To organizers and legal experts who work on sentencing issues in Oregon, the ODAA’s “colorblind” reading of Measure 11 displays a telling ignorance of how the state’s racist past—from Oregon’s founding, predicated on Black exclusion, to constitutional amendments and laws borne of xenophobia or enacted during a tough-on-crime spree—has shaped its criminal legal institutions today. A recent study by the Oregon Criminal Justice Commission found that Black Oregonians are far more likely to be indicted and incarcerated over offenses that fall within the Measure 11 system than white Oregonians; older studies have found similar results.

The ODAA’s stance on Measure 11 is consistent, though, with the association’s serial opposition to reform in recent years, which has become more conspicuous as political pressures around prisons and policing shift. “ODAA has a track record in Salem of preserving the status quo,” said Shaun McCrea, the executive director of the Oregon Criminal Defense Lawyers Association. 

This brand of tough-on-crime lobbying is now at a crossroads. Changes in public opinion have caught up with DA elections, and two new DAs—Mike Schmidt in Multnomah County, which includes Portland, and Matthew Ellis in Wasco County—were elected in 2020 on reform platforms. This year, they joined forces with Deschutes County DA John Hummel to break with the ODAA’s position on Measure 11. 

In February, the three prosecutors released a letter in support of House Bill 2002, one of the bills that would considerably roll back Measure 11. The letter ties the legislation to demands for racial justice and disputes the assertion that Measure 11 reduced crime, urging lawmakers to approach the ODAA’s memorandum “with caution.”

“I don’t know how they can debate or deny that [Measure 11] had a disparate impact on communities of color,” Schmidt told The Appeal: Political Report. “It’s just the facts.” 

The faction could test the staying-power of prosecutorial associations, which are under fire throughout the country for their carceral approach. And it calls into question how the ODAA will justify its public stances on criminal justice issues when it can no longer speak for all 36 elected DAs in Oregon. The debate over Measure 11 may be a bellwether for these shifts. 

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In 2018, the ODAA released a report titled “The Oregon Criminal Justice System: A Continuing Success Story,” which concludes, “The current success of Oregon’s Criminal Justice System is unmatched nationally and represents the most successful state policy in decades. It deserves to be protected and nurtured.”

The report doesn’t mention that Oregon is one of six states in the country whose incarceration numbers are still increasing, focusing instead on Oregon’s relatively low rates of incarceration compared to other states. And this is not even the most striking elision. Race and racial bias in the criminal legal system are not mentioned once in the report.

The ODAA’s notion that Oregon’s criminal legal system represents “a model for the rest of the country” may not jibe with the experience of many BIPOC Oregonians, who are arrested, sentenced, incarcerated, and assaulted by police at disproportionate rates. “That most of the DAs in Oregon are still denying that race is an issue in our criminal legal system really just highlights how much they are fighting to reinforce white supremacy in Oregon, even after the year of uprisings that we just had around race and policing,” Madeline Carroll told the Political Report.  

Carroll organizes with Oregon DA for the People, which formed in 2017 to educate the public about DA power and hold elected prosecutors accountable. Oregon DAs have long enjoyed minimal scrutiny. “Since so many DAs run unopposed, they don’t really need to run campaigns,” Carroll said, which allows them to skirt accountability. 

An Oregon tradition of DAs effectively anointing their chosen successor with the complicity of governors, as the Political Report documented last year, has meant that many DAs first land their job without facing voters. Ellis, Hummel, and Schmidt all faced voters before entering office.

Aliza Kaplan, director of the Criminal Justice Reform Clinic at Lewis & Clark Law School, said that Measure 11 reinforced this  status of Oregon DAs as unchallenged arbiters of the criminal legal system because it tied the hands of the other legal actors during the sentencing process. “Measure 11 gives full power to the prosecutors and takes all the power away from judges to use discretion,” she explained, adding that state DAs “think they know what is best for public safety, for every single situation and person.”

To Kaplan, this explains the ODAA’s efforts to preserve Measure 11. “They want to maintain their power,” she told the Political Report.

The ODAA did not respond to a request for comment for this article. Elsewhere, it makes the case that Measure 11 is crucial to public safety, and that it reflects the will of the voters: Oregonians initially voted for Measure 11 in 1994 and upheld it in 2000. 

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This legislative session is not the first time lawmakers have considered curbing mandatory minimums, and it is not the first time the ODAA has stepped up in opposition. “ODAA has a long history of lobbying against modifications to Measure 11, even if proposed changes reflect a better, more modern approach to criminal justice,” McCrea told the Political Report via email. 

In 2019, for instance, the ODAA lobbied against Senate Bill 1008, a wide-reaching reform that exempted minors aged 15 to 17 from Measure 11 sentencing. But despite the association’s opposition, the bill ultimately passed, in a watershed moment for criminal justice reform in the state.

Bobbin Singh, founding executive director of Oregon Justice Resource Center, said that his organization and the ODAA were both at the table as SB 1008was crafted, and the association never offered constructive feedback during the planning process. Schmidt, Portland’s DA, confirmed that the ODAA “didn’t say anything while [SB 1008] was in the workgroup,” though he added that he was not intimately involved in the bill’s creation.

“It was only once we got into the legislative session that we began to see them push back in ways that were fairly insidious,” Singh said. “They were misleading the public with the reports they were putting out about the data, and how it was impacting youth.” Singh was particularly appalled by the ODAA’s publication of identifying data of people who had committed crimes as minors, as well as personal information about the victims of those crimes. And at one point, there was an uproar when a DOJ employee used her agency email account to send an anti-reform mailer on behalf of the association.

When SB 1008 passed, Singh said, it was the first “real transformative reform” advocates were able to win despite the ODAA’s opposition: “I think that they are making themselves less and less relevant because of their approach.”

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Even when the ODAA has supported certain reforms, advocates believe they have done so as a way to gain leverage on other issues. Such was the case with Oregon’s non-unanimous jury law.

