Opinion: Oregon’s public defense crisis rooted in longstanding failures

Tara Herivel

Herivel is a public defender and civil rights lawyer. She is also co-author and editor of Prison Profiteers: The Warehousing of America’s Poor. She lives in Portland.

Earlier this year, the Oregon Supreme Court Chief Justice Martha Walters sent an emergency plea to attorneys across the state, asking them to take public defense cases whether or not they have experience practicing criminal defense.

Such is the urgency in Oregon, where a recent study by the American Bar Association found that Oregon provides only 30 percent of the number of attorneys needed to provide youth and adults with a public defense attorney, which resulting in an overwhelming workload and insufficient Resources. The two-year report concluded that Oregon’s particular deficits rested largely on the Bureau of Public Defense Services, the state division responsible for contracting attorneys to provide public defense for indigent clients. The report, which highlighted shortcomings in the monitoring of contracts and the financial management of the office, concluded: “Given the current workload, the OPDS is simply unable to adequately represent individuals in criminal cases for adults and minors.

The ABA’s report follows the Sixth Amendment Center’s 2019 report citing Oregon for providing a subconstitutional quality of public defense largely due to inadequate compensation for contract attorneys. The report also identified the state’s poor tracking of how it assigns cases to contractors as a major failure of the public defense system.

Now, people accused of crimes sit in jails across the state without attorneys because there aren’t enough public defenders to represent them. And one of Portland’s largest public defense agencies is denying felony and misdemeanor cases in Washington County for the next four weeks due to its existing caseload and understaffing following resignations. lawyers.

Our current constitutional crisis has been brewing for years. As a public defender and court-appointed attorney since 2007 in Oregon, I have experienced first-hand the utter neglect of public defense in Oregon. When I started, public defense contractors hadn’t had a raise in 16 years. When a ultimately came, it was around 4% – bringing lawyers’ rates to $45 an hour. The low pay problems were compounded by a series of incompetent OPDS administrators who treated contractors as sacrificial labor and worse.

If we are to fix our system and provide poor Oregonians accused of crimes with the effective counseling guaranteed by the Constitution, we must have a frank discussion of the problems inherent in the state’s public defense system.

The Office of Public Defense Services cannot retain enough contract lawyers for specific and serious reasons.

The office is being investigated by an Oregon Department of Justice workplace investigator after the ACLU of Oregon brought to its attention numerous allegations of disparate compensation for female attorneys contractors and retaliation from administrators for speaking up.

As the ABA and Sixth Amendment Center reports have pointed out, OPDS is failing to manage its budget or provide adequate tracking so dramatically that it is currently the subject of multiple state audits and that the legislature asked him to reorganize his business structure. The office has not even regularly kept track of basic items, such as cases that fall under its jurisdiction. In addition, the OPDS can take months to pay lawyers, investigators and interpreters, as noted by the media.

And lawmakers don’t fund the OPDS enough, so entrepreneurs don’t have the resources to pay for regular and necessary expenses like assistants, rent, and other basics. With massive school debt and the costs associated with running a business, lawyers simply cannot cover expenses on $75 an hour when they can earn much more elsewhere. As the Legislative Assembly grants $12.8 million in emergency funding to paying about 36 additional salaries statewide, which is far from a long-term solution. The funding will not solve the historical and systemic problems of state public defense. Only serious government oversight, investment and a change in broken leadership can achieve this.

So who would work under these circumstances? Not the dozens of defense attorneys running for the exit. All the passion and commitment in the world can be snuffed out when you can’t pay your bills.

But other than the mismanagement of the OPDS, where is the statewide call for district attorneys to drop cases without consequence and stop asking bail for the poor incarcerated for crimes non-violent? The refusal to exercise discretion in charging or to observe distinctions between minor, non-violent and serious violent crimes ensures that more poor people accused of crimes will languish in prison, many of them without lawyers.

And where is Oregon’s effort to achieve pay parity between public defenders and district attorneys? The latter earn significantly more than the defenders. He is the rare lawyer who can live on such paltry salaries, shoulder the burden of a huge caseload, endure labor mistreatment and maintain his well-being.

Until we talk about the herd of elephants in the room, the poor in Oregon’s criminal justice system will continue to suffer, and we will continue to have an unconstitutional justice system.

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