On May 31, 2024, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s order granting a class-­action habeas corpus petition and corresponding injunction, directing the state of Oregon to provide attorneys for indigent pretrial detainees within seven days of their initial appearance on criminal charges. Otherwise, they must be released from custody.

In its landmark ruling in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court of the U.S. (SCOTUS) held that the Sixth and Fourteenth Amendments to the federal Constitution require states to appoint attorneys to represent indigent defendants facing criminal charges. As the high Court explained, “lawyers in criminal courts are necessities, not luxuries.” Yet over six decades later, this promised right continues to elude the grasp of indigent detainees

Oregon is suffering a public defense crisis that, according to the Ninth Circuit, is entirely “of its own creation.” The result is poignantly described in the Court’s opening paragraph of its recent ruling: “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.” As the Court lamented, “this Kafkaesque scene” is not from “a 1970s State Department Report on some autocratic regime in the Soviet Bloc” but “the State of Oregon in 2024.”

How did Oregon get itself into what the Ninth Circuit called a “Sixth Amendment nightmare”? First, like many other states, Oregon does not employ public defenders but contracts the service from private attorneys. Until January 2024, the Public Defense Services Commission (PDSC) oversaw these contracts. But in 2021 and 2022, PDSC altered its rules governing compensation and caseloads, rendering public defense work financially untenable for many private attorneys who stopped taking cases from PDSC. Yet Oregon did not stop arresting and jailing people suspected of committing crimes. By September 2023, the state had nearly 3,000 people charged with crimes whose cases could not proceed for lack of representation. Nearly 100 of these unrepresented defendants remained in jails throughout the state, some as long as a year.

Attorneys from the Federal Public Defender’s Office in Portland prepared and filed a joint habeas corpus petition on behalf of 10 indigent defendants without lawyers who were confined in the Washington County Jail. The federal court for the District of Oregon certified a “custody class” and granted a preliminary injunction, ordering Oregon to provide the class lawyers within seven days of their initial appearance or release them on conditions set by a state court judge. The injunction excluded those charged with murder and aggravated murder, as well as those who fired their public defender or were released on conditions but then had release revoked. Oregon timely appealed, and the Ninth Circuit stayed the injunction for review.

Ninth Circuit Ruling Refutes Dissent

The Court began by noting that class actions may be brought “pursuant to habeas corpus,” quoting Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010); so the district court did not err by certifying a statewide class in this case. The Court also rejected the dissent’s suggestion, made without any legal citation, that it lacked jurisdiction to consider the case because Sixth Amendment violations do not merit release from custody on habeas corpus. Federal courts may address claims in a habeas case if they fall within the “core of habeas corpus,” the Court said, citing Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016). Pointing all the way back to the SCOTUS decision in Gideon, itself a habeas case, the Court said that claims challenging denial of the right to appointed counsel fall within this “core.” After all, the state of Florida released over 4,000 prisoners following the SCOTUS decision in Gideon, so clearly this type of Sixth Amendment violation merits release from custody.

The Court also refused to abstain under the doctrine of Younger v. Harris, 401 U.S. 37 (1971), which requires federal courts to refrain from hearing a case if relief might impact state court criminal proceedings. Abstention is unwarranted when “extraordinary circumstances” demonstrate the risk of “irreparable injury,” the Court noted, as held in Kugler v. Helfant, 421 U.S. 117 (1975). Here, the Court said that “the unthinkable situation for Oregon’s defendants—those who are incarcerated, awaiting trial, and without counsel in direct violation of Gideon’s watershed command—is an extraordinary circumstance that requires federal action.”

Last, the Ninth Circuit affirmed the preliminary injunction. The district court had properly determined that the custody class was likely to succeed on the merits of its claim because well-­settled Sixth Amendment jurisprudence mandates that they are entitled to the assistance of counsel to prepare for criminal cases. Oregon’s failure to timely appoint counsel unquestionably undermined this guarantee, the Court said. The dissent contended that this entered “uncharted constitutional territory.” But the majority said it was “Oregon’s uncharted refusal to adequately pay lawyers, not some new-­fangled right, that forced the district court to make a tough call.”

Moreover, Oregon law requires bail hearings, which are adversarial in nature because prosecutors typically appear and oppose bail. So the district court did not err in deciding that Oregon’s failure to appoint counsel to assist custody class defendants in preparing for bail hearings likely violates the Sixth Amendment’s requirement of counsel at all “critical” stages of a case.

As to the remaining factors for a preliminary injunction, the Court said that deprivation of constitutional rights “unquestionably constitutes irreparable injury,” citing Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017). The balance of equities was also achieved “because providing counsel will guarantee efficiency, make criminal proceedings less burdensome on all involved, and will prevent cases from being needlessly delayed, without raising administrative costs.” The final factor—that the public interest be served—was met because “all citizens have a stake in upholding the Constitution,” the Court said, quoting Hernandez.

Oregon contended that the injunction created a public safety risk. But referencing the SCOTUS opinion in Brown v. Plata, 563 U.S. 493 (2011), which enjoined release of thousands of convicted prisoners from overcrowded California prisons, the Ninth Circuit concluded that releasing unrepresented pretrial detainees, who are presumed innocent, did not pose an undue public safety risk; these defendants would be released with conditions, and failing to issue the injunction would only perpetuate the constitutional violations.

The dissent’s “fear-­mongering parade of horribles it claims will result” from the injunction was simply not supported by the record, the Court continued. Given the extensive release conditions available to state court judges, the injunction was not the “judicial jailbreak” that the dissent alleged, but rather a reasonable response to “an unprecedented situation where, in direct violation of Gideon, unrepresented and indigent defendants wait in cells for months, helpless and powerless, while favorable evidence goes cold or disappears altogether.”

Accordingly, the district court’s order was affirmed, certifying a class and imposing a preliminary injunction requiring Oregon to appoint counsel to represent defendants in pretrial detention within seven days of their initial appearance or to release them from custody on conditions set by a state court judge. See: Betschart v. Oregon, 103 F.4th 607 (9th Cir. 2024).  

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