A day without public defense attorneys

The premise of a 2004 comedy called A Day Without a Mexican was that one morning a dense fog surrounded California and when it lifted 13 million people- all with Latinx surnames – had just disappeared. California fell into chaos, people couldn’t valet park their car, spouses weren’t in their beds in the morning, nanny’s and housekeepers didn’t show up for work and fights broke out at car washes. Just when it seemed like things would continue to spiral out of control, a night border patrol along the Mexican/US border intercepted a group of Mexicans just after midnight attempting to cross illegally. Rather than detaining them, they broke into cheers and welcomed them. (while a bit dated given the continued integration of Latinx people and culture into our economy over the past 15 years, the movie is still relevant, and still funny. And available on Amazon)

I was reminded of the movie over the past several months as Oregon public defense attorneys start the renegotiation process with the agency in charge of providing public defense, The Oregon Office of Public Defense Services

While the Legislature gave that Agency a funding increase of between 12% and 14% (depending on a few variables down the road), the Agency is proposing to pay the lawyers who provide services, all of whom are independent contractors, a 5% pay increase. Since providers haven’t had an increase in 4 years, this means that these attorneys will have received a 5% increase in 4.5 years. That’s less than the cost of living over that time. And well under the increase necessary to pay for wage and health care increases for themselves and their staff. To add insult to injury, the agency is going to cap caseloads. That’s sounds good for clients, but increasing caseloads is the only way public defense attorneys were able to stay up with the costs of running a business.

The attorneys are not happy and there is no guarantee that they will accept the State’s offer.

I realize that if there’s two things Legislators and the public in general don’t like, it’s criminals and attorneys. And funding public defense seems like a very low priority item. Much like paying service providers – with or without Latinx surnames – seems like a low priority. But providing an attorney to the accused is one of the very few actual constitutionally required public expenditures. And treating this mandatory service as an afterthought is a mistake because of the unforeseen consequences a lack of public defense providers would have on our everyday lives.

As I’ve pointed out to these attorneys, public defense attorneys are a lot like school teachers. They are underpaid, have a lot of education and time committed to their professions, and they have few alternatives other than working for government entities (though public defense attorneys are worse off in that they are not government employees and don’t have a union) I’ve also pointed out that the only way teachers get more funding is when schools close. The only way public defense attorneys may get the attention of policy makers and the public is to do something similar.

What would a day without public defense attorneys look like?

What impacts?

Catch and Release: The Constitution requires persons charged with a crime to have legal representation at every crucial stage of the proceedings. The arraignment, or first appearance, is a crucial stage. If someone is arrested they must arraigned within about 24 hours. If there is no attorney available, the Court has two options. Dismiss the charges and release the defendant, or reset the arraignment to a later date. However, if they delay the arraignment, the defendant has to be released. It doesn’t matter how serious the charge is. Murder, rape, shoplifting. The court simply has no choice.

In other words, the Courts would have to release every person that was arrested on a day with no public defense attorneys.

Trials, and hearings. Again, these are crucial steps in the proceedings and the court couldn’t conduct hearings or trials. You couldn’t hold probation violation hearings so probationers may face no consequences. If a trial was to begin and the defense attorney didn’t show up, the jury, alleged victims, all the witnesses for both sides would all be sent home. And if the defendant was being held in custody they’d likely be released based on speedy trial rights – or just because they were then unrepresented.

Has DHS come and removed your children? You have a right to a hearing within 24 hours to contest the removal. Parents – and even the child, are entitled to appointed lawyers. However, if there aren’t any, they may not have to return your kids or dismiss the case. So good luck contesting the case against an experienced Assistant Attorney General who will be representing DHS in their efforts to possibly terminate your parental rights. And your child, who may be a few years old, doesn’t have their own legal advocate either.

If you or your son, daughter or spouse had some officers at your door asking to search, or you were arrested on a DUII and asked to blow and wanted to talk to an attorney, too bad. You’re probably on your own.

But how can those of us who care about adequate and fairly compensated public defense make funding a priority?

A Day without A Public Defense Attorney may make a good sequel and afford an educational opportunity to our Legislators and the public.

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