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New Developments in Oregon's Public Defender Crisis

Oregon’s public defender service problems continues as the state’s criminal court system is overwhelmed with cases and lacks the resources necessary to provide defendants with access to court appointed counsel. Unlike many states, Oregon does not actually have a state-operated public defender system and relies on a patchwork of contracts with associations and individual attorneys who are appointed to represent clients by presiding judges.

Although parties may disagree about how to properly manage or reform this system, there is no real dispute that the system is understaffed, underfunded, and ill-equipped to handle the caseload.

The Oregon Supreme Court is currently deliberating over a case where an overloaded defense firm was appointed, over their objection, to represent a client. The crux of the matter: the attorney in question stated that he and his office could not ethically take on an additional client, the trial court appointed him anyway, over that objection. Ultimately, what will be decided is whether this involuntary appointment is constitutional and proper. It has widespread implications for the difficult task of parsing out the proper and ethical conduct, both for the local courts who face too many cases and too few defense attorneys and for those defense attorneys, who face too many cases and too little time and resources.

In a separate thread of litigation, Oregon is currently a defendant in litigation before the 9th Circuit. There, Judge Michael McShane entered a preliminary order this week, filed Thursday, November 3rd, 2023, finding that the system needs “a lasting fix” with “systemic change and legislative resolve,” and that the current status quo is unconstitutional. This order requires that all defendants held in custody must receive a lawyer within seven days of their initial court appearance or be released from custody. This is not currently being done in most Oregon counties because of the lack of defense attorneys.

The Oregon Department of Justice opposes this ruling and plans to appeal the order, alleging that Judge McShane overstepped his constitutional authority. Through counsel, they acknowledged, however, that “some individual defendants may have suffered or are suffering constitutional violations.”

There is reason to hope that recent legislation signed by Governor Kotek to create and fund a state-level public defense system will improve this situation. But for those currently held without counsel, and for overwhelmed courts and judges, these remedies are still a long way from implementation. No one appears to be discussing the impact on victims of crime who are also caught up in this unsustainable system that continues to ignore how the delays effect them.

To read the original articles click the links below: (Article link for federal court proceeding) (Article link for Oregon SC proceeding) (Link to public defender bill legislative history)

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