Oregon defendants who do not have a lawyer must be released from jail, US appeals court rules

A federal appeals court upheld a ruling that defendants in Oregon who have been in jail for more than seven days without a defense attorney must be released from custody.

The 9th U.S. Circuit Court of Appeals wrote in its 2-1 decision on Friday that Oregon's public defense system is a "Sixth Amendment nightmare," referring to the part of the U.S. Constitution that guarantees people accused of crimes the right to a lawyer, OPB reported.

The court emphasized that Oregon is responsible for ensuring legal protections for criminal defendants.

Oregon, for years, has failed to provide public defenders for criminal defendants who need them amid its public defender crisis. As of Friday, more than 3,200 defendants did not have a public defender, according to data from the Oregon Judicial Department. Among those defendants, about 146 people were in custody, although a smaller number were expected to be impacted by Friday’s ruling, according to OPB.

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In March, a draft report from the Office of Public Defense Services found that Oregon needs 500 more attorneys to meet its obligations, according to OPB. State officials have attempted to address the issue, as well as providing additional funding, but structural issues still persist. 

Some changes are currently in progress, including hiring the first trial-level public defenders who are also state employees. And next year, the Oregon Public Defense Commission will move from the judiciary to the executive branch under the governor, a move state lawmakers hope will give the agency more support.

The 9th Circuit's decision upheld a preliminary injunction issued last year by U.S. District Court Judge Michael McShane after 10 people in Washington County who were charged with crimes and held at the county jail while not having court-appointed attorneys filed a class action habeas corpus petition through the state’s federal public defender's office.

"It's an embarrassment to the state," McShane said during a hearing last August, when he indicated he would require the state to release defendants from custody if the state could not provide a public defender within seven days. "It's a complete tragedy and nobody seems to have an answer. Literally, we suspended the Constitution when it comes to this group."

Oregon's federal public defender, Fidel Cassino-DuCloux, applauded Friday’s decision, saying in a statement that it "breathes life into the Sixth Amendment right to counsel, which have been an empty promise for too many presumptively innocent Oregonians charged with crimes."

"We hope that the state authorities heed the Ninth Circuit’s instruction that no one remains in jail without counsel and implements the decision without delay," Cassino-DuCloux wrote.

Writing for the majority, Circuit Judge John Owens wrote Friday that the situation in Oregon violates a 60-year-old U.S. Supreme Court ruling, Gideon v. Wainwright, which found that anyone charged with a crime had a constitutional right to a defense lawyer, even if they cannot afford one.

"Yet, due to an 'ongoing public defense crisis' of its own creation, Oregon does not provide indigent criminal defendants their fundamental right to counsel despite Gideon’s clear command," Owens wrote, adding that instead of making lawyers available to defendants, Oregon "insisted on fighting the solution."

In a dissenting opinion, Circuit Judge Patrick Bumatay criticized McShane's injunction and the Ninth Circuit’s majority opinion as "reckless and extreme" and claimed the Ninth Circuit is "now complicit in a judicial jailbreak."

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"And those being released are not sitting there for some petty offense," Bumatay wrote. "Just look at the charges of the named Petitioners here—they are accused of rape, kidnapping, strangulation, assaulting a police officer, public indecency, and burglary. All will now be released into Oregon’s communities."

But Owens responded in the majority opinion, saying Bumatay's dissent introduces new arguments and ignores the narrower question of whether McShane abused his "considerable discretion" when issuing the preliminary injunction, which Owens and Ninth Circuit Court Judge Salvador Mendoza ruled was not the case.

"The dissent's unbounded approach is an ode to classic judicial overreach," Owens wrote. "It remains unclear why the dissent blames the district court for a ‘judicial jailbreak.’ Consistent with the Sixth Amendment, Oregon could solve this problem overnight simply by paying appointed counsel a better wage. It is Oregon, and not the district court, that created this crisis."

A spokesperson for the Oregon Department of Justice told OPB that the department is reviewing the decision when asked if there would be an appeal.