Editorial: Oregon's public defense system need a top-to-bottom overhaul

Oregon has been caught in the ever-tightening grip of a public defender crisis for decades, but has failed to address the issue in any meaningful way. Now, thanks in large measure to the havoc wrought by the COVID pandemic, the situation has become truly untenable.

As a result, hundreds of cases are being dismissed across the state, about two-thirds of them felonies. In the bargain, victims, defendants and taxpayers are all being denied the due process, timely adjudication and swift justice guarantees at the foundation of America’s criminal justice system.

What’s more, the Oregon Supreme Court just made a 2020 U.S. Supreme Court ruling retroactive, requiring the state to set aside all felony verdicts rendered by divided juries over the last 86 years. Even though prosecutors will likely prove either unable or unwilling to retry scores of older cases, the ruling figures to add hundreds of difficult and demanding new felony cases to already badly overburdened dockets.

The Oregon District Attorneys Association noted, “Retrying decades-old cases can be challenging if not impossible,” putting a premium on top legal talent from both prosecution and defense ranks.

But defense talent is already stretched well beyond the breaking point. There’s only enough to meet about one-third of the current demand, let alone demand swelled with hundreds of daunting new cases.

Outgoing Senate President Peter Courtney recently told fellow lawmakers, “You’ve got to solve this thing. You can’t come out of this next session without solving this. I don’t quite understand how it all happened, but it happened.”

Courtney was dead right in demanding a swift and sure solution, but dead wrong in pleading ignorance of the causation.

Until the U.S. Supreme Court struck down divided-jury verdicts, Oregon was one of only two states allowing them, joining Louisiana. It remains the only state that has never developed its own public defender corps, instead depending entirely on contracting the function out to the lowest bidders. On both counts, that amounts to trailing, not leading.

Oregon’s makeshift, on-the-cheap contracting system saddles it with the largest disparity in the nation between prosecutor and public defender compensation. Put simply, Oregon hasn’t been able to command the defense help it needs because it hasn’t been willing to pay what 49 other states are.

Worse, the leading legislative solution so far has been to add dribs and drabs to the pot through emergency fund allocations, when what the situation clearly calls for is a complete overhaul.

What we need in Oregon are public defender forces of size, talent and experience commensurate with their prosecutorial counterparts, which requires commensurate compensation. That probably isn’t possible in the immediate future, but it should be our longer-term aspiration. And we should begin taking steps in that direction forthwith.

This does not, by any means, require blazing new trails.

California’s first woman lawyer, Clara Shortridge Foltz, introduced the idea to the nation in a speech delivered at the 1893 Chicago World’s Fair. She went on to establish the nation’s first in-house public defender office in Los Angeles in 1913, with San Francisco following in 1921.

The concept was first embraced on a statewide basis in Connecticut in 1917. That was almost 50 years before the U.S. Supreme Court ruled in Gideon v. Wainwright that the right to counsel, guaranteed in the Bill of Rights’ sixth Amendment, applied to state courts as well as federal.

According to the American Bar Association, lawyers accepting public defense cases in Oregon would have to put in 26 hours a day to meet current demand. And the work is not only woefully underpaid, but also grueling, often to the point of early burnout.

The head of a Portland law firm engaged in the defense trade complained, “You’re being asked, as a public defender, to be a lawyer, a social worker, a counselor, an investigator.”

Justice delayed is justice denied. And trying to meet that kind of burden on the cheap, through a patchwork contracting network, ensures justice will continue to be delayed in Oregon.