Until 2018, Oregon and Louisiana were the only two states in the nation where a defendant could be convicted by a non-unanimous jury for any crime other than first-degree murder. Kaplan’s scholarship has uncovered the anti-Semitic and anti-immigrant origins of Oregon’s non-unanimous jury rule. “The law was based in xenophobia,” she told the Political Report, “but the truth is, over the years … especially in a state with so few people of color, the law has played out in a discriminatory way towards Black and brown people.”

These days, Terrence Hayes spends his time fighting for Black liberation with groups like Oregon DA for the People, Portland Freedom Fund, and Liberation Literacy. Many years ago, facing criminal charges, he was offered a plea bargain of 70 months in prison. Hayes took the gamble, exercised his right to trial, lost, and ended up spending 13 years behind bars. “Was there not a better answer for a 19-year-old boy than to throw him away and lose his whole twenties?” he asked.

Hayes was convicted despite the fact that only 10 of his 12 jurors were convinced of his guilt. If his trial had happened in nearly any other US state, he would have walked free.

 In 2019, the ODAA announced it would spearhead a referendum that would let voters decide whether to end Oregon’s non-unanimous jury law. “I think they read the writing on the wall,” said Singh. “It was an inevitability that non-unanimous juries were going away because it is such a relic of white supremacy.” The U.S. Supreme Court had just agreed to hear a Louisiana case examining the constitutionality of  non-unanimous juries.

Singh also suspects that the ODAA pushed for the referendum because it came with a caveat. The association wanted to tie the end of non-unanimous juries to a measure that would end a defendant’s right to request a bench trial rather than sit before a jury. To Singh, that maneuvering spoke volumes. The association “looked at it as an opportunity to use it as leverage to compromise,” he said. “At the end of the day, ODAA tries to protect the asymmetric power dynamic that exists.”

The Supreme Court put an end to non-unanimous juries in 2020’s Ramos v. Louisiana, finding that the law was directly connected to “the rise of the Ku Klux Klan and ‘efforts to dilute the influence of racial and ethnic and religious minorities on Oregon juries.’” Kaplan pointed to the cases her clinic is currently reviewing to determine whether the Ramos decision applies retroactively. A disproportionate amount, she said, involve defendants of color. The law is gone now, but its impact on their lives—on Terrence Hayes’s life—lingers.

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Years of grassroots organizing by the communities most affected by the state’s unequal systems, victories like the passage of SB 1008, momentum from the uprisings last summer, and the brutal repression that followed in Portland have all set the stage for a new legislative session in which the ODAA may have to confront its waning influence. 

The presence of three vocal dissenters within the association can’t hurt.

“If nothing else, we are certainly elevating the issue to the community,” Schmidt, the Multnomah DA, told the Political Report. “Before, ODDA was just a bloc; now, we have a vocal minority. We’re talking to legislators. We’re doing interviews. We’re trying to get the word out that we don’t agree.”

Schmidt told the Political Report that while the ODAA’s executive board is responsible for making decisions about the association’s stance on less politically consequential matters, “on issues that they know are the big issues, they’ll ask the membership to vote.” There, it appears that a distinct lack of consensus is still not quite enough to tip the scales in a new direction. During the debate that preceded the association’s public statement on the measure, Schmidt said he voiced his critique of Measure 11 to the group. It didn’t make much difference: “They heard what I said … and then they roundly rejected it.”

Despite the outcome, Schmidt feels that his effort was not without purpose: “I don’t think that my position has made an impact on them. But, you know, I have had side conversations with a few of them, and they have expressed to me that maybe there is some area to move on this. By me being there and having a conversation, maybe there’s some people who are really thinking it through.”

During his campaign, Schmidt said he’d leave the ODAA if elected; thus far, he has remained part of the association. The district attorney feels there’s value to him challenging the ODAA’s stances from within. Some of his constituents agree; some don’t. 

The refusal of DAs Schmidt, Ellis, and Hummel to toe the party line on Measure 11 and other reforms is “definitely creating some complication for the organization,” Kaplan said. “I just hope that his decision to stay makes it so that their organization can have a diversity of opinions and groups, and that he’ll still be able to maintain his important reform measures.”

The decision point may come when DA Schmidt is eventually asked to pay dues that will almost certainly go towards lobbying efforts he opposes. On that point, he wouldn’t commit: “I’m seeing how this session goes, and I think that will tell me a lot about whether I feel comfortable paying those dues.”

Hayes and Carroll both fought for DA Schmidt’s election, but they don’t see the work as over—far from it.

“We’re maintaining kind of a ‘frenemy’ relationship with Mike Schmidt’s office where we support the things that they do that are aligned with our platform, and we continue to hold them accountable for the things that they’re doing—or not doing—that don’t align,” Carroll said. She spoke approvingly of Schmidt’s decision not to press charges against protestors arrested this summer, but criticized his office’s reluctance to suspend cash bail and free people from jail during a COVID-19 outbreak.

“Until the DA’s office holds police accountable for murdering Black men and women—as long as they’re unwilling to uproot a historically and fundamentally racist system—I’m not impressed,” said Hayes. “The process just started. We’ll see what they do.”

The post Oregon’s Tough-on-Crime D.A. Association Faces a Reckoning appeared first on Bolts.

It may be the widest election win yet for progressives in a contested prosecutor’s race. Mike Schmidt, who ran on a criminal justice reform platform, was elected district attorney on Tuesday in Multnomah County, which is home to Portland, some of its suburbs, and more than 800,000 residents. He had more than 75 percent of the vote in results available on Wednesday. 

“His election is evidence of the grassroots efforts that educated the community about the powers of the DA and the harms inflicted by the criminal legal system,” Madeline Carroll, an organizer with Oregon DA for the People, a local advocacy group, told me in an email. “Hundreds of community members contributed to this milestone.”

In an interview on Wednesday, Schmidt too credited grassroots organizers. “Multnomah County has just embraced the most progressive DA platform that this state has ever seen,” he said. “It’s an incredible feeling of validation for the things I’ve been working on, and I think of validation for so many people in the community who’ve worked on these issues and said those things for longer than I have.”

He pointed to his 50 percentage point margin as evidence of the “breadth” of the coalition around reform. When he talked to labor groups during the campaign, he recounted, they pressed him to talk about “the systems, and how race has played into the criminal justice system, the school to prison pipeline. You merge that with the activist groups that have been working on these issues, with groups that have been standing with immigrants in our communities, everybody brought similar goals but different takes on it.”

