As COVID-19 restrictions ease and more people resume normal life, the public defender crisis has deepened. A return to business as usual in courtrooms, coupled with the backlog of cases that built up during the worst of the pandemic, has created a problem that our country’s largely underfunded and understaffed public defender offices cannot address. In Maine, for instance, a recent analysis found that half of the indigent defendants in the state were being represented by just 33 lawyers. Eleven of these lawyers had more than 301 indigent clients at one time. Samantha Hogan, Half of Maine Indigent Cases Are Being Defended by Just 33 Lawyers, Analysis Finds, Portland Press Herald (Sept. 5, 2022). Indigent defense lawyers in Wisconsin have sued their state for allowing untried criminal defendants to languish in jail for months without appointed lawyers, arguing that the state has failed to live up to its constitutional obligation under Gideon v. Wainwright to provide counsel to the indigent. There, the number of attorneys representing indigent criminal clients has fallen 33 percent since the pandemic began. Bruce Vielmetti, Wisconsin Is Sued over Delayed Lawyer Appointments in Criminal Cases, Milwaukee J. Sentinel (Aug. 24, 2022).
The problem may be the most acute in Oregon. A January 2022 report by the American Bar Association Standing Committee on Legal Aid and Indigent Defense (SCLAID) concluded that “Oregon has a massive gulf between the number of cases currently in the public defense system and the number of attorneys available.” The report found a 69 percent deficiency in the total number of indigent defense attorneys needed to provide effective representation to indigent defendants. The current roster of attorneys would need to work a literally impossible 26 hours every working day of the year to provide adequate representation to their clients. ABA SCLAID, The Oregon Project: An Analysis of the Oregon Public Defense System and Attorney Workload Standards (Jan. 2022). Few policymakers in Oregon appear to disagree with the broad points of this assessment.
The Oregon crisis is due in part to Oregon’s particularly inefficient way of funding public defense. Oregon does not have state-funded public defender offices in the traditional sense. Rather than directly funding defender offices at the state or local level, the Oregon Public Defense Services Commission uses its budget to contract with nonprofit public defender officers, law firms, and consortia of private bar lawyers. The state provides no additional funding for administrative and support staff, overhead, supervision, or training. Furthermore, Oregon does not collect basic case data, such as a client’s pretrial release date, whether experts or investigators were needed, and whether a plea offer was received. Id. Oregon’s system falls far short of ABA policy, which calls for jurisdictions to provide public defender systems supplemented by private bar counsel to ensure manageable caseloads, training programs necessary to meet the needs of complex cases, and supervision to ensure defenders are meeting national and local performance standards. ABA, Ten Principles of a Public Defense Delivery System (Feb. 2002).
Oregon’s constitutional crisis not only creates an untenable environment for public defenders, but it is fundamentally unfair to indigent persons, who deserve to have their cases resolved swiftly by defense counsel with the time and resources to provide high-quality representation. One man held pre-trial in an Oregon jail described the humiliating process of repeatedly being brought to the courthouse every week only to be denied an attorney due to the crisis: “Nobody seems to know what’s going on. All they know is they’re not lowering our bail, and we’re not getting out. It just seems like they’re throwing us all into a pile and leaving us here.” Another man suffered permanent nerve damage following a tooth extraction by a jail dentist while he waited behind bars for nearly three months without an attorney on nonviolent charges. As a combat veteran with PTSD who had to wait three months for an attorney who could simply get him admitted to a diversion program stated, “I can’t tell you the amount of stress that it puts on me.” Emily Hamer, “I’m so Confused”: People Without Public Defenders in Oregon Speak out Amid Crisis, Albany Democrat Herald (Sept. 6, 2022). These problems in turn severely undermine broader public trust in the legal system. When people read articles and hear stories about a system that is unable to truly guarantee a Sixth Amendment right to counsel, they become concerned whether they will also be treated fairly if they are ever haled before a court. Moreover, taxpayers are less likely to trust any institution that, despite public funding, does not function efficiently.
