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Oregon public defender crisis spurs lawsuit

State prosecutors file charges in three times as many cases as Oregon can provide a public defender for, according to a study by the American Bar Association.

PORTLAND, Ore. (CN) — Oregon violates its constitutional requirement to provide attorneys to people charged with crimes who can’t afford one, four such defendants say in a class action filed Monday.

Led by Kpana Benjamin, the four people charged with crimes explain that they were told by the judges in their cases that they qualified for court-appointed attorneys but none were provided. About 500 people in Oregon face a similar situation, according to the lawsuit in Multnomah County Circuit Court. And 30 of those people remain jailed as they wait for an attorney to help them fight the charges against them.

“That’s an unacceptable situation to allow to continue,” said Jesse Merrithew, an attorney representing the class who is with the firm Levi Merrithew Horst. “The time directly after arrest is the most critical time, as any criminal defense lawyer will tell you, in the representation of a client. It is the time where the client will either lose their job or keep their job. Lose their family and their housing or keep their family and their housing. It’s a time when evidence is either going to be preserved or evidence going to be lost.”

The class says the state, Governor Kate Brown and Stephen Singer, executive director of the state Office of Public Defense Services, violate the Sixth Amendment and a similar provision in the Oregon Constitution, which both guarantee attorneys to anyone charged with a crime who can’t afford one on their own.

“If the state prosecutes someone, the Oregon and U.S. Constitutions — and really, our whole concept of justice — requires the state to provide them with an attorney if they can’t afford one,” said Benjamin Haile, another attorney with the class who is with the Oregon Justice Resource Center. “To keep charging people when they know that they will not be able to provide an attorney is a terrible violation of this essential right. The solution involves making attorneys available, but it also involves prosecuting less.”

A report released this past January by the American Bar Association found Oregon would need 1,296 additional full-time public defenders to adequately represent all state defendants at current case rates.

“Put another way, the state is charging three times as many cases as they are resourcing defense for,” Merrithew said.

The plaintiffs also say the state violates the constitutional right to equal protection, since the failure to provide court-appointed attorneys disproportionately affects Black people. Over 20% of people waiting for an attorney in Oregon are Black, even though Black people make up only 3% of the state’s population, according to the lawsuit.

“Just like every other aspect of the criminal legal system, the crisis in public defense is having a disparate impact on communities of color,” said Jason Williamson, a third lawyer on the case who is executive director of the Center on Race, Inequality and the Law at New York University. “Black and brown folks continue to bear the brunt of any deficiencies to the system and this is no different.”

Williamson added Oregon is not the only place where public defense services are inadequate.

“Public defense is in crisis throughout the country, in large part because indigent defendants — people who don’t have the money to pay an attorney and who have been accused of crimes — did not get the attention that they deserve despite the fact that our federal Constitution as well as every state constitution across the country requires it,” said Williamson, who is a former attorney with the American Civil Liberty Union’s Criminal Law Reform Project.

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