This margin is all the more remarkable in the context of Oregon’s punitive prosecutorial culture, of a DA association that has fought recent reforms, and of a prison population that has kept rising, bucking national trends. Oregon is one of only six states where incarceration reached a new peak in 2018, according to a new analysis by the Sentencing Project.

Schmidt has blamed Oregon’s harsh mandatory minimum schemes, which were codified by a 1994 ballot initiative, for stalling decarceral efforts. “You literally cannot get Oregon’s prison population reduced by 50 percent without getting rid of mandatory sentencing,” he said in April in a Q&A with the Political Report, referring to a goal some decarceration advocates have set. And in arguing that the legislature should repeal mandatory minimums, he presented the change as a way to chip away at DAs’ tremendous power. “When sentences become mandatory,” he said, “whoever makes the charging decision essentially makes the sentencing decision.”

He also expressed support for other statewide reforms, including an end to cash bail, a ballot initiative that would decriminalize the personal possession of most drugs, and voting rights for all. He is among a growing list of candidates who are winning DA races after stating their view that incarcerated people should retain the right to vote, a significant turnaround in the issue’s national politics that matches what law enforcement officials say in Maine and Vermont. 

Schmidt works as executive director of the Criminal Justice Commission, a state agency, and is also a former prosecutor. He was endorsed by Governor Kate Brown and by prominent county-level officials such as County Chair Deborah Kafoury. His opponent, Ethan Knight, is an assistant U.S. attorney who ran with endorsements from retiring DA Rod Underhill and also from the local police and prosecutors’ association. 

In its comprehensive voter guide, Oregon DA for the People faulted Schmidt for not having specific proposals for how he would use his discretion as DA to decriminalize or decline to prosecute certain offenses. Although Schmidt has stated general support for lessening the reflex to use prosecution to solve societal problems, he has mostly emphasized a desire to use so-called problem-solving courts, which many reformers stress are insufficient.

“We believe that reform needs to include shrinking the power of the criminal legal system and shifting resources to other, community-led systems that keep people out of the criminal legal system altogether,” Carroll told me. “We want separate tools that address the root causes of health and safety issues in Oregon communities, like health care (including behavioral health), housing, food insecurity, and addiction. We don’t want the DA to have power over those tools.” Multnomah voters also took a step to set up such a tool on Tuesday, voting to increase taxes on the wealthiest to raise $2.5 billion dollars and fund services for homeless people.

Asked about this concern regarding his platform on Wednesday, Schmidt said he was “absolutely committed” to reducing the volume of prosecutions and asking “how we can handle” certain behaviors “outside the system and get results.” The backlog of cases caused by the COVID-19 pandemic is an opportunity to jumpstart this conversation and look at what types of cases should be handled “in a restorative justice way” or “in a community-based setting,” he said. He added that doing these shifts now “out of necessity” could set a new normal later, when the pandemic recedes.

Carroll said her group “will be watching [Schmidt] closely” to “hold him accountable to what he said he would do,” and also “continue to push and educate him on those issues on which we still are not aligned.”

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One in 5 Oregonians live in Multnomah County, so Schmidt could have some influence in setting a different tone as to how prosecutors weigh in on statewide legislative proposals. He told me, referring to the Oregon District Attorneys Association, that one reason he ran was to push for measures that are “on the opposite side of a lot of ODAA positions.” 

Schmidt gained a potential ally elsewhere in Oregon on Tuesday. 

In Wasco County, a small jurisdiction two hours east of Portland, DA Eric Nisley was ousted in the wake of a scandal involving sexual harassment and lying to the bar association. Ever since he was appointed DA in 1998, Nisley had never faced an opponent, managing to get through five elections unopposed.  He finally drew a challenger this year, in his 22nd on the job—and lost to him by more than 40 percentage points.

The winner, Matthew Ellis, is a career criminal defense attorney. He did not respond to a request for comment on his views. His website lays out reform-minded goals toward low-level offenses (though with soft language that does not allude to an aspiration to shrink the system) and calls for ending cash bail. He speaks favorably of the 2019 youth justice law that made it harder for DAs to prosecute minors as adults last year. He has also said he wants to help ensure that immigrants are shielded from ICE; DAs don’t tend to be at the frontlines of ICE cooperation, but this campaign stance is notable in a county that voted for President Trump in 2016.

Elsewhere, though, Tuesday’s elections brought little change. Voters were electing their DAs in 20 other Oregon counties, but 13 of these races featured an incumbent running unopposed. Lane County (home to Eugene) was the only other county with more than 50,000 residents to feature a contested race. DA Patricia Perlow, a leading foe of the 2019 death penalty and youth justice reforms, easily won re-election. Her challenger, an attorney and police officer, centered his claim that the system lacks “fairness” on complaints from the county’s smaller towns that their “prosecution rates are drastically lower” than Eugene’s. 

Moreover, a longstanding pattern once again stymied electoral change this year, as I reported in April: Deputy DAs keep getting appointed DA shortly before a county’s election and then get to face voters for the first time as incumbents, an enviable advantage that was in full force this year.

Schmidt pointed to Multnomah and Wasco counties to argue that voters reject ”tough on crime” politics when offered a choice. Wasco is “not what you would consider to be a progressive bastion,” he stressed, and added of Portland’s race: “It’s not even just that I won but the mandate with which this community said these are the policies that they expect to see. … These results are going to send shock waves through our criminal justice system.”

Explore our coverage of 2020 DA elections throughout the country.

The post Progressive Winner in Portland D.A. Race Expects ‘Shock Waves’ in Oregon’s Punitive System appeared first on Bolts.

As public opinion shifts away from “tough on crime” politics, prosecutorial elections are upending the criminal legal system. They have brought to power public defenders and civil rights attorneys and rewarded candidates who ran on reducing incarceration, a trend that now extends well into suburban and rural counties. 

In Oregon, though, a longstanding dynamic is stymying electoral change and keeping the public’s appetite for reform at bay. 

