In an unusual public plea, Oregon Supreme Court Chief Justice Martha Walters asked members of the state bar to take on clients in need of public defense.
In a letter emailed Thursday, Walters asked members of the state bar to “help in representing those who are accused of a crime and cannot afford counsel. This is a very basic and fundamental right that Oregon is struggling to accommodate.”
The Sixth Amendment of the U.S. Constitution affords people charged with crimes an attorney provided by the state if they cannot afford their own.
As of Friday, more than 40 people in Oregon did not have a public defender. Of those 26 were in custody, according to the Office of Public Defense Services.
The shortage is most pronounced in the state’s largest counties, including Marion, Multnomah, Lane and Washington.
A report released last week by the American Bar Association found Oregon has just 30% of the public defenders it needs to do adequate representation for its current caseload.
In her letter, Walters noted that some attorneys who had prior experience as public defenders have since turned to other types of civil and criminal law.
“Many of you are talented in the courtroom but don’t have a chance to take a case to trail on a regular basis,” Walters wrote.
Sandy Chung, executive director of the ACLU of Oregon, said she appreciated the chief justice’s efforts at a short-term solution. But she also worried whether there would be enough attorneys with criminal defense experience to come forward.
Chung also said prosecutors, the state Office of Public Defense Services, judges and lawmakers need to come together to address the shortage of public defenders. She said part of that includes diverting people from the criminal justice system.
“I’d love to see an email that said we need to come together to really examine our priorities and determine what really needs to be in the courtroom related to our public and community safety needs,” Chung said.
Polk County District Attorney Aaron Felton said in some counties there’s a growing shortage of prosecutors as well. He said that makes conversations about public safety priorities more of a challenge, especially right now because there are so many cases. Felton said he was glad to see the chief justice is looking for ways to address the shortage of public defenders.
“People who are in custody need to see their attorney and have good, competent defense,” Felton said. “I support them having access to good, competent legal advice.”
Some public defenders and other criminal justice reform advocates echoed Chung’s concerns about whether merely having any attorney fill in would provide defendants the same legal protections as an attorney who specializes in criminal defense.
The ABA noted in its report that public defenders are required to independently investigate the case against their client and review the charges before recommending something such as a plea agreement. All of that takes time and expertise, the report and some defenders note.
“Asking the civil bar to lend a hand as public defenders not only risks the continued compromising of the rights of individuals,” said Bobbin Singh, executive director of the Oregon Justice Resource Center, “but it sends an insulting message to public defenders about the skills and capacities required to represent individuals whose life and liberty hang in the balance.”
Singh did however agree that the letter highlights the scale of the problem.
“This is a constitutional crisis that all three branches of government have allowed to occur by willfully ignoring the role and importance of public defense in our society,” he said, “and we must talk about it as such to find a solution. This letter is not that.”
Brook Reinhard, executive director of Public Defender Services of Lane County, said just Friday he heard from a civil lawyer willing to help in any way they could.
“I will take any help I can get,” Reinhard said.
He added that civil attorneys still need to be willing to learn or brush up on criminal law and how public defenders work.
“The stakes to our clients are incredibly high,” he said. “It’s incredibly important to get it right and know what you’re doing.”