Oregon Supreme Court provides relief to unrepresented defendants

Pleading the Sixth: The Oregon Supreme Court ruled that the state violates a defendant’s right to counsel under the state constitution when it fails to appoint counsel for more than 60 consecutive days post-arraignment in a misdemeanor and 90 consecutive days in a felony. Emphasizing that the right to counsel is a “core component of our criminal justice system” that “serves as a check on governmental powers,” the ruling offers relief for thousands of indigent defendants across the state who have faced criminal charges without lawyers.

Last week, the Oregon Supreme Court ruled in State v. Roberts that trial courts must dismiss – without prejudice – criminal cases against indigent defendants when the state fails to appoint counsel for more than 60 consecutive days post-arraignment in a misdemeanor and 90 consecutive days in a felony. Oregon delivers public defense services through the Oregon Public Defense Commission and has, for years, struggled to fulfill its constitutional obligations.

Background of the case

The ruling arises out of a criminal case in Multnomah County. In August 2021, Mr. Roberts was arraigned on charges of unauthorized use of a vehicle and possession of a stolen vehicle. Although eligible for appointed counsel, he went more than a year without an attorney and his case was dismissed without prejudice in October 2022.

The state reindicted Mr. Roberts in April 2024 but still could not find an attorney for him. After the trial court denied his December 2024 motion to dismiss for violation of his right to counsel, Mr. Roberts petitioned the Oregon Supreme Court for a writ of mandamus. Though Mr. Roberts’ underlying criminal case was eventually dismissed, the court chose to decide the issue because it was “capable of repetition” and “likely to evade judicial review.”

Court’s right to counsel analysis

The issue before the Court was whether the state’s failure to appoint counsel for an extended period post-arraignment violated the right to counsel. Emphasizing that the right to counsel is a “core component of our criminal justice system” that “serves as a check on governmental powers,” the Court held that it did.

Though criminal prosecutions carry significant consequences for those who are convicted, the Court explained, “other consequences flow simply from being charged.” Defendants are subject to restraints on their liberty and suffer repercussions on their personal and professional lives simply from having a pending criminal case and “counsel has a role to play as soon as a defendant is charged with a crime.” For example, counsel can challenge pretrial detention or release conditions, investigate the alleged crimes, and take steps to resolve the prosecution.

“In sum, defense counsel’s role is not limited to being present at events when the state is confronting the defendant. It is not merely reactive; it is proactive. There are many actions that defense counsel can take to protect a defendant’s rights in the context of a criminal prosecution, including actions that counsel can (and may have to) take early in a prosecution. But in cases like this one, defendants are left without anyone to take those actions.”

Without counsel, “the defendant is subjected to the state’s prosecutorial powers and all the accompanying consequences but left without the means to effectively respond,” the Court concluded. “Allowing such a situation to persist for an extended period” violates the right to counsel under the Oregon Constitution.

Remedy for unrepresented defendants in Oregon

The Oregon Supreme Court determined that the appropriate remedy for this constitutional violation was the dismissal without prejudice of Mr. Roberts’ criminal case. Because similarly situated defendants across the state should be treated consistently, the Court held that a bright-line rule was necessary: unless the defendant has failed to appear in court, dismissal without prejudice is required when the state fails to provide counsel to an eligible defendant for more than 60 consecutive days post-arraignment in a misdemeanor and 90 consecutive days in a felony. The Court explained that dismissal without prejudice struck the right balance by relieving the defendant from pretrial harms while allowing the state to refile the charges later.

Similar rulings in Maine (Robbins v. Maine) and Massachusetts (Lavallee v. Justices in Hampden Supreme Court) help ensure poor people do not shoulder the burden of the state’s inability to provide counsel. This ruling provides much needed relief to unrepresented defendants in Oregon while the state continues working on systemic reforms to fulfill its constitutional right to counsel obligations.