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Court system faces a constitutional crisis

The dispute between attorneys who take on public defender work and the agency that oversees the state’s contract with them may seem like a routine flap over pay and working conditions. It’s much more than that.

The Constitution requires that those accused of a crime are entitled to legal counsel. If the defendant in a criminal case cannot afford to hire an attorney, the court is obligated to provide one. This is not negotiable.

What is negotiable is how much public defenders are paid, how many cases they are required to take on and where they must appear on their clients’ behalf.

Deputy prosecutors, who work for county district attorneys, receive office space, health insurance and retirement benefits for the work they do prosecuting people accused of crimes. Public defenders get only money, and must cover their overhead expenses out of that amount. Many maintain private law practices providing paid defense work and civil representation, but some rely entirely on public defense work.

A new contract proposed by the state Office of Public Defense Services has raised objections from public defense attorneys. They are unhappy with a requirement that they travel to adjoining counties when needed — where they don’t know the judges and prosecutors and don’t have office space available. As one local attorney told the Mail Tribune, “Where do you meet with your client if they’re not in jail?”

The proposed contract also would limit the amount of work attorneys take on outside of public defense work, and require that they indemnify the state agency against liability — a clause they say would conflict with their own malpractice insurance. The new contract does offer more money, but not enough even to keep up with inflation.

If attorneys refuse to sign the new contract, that could create an even bigger crisis than the state already faces.

Oregon’s system of contracting with private attorneys for public defense work has been struggling for years without adequate funding. The situation has come to a head after the pandemic shut down court proceedings and cases were delayed. Now that courts are open again, the backlog of unfinished cases has pushed the system past the breaking point.

A report from the American Bar Association released in January found the state had the equivalent of 592 full-time public defenders, but needed 1,888 to meet the existing caseload — a shortage of 69%.

The Sixth Amendment to the Constitution establishes the right to counsel for those accused of crimes. In 1963, the Supreme Court ruled that the government must appoint and pay an attorney for those who could not afford to hire one.

What this means, ultimately, is that if the state cannot provide attorneys for all who qualify, it risks seeing criminal cases dismissed.

This is not a surprise to anyone in state government. The Oregon Legislature commissioned a study that in 2019 concluded the state’s system was essentially unconstitutional.

If the state does not act quickly to address this situation, the courts may force it to do so. A lawsuit filed in May alleges 500 indigent people charged with a crime in Oregon have not been provided with attorneys or had their cases dismissed.

The situation affects the public at large along with the court system. If criminal charges are dismissed because the state cannot provide representation, justice is not being served and the public is not being protected.