Oregon Supreme Court Chief Justice Martha Walters seems increasingly impatient as the state continues to violate the constitutional rights of criminal defendants charged with crimes who cannot afford an attorney.
“Hundreds who are constitutionally entitled to counsel are being denied that right, and no end is in sight,” Walters wrote in a letter sent July 1 to the eight commissioners who oversee the state’s public defense agency.
Four times in her six-page letter Walters called on the board to “direct” the executive director of the Office of Public Defense Services “to prepare a plan for presentation” at a meeting later this month.
“The plan I am seeking is one that proposes immediate steps that will enable [the Public Defense Services Commission] to fulfill its obligation to provide lawyers for those who have a constitutional right to representation,” Walters wrote.
While the chief justice did not name him in the letter, the person she asked commissioners to direct is Stephen Singer, who took over the Office of Public Defense Services in December.
Many of the problems facing the public defense system in Oregon date back years. Since last fall, the state has continued to charge people with crimes, despite the shortage of public defenders. Some of those defendants are in custody.
Under the U.S. Constitution, criminal defendants have the right to an attorney. The state’s failure to meet this obligation prompted a lawsuit in May.
“The Chief Justice is right,” Singer wrote, by email, in response to her letter, “there needs to be a plan to address this crisis, but it is not one the Agency can shoulder on its own. It will take all the stakeholders, the court system, the district attorneys, the legislature, the governor, and lawyers across this state, to work together to change a system that has been broken this long.”
A working group made up of state lawmakers, along with representatives from the governor’s office and the judiciary, are meeting privately to address longer term solutions to a crisis that has been building and well-documented for years.
Walters’ letter indicates she wants more to be done immediately. At least publicly, the letter is among the most explicit acts Walters has taken to direct a state agency under her authority. In January, Walters emailed every member of the Oregon State Bar asking them to consider taking on public defense cases.
At the time, some criticized the email.
“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, at the time, “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.”
In her letter last week to the public defense commissioners, Walter said the plan to address the immediate crisis should be specific, lay out the costs and explain how the agency will measure success.
“I realize that even an immediate, short-term plan may need to include a request to the legislature to reallocate existing funds and provide new, additional funding,” she wrote.
In February, when the shortage had clearly reached a crisis point, lawmakers agreed to give the Office of Public Defense Services an additional $12.8 million so that the agency could contract more attorneys. That reactive spending is indicative of lawmakers’ approach towards public defense.
For years, the Oregon Legislature has known about concerns facing the state’s public defense system, but has failed to make sweeping reforms.
The chief justice has a unique relationship with public defense. While the agency is part of the judiciary, which she runs, she doesn’t have direct oversight of the executive director. Rather, she appoints members to a commission that oversees the Office of Public Defense Services and its leader. Walters took over as the Chief Justice in 2018.
Walters writes she’s heard from those who worry that if the Commission and OPDS try to address the crisis as best they can now, lawmakers “will believe that there is no crisis or that other crises are more pressing. Under this view, the only way to get the legislature to act is to appoint lawyers and spend down existing funds until we create a constitutional crisis that the legislature will have no choice but to address.”
Walters added that another strategy she’s heard discussed as a way to prompt the Legislature into action would be “to leave defendants in jail without representation to provide an avenue to prompt movement on the longer-term problem.”
Both scenarios, she warned — failing to do the utmost to address the problem now or purposefully leaving people accused of crimes behind bars — would only further erode lawmakers’ confidence in the Commission and the Office of Public Defense Services. Instead, she advised the commission and the state agency “do all they can to address the immediate predicament.” She said lawmakers would be more apt to provide additional funding knowing the Commission and agency did all it could first, “than it would be if it were forced to act to address a crisis that OPDS did not do its best to try to mitigate.”