Washington County District Attorney Kevin Barton keeps a list of dozens of defendants without a defense attorney tacked to the wall of his office.
About 40 are in jail. They’re among 170 statewide who are behind bars while facing criminal charges for misdemeanors and felonies, including murder.
The number worries Barton.
“What keeps me up at night is knowing we have 40 people in our Washington (County) jail who don’t have lawyers,” Barton said Thursday to the Legislature’s Joint Subcommittee on Public Safety, part of the joint budget committee.
The shortage of defense lawyers has deprived hundreds of people of their constitutional right to a speedy trial. While waiting for an attorney, they’ve had to put their lives on hold, while others, perhaps a dozen every month in Multnomah County alone, have had their cases dismissed, including for felonies.
Lawmakers, who heard from Barton and others in the criminal justice system about the crisis on Thursday, want to fix the problem. But the solution will not be quick or easy.
“I don’t know what the answer is,” said Rep. Paul Evans, D-Monmouth and the subcommitte’s co-chair. “I do know before we leave in June we’re going to have a short-term and long-term plan.”
The Legislature is considering Senate Bill 1092 for a short-term fix. It would require the presiding judge of each judicial district to develop an unrepresented defendant crisis plan and send it to the Oregon Criminal Justice Commission by Sept. 1. The plan would need to prioritize representation for defendants in custody. Larger judicial districts with a population of more than 100,000 would need to appoint a crisis team to oversee the plan. The commission would review each district’s plan and report to lawmakers by October.
Evans is sponsoring the bill with his subcommittee’s co-chair, Sen. Janeen Sollman, D-Hillsboro.
“Without a comprehensive plan to address the represented people – not cases, people – we are going to continue to see it grow worse,” Sollman said. “I don’t think money is the answer.”
The state’s criminal defense system needs to be restructured, and that will take years, lawmakers say. To accomplish that, Senate Bill 337 would reshape Oregon’s public defense system by increasing compensation for defense lawyers and putting trial-level public defenders on the state government payroll to supplement the work that is contracted out.
The Public Defense Services Commission, which oversees the public defenders’ office, would hire the trial attorneys. For others on contract, the bill would enact an hourly pay structure.
Under the bill, at least 20% of public defenders would need to be employed by the commission by 2031. By 2035, at least 30% of trial-level public defenders would need to be employed by the state. Currently, trial-level public defense work is usually contracted out, though state attorneys do handle appellate-level work.
Oregon has about 600 contracted full-time public defense attorneys, according to a 2022 report by the American Bar Association. That report found the state needs nearly 1,300 more.
In the short-term, judges, defense attorneys and others are looking for ways to keep the number of unrepresented people as low as possible.
“We judges are at our wits’ end about this problem,” said Washington County Circuit Court Presiding Judge Kathleen Proctor.
Judges already prioritize representation for people in jail instead of those out on bail and consolidate representation to one attorney if a defendant has multiple cases pending.
Washington County has had one-day special court events that assign an attorney to a person with low-level charges, usually misdemeanors, for a hearing. The attorney isn’t assigned to the case permanently, but the event gives a defendant an opportunity to review the case with an attorney and possibly enter a plea deal.
Officials say efforts like that are not a final solution – just a short-term fix to keep the problem from growing.
The challenges for defense attorneys are myriad, said Carl Macpherson, executive director of the Metropolitan Public Defender, which represents people in the Portland area.
They face last-minute dismissal of cases, delays in getting case information and hours preparing for trial. A public defender can easily work more than 60 hours a week while preparing for trial, he said.
People who work in the field usually start their careers dedicated. They need training and support right away so they don’t become overwhelmed, Macpherson said.
“They want to make certain they’re not just handed a hundred files on day one,” he said.
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