Public Defenders Were Scarce Before COVID. It’s Much Worse Now.
Public defender Drew Flood looks through the files for the criminal cases he is working on in Portland, Ore., in May. Even before the pandemic, many court systems nationwide were unable to meet demand for public defenders, and the problem has only worsened since. Gillian Flaccus/The Associated Press
PORTLAND, Ore. — On any given day in Oregon jails, 40 or so people remain in custody without a public defender to represent them in court. Some have waited weeks for a lawyer, others have waited months. Several hundred more people charged with crimes but not in jail also await their constitutional right to counsel.
The crisis is severe, and not limited to Oregon. Even before the pandemic, many court systems nationwide were unable to meet demand for public defenders, but the crunch worsened after COVID-19 slowed courtroom operations. In New York City, for example, hundreds of lawyers who work for public defense agencies have quit their jobs in the past year, citing low pay and severe overwork.
In Oregon, the problem is so acute that civil rights advocates filed a lawsuit this spring to force a response from Democratic Gov. Kate Brown and the state agency that oversees a $339 million public defense budget. The lawsuit demands that the state either fulfill its legal obligation to provide counsel to all defendants who request a public defender, or dismiss the cases if it cannot provide lawyers. At least 274 people in Multnomah County, which includes Portland and is the state’s largest, were unrepresented by lawyers when the suit was filed in May.
“These indefinitely pending charges take a terrible toll on people’s lives,” said Ben Haile, a lawyer with the Oregon Justice Resource Center, a legal rights organization that focuses on representing low-income and underserved people.
The center and other groups filed the lawsuit on behalf of people awaiting attorneys. Delays impede investigations and the gathering of evidence or witness statements, too. Surveillance footage, for example, can be overwritten in as little as a week. The disruptions also force people to arrange for child care or transportation and for time away from work.
“People go to court over and over often on a four- to six-week cycle,” Haile said. “They’re just given a new hearing date, and they come back and each time the judge just says, ‘Sorry, we don’t have an attorney for you. We don’t know when we will.’ And they’re sent away with another hearing date.”
A report released in January by the American Bar Association suggested that Oregon has only about a third of the defense attorneys necessary to represent criminal defendants. Public defenders are not state or county employees in Oregon, which contracts out public defense work to nonprofit agencies and consortiums of private defense attorneys or individual lawyers. The state is among many that are “failing to meet the promise of equal justice under the law,” the report warned.
The bar association has conducted similar studies of caseloads and systemic weaknesses in Colorado, Indiana, Louisiana, Missouri, New Mexico and Rhode Island.
Under the Sixth Amendment and the U.S. Supreme Court’s 1963 Gideon v. Wainwright decision, anyone accused of a crime who cannot afford a lawyer is entitled to an adequate attorney at government expense.
The American Civil Liberties Union and other legal organizations have challenged the quality of public defense in recent years, with success in some states. After a decision in a 2020 lawsuit in Missouri, the state legislature pumped $3.6 million into the public defense system. A 2015 lawsuit in Idaho remains in progress, but it already has prompted major changes to the state’s public defense system, said Jason Williamson, executive director of the Center on Race, Inequality, and the Law at the New York University School of Law. He also represents the plaintiffs in the Oregon case.
Nationwide, an estimated 80% of people facing criminal charges in state courts use court-appointed public defenders, said Emily Galvin-Almanza of Partners for Justice. Her New York-based organization trains non-attorney advocates around the country to supplement public defenders by helping their clients navigate the court system and social services.
“We often make the mistake of thinking of mass incarceration as an ‘other people problem,'” Galvin-Almanza said. “But the truth is that we have reached a point, a saturation point of mass incarceration, where wealth and privilege really no longer gives one the excuse of thinking this is an ‘other people’ problem. It’s an ‘all of us’ problem. It is a problem that we created, that belongs to us, that arises directly from our legacy of slavery.”
The Oregon lawsuit argues that the lack of representation disproportionately harms Black people facing criminal charges. That’s because Black defendants rely on court-appointed attorneys at a higher rate than their White counterparts in the state. In 2014 and 2019, for example, court records show that 91% of White defendants prosecuted in Multnomah County were represented by court-appointed counsel. That compares with 98% and 97% of Black defendants during those same years.
“For the state to continue charging people, when the prosecutors know that there are not attorneys to represent these people, it’s just an egregious violation of rights that are protected by the Constitution but also that are just fundamental to our whole concept of justice,” Haile said.
The director of the agency that oversees public defenders in Oregon, Stephen Singer of the Office of Public Defense Services, declined to comment. The agency has been working this year with the state legislature and the judiciary branch to address the problems at the heart of the American Bar Association report and the findings of a 2019 report by the Sixth Amendment Center, which suggested restructuring how public defenders are compensated in Oregon.
“If we can’t find a short-term resolution, at least we’re trying not to make it worse,” said Rob Harris, executive director of a consortium of private practice public defense providers in suburban Washington County near Portland. For attorneys who do public defense work, the burnout can be brutal, he said.
“You start off angry, you get frustrated, and then you realize that all I can do is fully represent the people I’ve been appointed to,” Harris said. “And if it’s going to damage my clients to take more cases, I can’t do it. So you take the ones you can, and you see people you can’t help. It’s very frustrating.”
Since the bar association report, the Oregon legislature has allocated an additional $100 million to the Office of Public Defense Services, said state Rep. Jason Kropf, a Democrat involved in the working group. More fixes will come in the 2023 legislative session, Kropf said in an email.
The system is in a state of emergency with “crisis-level conditions,” Kropf said. “It is unacceptable that there are people in our state who do not have access to quality legal representation.”
This month, frustrated judges in Marion County, which includes the Oregon capital of Salem, circumvented Singer’s authority by appointing attorneys from his agency, including its general counsel, to represent 16 people. The move caused an outcry in the state’s legal circles, in part because the agency’s own attorneys handle internal administrative matters and complex appellate cases, not routine criminal matters.
Prosecutors in Oregon and elsewhere also aren’t happy. Delays caused by COVID-19 are largely to blame for “overwork and outright exhaustion,” wrote Mike Schmidt, the elected prosecutor in Multnomah County, in a March op-ed in The Oregonian. A judge had recently dismissed three serious felony cases, Schmidt wrote. He warned that more than 150 felony cases were in limbo because the defendants lacked a public defender.
Schmidt, who was elected as a progressive who promised to embrace restorative justice programs and social service intervention, also has faced criticism from police in Portland for declining to prosecute some less serious crimes. He suggested in his op-ed that police should not be asked to be social workers or mental health workers and that “asking them to serve as such yields poor results and isn’t fair to our community or officers.”
“Restoring functionality to our criminal justice system will require emergency investments at all links of this chain,” he wrote. “But we cannot simply build back to the old system.”
Both Williamson and Haile also warn that money for new public defenders is not the only solution. Even if the number of public defenders could be tripled, it would “only allow the overgrown system of prosecution and mass incarceration to grow and squander more public resources,” Haile said.
In Idaho, for example, the ACLU in the course of its lawsuit found that almost a third of the cases that were sending people to jail involved restricted driving offenses, Williamson said. There are ways to minimize the footprint of the criminal legal system by recategorizing such crimes, he said.
“The better answer or better alternative is for prosecutors to stop prosecuting so many cases so there won’t be the need for as many public defenders as there are now,” Williamson said. “That includes having conversations about what we’re even calling a crime or jailable offense that then requires you to have a lawyer.”
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