The U.S. Constitution is the bedrock of our democracy, and the Bill of Rights is the safeguard of the people. Late last year, in a devastating blow to Oregon’s judicial system, an independent report held no punches, suggesting that Oregon’s system for providing public defense to low-income people is not up to snuff as required by the Sixth Amendment of the U.S. Constitution.
Public defenders in Oregon have been saying for years that low pay, lack of oversight and overburdensome caseloads create a systematic equity issue for low-income defendants throughout the state.
The Sixth Amendment guarantees every person — presumed innocent until proven guilty — the right to legal counsel for their defense. In 1963, the U.S. Supreme Court clarified that any individual who cannot afford an attorney “cannot be assured a fair trial unless counsel is provided for him.”
This means that the State has an obligation to provide a competent and effective attorney to represent low-income individuals accused of a crime. While it’s hard for some to accept, public defenders are a constitutional necessity.
There’s plenty wrong with the way that Oregon administers its system of public defense for low-income Oregonians. However two main issues are central to the crisis. The same issues affect rural areas, like Wallowa County, in a very different way than urban areas, according to Portland defense attorney, Russell Barnett.
Barnett agrees with the independent report that Oregon’s problem is the way public defenders are paid. Not only are they paid much less relative to prosecutors, but also are paid on a flat-fee basis. This leaves little incentive for public defenders to swiftly resolve cases, often to the detriment of the legal rights of their clients.
It’s not that public defenders have malicious intent, it’s just that with the low rate of pay, and high volume of cases, they can’t afford to take a case to trial on a small flat fee when their legal adversary is paid a much more enticing salary.
In rural areas like Wallowa County, the problem is a bit more complex. “It effects rural areas differently,” said Barnett. “Many times there aren’t enough cases to sustain an attorney” on a permanent basis. For Wallowa County, public defenders often have to travel from La Grande or further, giving more strain on an already stretched system.
So what’s left are swaths of potentially innocently accused people who are being denied their Constitutional rights on a regular basis.
While the report certainly did grab the attention of Oregon’s lawmakers, optimism isn’t exactly the word of the day on this issue. For Barnett, it’s all going to come down to money. And it’s unclear if Oregon Courts can even compel the legislature to fix the issues if they tried.
One proposed solution would be to pay public defenders as state employees just like prosecutors. However, “paying state wages is problematic,” from a political perspective, said Barnett. “Everybody wants to be tough on crime but without the collateral damage.”
As the late Sen. Robert Kennedy once said: “The poor man charged with a crime has no lobby.” Much of that stems from the lack of income parity between public defenders and county prosecutors. In Multnomah County, for example, an entry level Assistant District Attorney is paid $82,720, according to Willamette Week. On the other hand, an entry level staff attorney at Metro PD in Portland earns $58,500. If an accused is presumed innocent until proven guilty, shouldn’t justice demand equity in their representation?
The public defenders who do step-up to safeguard the rights of the accused nearly always get a bad rap. But Barnett sleeps well at night. When the inevitable criticism is thrown his way, he simply responds, “defendants don’t get off on technicalities.… those are called Constitutional violations.” The State has to do its job too.
While today’s political discourse tends to focus on the First and Second Amendment, particularly in Wallowa County, folks tend to forget about the Fourth, Fifth, Sixth, and Eight … that is until they may one day need them.