Beau Peterson is a judge on the Clatsop County Circuit Court.

Oregon’s public defender shortage reached crisis stage over the summer.

The lack of attorneys to represent criminal defendants had been flagged as an issue for the past few years, but in August, U.S. District Court Judge Michael McShane drew a line. Calling the situation an “embarrassment,” the federal judge ordered Washington County to release indigent criminal defendants who did not have attorneys appointed to them 10 days after their initial court appearances.

In November, McShane ordered sheriffs across Oregon to release criminal defendants held in jail without attorneys within seven days of their initial court appearances.

The 9th U.S. Circuit Court of Appeals placed a temporary hold on the judge’s order while the state appeals.

In Clatsop County, which uses a consortium of private defense attorneys to represent criminal defendants, the public defender shortage did not play much of a factor at the courthouse until the unexpected departure of a longtime defense attorney in July.

As of mid-November, dozens of criminal defendants did not have attorneys.

The state Legislature approved a $96 million package to help reduce the shortage, but it may take time to produce results.

Judge Beau Peterson, who will take on the role of presiding judge of the Clatsop County Circuit Court in January, said the county has prioritized finding attorneys for defendants in jail.

“Our big hole at the moment is out-of-custody (defendants),” he said. “We have somewhere between 65 to 70 unrepresented folks out of custody.”

Peterson, a former senior deputy district attorney, was appointed to the bench in 2019 by Gov. Kate Brown and elected to a six-year term in 2020.

In an interview, Peterson discussed the public defender crisis and the importance of preserving access to experienced, skilled local defense attorneys in the criminal justice system.

Q: Criminal defendants have a Sixth Amendment right to an attorney. We’ve watched over the past few years as the public defender crisis worsened statewide. How did Oregon get here?

A: I think there’s a number of factors that got us here.

The first was a study that looked at our older system, which was pay per case, and suggested that at least, in theory, there could be bad incentives for the lawyers there.

I want to say, clearly, that none of the lawyers that did it here in Clatsop County that I ever saw would take that incentive. You took the cases, some of them went quick, some of them didn’t, you knew that it balanced out at the end.

But that led to movement in Salem to change the system from a per case to a caseload setup.

That caseload setup started at — there’s different ways of measuring the units, but, a number of units. And then, a couple of years ago, they reworked that from essentially 450 misdemeanor cases per attorney to 300.

And they didn’t have a plan, as far as I can tell, to hire a third more attorneys statewide. And that put a lot of pressure on the system statewide.

Our local system survived a lot of that, until we lost a couple of attorneys recently.

Q: According to the crisis plan prepared by the Circuit Court, the problem became an issue in Clatsop County after the unexpected departure of a longtime defense attorney over the summer. I think everyone understands the workforce challenges in our region, but the system seems fragile if the loss of one attorney could have such an impact.

A: I don’t think you’re wrong about that. At that point, it was not a robust system.

One thing that the crisis plan doesn’t mention (in great detail) … is about six months before that we lost another attorney that it took a while to replace. And, really, we never did replace him at the end of the day.

And then we lost the second attorney. And stacking those two at the same time is really what set the spiral. We were able to cover for the loss of one, not the loss of two. Not the way we needed to, anyway.

Q: Clatsop County has sought to preserve consortium contracts with private defense attorneys rather than moving to public defenders’ offices. Why is that important?

A: So I think there’s a couple of reasons. One, even if the state is able to get these statewide or local PD offices off the ground as state employees — which I think is ultimately the plan out of Salem, at least as I understand the legislation — that will never cover all of the cases because you’re going to have conflicts. You’re going to have co-defendants that can’t be represented by the same office ethically.

And so you’re going to need those consortium attorneys — or hourly attorneys — anyway.

But part of the reason we wanted to preserve it here is we have a number of extremely experienced, very skilled public defenders who don’t want to work for the state. They like having their own office, setting their hours and doing their work when they feel like. If they want to come in on a Sunday, they can. If they want to take off on a Friday afternoon because there’s no court, they can.

And when you get bureaucracy involved, that doesn’t fit well with some of our local attorneys, who we don’t want to lose.

Q: The 9th Circuit has placed a hold on the U.S. District Court judge’s ruling in Oregon that would require sheriffs statewide to release criminal defendants held in jail without attorneys within seven days of their initial court appearances. What would be the impact in our county if that ruling was enforced?

A: At the moment, it would not have an impact on our county.

We have made a decision as the judicial authority — I guess you would say — to preserve what capacity we have first for in-custody defendants. So as far as I’m aware, everyone in custody has been able to be assigned one of our local attorneys relatively quickly. Sometimes it takes a day or two. Sometimes there’s a changeover where someone’s unrepresented for maybe as long as three or four days.

But generally, we’ve been able to get those folks attorneys.

Our big hole at the moment is out-of-custody (defendants). We have somewhere between 65 to 70 unrepresented folks out of custody.

Q: The Legislature set aside a significant amount of money to respond to the public defender crisis statewide. Is this something, in your mind, that is solvable within weeks, months, years?

A: I think, long term, it’s years.

We could be in a better spot locally if we could hire another attorney. But because we are a consortium model, there is no public defenders’ office set up out here, they can’t just hire somebody. So it’s got to be through the consortium at the moment.

And they’re not promising those consortium contracts to last longer than another year or two. It makes recruiting very difficult. And then you couple that with the rest of the workforce issues that everyone has — finding places to stay for people — it’s been very difficult to find someone to come in.