District attorneys keep resigning shortly before their terms conclude. And governors keep filling these vacancies by appointing deputy prosecutors—often one of the departing DA’s lieutenants—who then get to face voters for the first time as incumbents. That’s an enviable advantage that dissuades others from running and sidelines critical voices that would break the mold of Oregon DAs, whose association has championed punitive policies and fought reform proposals.

This pattern of handing over the reins of DA offices to heir apparents is in full force in the Oregon elections that are just around the corner, on May 19, an Appeal: Political Report analysis found.

Of the state’s 21 county-level DA elections, 11—a majority—feature an incumbent who rose to be DA through an appointment before ever facing voters. Nine of them already worked as deputy DAs in the same office, and a 10th was a prosecutor elsewhere. Seven of them are running unopposed.

These numbers, which include five appointments that Governor Kate Brown has made since July, ensure that May 19 will largely affirm Oregon’s prosecutorial status quo. (Our Oregon master list contains a database of who is running for DA and their backgrounds.)

The organizing around DA races throughout the country has overhauled conventional expectations of who should be prosecutor. Last year, in Virginia’s Loudoun County, Buta Biberaj was attacked for working as a defense lawyer, but she went on to beat the county’s chief assistant prosecutor. That same day, Chesa Boudin and Jim Hingeley, two public defenders who like Biberaj ran on reform platforms, won in San Francisco and in Albemarle County, Virginia.

“It’s that background [as a public defender] that has made me sensitive to the issue of family separation because so many of the people I’ve represented were deeply affected by their incarceration, and their prospects for success after incarceration were very considerably diminished,” Hingeley told the Political Report at the time. “I saw families that were torn apart, and I saw the consequences of that.”

To be sure, many of the country’s reform-minded DAs have backgrounds as prosecutors. But in Oregon, the quasi-systematic promotion of staff prosecutors shuts the door to debates about qualifications. It boxes out people with other backgrounds and people who have worked in capacities that familiarize them with alternatives to criminalization.

And the widespread appointments of individuals who have worked under the resigning DAs further compound this closure to outsiders.

“There are two layers to why this is harmful,” said Bobbin Singh, executive director of the Oregon Justice Resource Center, a group that advocates for criminal justice reform. “One, you don’t get any new and innovative thinking into an office when you pull up someone who is next-in-line. … Second, it creates all the wrong incentives in the office. Folks who are interested in advancing their career will do what the current DA is doing to advance themselves. … You are teaching people to fall in line.”

Singh added, “The practice that has been created with these appointments, and with bringing people up within the office, has entrenched a culture that is stuck in the 1990s, with an antiquated understanding of criminal justice.” 

When Alex Gardner resigned as DA of Lane County (home to Eugene) in July 2015, Governor Kate Brown appointed as his replacement his chief deputy Patricia Perlow, a prosecutor in that office since 1990; the switch came just 10 months before the 2016 elections. 

Since then, Perlow has been a consistent and vocal foe of the criminal justice reforms proposed in the legislature; last year, she spoke up against bills to restrict the death penalty and the adult prosecutions of children.  

This song-and-dance recurred over the past 10 months, heading into the 2020 cycle. 

With regularly scheduled DA races looming in Curry and Josephine counties, for example, incumbents resigned and Brown appointed deputy DAs from their offices to take their place. Both appointees are now running for a full term unopposed. In Baker County, Brown filled a vacancy by appointing a deputy DA from another county. He, too, is now running unopposed.

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If the past is prologue, they can expect to remain in office for as long as they wish.

Benton County DA John Haroldson, Coos County DA Paul Frasier, and Umatilla County DA Daniel Primus have never faced a single opponent, despite being on the ballot a combined eleven times since their appointments. Haroldson and Frasier were their county’s chief deputy DAs in 2007 when their bosses resigned and Governor Ted Kulongoski appointed them; Primus was Umatilla County’s chief deputy DA in 2011 when Governor John Kitzhaber promoted him.

It’s not that no one else wanted the job. Kulongoski chose Haroldson and Kitzhaber chose Primus over other potential appointees who had expressed interest, but no one then challenged them at the polls.

“Often there’s an expectation that this person just is anointed into the new role,” said Kelly Simon, legal director of the ACLU of Oregon. “If a person from inside the office culture has the inside advantage in an election, it makes it harder for the public to shift that culture if they want to.”

Once in office, incumbent prosecutors everywhere often go unopposed, as documented by a recent nationwide report by the University of North Carolina’s Prosecutors and Politics Project. In smaller counties, this can stem from a reluctance on the part of lawyers to jeopardize their careers by defying the chief prosecutor of the county where they practice.

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This year, the big exception to Oregon’s pattern of vacancies and gubernatorial appointments is Multnomah County (Portland). DA Rod Underhill announced that he would not seek re-election but he did not resign, and there is a competitive open race to replace him on the May 19 ballot.

Brown, the governor, has endorsed Michael Schmidt, the more progressive candidate, rather than Ethan Knight, who is running with Underhill’s support.

“Usually the sitting DA won’t step down unless they know their deputy or their next-in-line will be appointed,” Singh said. He added, “It’s hard for me to know how much intention there is behind that, as far as it being an intentional strategy. But it has been part of the culture without question.”

In 2018, The Appeal reported on evidence of coordination in Massachusetts between the governor and a DA who negotiated his deputy’s appointment before resigning in an election year. 

The Political Report knows of no such coordination between governors and prosecutors in Oregon. Instead, what is striking about Oregon is that the historical patterns of gubernatorial appointments are already public knowledge.

Oregon DAs are likely to know about this history from their own experience, or from knowing about their peers’ backgrounds. When Primus got the news that Kitzhaber was appointing him in 2011, he was at an Oregon District Attorneys Association conference. 

In 2016, the ACLU of Oregon released a comprehensive report on the frequency of DAs being appointed before ever facing voters, and of deputy DAs landing gubernatorial appointments. “On the job experience must count for something, but when does continual promotion from within constrain progress and needed reform?”, the report asks before laying out some of the ways in which Oregon DAs “were intensely opposed to the reform conversation and forcefully defended the system they most control.” This report gained some media coverage at the time. 

The resignations have continued to flow in.

