Public defender scarcity is resulting in a whole bunch of felony circumstances being dismissed

The Oregon Supreme Court on Feb. 5, 2026, issued a ruling that will have a wide impact. More than 1,400 criminal cases had to be dismissed, the justices ruled, due to lack of adequate counsel available for defendants.

Like other states, Oregon must provide defendants with legal representation if they cannot afford attorneys on their own. But Oregon has less than one-third of the attorneys it needs to provide adequate defense for indigents, or people who can’t afford counsel on their own.

Shortages of this scope are common around the country. Pennsylvania faces a similar shortage of about 30% of the public defenders it needs, with insufficient numbers of attorneys in nearly every county. New Mexico needs 67% more attorneys to provide effective counsel. Kansas needs 277 more public defenders, or roughly triple its current number.

As public policy researchers who study legal defense issues, we believe it’s clear that such shortages have repercussions throughout the criminal justice system.

Without enough lawyers providing indigent defense, defendants sit in jail longer, plead without guidance and risk wrongful convictions. Prosecutors face delays in clearing their cases. Court dockets slow, costs rise and public trust declines.

In other words, indigent defense shortages harm not only defendants but the justice system as a whole.

Rights to an attorney

The Sixth Amendment guarantees individuals facing criminal charges the right to defense counsel, at government expense if required. This right was clarified by a landmark Supreme Court case in 1963, Gideon v. Wainwright. The court ruled that states are required to provide attorneys to defendants who cannot afford an attorney.

About 80% to 90% of state defendants and more than 90% of federal defendants cannot afford a lawyer. The exact rate varies by state, year and type of charge, but it generally falls well above 50% of all criminal cases.

Fulfilling the promise made in Gideon often falls to public defenders and private lawyers appointed by courts. Sixty-three years after the decision, the pool of lawyers willing to fulfill this promise is rapidly shrinking, aging and is overburdened, with lawyers sometimes working without pay.

Texas reflects this national problem. There are too few lawyers handling too many cases, putting the whole criminal justice system at risk. In a research report for the Texas Indigent Defense Commission, our team at Texas A&M University found that the state lost 1,345 attorneys who had been handling indigent defense cases between 2014 and 2023, or about one-fourth of all such attorneys. That decline happened even as the total number of lawyers in Texas grew by more than 25,000.

The problem is worse in rural areas, where judges cannot find enough attorneys to appoint, slowing court operations. In Texas, 27% of attorneys in rural counties are already overburdened and exceeding recommended caseload guidelines.

“I understand the irony of a prosecutor advocating for money for a public defender office, but at the end of the day it would help the county carry out its constitutional obligation,” Val Verde County prosecutor David Martinez told the Texas Tribune. “It would save the county hundreds of thousands of dollars in the long run.”

Fewer attorneys available

This problem is not new. A 2004 report from the American Bar Association outlined funding shortages that hampered hiring of defense counsel, leading to inexperienced and sometimes incompetent lawyers handling excessive caseloads.

But the problem has accelerated since the COVID-19 pandemic and its disruption of the labor market.

Our research shows that attorneys who take indigent defense cases often do so out of a strong sense of civic duty and commitment to public service. Attorneys are asked to do far more than just apply the law. They regularly help clients navigate housing, transportation, substance use and mental health needs. Without a strong sense of calling, many attorneys choose other areas of practice instead of public defense.

Some attorneys with a sense of motivation are still unable to join public service. Citing the cost of repaying law school loans, they enter private practice instead.

No simple solutions

The shortage of attorneys willing to take indigent defense cases is a serious policy problem. Solving it requires expanding the pool of attorneys who are available to take these cases – both the attorneys who are practicing today and the attorneys who will enter the profession in the future.

Policymakers have mainly focused on expanding the pool of existing attorneys. The most common tools include increasing appointment fees, offering additional financial incentives and creating or expanding public defender offices.

These approaches can help in the short term, but their effects are limited. Raising fees rarely brings new attorneys into indigent defense; instead, it often lures attorneys from neighboring jurisdictions that already face shortages.

Raising fees for private lawyers also fails to address public defender offices, where attorneys are salaried and often paid less than prosecutors. Loan forgiveness programs can help recruitment and retention; research shows they matter for public service careers, but these programs are uneven across states and uncertain over time.

Financial incentives alone will not solve a workforce problem rooted in supply. A sustainable solution requires expanding the pool of prospective attorneys. We believe it would help for recruitment to begin much earlier, at the high school level, especially in rural areas, and continue through college and law school.

Current efforts tend to focus only on law students who are already committed to legal careers. Partnerships between counties, state agencies, bar associations, universities and community organizations could help build pipelines leading to public defense careers. They might offer, for example, internships and mentoring, or reduce barriers for students who want to serve their communities.

Expanding the pool of attorneys will require years of coordinated investment across states, counties, courts, law schools and the legal profession. Short-term incentives can prop up overburdened systems, but long-term recruitment will be needed to keep courts functioning and fully protect the constitutional right to counsel.