecutors and public defenders say the situation here is nothing short of a crisis. An American Bar Association report called it unconstitutional. Democratic leadership in the Oregon Legislature has acknowledged the crisis and said addressing it is a priority. But with the 2023 session fully under way, public defenders say they don’t see meaningful action so far.
Meanwhile, attorneys in Marion County filed a recent motion that many hope will quickly make its way to the state supreme court. It asks for public defenders to be withdrawn from certain cases, for a stop to appointing lawyers to some new cases and a dismissal of remaining charges for anyone left without court-appointed counsel.
Federal Public Defender Lisa Hay, and Carl MacPherson, the executive director of Metropolitan Public Defender join us to discuss the challenges Oregon faces and possible ways forward.
Note: The following transcript was created by a computer and edited by a volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. This past weekend marked the 60th anniversary of the unanimous U.S. Supreme Court decision in Gideon v. Wainwright. Justices found that states have to pay for attorneys if defendants in state courts cannot afford legal counsel. The anniversary comes at a poignant time because we are in the middle of a nationwide public defender shortage right now. In Oregon, public defenders and prosecutors say the situation is nothing short of a crisis. An American Bar Association report called it “unconstitutional.”
Lisa Hay is Oregon’s federal public defender. Carl MacPherson is the executive director of Metropolitan Public Defender. It’s based in Multnomah and Washington counties. It’s the largest provider of public defense services in the state of Oregon. They both join me to talk about the challenges Oregon is facing and possible ways forward. It’s good to have both of you on the show.
Carl MacPherson: Thanks for having us, Dave.
Miller: Lisa Hay, first: honestly, it was a little surprising to me that defendants in state trials were not guaranteed legal counsel before 1963, 60 years ago. It’s not that long ago. What did that mean for people who couldn’t afford lawyers?
Lisa Hay: Well, unfortunately, it meant that the constitutional rights of many people were not respected in our courts. One of the classic cases back in 1932 was Powell v. Alabama, where a group of young men were charged with rape. They were tried just days after the charge was brought and eight of them were given the death penalty. That’s the case where the U.S. Supreme Court decided that capital cases required attorneys. But even after Powell, in many places in the states, defense attorneys just were not provided for people who had to represent themselves in court. Tragically, many innocent people, in court or people in prison, didn’t deserve the sentence they received.
Miller: What was the promise of the Gideon ruling, Carl?
MacPherson: The promise was that if you were charged in state court, in the United States, with the strength of the government coming upon you, that you are entitled, by our constitution, to counsel if you could not afford to hire someone yourself.
Miller: So what has gone through your mind this weekend at the 60th anniversary of this landmark ruling?
MacPherson: Many things. One, that the promise of Gideon is completely unfulfilled, both the United States and in Oregon itself. That has certainly gone through my mind and then secondarily that the people doing the work, the public defenders who show up every day for their clients are just resilient, dedicated and professional, and they are incredibly important, not only to the criminal legal system, but they’re incredibly important to their clients and they’re incredibly important to public safety.
Miller: Lisa Hay, we’ve talked more in recent years about state courts than federal courts. What is the public defender situation like, right now, at the federal level?
Hay: The federal level has some advantages over the state because we have a nationwide system. We have an administrative office in Washington D.C. that sets budgets nationally. And it’s not a perfect system, but we support institutional defenders across the country. And that means that we have the ability to keep experienced public defenders working in cases. I’ve been a public defender for 25 years. We make less money than we could make in the private sector. But we also have the support of our colleagues. We have a pension plan, we have health insurance, we have reasons to stay in this position because we get the support that we might need to make this a career.
And I think that’s critical because young public defenders are seeing around the country that they can work and work and work and yet not have anything to show for that once they become senior defenders. And I think that’s why we’re losing our experienced public defenders. And that’s part of the reason for this crisis. Of course, there are a lot of other reasons for the crisis, which I’d be happy to tell you about.
Miller: Well, I’m curious what this has actually meant for people who are facing federal charges?