In the run-up to 2018, when a different batch of 16 counties voted for their DAs, Brown appointed four DAs who then ran as incumbents. (All went unopposed.) Three of them were deputy DAs, though none in the county where they were appointed. The fourth, EveLyn Costello, was a defense attorney whom Brown appointed in Klamath County over a deputy DA who also sought the position. She said Costello would bring a “fresh perspective.” Still, in the run-up to 2020, Brown was more likely to promote deputy DAs who had worked within the same office: Those were three of her appointments, though one of them also worked as a defense attorney in between. She has also appointed a prosecutor who had worked elsewhere (in Baker County) and a private attorney (in Lake County). 

Brown’s office did not respond to a series of questions on her history of DA appointments. 

“DAs have an incredible amount of power in deciding how our criminal justice system operates and what values it will reflect,” Simon, of the ACLU, emphasized. “And I think that the choices of what values should be reflected in our DA offices should come from the voters.” 

Singh suggested that Brown and future governors should vow that, when faced with a vacancy, they will only appoint DAs who intend to not seek full terms. “My guess is this would prevent district attorneys from resigning early,” he said.

The post Oregon’s D.A. Elections Mock Democracy, Again appeared first on Bolts.

Update: Mike Schmidt won on May 19. Read our story.

A candidate for district attorney in Oregon’s biggest county—Multnomah, home of Portland—is calling on public authorities to act now to stop the COVID-19 pandemic’s dangerous spread in jails and prisons. Mike Schmidt wants the police to make fewer arrests, DAs to charge fewer cases, and jail and prison administrators to release people who have three months or less to serve.

“If I was DA right now, my concern would be public safety,” Schmidt told me. “And it is public safety to get people out of incarceration, so we don’t have the virus rip through the walls and then boomerang back onto our communities, frontline staff, people whose families are impacted. … We need to limit every single way we’re bringing people back into the system.” He currently works as the executive director of the Criminal Justice Commission, a state agency.

Oregon is still scheduled to vote for its district attorneys in May. The state’s vote-by-mail system makes its elections less vulnerable to the current public health crisis than those of other states.

In a state where DAs have remained largely impermeable to reform politics, the contrasts in Multnomah County’s two-way race are surprisingly significant. The incumbent, Rod Underhill, is not seeking re-election. Running to replace him are Ethan Knight, an assistant U.S. attorney who broadly favors staying the course, and Schmidt, a former prosecutor himself, who thinks the next DA should champion major statutory changes to Oregon’s criminal legal system. 

I talked to Schmidt this week about his policy views and what should change in Oregon both during and after the pandemic. Schmidt laid out his support for ending cash bail and repealing mandatory minimums, among other reforms. The Q&A is available below.

In the course of our conversation, I asked him what lessons can be drawn from all the decarceral changes that law enforcement agencies have implemented during this crisis, regarding what is possible tomorrow. Schmidt, who also worked as a prosecutor in Multnomah County for six years until 2013, replied that if the data collected in coming months shows no hike in crime or recidivism, it would strengthen the hand of those who want to make such changes permanent. 

“I think we will learn a lot about some longstanding ideas about public safety, seeing how things worked when we made those expedited decisions for other public safety reasons,” he said.

He focused on promoting problem-solving courts, which some reformers criticize as insufficient, as alternatives to incarceration. But he also expressed interest in finding ways to prosecute fewer cases and to decriminalize some acts. He didn’t mention a specific charge he would decline to prosecute, though he endorsed a ballot initiative (IP 44) that would decriminalize drug possession for one’s first two offenses, treating it similarly to a traffic violation. And asked about the challenges faced by Oregon’s public defenders, he said one path to decreasing their immense caseloads is for DAs to reduce the volume of prosecutions. 

Schmidt positioned himself in opposition to the more punitive policies typically defended by the Oregon District Attorneys Association (ODAA). In 2019, the ODAA fought new laws that restricted the death penalty and the prosecution of youth as adults. Schmidt, by contrast, has pledged to never seek the death penalty, and expressed enthusiasm about the youth justice law.

A major reason he is running for DA, he added, is to advocate for legislative changes that are “on the opposite side of a lot of ODAA positions.” 

For one, Schmidt wants Oregon to repeal the state’s expansive mandatory minimum sentences, which were codified by Measure 11, a 1994 ballot initiative. These mandatory requirements have empowered prosecutors to control sentences through their charging decisions, he argued, and “in an otherwise adversarial system of justice, that doesn’t make sense.” This scheme fuels mass incarceration, he said, adding that, “You literally cannot get Oregon’s prison population reduced by 50 percent without getting rid of mandatory sentencing.”

Schmidt, citing the disparate harm of cash bail on poor people and people of color, also said he would encourage Oregon’s legislature to end its use, which keeps people detained pretrial over an inability to pay. In deciding whether to detain someone pretrial, he defended the value of algorithmic tools—which draw a lot of criticism for concealing bias—if they are transparent. He also laid out why he backs abolishing felony disenfranchisement, including in prisons, in order to facilitate reintegration (“if that’s something that we can be doing to get people enthusiastic about participation in society, it just seems like such a no brainer to me”), and he called for ending Oregon’s status as the only state that lets a nonunanimous jury hand down convictions.

“It’s such an amazing time,” he said of criminal justice reform proposals. “I think people’s minds are more open to this then than ever before.”

The interview has been condensed and lightly edited for clarity. 

The Q&A starts with a discussion of the coronavirus. You can skip to the sections on pretrial detention; on whether the DA should aim to reduce prosecution overall; on Measure 11 and mandatory minimums; and on changes to voting rights, nonunanimous juries, and public defense.

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There are growing coronavirus outbreaks in jails and prisons across the US, and for weeks now there’ve been calls for public authorities to take urgent action. What do you think should be done that’s not yet being done to reduce the incarcerated population and stop the spread?

What struck me about all this is how flat footed we’ve been caught, the fact that we did not already have plans in place for being able to quickly get people out of custody. We should have thought of it a long time ago, as natural disaster preparation. We’re trying to figure it out now on the fly, but the protocols have not been set. I just released a Medium piece as a call to get more people out of custody, highlighting the fact that a lot of our prisons are in very rural, small communities with little hospital resources that would quickly be overwhelmed if the virus gets into the walls. 

