Oregon’s top prosecutors say increasing the caseloads of public defenders, raising the threshold for criminal defendants to qualify for a public defender and just hiring more lawyers would significantly reduce the number of people facing prosecution without a court-appointed attorney.

The blunt message from the Oregon District Attorneys Association comes on the heels of a major federal court ruling that ordered Washington County Sheriff Pat Garrett to release people from the county jail 10 days after their first court appearance if they do not have a lawyer.

Umatilla County District Attorney Dan Primus, president of the DAs association, said the state’s criminal justice system should consider the ruling’s sweeping implications and questioned how leaders are using the Legislature’s recent infusion of $100 million into public defense.

“We cannot stand by as defendants facing charges involving domestic violence, sexual assault, child abuse and prolific property crime are released into our communities,” Primus wrote in a letter Thursday to Gov. Tina Kotek’s public safety adviser and leaders of the Oregon House and Senate.

He told them Jackson County plans to apply U.S. District Judge Michael McShane’s ruling to its cases and other counties are likely to follow.

McShane’s ruling became final Thursday, triggering the start of the 10-day clock. Unrepresented defendants may be released beginning late next week.

A Kotek spokesperson did not respond to a request for comment Friday.

Shaun McCrea, executive director of the Oregon Criminal Defense Lawyers Association, said in an email that the multiple factors led to the breakdown of public defense in Oregon, including a “chronic lack of investment in public defense,” high caseloads and prosecutors’ charging practices.

“No one thing caused the access to justice crisis and no one thing is going to get us out,” she said.

Per Ramfjord, the longtime chair of the Public Defense Services Commission, said in an email to The Oregonian/OregonLive that the crisis of unrepresented defendants is the commission’s “top priority.”

The commission, which oversees the public defense system, will discuss “potential solutions” at its Aug. 24 meeting, he said. The agency’s 2023-2025 budget is about $578 million.

Public defense lawyers have advocated for higher pay and better working conditions, arguing that attorneys are burning out and are at risk of leaving the profession.

The Oregon Office of Public Defense Services, which runs the state’s embattled system and answers to the appointed commission, this month outlined how it plans to use the money that legislators set aside to dig it out of the public defense hole, including providing financial incentives to retain lawyers and hiring more of them.

Statewide, the number of defendants without lawyers has skyrocketed in the past year to 2,644, with a total of 133 held in jail, according to the Oregon Judicial Department, which maintains a daily tally of people in and out of custody without lawyers. In August 2022, a total of 789 people faced charges without an attorney.

McShane’s ruling focused only on defendants who are in jail without lawyers.

Thirty unrepresented defendants sit in the Douglas County jail, more than any county in Oregon. Jackson County ranks second with 28.

Washington County held 35 people in jail without lawyers on Monday, the day McShane handed down his ruling from the bench at the U.S. District Courthouse in Eugene.

Sen. Floyd Prozanski, D-Eugene, questioned why the three counties are outliers when it comes to jailing people without lawyers.

“That means there are 33 other counties that don’t seem to have the same issue that those three have,” he said. “So I don’t know what the practices are … but hopefully they’re also looking internally.”

As of Friday, the number of people without lawyers in the Washington County Jail had dropped to five.

Cesar A. Solis, 27, is one of them. Senior Deputy District Attorney Andrew Freeman asked the court to order the Oregon Office of Public Defense Services to find Solis a lawyer “by all means necessary, including but not limited to raising the rate of attorney compensation” or ordering the state public defense agency to handle the case.

Oregon’s public defense crisis has dragged on for more than a year, the result of what public defense leaders say is a chronic shortage of lawyers that stems from long-standing demands for better pay and lower caseloads. High rates of turnover and burnout within the ranks of public defenders exacerbated the crisis.

Oregon has a patchwork public defense system. The Office of Public Defense Services pays attorneys to represent indigent defendants and those services are provided by nonprofit law firms, like Metropolitan Public Defender in Portland and Hillsboro, and independent lawyers who take on public defense cases.

The Legislature this year passed a pair of bills that devoted about $100 million toward financial incentives for existing public defenders to stay. Increasing compensation has been a critical piece of solving the public defender shortage because many public defenders, especially in the Portland area, make tens of thousands of dollars less than prosecutors.

But even that funding has been the source of misunderstanding.

