Oregon lawmakers convene the 2023 legislative session in January, and leaders from both major parties say that improving the criminal justice system – specifically the severe shortage of public defenders – is among their top priorities.
Speaking to “Think Out Loud” Thursday, Democratic Speaker of the House Dan Rayfield said they would be bringing legislation to make that system work.
Senate minority leader Tim Knopp said he’s hopeful the parties will be able to craft bipartisan legislation on housing, homelessness and public safety “from defense attorneys to district attorneys, to our rank and file law enforcement, because they all need to be supported.
Carl Macpherson, who runs the nonprofit Metropolitan Public Defense, says the shortage of public defenders is a crisis. He told “Think Out Loud” that an official report this year by the American Bar Association, which showed the state has less than a third of the attorneys it needs to handle caseloads, only confirmed previous findings that the situation is unconstitutional and unethical.
Multnomah County District Attorney Mike Schmidt is among the many DAs that are seeing the downstream effects of the shortage. He has also called the shortage a crisis, and recently began publishing the cases that judges have had to dismiss because there simply was no one to represent the defendants, preventing the criminal cases from legally proceeding.
“This is not a public defender crisis,” Macpherson said. ”This is a total public safety system failure.”
Part of the problem, he said, is an increasing number of people who are entering the system because of a lack of other services, like mental health and substance abuse treatment. Also, the case loads are so high and the pay so low that more and more public defenders are quitting this specialty area of law altogether.
“We have the greatest disparity in the United States that I have found between public defense pay and prosecutor pay in Multnomah County and Washington County where the prosecutors are making two to three times what the attorneys make at our office,” Macpherson said.
Attracting new lawyers to replace the ones they lose is hard, he says. And those that do choose to begin their career in public defense have to be trained and only slowly develop the capacity to take on the increasing numbers of caseloads.
Schmidt acknowledges the gap in pay between defense and prosecuting attorneys and says it’s among the areas that needs to be addressed to make a meaningful difference.
The lack of public defenders means that too often he has to tell alleged victims and their families that their case has been dismissed.
“It’s one of the hardest conversations that we’re having almost on a daily basis between our victims advocates and our attorneys,” Schmidt said.
And it’s begun to affect the way they approach prosecuting cases, especially in the last couple of years.
“If the case is dismissed, we can still bring it back, but that means we have to go through the grand jury again,” Schmidt said. “We have to call victims and witnesses and police officers to testify again, and then a warrant will go out for an individual’s arrest, effectively making the police officers arrest the same person twice for the crime.”
Schmidt says he sometimes decides to hold some cases back temporarily while they try to spread them out through the system.
“It’s not apparent to me that help is on the way,” Schmidt said. “And I think the only thing that I can do at this point is to raise awareness in the community that this is a true threat to public safety.”
Schmidt and Macpherson agree that on some level it’s a very simple problem: There are more cases than attorneys.
Schmidt says there are only two remedies.
“You either have less cases or you have more attorneys that are able to do the work. We already have done as much as we can to resolve as many cases as we can. There aren’t any other ways for us to reduce the number of cases coming into the system,” Schmidt said.
“So at this point, the only way that we can do this is to get more people to do the work, which means more attorneys who are able to take on defense cases. That’s the kind of help that we need immediately — and it means more money, more taxpayer money going to public defense.”
Metropolitan Public Defender executive director Carl Macpherson says clearly the system as it currently stands isn’t working for anyone. He’s been the victim of a number of crimes himself, from property crimes to having a gun pulled on him.
“What victims want to know is really two things,” said Macpherson. “One: ‘Why me?’ And number two: ‘How can this be prevented from happening to somebody else?’ And what I know is that the criminal legal system doesn’t answer either of those questions, and does nothing for the person that causes the harm to actually help them.”