Public defender shortage causing backlog of criminal cases

AP Photo/Brennan Linsley, File

While they don’t get nearly as much attention (and often don’t get the same pay) as their prosecutorial counterparts, public defenders are an integral part of the criminal justice system. We have a constitutional right to effective counsel if we are ever charged with a crime, but what happens when there aren’t enough public defenders to go around?

In Oregon, a shortage of public defenders in many parts of the state have led to delayed trials, dismissed cases, and even a class-action lawsuit filed by four defendants in the Portland area over a lack of representation. While the COVID-19 pandemic has wreaked havoc on the criminal justice system, folks like Mary Brewington, director of the Washington County branch of Metropolitan Public Defenders, say that increased caseloads and professional burnout are also to blame.

A study by the American Bar Association released in January found that Oregon has less than a third of the needed public defenders to adequately represent poor Oregonians. In Multnomah County, the shortage has even led to low-level cases being thrown out.

While the problem hasn’t risen to that level in Washington County, the system is still strained. Public defenders have left their professions or left the area because of these factors.

“I can tell you that over the last several months, we’ve had four people leave,” said [Mary] Brewington. “It’s not a single reason every time, but the issue we’re talking about is a big factor.”

… Although they find themselves on opposite sides in court, even prosecutors’ offices are having to find ways to address the shortage and process the backlog. Prosecutors agree that the problem is impacting their cases.

“Ensuring defendants have proper legal representation is a fundamental aspect of the American judicial system,” said Stephen Mayer, spokesperson for the Washington County District Attorney’s Office.

He said no cases have been dismissed in Washington County like they have in Multnomah County Circuit Court. Doing so, he said, doesn’t really address the root problem.

“We oppose dismissing cases because it presents a risk to public safety and violates the rights of crime victims,” Mayer said. “Additionally, dismissal fails to address the root cause of this issue — the failure by the state to ensure (the) indigent defense system functions.”

So far, the Democrats who have complete control over the state government in Oregon have been more interested in putting new gun control laws on the books rather than fixing the current failures in the criminal justice system. The legislature approved a $13-million funding bill earlier this year, but public defenders say that’s a drop in the bucket compared to the scope of the problem. And some, like Brewington, say that with little hope that the state will provide the fundamental fixes necessary, prosecutors should be taking a second look at some of the cases they’re pursuing.

She thinks, however, that with crime rising and modern criminal justice reform sorely needed to prevent such a crisis from mounting again, prosecutors really need to rethink their approach to charges.

“There are probably a lot of those cases that maybe shouldn’t have been charged in the first case or been prosecuted,” Brewington said. “Some of those lower-level cases where someone is clearly mentally ill, I question some of those charging decisions.”

People on both sides of case resolution equation all agreed that this problem is multifaceted and will require a lot more than just county-level solutions to address.

“I’ve always worked under the assumption that our court-appointed colleagues are vastly overworked and underpaid for what they do in our system,” said Braunstein, the privately practicing defender. “I think it’s pretty clear right now that crime in general is up. And I’ve seen that just in these last five or so months, I would see far more calls in two weeks than I would normally see in a month in prior years.”

As of right now, Portland is on pace to break last year’s record-high 90 homicides, and the rising violent crime is only exacerbated by a creaking criminal justice system that’s not up to the task of prosecuting violent criminals in a timely manner. Given Democrats’ desire to criminalize the Second Amendment and their myopic and misguided (to put it nicely) focus on law-abiding gun owners, I expect things are only going to get worse in Portland in the months ahead.