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Notes -
Oregon Goes To The Purge
Some quick background: the Eight Amendment of the United States Constitution guarantees a right "to have the Assistance of Counsel for his defence" in some criminal trials at certain stages of the trial. There's a whole lot of complexity of where and how that applies, but for those who can't afford a lawyer of their own, for covered crimes, the state eventually evaluates whether the defendant is indigent, and if so appoints a public defender, eg @ymeshkout. But this is neither glamorous, fun, well-paying, or even particularly safe work, so there is seldom a glut of people jumping up and down to do that job.
In 2019, a group called the Sixth Amendment Center was commissioned by Oregon state to review the public defence office, and their final report was highly critical, highlighting heavy workloads and huge pressures to close cases with as few hours as possible. Public defenders in Oregon began (or more cynically, were, given the 6AC report) lobbying for changes to their maximum caseloads and reimbursements, and while it's not accidental that their solution would have involved getting more pay for less work, this eventually did get a cap on maximum cases and some additional funding, targeting an estimated 30ish full-time employees added to 400 then-present. During COVID, a combination of increased juggling of cases due to the slower pace of concluding trials, varying treatments of different classes of crime, (and interpersonal issues) only added to the matter; case backlogs became the norm, instead of a rare exception.
In this case, the jailed plaintiffs argued that they were facing the court without competent counsel, or being held indefinitely before trial, due to the lack of indigent defense available. In several cases, they were arraigned and/or had bail hearings without having seen a defense lawyer.
And as a result, the federal judiciary will be letting them loose on the streets, with a pinky promise to arrest them harder should they reoffend.
That title isn't entirely fair. While the original district court injunction required jails to free anyone who'd been jailed seven days without an attorney, the order was later revised to exclude those "charged with murder and aggravated murder", or who have their release revoked, or who fired their own attorney. And at least theoretically, non-jail custody is still on the table, such as GPS monitoring or probation check-ins, though the majority opinion's logic about their effectiveness ("The dissent does not explain why any of these standard measures would fail") is not the most compelling.
But with the class certification, this applies to all jailed defendants within the state of Oregon and the court not-so-subtly invites further such preliminary injunctions from other states in the 9th Circuit ("The State of Washington is facing similar problems and consequences"). While the initial class claims 'only' a little over a hundred defendants presently jailed, the injunction itself is prospective, binding all future criminal prosecutions, with the corresponding impact on any police or prosecutor interest in bringing such charges.
There's some obvious system failure/'sleepwalking into disaster' problems, here: the opinion jabs at the dissent near its end with "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." The dissent points out in turn that yes, Oregon could pay appointed counsel more, and if that would solve things overnight, why not order that instead?
((Because the current plan involves increasing pay and additional hiring of almost five hundred new public defenders over the next 6 years, which would double the public defender full-time staff, while absolutely no one retires, moves away, or leaves public defense. Hilariously optimistic and too late!))
But this genuinely is the sorta thing that can be solved, but probably not in any magic wand sorta way. Six years is a pretty unrealistically optimistic pace for the hiring of five hundred public defenders, but if they'd started in 2019 and then put a stricter limit on caseloads, we'd at least be a lot closer to an actual fix, and even recognizing the benefit of hindsight looking back and seeing 'public defense bill with strong bipartisan support derailed over climate change bill that did nothing' is kinda morbid. It's hard to get good numbers on how many public defenders work different classes of cases, or even what classes of cases fall under each category, but it's also hard to believe that there's been a great focus on optimal allocation of present public defense resources.
I guess this is someone's idea of solving it? Which points, perhaps, to a more critical problem than even the "sleepwalking into disaster" bit: even if someone else does respond, you might not like their response.
There's a little bit to quibble about on the logic of the decision itself, most notably as to whether the delays so far were unreasonable enough to require, or that the court hearings so far 'matter' in a way that the Eight Amendment counts -- it's very far from clear that bail hearings would have looked that different with counsel present, given the defendants. There's a lot to be said about motivations: no small number of the actors here are pretty hard on the 'eliminate cash bail' train, and a few want that as part of "limiting the reliance on the formal criminal justice system for low-level, non-violent offense". I can't find direct calls to Defund the Police by the less reputable orgs involved, but I also haven't exactly gone searching.
On the other hand, just because they're bad in other ways, doesn't mean that they're wrong here. There's little to recommend the phrase "The court required Mr. Owens to waive counsel at that hearing in order for the court to consider releasing him". While many of the plaintiffs face potential sentences exceeding their likely time in jail before trial, the mere possibility of pre-trial time served exceeding a sentence -- of 'sentence first, verdict afterwards' -- makes an absolute mockery of the justice system.
Even if we were to presume the majority of these jailed plaintiffs guilty (which we're not supposed to do, and there's a slim chance may even be incorrect), there's a bigger problem where thousands of indigent defendants who were released on various bails or supervisory custody already, for court cases that will happen whenever the state gets around to actually having two sides, which means a sizable fraction of those cases probably won't happen. Witnesses will age out or become unavailable or their memories unreliable, doubt increases, chain of custody for physical evidence becomes increasingly tangled, so on. There is actually a federal statutory public interest in a speedy trial, and it's there for a reason.
There are even some dumb culture war matters. People following the Trump trial in New York were trying to game theory out timelines approaches for federal appeals and kept getting stuck on Younger abstention. Here, definitionally, all jailed plaintiffs were in the first stages of a state prosecution and thus unable to get relief in a federal court, but the Ninth Circuit has given a delightfully fast answer to that: Younger is already screwed when it's Important, "even assuming all four factors set forth... are met".
I have essentially no sympathy for the government. This is a problem of their own creation. "Yes your honor, we failed our constitutional obligation to ensure criminal defendants have adequate representation but the correct remedy is we can hold these people in jail forever until we get around to fulfilling that obligation."
Maybe.
Alternately, the problem is that civilization is unravelling. The systems in place that work when incidents of crime similar are to Japan break down quickly when the incidents of crime approach that of Haiti. You can't scale a system of public defenders in response to exponential increases in criminality.
I looked up the county I grew up in old FBI statistics. There were 0 to 1 murders a year. These days it's over 100. Per capita it probably hasn't changed as much as that might imply as the population grew a lot. Even so, it began having some serious issues with crime that didn't come out in the wash of "per capita" hand waving.
It would be nice if we got a Bukele that would re-civilize our cities, but I'm pretty sure the felon, aspiring felon, and felon sympathetic demographic has just grown too strong. Can't think of any other reason so many cities have adopted policies of "decriminalizing" theft and lesser assaults.
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