Hay: Well, we have a federal public defender office that takes most of the cases here in Oregon, and we have then panel attorneys who take cases when we have a conflict or for workflow overflow. In other areas though, public defenders are overworked because the flow of cases has increased. In Washington D.C., for example, the January 6th cases require lots of representation. And so that system is overworked. The administrative office is working on a new formula to fund federal defenders the same as in many states and that could precipitate a crisis if the formula isn’t accurately calibrated.
Miller: Carl MacPherson, your counterpart in Marion County has filed a motion for the court there to withdraw public defenders from certain cases, to stop appointing their public defenders to new cases, and to dismiss the remaining charges for anyone left without a court appointed counsel. Again, that’s in Marion County. What would happen if a judge there were to grant that motion?
MacPherson: I’ve not read that motion yet. I’m generally aware of the situation. I mean, ethically, what the court should be doing and what we should be doing as a system is following the ethics and making certain that public defenders are well resourced. They have reasonable caseloads and that they have fair pay. And under the circumstances when you have a system, not just in Oregon, but nationwide, it almost intentionally overloads and over burdens everyone that’s working within it. So when you have people working with excessive caseloads, you ethically cannot accept a new case. I mean, it’s Oregon State Bar Opinion 2007-178. It’s the Oregon ethics… if you cannot do everything that you should do ethically, for every single current client (because that’s who your ethical obligation is to), you cannot accept a new appointment.
Miller: I’m curious by the specific language you just used, there. Lawyers are normally pretty careful about the words they choose. You said that this is almost intentionally overburdening the public defense system. You stopped short of saying “intentionally.” I’m curious about what you think is behind this?
MacPherson: Well, that would be a really long discussion. I think the system in the United States was built and designed to do something, and that was, really, to oppress and disenfranchise people. So the state systems bring in way too many individuals. The [number of] crimes in Oregon and other states are just continuing to increase, the [number of] Oregon codes continue to increase. The number of people we police, arrest, charge, convict, incarcerate, just continues to increase. And so the federal system is more well-resourced, the caseloads are more controlled and there’s more ability to represent people well in the federal system.
In the state system, I believe it’s designed to overload. It’s designed to overload people so that your ability to represent every client to its fullest is really challenged. I mean, you have some states where people have hundreds of open-felony clients at a time, and having spoken to public defenders in those states, they feel as though they have kind of two piles. They have a few, they have some clients they’re actually able to represent, and then many they can’t even get to those cases. They don’t have time to do so,
Miller: Lisa Hay, what changes would you most like to see at the federal level?
Hay: We need to stop using our criminal justice system as the bucket underneath the gaping holes in our social safety net. All of us in the state and the federal system experience the effect of clients experiencing mental illness and the effect of that in our representation. We are required to represent people who really don’t need to be in a court with a prosecutor and a judge and a pretrial services officer. These are people who need treatment and help, and as public defenders, we don’t have access to those resources for them.
The same is true for people suffering from drug addiction. It doesn’t make sense to use the resources of the criminal justice system to address this problem, because we spend a lot of time in a courtroom, again with a judge, with a court reporter, with a prosecutor, with the pretrial services officer, with the defense attorney. And for what purpose? So I think one of the biggest changes is to have society recognize that the criminal justice system can’t be the mechanism that we use to treat some of the social illnesses we have.
Miller: Carl, in the minute we have left, what is happening in the Legislature, right now, in the Oregon Legislature with regard to public defense?
MacPherson: Well, you have the Three Branch Workgroup that meets. You have one bill, the focus of the Senate bills 322 and 324, that is really focused on the Public Defense Services Commission - which branch of government that it is housed in, what the composition of that commission looks like, and who should be the appointing authority. That’s the main thrust of that particular bill.
There’s another bill that may or may not get to funding issues because the reality is there is a lack of funding for public defense in State Court in Oregon. If we’re going to arrest and charge at the rates that we’re arresting and charging, then you need to be able to provide lawyers for the hundreds that currently are unrepresented and you need funding to do so. And that really focuses on more resources, fair pay and reasonable caseloads. Because we have terrible pay disparity in the state of Oregon between public defense and prosecution.
Miller: Carl MacPherson and Lisa Hay, thanks very much.
MacPherson: Thank you.
Miller: Carl MacPherson is the executive director of Metropolitan Public Defender. Lisa Hay is the federal public defender for the State of Oregon.
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