Four Oregonians who face criminal charges are suing over their constitutional right to have legal representation in a criminal proceeding. 

Though they can’t pay for a lawyer and qualify for court-appointed counsel, they’ve not been assigned a public defender, according to the nonprofit Oregon Justice Resource Center. One has waited 53 days for representation, according to the suit. They’ve been charged with a mix of felonies and misdemeanors in Multnomah, Marion, Washington counties. One is in jail, one is out on bail and the other two were released on their own recognizance. 

The lawsuit comes amid a crisis in Oregon over the lack of public defenders. According to the suit, filed Monday in Multnomah County Circuit Court, 500 people statewide who face criminal charges can’t afford attorneys yet have not been assigned legal representation. A January report from the American Bar Association found the state has about one-third of the attorneys needed to represent everyone who needs a lawyer but lacks the means to pay one. The state needs to add nearly 1,300 public defenders to ensure that everyone has legal counsel, according to the report.

The state, Gov. Kate Brown and Stephen Singer, executive director of the Office of Public Defense Services, are named as defendants in the suit. It asks that the state find it unlawful to charge any person with a crime and then not provide that person with a lawyer if they can not afford one. It also asks that the state not prosecute defendants if it cannot provide counsel “within a reasonable period of time.”

The suit asked to be classified as a class action.

The public defense office oversees about 600 public defense attorneys around the state and is responsible for working with private attorneys and nonprofit organizations on cases.

In March, the Legislature allocated $12.8 million to the office, which was enough to hire about 36 more public defenders. But Martha Walters, chief justice of the Oregon Supreme Court, urged lawmakers and Brown to do more in an April letter.

“The current crisis is having a real impact on defendants who have a constitutional right to counsel, on courts’ ability to resolve cases, on the safety of our communities,” Walters wrote.

In response, Brown convened a workgroup of lawmakers and the Oregon Judicial Department to address the shortage. The group will analyze the financial and structural challenges facing the state Public Defense Services Office. 

Call for fewer prosecutions

Ben Haile, senior counsel for the nonprofit Oregon Justice Resource Center, which is involved in the lawsuit, said during an online news conference on Monday that Oregon’s courts are overloaded with petty crime cases. 

“The solution involves making attorneys available but it also involves prosecuting less,” Haile said.

Jason Williamson, executive director of the Center on Race, Inequality and the Law at New York University is also representing the plaintiffs. 

“The situation in Oregon is fairly unique,” Williamson said. Some states have waiting lists for public defenders but he said in Oregon hundreds of people are waiting to be assigned a lawyer from a private practice or nonprofit. Oregon is unique in mostly contracting out for public defenders.

He said Oregon is not alone in having a backlog of petty crime cases. “We discovered several years ago that roughly one-third of the prosecutions that were happening in Idaho for jailable offenses were for driving without privileges,” Williamson said. He urged state lawmakers in Idaho to reduce the number of jailable offenses to reduce the need for public defenders.

The lack of public defenders nationwide has hurt Black defendants the most, according to Williamson. An analysis of Multnomah County’s criminal legal system conducted by the county found that Black Oregonians are more likely to be arrested for minor infractions, more likely to be prosecuted and face higher rates of conviction, longer sentences and steeper financial penalties than white Oregonians. It also found Black defendants depend more heavily on court-appointed counsel than white defendants.

The lawsuit was brought by a Black woman, Hispanic man and two white men.

There are “myriad ways in which the delay in appointing counsel can harm a person’s case, and myriad ways in which it is really difficult to recover from the kind of damage that a delay does to your ability to defend yourself,” Williamson said.

Oregon Capital Chronicle

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Lynne Terry for questions: Follow Oregon Capital Chronicle on Facebook and Twitter.

Alex Baumhardt has been a national radio producer focusing on education for American Public Media since 2017. She has reported from the Arctic to the Antarctic for national and international media, and from Minnesota and Oregon for The Washington Post. She previously worked in Iceland and Qatar and was a Fulbright scholar in Spain where she earned a master's degree in digital media. She's been a kayaking guide in Alaska, farmed on four continents and worked the night shift at several bakeries to support her reporting along the way.