A federal appeals court has upheld a ruling that says defendants in Oregon who are held without an attorney for more than seven days must be released.
In a 2-1 decision Friday, the U.S. 9th Circuit Court of Appeals wrote that Oregon’s public defense system is a “Sixth Amendment nightmare,” OPB reported, referring to the provision of the U.S. Constitution that guarantees people suspected of crimes the right to an attorney.
The Court emphasized that Oregon has a responsibility to ensure legal protections for criminal defendants.
Oregon has long been unable to provide public defenders to criminal defendants who need them amid a public defender crisis. As of Friday, more than 3,200 defendants did not have a public defender, according to data from the Oregon Department of Justice. About 146 of those defendants are in custody, but Friday’s ruling will likely affect only a small number of them, according to the Oregon Department of Justice.
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The James R. Browning United States Courthouse building, home to the U.S. Court of Appeals for the Ninth Circuit, on January 8, 2020, in San Francisco. (Associated Press)
According to OPB, a draft report from the Oregon Public Defender’s Office released in March found that Oregon would need 500 more attorneys to meet its mandate, and while state officials have tried to address the issue through additional funding and other means, structural problems remain.
There are reforms underway, including the hiring of the first public defender who is also a state employee, and next year the Oregon Public Defender Board will be transferred from the judiciary to the executive branch of the governor’s office, a move state lawmakers hope will bolster support for the board.
The 9th Circuit Court of Appeals’ decision upheld a preliminary injunction issued last year by U.S. District Judge Michael McShane after 10 people who had been charged with crimes in Washington County and were being held in the county jail without court-appointed attorneys filed a class-action habeas corpus lawsuit through the state’s Federal Public Defender’s Office.
“This is an embarrassment for the state,” McShane said at a hearing last August, suggesting he would ask the state to release the defendants if they couldn’t provide them with public defenders within seven days. “This is an absolute tragedy and nobody seems to have the answers. They’ve literally suspended the Constitution over this group.”
Fidel Cassino DuCruz, Oregon’s federal public defender, praised Friday’s ruling, saying in a statement that it “breathes life into the Sixth Amendment right to a defense that has become an empty promise for many Oregonians who are presumed innocent but accused of crimes.”
In a 2-1 decision Friday, the U.S. 9th Circuit Court of Appeals said Oregon’s public defense system is a “Sixth Amendment nightmare.” (Getty Images)
“We expect state officials to follow the 9th Circuit’s guidance that no one should remain in jail without a lawyer and implement the sentence without delay,” Cassino-Ducreux wrote.
Writing for the majority on Friday, Circuit Judge John Owens said the situation in Oregon violates the 60-year-old U.S. Supreme Court decision in Gideon v. Wainwright, which said anyone charged with a crime has a constitutional right to an attorney, even if they cannot afford to pay for one.
“Yet, because of an ‘ongoing public defense crisis’ of Oregon’s own making, and despite Judge Gideon’s clear orders, it has denied indigent criminal defendants a fundamental right to a defense,” Owens wrote, adding that instead of providing defendants with lawyers, “Oregon has insisted on fighting the solution.”
In his dissent, Circuit Judge Patrick Bumathai criticized McShane’s injunction and the 9th Circuit’s majority opinion as “reckless and extreme,” arguing that the 9th Circuit is “complicit in a judicial escape.”
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A federal appeals court has upheld a ruling that says defendants in Oregon who are held without an attorney for more than seven days must be released. (iStock)
“The people being released are not there for minor offenses,” Bumathai wrote. “Just look at the charges against the petitioners named here: they are accused of rape, kidnapping, strangulation, assault on a police officer, indecent assault and theft. All will now be released back into their Oregon communities.”
But in his majority opinion, Judge Owens said Judge Bumathai’s dissent introduced a new argument and ignored the narrower issue of whether McShane abused his “considerable discretion” in issuing the preliminary injunction. Owens and Judge Salvador Mendoza of the 9th Circuit found that wasn’t the case.
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“The dissent’s open-ended approach represents classic judicial overreach,” Owens wrote. “It is unclear why the dissent blames the district court for a ‘judicial escape.’ Under the Sixth Amendment, Oregon could solve this problem overnight by simply paying its appointed counsel higher wages. The state of Oregon, not the district court, created this crisis.”
When asked if there would be an appeal, a spokesperson for the Oregon Department of Justice told OPB the department is reviewing the ruling.
