A lawsuit filed earlier this week challenges the state of Oregon for its lack of access to legal counsel for criminal defendants across the state. The plaintiffs involved seek class-action status and allege that the state has violated the constitutional rights of criminal defendants who have no access to legal representation.

Oregon has faced an enormous shortage of public defendants statewide since well before the COVID-19 pandemic. However, experts say that the pandemic only exacerbated the problem with a severe slowdown in processing and backlog in cases. Dozens of cases have been dismissed with an estimated 500 defendants left with no legal representation.

The complaint has asked for an immediate injunction and to allow criminal defendants to be released from custody if they cannot be provided an attorney within a reasonable time frame.

The American Bar Association (ABA) found that Oregon has only 31% of the public defenders it needs compared with its population and that 90% of the state’s cases end in pleas. Oregon needs approximately 1900 more public defenders than the 600 that were available at the time of the study. This problem is not a new one facing Oregon, and as early as 2019, the Sixth Amendment Center found that Oregon’s lack of legal counsel and overall system of public defense was unconstitutional.

The lawsuit argues that in Portland alone, the lack of access to public defenders disproportionately impacts minorities. In 2014 and 2019, an average of 97.5% of black defendants had court-appointed lawyers, compared to 91% of white defendants. On any given day, up to 26% of Blacks statewide are waiting for an attorney, yet they only make up 3% of the population.

Oregon is the only state that has a public defender system that relies entirely on contractors. All trial-level cases are contracted out to nonprofits and private attorneys through the Office of Public Defense Services (OPDS). ABA found that “the OPDS contracting system… imposes challenges to building and implementing a unified case management system and other data collection mechanisms.”

The Public Defense Services Commission governs the Office of Public Defense Services. There are seven Commission members appointed by the Chief Justice of the Oregon Supreme Court. Their priority is to create “the most cost-efficient” system of public defense services. The Executive Director of OPDS commented earliest this year that “we got to this problem over the last two or three decades. The hard question is what do you do about the problem? How do you solve the problem?”

Along with a lack of public defenders, OPDS also faces shortcomings in technology and budget shortfalls that make it extremely difficult to address the immediate problem of providing defendants with their Sixth Amendment right to legal counsel.

Under the Sixth Amendment, criminal defendants are guaranteed the right to a lawyer. The Supreme Court further strengthened the right to counsel in the case Gideon v. Wainwright of 1963. The case asked whether the Sixth Amendment’s right extended to felony defendants in state courts. The Court unanimously voted that the accused have the right to legal counsel in all criminal prosecutions and that it is incumbent on the state to provide attorneys for those defendants who cannot afford their own.

Also under the Sixth Amendment, criminal defendants have the right to a public trial without undue delay. Currently, defendants in Oregon must have their hearing dates postponed up to two months in hopes that a public defender will be available by then. Not only does the lack of representation impact defendants waiting to go to trial, but the prolonged process also impacts victims, extending their trauma and weakening evidence for their case.

The Oregon Justice Resource Center, a 501(c)(3) non-profit founded in 2011, argues that the focus to fix this issue shouldn’t be on hiring more public defenders. Rather, the focus should be on rethinking penalties for lower-level offenses. Other states with similar problems include New Mexico, Missouri, Wisconsin, and Idaho.