Grave constitutional violations require extraordinary court interventions. 

For years continuing to today, Oregon has allowed a constitutional crisis of its own making: the state has repeatedly failed to provide attorneys to thousands of Oregonians charged with a crime who cannot afford an attorney but have a constitutional right to one.

In 2023, U.S. District Court Judge Michael McShane ordered the release of Oregonians arrested for crimes if they weren’t provided an attorney by the state within seven days of appearing in court, subject to reasonable court-imposed conditions for release. 

On May 31, 2024 — in an opinion authored by Circuit Judge John Owens, writing for the Ninth Circuit Court of Appeals majority affirmed Judge McShane’s order.

Judge McShane and Judge Owens provided pointed observations about the State of Oregon’s failures:

Judge McShane: “It’s an embarrassment to the state… It’s a complete tragedy and nobody seems to have an answer. Literally we suspended the Constitution when it comes to this group.”

Judge Owens: “The state arrests a citizen and incarcerates him pending trial. Days, weeks, and months pass without any legal representation. He seeks relief from the authorities—surely a lawyer should help him? In response, he gets a shoulder shrug, a promise that they are 'working on it,' and nothing more." He 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. 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.”

Elected leaders at all levels of government have responsibilities related to the criminal system, and they all bear responsibility for the continuing constitutional crisis of unrepresented Oregonians in our state:

  • Mayors and city council members oversee police departments and city-level criminal laws. 
  • County commissioners oversee sheriffs and jails. 
  • District attorneys oversee prosecutorial functions in counties across the state. 
  • State legislators, the attorney general, and governor oversee the state’s criminal laws and the functioning of Oregon’s courts, prisons, and public defense agency.

These elected officials are currently part of the problem, but they can also be part of the solution.

  • First, lawmakers and district attorneys must prioritize criminal system resources for serious crimes that directly impact safety, instead of low-level offenses such as drug addiction and unsheltered homelessness that clog and overburden the system. District attorneys can do this by using their discretion to focus charging decisions on the cases that truly implicate public safety, avoiding punishing people for for things outside of their control like a lack of housing and drug addiction.
  • Second, the state must continue investing in resources and incentives to increase the availability of public defense lawyers and staff in Oregon, including student loan forgiveness programs, pay parity with jobs in district attorneys’ offices, and workforce training programs.
  • Third, Oregon must address workplace toxicity, discrimination, and harassment in its criminal legal system, including such conduct by the courts, district attorney offices, and the state’s public defense agency. For far too long, public defenders — especially public defenders who are women and people of color — have been mistreated and retaliated against. This has resulted in high levels of burn out and public defenders leaving their jobs. It is time for the State to address this with the urgency that has long been necessary.

Read more about the decision here

Date filed

January 5, 2024


United States Court of Appeals for the Ninth Circuit


Circuit Court Judge John Owens