Our sheriffs have release authority they can use for people serving sentences; I think we could look for people who have less than three months. Look at the sentence population and see, to what extent is it really necessary for public safety that those sentences be served in jail as opposed to on house arrest or some in-the-community sanction. And we have to look at people coming into our jails. At this moment, suspend prosecution of certain crimes, and when police officers feel like they have to make some form of intervention do a citation instead of an arrest. 

There’s a lot of things we could do, and some of them are being done, but from my view, it doesn’t seem to be happening as fast as it could be.

Much of the attention so far has been focused on jails. In a debate last week, you also called for the release of people in prison who have a short time of their sentence to serve. So what do you think can be done for people in prison?

It’s my understanding that there are approximately 700 people that have three months or less on their sentence. What I don’t know is the mix of people with mandatory sentences versus not mandatory. The not mandatory group are more than likely eligible for early release, what we call short term transitional leave. Some of the criteria is that you have a safety plan for getting out, that you’re not being released to homelessness. So we should be trying to find some emergency resources to make sure that we’re releasing people into a situation where they can be safe and shelter in place. Where it gets tricky is people serving mandatory sentences under Measure 11. [That is the 1994 measure that provides minimum sentences.] In that situation, unfortunately, the only authority that I’m aware of would be a commutation authority.

What measures do you think DAs should take to reduce the risk of the outbreak?

I think the DA’s office should review any case that has a person in jail. Is it possible to safely support the release of this person? Anybody who’s currently in and their case hasn’t been settled yet, they should be expediting plea offers where they can give people credit for time served, even if under normal circumstances the policy might dictate that some longer amount of time would normally be required. The DA’s job is to increase public safety, and this is a public safety measure. Also suspending imposition and enforcement of all fines and fees, making sure that we’re not violating people on probation because they missed an appointment or they failed to pay a fine or they failed to pay a supervision fee. 

Really, we need to limit every single way we’re bringing people back into the system. 

You mentioned plea deals, but are you concerned that, given the circumstances, people might be pressured into agreeing to convictions and criminal records with less legal assistance than they may under normal circumstances?

It’s definitely something you have to be mindful of. We should expand and make free any kind of communication between defense attorneys and their clients, and use technology. You don’t want it to be trying to coerce people to get out. At the same time, we know what the policy sentence would be for typical crimes underneath typical situations. I think at this moment going below those guidelines would be a good thing, as a show of being concerned about public safety and getting people out of the jail. It doesn’t mean the person in custody has to accept that, especially if they want to assert the rights at trial.

A lot of what we are discussing has been longtime demands of reform advocates. For instance: Why are people held for technical violations of supervised release? Why are so many elderly people in prison in the first place? What lessons do you think we should draw from what is being done now, in these exceptional times, for when the epidemic has subsided?

If I was DA right now, my concern would be public safety. And it is public safety to get people out of incarceration, so we don’t have the virus rip through the walls and then boomerang back onto our communities, the frontline staff, the people whose families are impacted. That’s really the impetus for wanting to get people out. But you bring up a really good point: I think every industry is going to be probably forever changed and the criminal justice system should be no different. 

I think we will learn a lot about some longstanding ideas about public safety, seeing how things worked when we made those expedited decisions for other public safety reasons. We held a lot less people in custody, and we didn’t hold them on technical violations, and we resolved cases for either less or for not an incarcerative sentence at all, because that was what public safety dictated in the time of the crisis. What was the impact? Did it make us less safe when people were released? I’m very much a data-driven and research-driven type of person. Everything I do in my day job is looking at recidivism, looking at the Uniform Crime Reporting rates; we’re going to do the same analysis after this health crisis. Did people commit more crimes when they were released or not? If the answer is that they didn’t, then that’s something that we have to consider: maybe this is the way that makes sense going forward.

You mentioned technical violations earlier: is your view now there is too much incarceration based on those in normal times, or do you still need to wait to know more on that front?

I think there’s too much incarceration on technical violations in normal times as it is. It’s been borne out by the research. I have done a lot in my career around treatment courts, mental health courts, veteran courts, drug courts, and just keeping people in those courts longer has a positive impact on public safety, even if they end up being revoked. And a lot of the revocations are for technical violations, not for new crime. That is something that I would look at: not having revocations and keeping them in a treatment setting up until the point that they are committing another crime. And when I say another crime, I would not consider possession of a controlled substance an offense that I would revoke somebody’s probation for: If people are in drug court, it should be because they have an addiction, and part of working in addiction is relapse. 

These kinds of courts still use the tools of criminal prosecution for matters like drug addiction, though. In a recent debate you said, “The answer to every one of society’s problems is not more prosecution.” You also just called for DAs to prosecute fewer cases in this current time of pandemic, but elsewhere some progressive DAs have pushed this apart from the pandemic. Boston’s Rachael Rollins in 2018 won on a promise of outright declining to prosecute a list of low-level charges; Jose Garza, in Austin, is running on declining to prosecute drug possession and low-level sales. Would you use your discretion as DA to say that certain behaviors do not fall within the domain of criminal prosecution, and that you’d decline to prosecute them? Or do you favor shifts to alternative modes of prosecutions?

Both. I think that our specialty courts have a place in the system. The target population for an alternative court or drug court is not somebody who’s a first timer or a second timer. It’s somebody who was assessed with high risks and high needs. So I do think they play a role for people that have not been able to be in the community without committing crime, and would otherwise be facing a prison sentence. I view those courts as alternatives to prison outcomes. 

But your point is well taken. I think that there are a lot of crimes where we could consider alternatives outside of the criminal justice system.

We have a measure that could be on the ballot in November, IP 44 [Initiative 44]. It would make your first two contacts with the criminal justice system for possession of a controlled substance a citation, or a $100 fine; if you go to a treatment intake facility, you don’t have to pay the fine. So the first two possessions of controlled substances would be decriminalized. After that, it would be a misdemeanor, so also reducing the severity of the penalty. That’s something that I support. I think giving people treatment is the right way to go, rather than using the criminal justice system. 

