Public defender shortage affects low-level felonies in Oregon, frustrates crime victims

PORTLAND, Ore. (KATU) — A shortage in felony-qualified public defenders is leading to a spike in unrepresented individuals charged with the lowest-level felonies in Oregon, and to frustration for some crime victims whose cases stall in the system.

Earlier this month, the shortage affected Thu Nguyen, a business owner in Northeast Portland. His cameras captured a man throwing a rock through the front window of his Vietnamese restaurant before walking off.

“Very frustrating. We just try to be normal every day. Normal and run this business,” Nguyen said.

Nguyen said the same man came back 10 days later; cameras show him taking a seat at the bar and then swatting something in Nguyen’s direction. Nguyen said it was a teapot that cut his arm.

Police arrested and charged Toan Tran in October with criminal mischief - a Class c felony - and Assault-IV, which is a misdemeanor. However, a judge signed a dismissal order on Jan. 6, citing a lack of attorney.

READ MORE | With cases down, Oregon still struggles to provide public defense attorneys

“This is the first time I heard about it. I have no idea about this,” Nguyen said when KATU told him the case was dismissed.

Very, very frustrating. He keeps coming back here after that. I don’t know what to do.

Tran’s case is one of dozens dismissed over the last two years for the same reason. The Multnomah County District Attorney’s office said judges dismissed nearly 300 criminal cases between February 2022 and October 2022, though the DA’s office said the cases stay open in their office.

BREAKDOWN OF CASE DISMISSALS DUE TO LACK OF COUNSEL 2/24-10/31

Just over half of the affected cases cited by the DA were property crimes, mostly car thefts. Nearly 30 cases involved person crimes, like robbery and assault.

Oregon Public Defense Services is responsible for managing contracts with public defense firms and others who then provide public defense. Jessie Kampfe is the agency’s executive director.

RELATED | Public defense shortage puts Oregon's 'public safety at risk,' dept. director says

KATU: "A lot of people do criticize your agency and the state for not addressing a problem that's really been bubbling for a long time. Is that fair?"
Kampfe: "The crisis in public defense has been decades in the making."
KATU: "Why do you think it hasn't gotten attention until right now?"
Kampfe: "For a long time, I think that many people didn't recognize the important role that public defense plays in public safety."

Here’s one reason the unrepresented number of individuals is so bad in Oregon, according to Kampfe; the state used to pay defense attorneys based on how many cases they took. Two years ago, the state put a cap on how many cases attorneys could take – a change Kampfe said exposed the shortage.

Experts say the state needs hundreds more defense attorneys to live up to its constitutional duty to provide legal defense to people charged with crimes.

A recent study from the American Bar Association found Oregon has one-third the number of public defenders it needs to provide adequate legal service, but that number is a bit misleading. The report authors calculated that shortage from an estimated caseload for public defense in 2021. However, data KATU Investigates received in a records request shows the ABA’s estimate did not come to fruition in 2021.

Kampfe said the agency has improved its data reporting, so it can calculate the true number of attorneys the state needs based on what's actually happening in courtrooms across Oregon. Either way, Kampfe said Oregon is still far below the number it needs.

Public defense advocates cite low pay, attrition, high caseloads, and a lack of support services for clients as reasons public defense is an unattractive job for aspiring lawyers.

KATU: "What is your message to crime victims whose cases are being impacted because of this shortage? What commitment do you make to them to fix the problem?"
Kampfe: "Public defense is an integral part of the public safety system, and in order to create public safety in Oregon that works for all persons, including for victims of crime, we need to have a strong and stable public defense system."

Kampfe said state lawmakers need to give her agency funding to stabilize the current workforce by increasing compensation. The funding would also allow OPDS to add capacity.

Recent investments from the legislature have added about 40 attorney positions statewide. However, these is still a large gap in the kinds of cases being prosecuted by district attorneys – like Tran’s case involving a Class C felony.

Kampfe: "The largest number of unrepresented persons that we're seeing right now are charged with Class C felonies. In order to represent somebody on a Class C felony, a defense attorney has to have been practicing for a minimum of nine months, but most people that are doing that work are practicing for a couple of years, so at the same time that we're seeing a spike in the folks that need that Class C felony representation, we've been losing public defenders at that two to three-year mark for a very long time."

For decades, public defenders have been leaving two to three years into their career, and so we don't have a group of qualified lawyers to step in and to handle those C Felony cases, which is why I believe that we're seeing such a large spike in that population of unrepresented persons.

KATU: "What is the solution there? Can you expedite how quickly people qualify? Certainly, you don't want to put people who are unqualified there, but if it takes two years to get them there, what's the solution in the interim?"
Kampfe: "Well, the shortest path to get there is nine months, and we are really thankful that a large number of new misdemeanor-qualified lawyers came into public defense in October of 2022. Those lawyers will be qualified to handle minor felony cases by July of 2023. So, right now, the agency needs to be focusing on helping them to qualify up so that they can meet that need and retaining both them in the system and other existing lawyers in the system so that we actually have the workforce that we need."

Until then, it means victims like Nguyen may be left waiting.

“He has to face the law, find out why he’s doing that,” Nguyen said.