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A $21.5 million cut in funding for the defense counsel that Oregon is constitutionally required to provide to indigent criminal defendants has plunged the state’s justice system into turmoil. “Every day, criminals are going unpunished and are being released from custody [due to a lack of representation],” said Portland, Ore., Chief Deputy District Attorney Norman Frink. Relief from the draconian cuts imposed by the state Legislature may come as early as the next fiscal year, which starts on July 1. Or it may not come at all. On March 6, the Oregon Supreme Court rejected an American Civil Liberties Union (ACLU) petition pleading with the justices to order the state Legislature to restore funding so that the courts can discharge their core responsibilities. State ex rel. Metropolitan Public Defenders Inc. v. Courtney, No. S51064. Because of the lack of funds, Oregon Chief Justice Wallace Carson on Feb. 28 ordered the state courts not to hear any nonviolent misdemeanor cases and certain nonviolent felony cases where the defendants are indigent and cannot afford counsel. The new rules went into effect on March 1. The state court system had already trimmed its workweek to just four days, leaving all of its courtrooms dark on Fridays. As a result, Frink said, thousands of defendants charged with low-level felonies and misdemeanors are being put back on the street because there are no attorneys available to represent them at arraignments or trials or at any step in between. The petition, filed by Portland lawyers Don H. Marmaduke and Elden M. Rosenthal, on behalf of Portland’s Metropolitan Public Defenders, asserted that the Legislature’s action violated the doctrine of separation of powers and upset the state’s system of checks and balances by making the judiciary subservient to the Legislature. “They’re strangling the ability of the courts to perform their constitutionally required functions,” Marmaduke said. Constitutionally bound to defend the legislative branch, the state attorney general’s office opposed the petition. In her brief, Assistant Attorney General Janet Metcalf argued that the problem was short-term in nature and that the high court should not second-guess the Legislature’s budgetary decisions when state budgetary times are tight. The high court agreed, ruling that the extraordinary relief requested was not yet required. But Metcalf concedes that if the problem is not solved by July 1, the start of the state’s next fiscal biennium, the situation could get much, much worse. Multnomah County, which includes Portland, is the state’s most populous county. Jim Hennings, the executive director of that city’s Metropolitan Public Defenders, said that 58 percent of the criminal defendants in Portland are indigent. While counsel are being provided to those charged with violent crimes, those charged with nonviolent offenses are being asked to return in four months, presumably when funding has been restored and they can have counsel present at their arraignments. “The general public doesn’t get it,” he said. “Thirty days from now, there’s going to be a firestorm when people can’t walk in downtown Portland.” The situation has forged an unlikely alliance between Hennings’ office and that of the Multnomah County district attorney. Frink said that his office has filed four subsequent petitions with Oregon’s high court, insisting that it order the immediate appointment of counsel for the first four indigent defendants who appeared on one judge’s March 3 nonviolent felony calendar so that they can be properly arraigned. Like the ACLU, Frink contends that the state is failing to discharge its constitutional duty by putting off prosecutions. He said he cannot understand how the state can have an indigent defense crisis. “Every day, the state of Oregon is spending money. Every day, they’re spending money on functions that are discretionary,” Frink said. He said he doesn’t believe the chief judge had the constitutional authority to suspend court action on certain offenses. Hennings asserted that Carson lacked the authority to suspend prosecution of certain offenses. His office will soon file another writ, challenging the judge’s right to do so. Metcalf said that her office has not yet responded to the Multnomah district attorney’s petitions. She said, however, that she is not convinced that what amounts to a delay, not a refusal, to appoint indigent counsel amounts to a constitutional problem.

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