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'Cases have been dismissed because of the lack of representation': Multiple factors hampering criminal justice system

Oregon's largest public defense law firm is temporarily limiting new case appointments because of case overload.

PORTLAND, Ore. — The city of Portland is growing, recovering and in many ways it’s thriving. At the same time, it’s also dealing with a lot of crime: stolen cars and graffiti, gunfire and more homicides than the city has ever seen.

Some people arrested for various crimes are repeat offenders. That includes the suspect in the Feb. 25 kidnapping case in Northeast Portland. Justin Emanuel Hill is accused of stealing a car with a 3-year-old in the back seat. Court records show that when police arrested Hill, he had several open charges, including three car thefts in the past year alone. It begs the question: Why are chronic repeat offenders allowed to walk in and out of jail before their trial, often putting the public at risk?

RELATED: Police identify suspect who stole car with child inside

A look at a 2015 presiding judge order "in the matter of delegating release authority for pretrial release officers" offers the short answer. Suspects are evaluated on risk and typically only the most serious felony charges keep people in jail during the pretrial period. It took a kidnapping charge to keep Hill behind bars. For others who don't meet that criminal threshold, they're typically released.

"We can't keep people in jail prophylactically," said Cheryl Albrecht, chief criminal judge for Multnomah County Circuit Court. "It would be a constitutional violation of their rights."

Albrecht pointed out that the system has always worked that way but what's different now is a longer wait between arrest, release and trial, for many reasons.

"It's everything. It's the pandemic, it's staffing shortages, lack of resources," Albrecht said. "You can't keep someone behind bars for an extended period of time without a court-appointed attorney. That just is a constitutional crisis."

Which brings us to perhaps the most complicating factor of all in Oregon's criminal justice system right now: a shortage of public defenders and extreme case overload.

"There are maybe 150 people or so who have been arraigned in the last several weeks who have not been able to receive appointed counsel because we don't have enough court-appointed attorneys to appoint them," Albrecht said.

RELATED: 'Every attorney is doing the work of 3 attorneys': Report shows Oregon needs more public defenders

For public defenders, the dilemma has been years in the making, put over the top in part by a backlog of cases delayed by the pandemic.

"Cases have been dismissed because of the lack of representation because it is constitutionally required," said Carl Macpherson, Executive Director of Metropolitan Public Defender. MPD is Oregon's largest provider of public defense services and serves clients in Washington and Multnomah counties.

On Monday, MPD started a four-week pause on accepting new felony or misdemeanor appointments in Washington County, except for existing clients. In Multnomah County, they haven't been accepting new minor felony appointments since Jan. 10. For reference, most auto thefts are minor felonies.

"We do the work because we want to help people," Macpherson said. "To know that there are people who are not receiving our services and our help is extremely painful for everyone doing the work."

Macpherson said pausing on new cases wasn't a choice. He cited a 2007 Oregon State Bar Opinion which said lawyers must refuse to accept a work load that prevents them from meeting their ethical obligation to each client. Despite the pause, Macpherson said attorneys at MPD are already working 40 to 60 hours a week on current caseloads.

"It's not justice to assign an attorney to a case that they don't have the time to actually invest in representing that individual," Macpherson said.

A recent study by the American Bar Association found that Oregon has 31% of the public defenders needed to represent clients based on case loads of the last four years. That’s a deficit of 1,296 lawyers. Recently, Oregon lawmakers earmarked $12.8 million for the Office of Public Defense Services. Macpherson said that would be enough for 36 more lawyers.

"So 36 more lawyers is 2.7% of what we actually need," Macpherson said. "But it is at least a step in the right direction."

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