Last year I met a young woman who was homeless in Portland from 2000 to 2009. She had many convictions from when she was living on the streets. I said, what is it that finally got you off the streets? She said Central City Concern, which is an outreach group that provides services to people who are living outside. She said, “It was never the fact that I was in jail or fined or supposed to do community service. What did it was when somebody reached out to me with a helping hand, and I was ready to accept it.” She didn’t care about any of her arrests or convictions while she was houseless. But as soon as her life started getting back on track, that’s when all those punishments came home to hit her and keep her down—the fines, the fees, the garnishments that gets put on her wages, the fact that she has a record so she can’t get her certification to be a drug and alcohol counselor. She had to wait ten years to get her record expunged; we essentially set her life back ten years when she was doing everything that we tell ourselves we want people in that situation to be doing. 

We need to ask ourselves, what is the point of a prosecution? What are we hoping to accomplish? If the answer is to get this person back on their feet and becoming a productive member of society, we need to recognize that a lot of times getting somebody a conviction is actually a barrier to exactly the things that we say we want to do. What everybody wants is a solution to the problem, and a lot of times I see prosecution hindering the ability to get to that solution. What is the alternative route? Who can we team up with, what agencies can we partner with to go in a different direction? That’s what I want to do, develop policies to not charge crimes for certain things, and let different systems pick up where the criminal justice system doesn’t need to be.

During this crisis, we’re also seeing many jails release many people who were held pretrial. This too has been a longtime demand of advocates. You had already pledged to advocate for getting rid of cash bail. Can you talk to me about why this is a priority for your campaign, and also what you would do as a DA to end the use of cash bail until the legislature acts.

This is something I’ve been working on in my state role since 2016.  Cash bail keeps poor people in unnecessarily, and it lets dangerous people out unnecessarily. Different movements have shed light on the fact that even being held for three days means you can lose your job, your housing, and the very things that we say as a public safety system we want people to have. Holding somebody because they can’t come up with a few hundred dollars is antithetical to public safety. And then lay on top of that the racial disparity and inequity that comes along with holding people in custody: When you’re using a socioeconomic mechanism for holding people in custody, communities that have been hit hard by policies that disadvantaged them socioeconomically, for generations, they’re going to be disproportionately hit harder by that type of policy. 

What would I do as DA in the meantime? Redirecting resources to pretrial supervision resources. Then looking at what the DA’s office is requesting bail on. That would be something I need to go through the policy manual and say, “Okay, under these situations, the presumption is against it, if you want to request bail you have to run it past the chief deputy, so that we make sure that for the vast majority of cases we’re not requesting bail. Where bail should be used is when we think that if the person was to be released, either the public would be in immediate danger or a person in the community would be in immediate danger, or there’s really good evidence that the person would not show up again. Besides those things we should not be requesting any kind of bail.

There are concerns, with California as an example in 2018, that replacing cash bail with assessments of danger or flight risks involves tools or judgment calls that themselves import skewed and biased measures and proxies. How will you make sure that ending cash bail will actually cut pretrial detention and inequalities?

That is absolutely a concern. We need to make sure that the tools that we’re using, first of all, don’t have some sort of proprietary algorithms that are behind a black box that we don’t know what’s going into it. In Oregon, since I’ve been working on this issue, we have been looking at building our own tool, so it would be completely open, people would know exactly what factors are going in and how those factors are weighted. The algorithm has to be completely transparent. The data that’s going into these tools is criminal justice data. And we know that the criminal justice system that the data is being produced from is inequitable, that it has been applied to different communities in different ways, so any importing of that same data to determine whether or not somebody is high risk is going to have flaws in it. 

That being said, I think we can be open and transparent in a courtroom about that. Even the prosecutors in my office would be able to say, “Yes, maybe he’s been arrested 15 times, but we also know that he is a Black male in this community, and when you look at some of the arrests, it becomes clear that other people in similar situations might not have experienced the frequency of arrest.” At least you can argue about it to a judge. I like that better than not having actuarial tools where essentially it’s left up to a judge to say based on their gut feelings. Judges, you know, they happen to be human beings, and we know that bias creeps into human thought processes. So I like using tools. It’s not an automatic answer. But it’s a piece of information that the court can use and understand what goes into the tool, and what potential flaws it has. 

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You earlier mentioned mandatory minimum sentences. Your platform says you are “in favor of repealing Oregon’s extreme Ballot Measure 11, which enacted mandatory minimum sentences for many crimes. These policies contribute to mass incarceration.” What would you tell an Oregon lawmaker about how mandatory minimums contribute to mass incarceration, and why they should repeal them?

Our prison population in 1994 was around 5,000 inmates. Despite the fact that crime has dropped, our prison population has tripled since then. I’ve seen these graphs over and over again, my agency has put a lot of them out.  We looked at what it would take to get our prison population down 50 percent. We ran the numbers: You literally cannot get Oregon’s prison population reduced by 50 percent without getting rid of mandatory sentencing. 

I would explain to the legislature how mandatory sentencing laws shift all the power to decide sentences away from the judge to the prosecutor. When sentences become mandatory, instead of a judge getting to decide a person’s sentence based on the information in front of them and the arguments on both sides, whoever makes the charging decision essentially makes the sentencing decision. And when you look at charging practices around our state, they vary wildly: Some DAs are much more likely to use Measure 11 charges than others. The shift of power is one of the biggest problems with Measure 11. The message is that we don’t trust judges to make those decisions, we can only trust prosecutors to decide the sentences for the most serious cases. In an otherwise adversarial system of justice, that doesn’t make sense. 

Another thing I would say to legislators is that, when we have looked at the data, 70 percent of people convicted of Measure 11 crimes have no previous felony convictions. So against this idea of the worst of the worst, I think that’s important for people to know.

So what can you do as DA when it comes to those charging decisions to mitigate mandatory sentences, absent the statewide repeal you have called for?

You’re exactly right that where the DA can make a difference is in charging practices. My philosophy would be, not “if you can charge it, you should,” but only charge Measure 11 crimes when we should be charging those crimes: We need to be making sure that we’re not doing this for purposes of getting somebody into a coercive situation where the charges are so stacked against them the DA can resolve the case. Is this really what is necessary, or are we just doing it because we know we can and that can help us resolve cases more quickly?