When a public defender system is as strained as Oregon’s, there is always a risk that policymakers will look for immediate answers that do not address the underlying structural problem. In Oregon, the public defender crisis came to a head in 2022. That January, the state indigent defense commission hired Steve Singer as state public defense director. Singer, a longtime public defender, had previous success reforming and restructuring the New Orleans public defender system in the wake of Hurricane Katrina. Singer, however, clashed with Oregon’s chief justice, who holds a nonvoting seat on the commission and is responsible for appointing the voting members. In an August public hearing to decide Singer’s fate, the chief justice described Singer as “untrustworthy, needlessly combative and slow to come up with a plan to attack the crisis,” and asked the commission to fire him. Dirk VanderHart, Amid Crisis, Head of Oregon’s Public Defense Agency Dodges Calls for His Dismissal, OPB (Aug. 10, 2022). When the commission voted to retain Singer, the chief justice responded by dismissing members who voted to retain him and appointed new members who would fire him. On August 18, Singer was fired with no replacement director identified. Dirk VanderHart & Conrad Wilson, The Head of Oregon’s Public Defense System Is Fired, After Months of Tumult, OPB (Aug. 18, 2022).
The exact nature of the dispute with Singer is unclear, but a few things are. First, all the parties involved in this dispute want Oregon’s public defense system to provide high-quality representation to indigent persons. Singer and the chief justice are not bad faith actors trying to undermine the Sixth Amendment. Second, Singer did not cause the crisis in Oregon; it began years before he was hired. Third, Singer is, by his own admission, abrasive and combative. In the public hearing, he described himself as “somebody who’s just comfortable in conflict.” Finally, whatever the nature of the dispute he had with the chief justice and other administrators, he was popular among Oregon’s public defenders. When it became clear that his job was in jeopardy, letters to the commission from public defenders around the state were largely supportive of him. Id. Following his dismissal, Public Defenders of Oregon, an organization representing all 10 nonprofit defender offices in the state, issued a public letter warning that the move by the chief justice threatened public defender independence. VanderHart, Amid Crisis, supra.
The Public Defenders of Oregon letter gets to the heart of the problem with Singer’s firing. The ABA has repeatedly enacted policies calling on jurisdictions to establish public defender systems that are free from political influence. The first principle of the ABA Ten Principles of a Public Defense Delivery System addresses indigent defense independence, stating that “a nonpartisan board should oversee defender, assigned counsel, or contract systems. Removing oversight from the judiciary ensures judicial independence from undue political pressures and is an important means of furthering the independence of public defense.” ABA, Ten Principles, supra. This policy was informed by best practices and reflects similar policies advocated by the National Advisory Commission on Criminal Justice Standards and Goals, the National Legal Aid and Defender Association, and other organizations. As Alex Bunin, the chief public defender of Harris County, Texas, has written, political independence is important for public defender leadership because “[a]nytime a chief defender considers taking a position in conflict with their organization’s funding and governing authority, it creates a potentially adverse political influence that can harm the organization and cost the chief defender their job.” For people who represent criminal defendants, this independence is especially important because “[i]n speaking on behalf of criminal defendants and asserting their legal rights, public defenders put themselves in opposition to the governments who fund them.” Alex Bunin, Public Defender Independence, 27 Tex. J. on C.L. & C.R. 25 (2021). Moreover, given the popular misconception that public defenders are simply tools of the state, it undermines public faith that public defenders are “real” lawyers when they see them subjected to political oversight that privately retained counsel are not subjected to.
Thus, regardless of the nature of the dispute, it is critically important for public defender systems to remain free from judicial beyond what a privately retained attorney would be subjected to. An independent public defender system allows defense counsel to freely advocate for their offices and their clients, and it ensures that clients are represented by attorneys who they can trust and are not subjected to political supervision. As public defenders across the country face increasingly unmanageable caseloads, policymakers should focus on ensuring that attorneys doing this laudable work are well-funded, trained, and supported.
