This story is part two of a series about the constitutionally-guaranteed access to legal representation in court — and the challenges that arise when the supply of defenders is limited. To read/watch the first piece in the series, click here. For the third, where former public defenders explain why they left the job, click here.
(InvestigateTV) - Inside Bee Cleaners in Portland, Oregon, conveyor belts usually running full of clothes often sit still and nearly empty.
Owner Jay Bleich said it’s a consequence of the Covid-19 pandemic and inflation.
“We’re facing not only lowered sales, but our expenses are spiraling upwards, labor spiraling upwards.”
The downtown staple struggling to survive was hit with another setback in September. Someone broke two of its windows, which cost $1,200 each to replace.
“It’s compounding the pain and agony. It really is. And it’s exhausting. You just want to throw in the towel. Honestly, it’s really difficult,” Bleich said.
Police quickly arrested Tyler Miller, who they say was caught on surveillance video breaking windows at five other storefronts the same day.
Bleich thought Miller would face consequences for the crime. Instead, court records show a judge released the 29-year-old hours later because Oregon did not have a public defender to represent him in court, required by law for people who cannot afford one.
“I don’t want to say that downtown Portland is lawless. I mean, if you go downtown there is graffiti, there are boards everywhere. So, it just fits what’s happening in the city,” Bleich said.
It’s not the first time this scenario has happened.
According to the Multnomah County District Attorney’s office, judges have dismissed at least 173 felony cases with prosecutors’ objections due to the public defender shortage. Some of the dismissed cases involve property crimes, stolen vehicles, and domestic violence.
Prosecutors can still charge defendants in the future, but prosecutors say it slows down the wheels of justice. Delays make it more difficult to find witnesses and evidence can be lost.
“It’s broken,” said Mike Schmidt, Multnomah County’s District Attorney during an October interview. “Public defense in our county is broken at this point.”
Schmidt said dismissing cases sends a terrible message to victims.
“Imagine you were just victimized: your car was stolen, your windows were smashed or, even worse, domestic violence. And the attorney or the victim advocate has to say, ‘Hey, sorry, we charged your case, we filed your charges, but there wasn’t a defense attorney. So, the case was dismissed,’” Schmidt said. “From a victim’s perspective, it doesn’t make sense.”
Schmidt believes the problem is slowly eroding the public’s trust in the system.
“We’re hearing, ‘Why did I even call the police then if nothing is going to happen?’ That’s dangerous. That’s a dangerous sentiment in our community because if people don’t report crime, the people who are committing the crime get to stay out in the community and continue to victimize more people,” Schmidt said.
Lack of attorneys causes cascade of issues
A court hearing in Multnomah County this past October highlights another part of the problem. It involved a man accused of felony burglary who did not have a public defender.
In this case, a judge declined to dismiss the charges, but still released him.
The judge allowed the man to leave the state if he promised to return for his next court date. Before he left court, the judge offered him advice, “So, I would just exercise caution and you know, use your good sense where you can, given that you don’t have the advice and assistance of a lawyer.”
The prosecutor, Schmidt, said his office has more than a thousand cases where defendants are released and many of them fail to return to court. When that happens, it triggers the court to issue a warrant for the defendant’s arrest, forcing law enforcement to spend more time tracking them down and arresting them.
“First and foremost, I’m frustrated,” Schmidt said. “I feel for the folks, the people in our community, that are seeing this disfunction and saying, ‘Is there nobody going to be held accountable for these actions?’”
The public defender shortage is happening while Portland suffers from another crisis. According to the city’s police department, gun violence and homicides have increased over the past two years.
“It’s not an exaggeration to say it is a constitutional crisis,” said Stephen Singer, former executive director of Oregon’s Public Defender Office.
Singer said the pandemic didn’t create the problem. It exposed decades of underfunding, low pay and overwhelming caseloads in public defender offices across the country.
“And then, ‘Wham!’ You get the pandemic, and the great resignation, and all of these labor shortages on top of that, and all of a sudden it explodes into view,” he said.
Singer said judges are doing the right thing by dismissing cases when defendants don’t have an attorney.
“Not only is it appropriate, it’s actually constitutionally required, and I wish there were more judges across the country that would exercise that necessary power, but that’s the only way you’re going to fix the problem,” he said.
It’s not just happening in Oregon. InvestigateTV discovered other court systems taking similar measures to respond to the crisis.
In Wisconsin, 46-year-old Nhia Lee waited in jail for more than 100 days for the state to find a public defender. He was arrested for drug charges in Marathon County in 2018.
In 2021, Lee’s attorneys appealed to Wisconsin Supreme Court. They asked the court to dismiss his case with prejudice, which would mean prosecutors could not re-indict the case.
“We ask this court today find that the Sixth Amendment is violated when an eligible defendant is not timely provided counsel,” said Bonnie Hoffman during oral arguments on December 10, 2021. Hoffman is director of public defense for the National Association of Criminal Defense Lawyers.
The Supreme Court ruled against Lee, so he could be charged again if released.
Court records show a judge dismissed Lee’s case this past June.
The same day after his case was dismissed, the district attorney’s office re-arrested Lee because the judge’s order allowed prosecutors to file charges against him in the future.
He’s spent more than 1,500 days behind bars at the time of this story’s publication. In Massachusetts, the state’s highest court ruled in 2004 that defendants who wait for counsel more than 45 days are entitled to have their charges dismissed in response to public defender shortages.
The landmark 1963 Supreme Court Ruling Gideon v. Wainwright required states to provide legal counsel to anyone accused of a crime who could not afford to hire an attorney. But the ruling allowed states to determine how to fund it.
As a consequence, legal experts said the ruling created a patchwork of public defender systems across the country which has led to insufficient funding, high caseloads and inconsistent standards.
Over the past five years, two federal bills attempted to address the issue. In 2019, then-U.S. Sen. Kamala Harris, D-Ca, and outgoing U.S. Rep. Ted Deutch, D-Fl, introduced the Ensuring Quality Access to Legal Defense (EQUAL Defense) Act. The legislation called for federal grants to promote pay parity between public defense attorneys and their prosecution counterparts, address excessive workloads, and improve training. The act proposed $250 million in funding, smaller than the amount some individual states spend on public defense annually.
It failed to pass, but it was re-introduced this past November by Congresswoman Suzanne Bonamici, a Democrat who represents a district in Oregon. It’s co-sponsored by six other members of congress.
The National Association of Criminal Defense Lawyers said that amount would have been a drop in the bucket to what’s needed. The bill did not pass.
In 2010, the federal government created the John R. Justice Loan Repayment program. It was designed to help recruit and retain public defense lawyers, but the funds allocated are minimal. Only attorneys working for institutional public defender offices are eligible, so the court-appointed attorneys providing public defense representation are unable to access the program funding.
A report by the Education Data Initiative shows the average law school graduate owes $180,000 in student loan debt. According to an October 2021 American Bar Association Journal, the median starting salary for public defenders is $63,638.
Jon Rapping, president of national public defender advocacy organization Gideon’s Promise, said a national response is needed to address the current constitutional crisis. Rapping says Congress allocates billions of tax dollars to state law enforcement, prosecutors, and correctional facilities each year.
But before funding those entities, Rapping said Congress should first require states to prove they are adequately funding public defense.
“So, the federal government has both a carrot and a stick by withholding funds to push both states and local governments to live up to this mandate,” he said.
Clarification: This story has been updated to specify Bonnie Hoffman is the director of public defense for NACDL.
Copyright 2022 Gray Media Group, Inc. All rights reserved.