Another component of Measure 11 was that it mandated that minors facing a range of charges be prosecuted as adults. Last year, Oregon adopted a law (Senate Bill 1008) that ended this mandated adult prosecution. This new law says that if DAs want to charge a minor as an adult, they must seek a waiver from a judge. What would be your guiding principle for whether or when to do this? Would you commit to specific limits to seeking these waivers?

I was a huge supporter of that bill, and I did a little bit of work to help make sure that it could get passed. So I was incredibly enthusiastic.  

As DA, for the vast majority of cases that are Measure 11, we won’t be seeking waiver into adult court. One of the issues that we worked on in Senate Bill 1008 was, youth would be sent to the Oregon Youth Authority, they’d be getting their degrees, doing these apprenticeships and all this great stuff, and then, once they hit the 25th birthday, they would be transferred to the adult Department of Corrections. It is a waste of so much good time and resources and energy being put into a youth just to have them transferred to the Department of Corrections. That’s something I’m really cognizant of: If we were going to be waiving a youth into adult court, let’s have some sort of a release valve that we can relook at their sentence before they end up transferred into the adult system. But as a general rule of thumb, I will not be seeking a waiver on the vast majority of Measure 11 cases. It will really be those very rare cases that I think merit it.

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Oregon DAs have been typically resistant to criminal justice reform; the state’s DA association has opposed reform frequently, for instance last year this youth justice law as well as a law to restrict the death penalty. Is it important to you to bring the progressive prosecution movement into Oregon, and to what extent would you want to participate in statewide debates as a different voice?

This is one of the biggest reasons that I’m running. I want to do the job locally because I see that it affects tens of thousands of people every year in our community and we could do a lot better. That being said, I’ve worked at the state level for the last six years, and what you described is exactly right. Time after time, the District Attorneys Association has come in to oppose criminal justice reform measures. They have stood in the way of a lot of reform. 

The Multnomah County District Attorney is the largest DA’s office in the state. In my view, it is a huge part of the role of this DA to go down and advocate for statewide criminal justice reform and to be a voice that says: you can do public safety smarter, we can do it with less incarceration and at the same time get better results, and be on the opposite side of a lot of the ODAA positions. That being said, there are — I’ve talked to them — some attorneys in the association right now that I think are open to some of these ideas. But that organization has been dominated by a few older, very loud, caustic voices over the years. 

What I’m talking about is a threat to the status quo. It’s such an amazing time: I think people’s minds are more open to this then than ever before.

I’d like to talk about a couple of issues that have been recently debated around the legislature. Oregon is the only state now that allows convictions to be handed down by nonunanimous juries. Reform on this issue did not move in 2019. What is your view on proposals to end that?

It’s absolutely necessary. It’s a shame that it hasn’t happened. I understand why, which is that the legislature felt that this is going to be resolved by the Supreme Court, with Ramos v. Louisiana. It needs to be changed. 

One of the things that I want to do if elected is take a historical, racial lens to our criminal justice system. Michelle Alexander’s book, “The New Jim Crow,” laid bare the path from slavery to the current criminal justice system and the continuation of those policies by targeting specific groups of people with specific laws. That book is looking at the drug laws and the roots of those laws and why they’ve been perpetuated. Nonunanimous juries are exactly the same thing. In Oregon, it was in the aftermath of a jury that didn’t convict a Jewish man; the public outrage over that got them to change the law to 10 to 2. [That allowed guilty verdicts even with two holdouts.] So we need to change that law, obviously, but also what it’s highlighted for me is the need to look at all our laws historically, the roots of these laws.

Interesting. Another example of a system with racist roots is felony disenfranchisement. In Oregon, people who are incarcerated for a felony cannot vote, unlike in Maine and Vermont. What is your view on that? Is that something you are open to changing? 

I am. I haven’t made it a part of my platform for DA but it absolutely is something I’m open to changing. I had the privilege of going to Norway to tour their prison system. Their philosophy is that the only thing you lose when you go to prison is your freedom to come and go as you please. You don’t lose any of your other rights as a citizen—rights to health care, voting rights. To me it just makes complete sense. Ideally, we want people back out as a community member who is working and participating, and all the things we think of as good civic engagement. Why would we deny them an opportunity when, frankly, they don’t have much else going on? If that’s something that we can be doing to get people enthusiastic about participation in society, it just seems like such a no brainer to me. It’s almost confusing as to why we wouldn’t do that, except for, as you pointed out at the outset, the underlying racist reasons for not having those people with the franchise.

A final question: In 2018, a report funded by the legislature found that Oregon’s public defense system is unconstitutional. A 2019 bill would have strengthened it, in part by hiring more people, and limited public defenders’ caseload, but those measures did not pass. How should the public defender system should be strengthened in the state to make for a fairer system, and perhaps thereby to limit DAs’ unbalanced power?

I was privileged to sit on the Sixth Amendment Center’s steering committee as they did that research. So I was a part of helping them get data that they needed to come up with their recommendations and assessments. I think they did a great job of laying bare the constitutional issues. The legislature, as you said, didn’t act on it, and now COVID-19 hit, so I’m fearful that yet again the state’s not going to be able to find the resources, or not be willing to find the resources, to adequately fund our defense services. 

It’s a huge concern. This shows in the fact that people end up leaving public defense. It’s been a huge issue for them keeping attorneys because they just cannot pay what the other side [DA offices] can, or what these attorneys can make in their own practice. Then there is the caseload aspect. What absolutely grinds people is that their caseloads are huge. I’ve had conversations with the head of public defense in Multnomah County, and I think he and I would be wanting to figure out ways to partner on reducing caseload, like we talked about earlier on: What types of crimes under what circumstances do not need to be handled in the criminal justice system, and aggressively standing up programs to involve other systems into resolutions and restorative justice. Let’s figure out how we can come to agreements in community, rather than criminal justice. But ultimately we do need the support of our state and our legislature to better fund that system. They need better pay, and they need more of them, and they need lighter caseloads for people to get adequate defense. 

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