Oregon’s chief judge on Monday fired all members of the Public Defense Services Commission, frustrated that hundreds of defendants charged with crimes and who cannot afford an attorney n couldn’t get public defenders to represent them.
The unprecedented action comes as Oregon’s unique public defender system is under such pressure that it is at breaking point. Oregon criminal defendants who have been left without legal representation due to a shortage of public defenders filed a lawsuit in May alleging the state is violating their constitutional right to counsel and a speedy trial.
In a letter to commission members, Chief Justice Martha Walters stressed that their duty is “to ensure that Oregon provides public defense services consistent with the Oregon Constitution, the State Constitution United States and Oregon and National Justice Standards”.
“Unfortunately, it is now clear that it is time to reconstitute the current commission,” she said.
Oregon’s public defense system is the only one in the country that relies entirely on contractors: large nonprofit defense companies, smaller cooperating groups of private defense attorneys who contract cases and independent lawyers who can take cases at will.
But some firms and private lawyers periodically refuse to take on new cases because of the workload. Low pay rates and late government payments are also a deterrent. The American Bar Association found that Oregon has only 31% of the public defenders it needs.
Walters said “systemic change” is needed and the commission must work with Oregon’s executive and legislative branches and the public defense community “to create a better system for public defense providers.”
The Public Defense Services Commission currently has nine members, in addition to Walters who, as Chief Justice, is a permanent member ex officio. Walters made the layoffs effective Tuesday and said if any members wanted to serve on a reconstituted commission, they should apply by noon Tuesday.
One of the members is Steven Wax, who has extensive public defense experience. He was the U.S. public defender for the District of Oregon for 31 years and is currently the legal director of the Oregon Innocence Project, which focuses on wrongful convictions.
In a brief telephone interview, Wax said he was unhappy with the Chief Justice’s action.
“The commission has worked tirelessly on difficult issues and reforms,” Wax said. “Disagreement is inevitable. I was deeply disappointed to receive the Chief Justice’s letter.”
He declined to comment further, including whether he would run for a reconstituted commission, an independent body that governs the Office of Public Defense Services and appoints its executive director. Its main mission is to establish “a public defense system which ensures the provision of public defense services in the most cost-effective manner”.
The Chief Justice appoints its members and can remove them, in accordance with Oregon law.
“I never planned to wield this authority, but this issue is too important and the need for change is too urgent to delay,” Walters said.
Todd Sprague, spokesman for the Oregon Department of Justice, said that to his knowledge, the entire commission had never been removed from office before.
Oregon’s backlog has led to dozens of cases being dismissed and as of last May left about 500 defendants statewide without legal representation.
Jesse Merrithew, a lawyer representing the plaintiffs in the lawsuit, said being deprived of a lawyer immediately after an arrest poses problems that are almost impossible to overcome later, for example in obtaining a video surveillance before it was erased, which could support a defendant’s case.
Oregon’s system was underfunded and understaffed before the COVID-19 pandemic, but the backlog has grown amid a slowdown in court activity due to safety protocols.