National ‘embarrassment’: Judge sets 10-day deadline to release people held in jail without lawyer

A federal judge on Tuesday ordered the Washington County sheriff to release criminal defendants from jail if they have been held for 10 days without a lawyer, injecting new urgency into Oregon’s complicated and long-running public defense crisis.

As of this week, 2,580 defendants across the state are stranded without lawyers. That number includes 164 people who are in jail without lawyers, according to the Oregon Judicial Department.

“Oregon is not a gulag found in a Tom Clancy novel,” U.S. District Judge Michael McShane of Eugene said from the bench. “The public interest in the rule of law is in fact at the heart of our democracy.”

He called Oregon’s practice of holding indigent people in jail without attorneys “an embarrassment.”

“Oregon is an outlier here,” he said. “It’s a complete tragedy and nobody seems to have an answer. … Literally, we have suspended the Constitution when it comes to this group.”

McShane also designated a class of defendants, a decision that means his ruling will apply to any new defendant in Washington County who cannot afford a lawyer and is held in jail.

The 10-day period begins on the day of the person’s first court appearance under McShane’s order.

In June, Oregon’s Federal Public Defender’s Office filed claims on behalf of Washington County criminal defendants, asking that the court dismiss their cases due to a lack of legal representation. As of this week, 28 people are in the Washington County Jail without lawyers, more than any other county in the state, according to the Oregon Judicial Department.

McShane’s order applies to Washington County, but legal experts say it is likely to have implications statewide.

“All good lawyers would have to be looking at this and thinking this is a shot across the bow,” said Tung Yin, a professor at Lewis & Clark Law School. He said he expects the Federal Defender’s Office to make similar arguments on behalf of defendants in other counties.

“Multnomah and Clackamas counties, those are probably going to be ripe areas for the same issue,” he said.

Washington County District Attorney Kevin Barton said McShane’s ruling should prompt state leaders to act swiftly to address the state’s public defense crisis.

“This has been a problem for quite a while,” he said. “Leaders have known about it and it has not been addressed in a meaningful way. I don’t mean more work groups, more task forces or crisis plans. I mean take immediate and meaningful action.”

Public defense leaders say the system suffers from a chronic shortage of lawyers, stemming in part from long-standing demands for higher pay and lower caseloads. High rates of turnover and burnout within the ranks of public defenders exacerbated the crisis.

The Legislature has pumped millions into public defense, but state leaders say that hasn’t been enough to overcome deeper problems with the way the system is set up.

The state Office of Defense Services pays attorneys to represent indigent defendants. Those services are provided by nonprofit law firms, like Metropolitan Public Defender in Portland and Hillsboro, and independent lawyers who take on public defense cases.

Oregon Federal Defender Fidel Cassino-DuCloux argued the case on behalf of the Washington County defendants, told McShane that their continued detention without an attorney had echoes the treatment of enslaved people in the Deep South.

“It is it really so farfetched?” he told McShane. “We have thousands of Oregonians, hundreds in Washington County, who have spent days, months and longer, jailed, incarcerated, and have restraints placed on their liberty in violation of a panoply of rights that the Constitution has provided us. They have been charged with crimes, but have not been provided lawyers.”

– Noelle Crombie;; 503-276-7184; @noellecrombie