The judiciary faces a constitutional crisis

June 19 – The dispute between the attorneys who take on the job of public defender and the agency that oversees the state’s contract with them may seem like a routine issue over wages and working conditions. It is much more than that.

The Constitution requires that those charged with a crime have the right to counsel. If the defendant in a criminal case cannot afford to hire a lawyer, the court is required to provide one. It’s not negotiable.

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

Assistant prosecutors, who work for county prosecutors, receive office space, health insurance and retirement benefits for the work they do prosecuting people accused of crimes. Public defenders only receive money and must cover their overhead costs with this amount. Many maintain private law firms offering paid defense work and civil representation, but some rely entirely on public defense work.

A new contract proposed by the Office of State Public Defense Services has raised objections from public defense attorneys. They are unhappy with having to travel to neighboring counties when needed – where they don’t know the judges and prosecutors and don’t have offices available. As a local lawyer told the Mail Tribune, “Where do you meet your client if he’s not in jail?”

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

If the lawyers refuse to sign the new contract, it could create an even bigger crisis than the state is already facing.

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

An American Bar Association report released in January found the state had the equivalent of 592 full-time public defenders, but needed 1,888 to meet the existing workload. 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 a lawyer for those who could not afford to hire one.

What this ultimately means is that if the state cannot provide lawyers to all who are qualified, it risks having criminal cases thrown out.

This is no surprise to anyone in the state government. The Oregon legislature commissioned a study that in 2019 found the state’s system to be essentially unconstitutional.

If the state does not act quickly to remedy this situation, the courts can compel it to do so. A lawsuit filed in May alleges that 500 indigent people charged with a crime in Oregon either did not receive a lawyer or had their case dismissed.

The situation affects the general public as well as the justice system. If criminal charges are dismissed because the state cannot provide representation, justice is not served and the public is not protected.

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