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FILE - Courtroom notes showing that a Washington County, Ore., judge threatened to hold Oregon Public Defense Services in contempt of court for not providing a public defender to a criminal defendant are seen in Portland, May 4, 2022. A federal judge on Thursday, Nov. 2, 2023, has ordered Oregon counties to release criminal defendants from jail if they aren't appointed an attorney within a week of their first court appearance. Oregon is one of many states that have struggled to ensure their public defense systems meet the requirements of the U.S. Constitution's Sixth Amendment. (AP Photo/Gillian Flaccus, File)
REBECCA BOONE Associated Press
Published: 06 November 2023

A federal judge has ordered Oregon counties to release criminal defendants from jail if they aren’t appointed an attorney within a week of their first court appearance.

The state is one of many that have struggled to ensure their public defense systems meet the requirements of the U.S. Constitution's Sixth Amendment, and Oregon has faced multiple lawsuits over the issue in recent years.

Ruling Thursday in a case filed this year by the Federal Public Defender's Office, U.S. District Judge Michael McShane said indigent defendants are essentially being locked up and deprived of a voice simply because they are too poor to hire their own lawyer.

“While the reasons underlying the shortage of publicly funded attorneys in Oregon are complex, all parties agree that the state is facing a crisis in its constitutional mandate to provide qualified attorneys to those charged with crimes,” McShane wrote.

Fixing the problem will take systemic change and time, the judge said.

“But the luxury of time, unfortunately, is not something that many petitioners have when faced with a criminal prosecution."

Roughly 135 people were in Oregon jails without access to attorneys at the end of October, the judge said. Many of them had technically been appointed public defenders but no attorney ever actually showed up to represent them. State laws generally require that criminal defendants have their first court appearance within 36 hours of being arrested, though that time frame doesn’t include weekends.

The ruling will go into effect Nov. 16.

Cases dismissed due to lack of attorneys

Judges in Multnomah County, which is home to Portland, routinely dismiss cases due to a lack of defense attorneys. More than 300 cases, most of them felonies, were dismissed in 2022.

The county’s top prosecutor, Mike Schmidt, has called the shortage “an urgent threat to public safety” and said 10 cases were dismissed between Oct. 20 and Nov. 2.

Public defenders say uncompetitive pay, high stress and overwhelming caseloads affect staffing levels, and the state has historically relied on a contracting system that made it difficult to track which attorneys are assigned to which cases. Lawmakers passed a public defense reform bill earlier this year, but the reforms will take time to implement.

The U.S. Constitution says people charged with a crime have a right to an attorney, but it’s up to states to decide how to make sure that happens. States have carried out that constitutional mandate with varying degrees of success.

“America’s dirty little secret is that thousands of people go to jail every single day in our country without ever having spoken to an attorney,” said David Carroll, executive director and founder of the Sixth Amendment Center, which advocates for equal access in the criminal justice system.

Mississippi changes the rules

Earlier this year the Mississippi Supreme Court changed that state’s rules so that poor criminal defendants must be appointed an attorney before they are indicted. The indictment process in Mississippi can sometimes take a year or more, forcing indigent criminal defendants to spend months or longer in jail without anyone to fight for their legal rights, Carroll said.

But Mississippi, like most states, lacks enforcement mechanisms to make sure the criminal defense requirements are actually followed, Carroll said.

The lack of enforcement mechanisms means improvements are sometimes forced by lawsuits rather than legislation.

In August the American Civil Liberties Union of Maine obtained a settlement over the failure of that state’s public defender system with a state agency’s commitment to press for more funding, additional public defender offices and other improvements.

A 2004 ruling in a Missouri state court took action similar to this week’s Oregon ruling, ordering that indigent inmates could not be held in lieu of bail for more than seven days without an attorney. But civil rights advocates said the problems continued, and additional lawsuits were filed in 2017 and 2020. In February of this year, a state judge ordered that poor defendants facing imprisonment must be provided a public defender no later than two weeks after they qualify for representation.

Idaho has also faced lawsuits over its patchwork public defense system, which has been plagued by high caseloads and long waits for representation. In 2022 the Idaho Legislature passed a bill shifting the cost of public defense services from the counties to the state starting in 2025.

The ACLU of Idaho, which has brought a class-action lawsuit against the state, has said the new funding scheme still falls sort. A trial in the case is set for February.

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