Appellate court affirms ruling, releasing defendants from jail who don’t get public defender

The Ninth Circuit Court of Appeals roasted Oregon’s failing public defense system in an opinion Friday, siding with a federal judge who previously ruled that defendants held in jail for more than seven days without an attorney must be released from custody.

In a 2-1 decision, the appeals court called Oregon’s public defense system a “Sixth Amendment nightmare,” referencing the part of the U.S. Constitution that requires the state to provide defense attorneys to those it charges with crimes if they cannot afford a lawyer. The opinion stated that Oregon alone is responsible for its failure to uphold legal protections for criminal defendants.

For years, Oregon has not provided defense attorneys to everyone who needs them. As of Friday, more than 3,200 people did not have a public defender, according to the Oregon Judicial Department. Of those, some 146 people were in custody, though the actual number of people affected by Friday’s ruling will be fewer.

A draft report from March found that Oregon needs 500 additional attorneys to meet its obligations. State officials have taken steps to address the issue, including providing additional funding, but structural issues remain. Some changes are underway, including hiring the first trial-level public defenders who are also state employees. Also, next year, the Oregon Public Defense Commission will move from the judiciary to the executive branch under the governor. Lawmakers say they’re hoping the move will give the agency more support.

The ruling upholds a preliminary injunction issued by the U.S. District Court Judge Michael McShane last year. The case arose out of Washington County, where 10 people held at the county jail, charged with crimes — but who were not appointed attorneys — filed a class action habeas corpus petition through Oregon’s federal public defender’s office.

When asked whether the state would appeal, a spokesperson for the Oregon Department of Justice said they’re reviewing the decision.

Fidel Cassino-DuCloux, Oregon’s federal public defender, praised Friday’s decision.

“The Ninth Circuit’s opinion in Betschart breathes life into the Sixth Amendment right to counsel, which have been an empty promise for too many presumptively innocent Oregonians charged with crimes,” Cassino-DuCloux wrote in a statement. “We hope that the state authorities heed the Ninth Circuit’s instruction that no one remains in jail without counsel and implements the decision without delay.”

“It’s an embarrassment to the state,” McShane said, during a hearing last August, when he made clear he would require the state to release people from custody if the state could not provide a public defender within seven days. “It’s a complete tragedy and nobody seems to have an answer. Literally we suspended the Constitution when it comes to this group.”

Writing for the majority in Friday’s opinion, Circuit Judge John Owens likened Oregon’s public defense system to something out of a country run by a dictator, wherein a person is arrested, weeks or months pass without legal help, while the defendant “remains in jail, without legal counsel or any relief in sight.”

“You might think this passage comes from a 1970s State Department Report on some autocratic regime in the Soviet Bloc,” Owens wrote. “Unfortunately, we do not need to go back in time or across an ocean to witness this Kafkaesque scene. This is the State of Oregon in 2024.”

Owens, who was appointed to the court by former President Barack Obama, wrote that the practice playing out in Oregon violates a 60-year-old U.S. Supreme Court ruling, Gideon v. Wainwright, which found anyone charged with a crime had a constitutional right to a defense lawyer, even if they cannot afford one.

“Yet, due to an ‘ongoing public defense crisis’ of its own creation, Oregon does not provide indigent criminal defendants their fundamental right to counsel despite Gideon’s clear command,” Owens wrote. He also expressed dismay that instead of making lawyers available to people charged with crimes “Oregon insisted on fighting the solution.”

In an emailed statement, a spokesperson with the Oregon Judicial Department noted that this decision “does not require any case to be dismissed” and does not prevent judges from imposing conditions of release.

In a dissenting opinion, Circuit Judge Patrick Bumatay criticized McShane’s injunction and the Ninth Circuit’s majority opinion calling them “reckless and extreme” and said “the Ninth Circuit is now complicit in a judicial jailbreak.”

“And those being released are not sitting there for some petty offense,” wrote Bumatay, who was appointed to the court by President Trump. “Just look at the charges of the named Petitioners here—they are accused of rape, kidnapping, strangulation, assaulting a police officer, public indecency, and burglary. All will now be released into Oregon’s communities.”

But Owens, writing for the majority, shot back that Bumatay’s dissent introduces new arguments and ignores the much narrower question the appeals court was tasked with reviewing: did McShane abuse his “considerable discretion” when issuing the preliminary injunction? Owens, along with Ninth Circuit Court Judge Salvador Mendoza, concluded McShane did not.

“The dissent’s unbounded approach is an ode to classic judicial overreach,” Owens wrote. “It remains unclear why the dissent blames the district court for a ‘judicial jailbreak.’ Consistent with the Sixth Amendment, Oregon could solve this problem overnight simply by paying appointed counsel a better wage. It is Oregon, and not the district court, that created this crisis.”

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