The Oregon supreme court has ruled that a large number of criminal cases across the state must be dismissed due to a severe shortage of public defenders, a major decision that attorneys say will impact more than 1,400 pending cases.
The problem has been years in the making and has become a significant constitutional crisis, as people charged with crimes are routinely unable to fight their cases as they wait weeks, months or sometimes years for the state to appoint them lawyers. The attorney shortage – due in part to the increasing difficulty of recruiting attorneys for the low-salary, high-caseload jobs – has meant that people have had cases hanging over them for extended periods of time, impacting their housing, employment and families, advocates say.
Oregon’s highest court ruled on Thursday that dismissals are required if the state failed to provide counsel within 60 days after arraignment for a misdemeanor and within 90 days for a felony. State data on unrepresented defendants showed that as of this week, more than 1,400 active cases fall in that category, including hundreds of people who have been waiting more than a year for an attorney.
The ruling dictates that the cases be dismissed without prejudice, meaning prosecutors can re-file charges. The court said charges can be brought again “when the state is able to provide the counsel to which a defendant is entitled”. The ruling also said dismissal isn’t required if during the 60- or 90-day period the defendant failed to appear in court for a required hearing.
The case originated with a man named Allen Rex Roberts, who was charged with unauthorized use of a vehicle and possession of a stolen car in August 2021. The charges were dismissed in October 2022 because of the state’s failure to appoint him a lawyer, but in April 2024, prosecutors re-indicted Roberts on the same charges. For the next year, Roberts repeatedly returned to court for hearings where he was supposed to be appointed counsel, but each time no attorney was available. Eventually, his case was again dismissed due to a lack of attorneys.
The right to counsel is enshrined in the Oregon and US constitutions, and the shortage of attorneys has led to mass violations of those fundamental rights and pushed the criminal legal system to the brink, advocates say. The vast majority of defendants in the state are indigent and cannot afford a private attorney.
“Many folks who are eligible for dismissal after the court’s opinion today have been facing the criminal justice system without assistance for months or years,” said Jessica Snyder, a lawyer who co-wrote an amicus brief in the case on behalf of the federal public defenders in Oregon. “The harm is great. It has led to individuals losing their housing, losing contact with their children because of no-contact orders, [and] losing the opportunity to preserve evidence in their criminal case.”
Some defendants would have been able to quickly resolve their cases if they simply could afford a private attorney, Snyder noted.
“The toll is also psychological. A lot of clients talked about the despair they felt coming back to court over and over again without someone to help them, how confused they felt, how the court wouldn’t listen to their concerns or prosecutors wouldn’t help them navigate the system,” said Snyder.
A previous court ruling dictated that the state must release defendants from jail within seven days of appearing in court if they aren’t appointed an attorney. That means the more than 1,400 cases impacted by Thursday’s ruling mostly involve defendants who are already out of custody.
The attorney shortage is a systemic and statewide problem in Oregon, and the causes are complex, with criminal defense lawyers noting the state has long underfunded public defense, leaving few public defenders overwhelmed with massive caseloads. A backlog of cases during the pandemic and increasing time required to review materials like body-camera footage and digital evidence has further strained the system, advocates say.
Oregon’s crisis is particularly acute, but attorney shortages have created problems across the country, including in Washington state, Maine, Illinois, Utah and New Hampshire.
Nadia Dahab, a Portland-based attorney who argued the Roberts case, said she hoped the ruling would force the state to pursue a “solution that recognizes the importance of access to counsel for people charged with a crime and allocates the resources necessary to make sure the public defense system adequately protects them”.
“Roberts,” she added, “is one of thousands, and the harms he suffered through the arrest warrant when the state recharged him and through the impact of having to take off work to go to court every month – those are very exemplary of what lots of others are facing.”
Oregon’s department of justice had argued against blanket dismissals in the Roberts case.
Dan Rayfield, the state attorney general, said in a statement on Thursday that the state’s legislature had stepped up to increase investments, and he said: “Oregonians deserve solutions.” He continued: ‘Too many are being left without legal representation – some sitting in jail, others stuck in limbo outside of custody, unable to move their cases forward. That is not acceptable for public safety.”
Rayfield said the state respects the supreme court’s decision to “set clear limits on how long someone can go without counsel” and he expected the Oregon Public Defense Commission (OPDC), the agency that oversees the public defense system, to meet the standards established by the court and “take responsibility for ensuring people are represented”.
The OPDC said in a statement it was assessing the decision and that the commission had made progress in reducing the number of unrepresented individuals and would “continue to address the crisis with urgency and transparency”. The statement noted that there were 2,494 people without an attorney at the end of January, down 37% from the year prior.
“We will collaborate with our partners in the criminal justice community to respond to this ruling and build on this progress while protecting defendants’ rights and public safety,” the statement said.
The public defender crisis was exacerbated last year as Oregon abandoned a policy effort to decriminalize drugs, leading to a surge in arrests for possession that further burdened attorneys and clogged up the courts.
The Metropolitan Public Defenders, which represents indigent defendants in Portland and the surrounding region, said in a statement that increasing the number of public defenders alone would not solve the crisis, and urged for more reforms that would reduce the volume of cases in the system: “Oregon needs more community-based resources, and the system needs more … alternatives to prosecution and incarceration.”
John Wentworth, president of the Oregon District Attorneys Association, which represents the state’s prosecutors, criticized the supreme court decision in a statement, saying: “Criminal defendants, their victims and our communities will continue to lack justice as potentially thousands of cases will now be dismissed. This is an immense waste of taxpayers’ money.”
Wentworth, the district attorney of Clackamas county, called on the state’s governor and OPDC to “fix this problem now”, writing: “Our indigent defense system must deliver the service it is funded to provide.”
