Federal appeals court blocks judge's seven day jail release injunction

OREGON – On Wednesday, the 9th U.S. Circuit Court of Appeals issued a stay on District Court Judge McShane’s order requiring all Oregon counties to release criminal defendants from jail within seven days of their first court appearance if they’re being held without a lawyer assigned to them.

The injunction was originally set to go into effect November 16, then was pushed back to November 23, and now has been temporarily blocked altogether.

Back in August, a federal public defender in Washington County filed a lawsuit against the sheriff’s office on behalf of multiple defendants, who argued that holding them in jail without public defenders available deprives them of their sixth amendment right. This led to McShane’s original 10-day ruling. That 10-day release ruling only applied to Washington County at first, but was later extended to the whole state of Oregon and shortened to seven days.

“It’s frustrating because seven days is a really short period of time,” said Jackson County District Attorney, Beth Heckert. “Of course, anyone who is in custody needs to have a lawyer and we all agree with that. But, my concern is when it becomes a public safety issue and we can’t find lawyers and that’s the problem we have in Jackson County is we have more cases than we have lawyers who can handle them.”

Because of public safety concerns, the Oregon Department of Justice requested that the 9th Circuit Court of Appeals hear this case to determine if it should go forward, which is why the ruling was delayed until November 23. But, as of November 15, it’s officially blocked.

Prior to McShane’s decision, there was no federal time limit on how long defendants could be held in custody without representation. In Oregon, you get a trial within 60 days of being charged, but some people were being held in jail that full 60 days.

“That’s basically two full months people were being held and then they got out and of course, being gone for two months being held in jail, you job’s not there, you rent is not paid, all those kinds of things,” said Clint O’Born with Southern Oregon Public Defenders. “From a public safety perspective, there’s always this concern of ‘seven days isn’t long enough.’ However, when you consider that we are a nation of laws, we have a constitution for a reason. And so, for public safety purposes to say ‘we need to suspend the constitution’ would be a gross deviation of the norm of what our society is built on.”

With all of Oregon’s law schools being in the north, another main concern with this decision, especially here in Southern Oregon, is the fact that there is a public defender shortage. So how are attorneys going to be able respond appropriately if this new ruling passes?

“We’ll take cases at the beginning of the month, we keep space open for the more serious, violent charges that might be lodged,” O’born explained. “If someone charged with murder were lodged, they would get an attorney, that’s just how it would work. We also set aside for more serious crimes, sex crimes, robberies, armed robberies those kinds of things. We have numbers set aside where we appoint those in the middle of the month, at the end of the month to make sure we have the space available to take those when they come up.”

While public defenders do have procedures like this in place, prosecutors are still worried because the possibility that violent offenders get released still exists.

“We honestly could have a very serious offender, who if we can’t get them a lawyer within seven days of their initial appearance is going to get released.” Heckert said. “We have serious cases, you know, child abuse cases, we can have a homicide, a murder, a manslaughter, domestic violence cases. So, we have a lot of different types of cases where the victim does feel a little more secure knowing that the person is in custody.”