Oregonians charged with crime who cannot get timely legal representation from the state must have their charges dismissed, the Oregon Supreme Court ruled Thursday.
In a unanimous decision, the court ruled that a defendant’s criminal charges must be dismissed if the state has failed to provide a defense attorney at any point for 60 consecutive days in a misdemeanor case or 90 consecutive days in a felony case, after the defendant’s first court appearance.
FILE - The Oregon Supreme Court building is seen on the first day of the legislative session on Monday, Feb. 5, 2024, in Salem, Ore.
Jenny Kane / AP
Under this decision, prosecutors would still be allowed to refile the case at a later time, the justices determined, so long as the state is able to provide counsel.
“We acknowledge that setting such a limit involves a judgment call,” Justice Rebecca Duncan wrote in the 40-page opinion. “Oregon’s current public defense crisis requires us to make that call and establish a general rule that can be applied consistently across the state.”
Both the United States and Oregon constitutions say that people charged with a crime have the right to an attorney. For decades, states — including Oregon — have paid for public defenders for people who cannot otherwise afford a lawyer. Oregon has failed to meet that constitutional obligation for years.
The Oregon Supreme Court found a failure to appoint counsel harms criminal defendants by restricting their liberty, but also denying them any means to challenge charges, or move their case forward.
“The defendant is without a legal advocate to review the state’s charges and evidence, gather and preserve defense evidence, and take steps to advance their case toward resolution, whether through dismissal, plea, or trial,” Duncan wrote for the court. “Meanwhile, the state has counsel to protect its interests and prepare its case.”
The longer it takes for a criminal defendant to get a lawyer, the more likely it is they “waive their right to counsel just to be able to move their case forward. That undermines the purpose of the right to counsel,” the court found.
Thursday’s ruling by the state’s highest court revolves around the case of Allen Rex Roberts. In 2021, Multnomah County prosecutors charged Roberts with driving a stolen vehicle. A judge dismissed the case in 2022 because Oregon failed to provide him a public defender for months. In 2024, prosecutors reinstated Roberts’ case, but again dismissed it due to lack of counsel.
The state Supreme Court found Thursday that Oregon violated Roberts’ right to counsel.
“In short, the defendant is subjected to the state’s prosecutorial powers and all the accompanying consequences but left without the means to effectively respond,” the justices wrote.
The state Department of Justice, which argued it never violated Roberts’ rights, was reviewing Thursday’s ruling, according to a spokesperson for the agency. Neither the Oregon Public Defense Commission nor the Oregon District Attorneys Association immediately responded to requests for comment.
Attorneys suing the state have argued that there are thousands of Oregonians who, like Roberts, have been accused of a crime and charged by the state, but have not been provided an attorney. Leaving their criminal charges pending for months or years.
“For those Oregonians, the State has completely and indefinitely deprived them of their right to counsel — the watershed, constitutionally guaranteed right necessary for the protection of all other rights,” Nadia Dahab, the attorney on the case, argued in her brief.
Attorneys for the Oregon Department of Justice agreed that the state’s public defense system has shortcomings and noted that all stakeholders — from the courts, to the public defense commission, to prosecutors, defense attorneys and the legislature — are working to fix the problems. But dismissing people’s charges, the state argued, was not warranted.
The number of Oregonians charged with a crime and do not have an attorney has been decreasing recently, but there are still about 2,500 people without representation, according to the Oregon Judicial Department.
Dahab’s arguments build on an earlier case where a federal judge addressed people waiting in custody without an attorney. In that case, the U.S. District Court Judge Michael McShane ordered jails to release people within seven days if a public defender wasn’t assigned to their case.
“It’s an embarrassment to the state,” McShane said in 2023 during a ruling from the bench. “It’s a complete tragedy and nobody seems to have an answer. Literally we suspended the Constitution when it comes to this group, and that simply is not the appropriate response.”
Still, Dahab argues that even if people aren’t in custody, being caught in the criminal justice system for years without resolution is disruptive to a person’s life and unconstitutional.
Oregon Gov. Tina Kotek selected Ken Sanchagrin last month as the new permanent head of the state’s public defense commission. The agency contracts with public defenders, including those who are employed by nonprofit public defense firms and attorneys who take cases on an hourly basis.
Sanchagrin took over as the interim leader of the commission last April. Under his tenure, the number of people without legal representation has decreased 32% by the end of last year.
Editor’s note: The original version of this story incorrectly stated Justice Rebecca Duncan’s title. OPB regrets the error.
This is a breaking news story and will be updated.
