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Oregon sued for failing to provide public defenders

PORTLAND, Ore. (AP) — Criminal defendants in Oregon who have gone without legal representation for long periods amid a critical shortage of public defense attorneys filed a lawsuit Monday alleging the state violated their constitutional right to counsel and to a speedy trial.

The lawsuit, which seeks class-action status, was filed as state lawmakers and the Oregon Office of Public Defense Services struggle to address the huge shortage of public defenders statewide. .

The crisis has caused dozens of cases to be dropped and left about 500 defendants across the state – including several dozen in custody for serious crimes – without legal representation. Victims of crime are also affected because cases take longer to resolve, a delay that experts say prolongs their trauma, weakens evidence and erodes trust in the justice system, especially among groups low income and minority.

“There is a public defense crisis raging across this country,” said Jason D. Williamson, executive director of the Center on Race, Inequality, and the Law at New York University School of Law, which has helped to prepare the case. “But Oregon is one of a handful of states that now completely deny people their constitutional right to an attorney on a daily basis, leaving countless indigent defendants without access to an attorney for months at a time.”

The lawsuit specifically names Governor Kate Brown and Stephen Singer, the recently appointed executive director of the state’s public defense agency, and seeks a court injunction ordering the release of the criminal defendants if they cannot be accompanied by a lawyer within a reasonable time. of time. The lawsuit does not specify what would be considered “reasonable.”

Singer said he couldn’t comment until he fully reviews the lawsuit. Brown’s office declined to comment on pending litigation.

Oregon’s system for providing attorneys to defendants who cannot afford them was underfunded and understaffed before COVID-19, but a significant downturn in court activity during the pandemic has made it worse. pushed to a breaking point. A backlog of cases floods the courts and defendants are regularly brought to trial, then their court dates are postponed for up to two months in the hope that a public defender will be available later.

An American Bar Association report released in January found Oregon has 31% of the public defenders it needs. Every existing lawyer would have to work more than 26 hours a day during the work week to cover the workload, the authors said.

Similar issues are facing states from New England to Wisconsin to New Mexico as already overstretched and underfunded systems grapple with lawyer layoffs, low funding and a flood of pent-up requests as COVID-19 precautions ease. Missouri eliminated a waiting list for public defenders after being sued in 2020 and Idaho is also in litigation for a public defense crisis.

The Oregon complaint involves four plaintiffs who have been without legal representation for more than six weeks, including a man who cannot post bail but has been jailed for 17 days without a lawyer and cannot request a bail hearing. without representation.

In two other cases, according to the lawsuit, plaintiffs were released after their arrest and told to call a number to be assigned a defense attorney. They left voicemails and called repeatedly and received no response, the complaint states. They show up alone at hearings and have their cases pushed back because no public defender is available.

Jesse Merrithew, an attorney representing the plaintiffs, said not having legal representation immediately after an arrest causes a cascade of problems for criminal defendants that are nearly impossible to overcome later. One such example, he said, is the ability to secure any surveillance video that might back up the defendant’s case, as looping security videos are often erased after days or weeks.

“The time immediately following arrest is the most critical time, as any criminal defense attorney will tell you, in representing a client,” he said. “It is unacceptable to allow the employment of the council to be delayed for weeks or months.”

The shortage of public defenders also disproportionately affects black defendants, according to the lawsuit. Studies conducted in the Portland area in 2014 and 2019 showed that 98% and 97% of black defendants, respectively, had court-appointed attorneys in those years, while 91% of white defendants had them.

In the current crisis, 23% of people waiting for an attorney have been black statewide as of late, despite blacks making up 3% of Oregon’s population overall.

The Oregon Justice Resource Center, a nonprofit legal association representing plaintiffs, said repairs to the system should not just focus on hiring more public defenders. Rethinking criminal defense should also mean reducing sentences and jail time for lesser offenses and providing more alternative resolutions for crimes.

“The failure of the state in this regard requires urgent action. But the problem can’t be solved with more lawyers,” said Ben Haile, an attorney with the Oregon Justice Resource Center who represents the plaintiffs. “There are effective alternatives to prosecuting many people caught up in the criminal justice system that would make the public much safer at less cost and with less collateral damage to the families of those prosecuted.”

Public defenders have warned the system was on the verge of collapse before the pandemic.

In 2019, some attorneys even picketed the state Capitol for higher pay and a reduced caseload. But lawmakers failed to act, and months later, COVID-19 crippled the courts. There were no felony or misdemeanor jury trials in April 2020 and access to the justice system was severely restricted for months, with only limited in-person proceedings and remote services provided.

The situation is more complicated than in other states because Oregon’s public defender system is the only one in the country that relies entirely on contractors. Cases are assigned to large non-profit defense firms, smaller cooperating groups of private defense attorneys who contract cases, or independent attorneys who can take cases at will.

Now, some of these large nonprofits periodically refuse to take on new cases due to overload. Private attorneys — they normally serve as a release valve for conflicts of interest — are also increasingly turning away new clients due to workloads, low pay rates and late state payments. .

Follow Gillian Flaccus on Twitter at http://www.twitter.com/gflaccus



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