A state public defense official appears to have contributed to the confusion over how the agency plans to use the money, telling the Clackamas County presiding judge, district attorney and members of the defense bar in emails this month that it can’t go toward hiring new lawyers.

In the emails obtained by The Oregonian/OregonLive, David A. Hayes, deputy criminal trial counsel for the Office of Public Defense Services, told Clackamas County officials on Aug. 10 that the Legislature “gave us zero additional money for increasing” the number of full-time public defense lawyers.

The district attorneys’ letter to Kotek and state leaders echoed that assertion. Primus wrote that public defense officials told prosecutors, judges and defense lawyers that “none of the newly allocated $100 million in funding may be used to hire additional defense attorneys.”

On Friday, in response to questions from The Oregonian/OregonLive, the Office of Public Defense Services said Hayes was wrong.

Lisa Taylor, government relations manager for the agency, said Hayes isn’t a budget expert and “incorrectly discussed the budget” with Clackamas County officials.

The money will be used to pay for a range of expenses agency officials hope will stem the crisis, Taylor said in an email, including a nearly 9% increase for public defense contracts and funding for 36 new lawyers statewide.

For the first time, the state also will hire 10 lawyers to do trial-level work as state employees. It also will increase the pot of money available for hourly attorneys. The funding will be used on one-time retention bonuses for contracted attorneys, as well.

Internal emails among top public defense officials from last year show an agency roiled by internal crisis, due in part to conflict over leadership. The former Public Defense Services executive director, Stephen Singer, was fired last year in an acrimonious and unusually public episode.

In June, the state agreed to pay Singer $380,000 to settle his whistleblower lawsuit stemming from his ouster.

The emails, obtained this week by the news organization through a public records request, date to that tumultuous period and show at least one high-level state public defense official questioning whether higher pay will solve the crisis.

In an email last Sept. 9, Deputy Director Brian DeForest told Ramfjord, the public defense commission leader, and the commission vice chair that the solution “does require some profound changes that the existing ‘cast of characters’ will adamantly resist.”

He did not elaborate on what changes he saw as necessary but said his “impression” was that the public defense “industry desires only growth in compensation with limited or no growth in accountability.”

Primus, the district attorneys association president, said in the letter to state officials that prosecutors “strongly support” hiring more defense lawyers “and hope that the new resources you have allocated will be spent doing exactly that.”

“We have many examples in recent months where our local defense attorneys have been told ‘NO’ by (the Office of Public Defense Services) when they have asked to bring attorneys on board,” Primus wrote. “This is the opposite direction of where we should be headed.”

Primus said the district attorneys’ “constructive ideas” include raising the limits on the numbers of cases public defense lawyers may take each year. He suggested that increasing their caseloads is not at odds with lawyers’ ethical obligations and called the current standards “arbitrary.”

The state public defense agency created guidelines for the number of misdemeanors, felonies and murders that lawyers can handle. Under those guidelines, for instance, a public defender can take a maximum of 165 lower-level felonies a year; those cases in particular are a prime driver of the crisis, public defense officials say.

The more serious the case, the fewer a lawyer can take, according to the guidelines developed after a 2018 review of Oregon’s system by the Sixth Amendment Center, which concluded that public defenders here have high caseloads and work in a system with inadequate funding. The national organization’s mission is ensuring that no one accused of crime goes to jail without having the aid of an effective lawyer.

In Washington County, public defenders represent about 80% of defendants in misdemeanor and felony cases, according to the county. An analysis last year by the Oregon Judicial Department found about 82% of defendants in felony cases filed in 2021 statewide were represented by public defenders.

Primus also said the state needs to reexamine who qualifies for a public defender. He said the state needs to adopt “a clear statewide standard.”

“We frequently see examples of individuals in courtrooms throughout the state who are deemed eligible for a court appointed attorney, but their eligibility appears to defy common sense,” he wrote.

According to the state courts website, a person is eligible for a public defender if they are “unable to retain adequate counsel without substantial hardship in providing basic economic necessities to the person or the person’s dependent family.” Defendants are required to submit statements detailing their assets, debts and income among other financial information.

Primus cited a case earlier this year involving John M. Mann, 58, the state’s former top administrative law judge who pleaded guilty in Washington County Circuit Court to possessing images of children being sexually abused.

In that case, Mann’s lawyer declined to say why Mann, whose salary was $167,000 the year before he was removed from his post, qualified for a defense lawyer at the public’s expense.