The new ACLU of Oregon director also sounds the alarm on pending ballot measures, digital privacy, criminal justice
As a child, watching the “CBS Evening News” was routine for David Rogers.
Each night, his family gathered around a television set in their Hartford, Conn., home, engaged in lively debates sparked by the words of Walter Cronkite.
Rogers remembers that by age 5, he was already “politicized.”
Growing up in an interracial home in the 1970s, he was well aware of discrimination from a young age, he said, but he also watched as his family fought for social justice. His parents met through community activism, and his grandfather diligently pushed for the first African-American studies program at University of Hartford.
Now, at 45, Rogers is executive director of the American Civil Liberties Union of Oregon. And, in line with family tradition, he’s been fighting the “good fight” for decades.
In 1998, he moved to Portland to work with the Western States Center, and later he headed Partnership for Safety and Justice.
Now he’s six months into his position at the helm of one of the most recognized social justice organizations in the state – and he’s energized.
“I want to be working for an organization that has people’s backs,” he said.
From its work to educate and organize communities around important issues to its ability to strategically push legislation and file lawsuits, he said the ACLU of Oregon has a capacity few other state organizations posses.
Whether you’re being discriminated against because of your race or sexual orientation or you’re concerned about government oversight or invasion of privacy, “ACLU,” he said, “has your back.”
Emily Green: What is the single greatest threat to Oregonians’ civil liberties today?
David Rogers: It’s difficult to choose a single threat, but I would say it’s the combination of intolerance, prejudice, xenophobia and fear of the other – of people who have different backgrounds, different races, religions and sexual orientations.
These thoughts and feelings are being tapped and exploited by politicians and pundits to move regressive policies. Fear and prejudice are driving a wedge between communities in the U.S. and creating an environment that is incredibly detrimental to advancing and protecting a range of civil liberties and rights.
We need to remember that once the government has the power to violate one person’s rights – or a group of people’s rights – it can use that power against any of us. For example, we saw the development of terribly unjust mandatory minimum sentencing schemes in the 1980s and ’90s that were primarily a tool to target urban communities of color. But now we have white, rural ranchers who are making the national news – whatever you may think of them – over how they are being impacted by mandatory minimum sentencing enhancements.
(Note: The militants at the Malheur National Wildlife Refuge say they are protesting the treatment of Dwight Hammond and his son, Steven Hammond, who were convicted on charges of arson in 2012 for unlawfully setting multiple fires on federal land. The Hammonds each received a five-year mandatory minimum sentence under federal domestic anti-terrorism laws.)
Ultimately, fear and prejudice advance policies and a climate that hurts us all. It may take a little longer to come around for some though.
E.G.: What are Oregonians’ privacy rights like today, compared with 15 years ago, and what privacy protection will you fight hardest for over the next two years?
D.R.: We are living in a unique time. Technology is changing so quickly, and our laws and policies are very much behind the pace of technological advancements. At the ACLU, we believe that technology may change but our rights shouldn’t.
Digital privacy is a serious concern of ours. There is now an immense ability for corporations and the government to accumulate, aggregate and access information about virtually all aspects of our lives. In the age of social media, we may not be living super-secret lives, but that doesn’t mean innocent people should be monitored or tracked by the government. Now, data about our medical, social, political, financial, legal and family lives can be pulled together by government that wants to control us, businesses that want to make money off us, and others who want to exploit it.
FROM OUR ARCHIVES: How data miners are eroding our democracy
The 9/11 attacks provided the federal government the opportunity to expand the surveillance and police powers and did away with many of the checks and balances that previously kept government authority in check. Things have gotten much worse in the past 15 years.
In November, we found out the alarming news that the Oregon Department of Justice was involved in some level of surveillance of people who used the Black Lives Matter hashtag on social media. Surveilling people based on their political ideas undercuts the fundamental freedoms that our country was founded on. If people can be targeted for speech and activities protected by the First Amendment, then they will be reluctant to speak or write openly about their beliefs. Expressing support for racial justice on Twitter or Facebook shouldn’t get you a law enforcement file. Not in a country I want to live in.
We haven’t figured out the perfect set of policies that would significantly improve our overarching digital privacy rights, but we are working on it. For example, a company called Cellebrite markets a device that pulls all of the info off your cellphone, including your call log, text messages, location data and more and creates a copy for law enforcement. In 2015, we successfully championed a bill to require law enforcement to get a warrant before they make a copy of your phone’s content. We also tried to limit how long law enforcement can retain license plate reader records, but it failed to make it out of committee. We will unquestionably be bringing proposed legislation to the 2017 session. (License plate readers are attached to vehicles and stationary objects, such as traffic lights and bridges. They can scan hundreds of license plates per minute, and store that information. The plate numbers are checked against a list of registered vehicles that are stolen or wanted in association with a crime. Willamette Week reported that Portland police began attaching these readers to their patrol cars in 2008.)
A particularly difficult hurdle is that government agencies hide the ball when they outsource certain kinds of data collection to private companies. For example, law enforcement agencies may contract with a private company to gather information using automatic license plate readers or gather cellphone location data with Stingray technology. Although we might normally be able to compel the police to release information about how and if they are using that technology through Freedom of Information Act requests, those agencies are signing binding contracts with companies not to share any information, which is completely undemocratic. We will need to figure out how to bring greater transparency when third-party, private companies are involved.
E.G.: What bills will you be watching closely in the 2016 and 2017 legislative sessions?
D.R.: The 2016 session is a very short session, and most issues that will move forward have been wired to go since the fall of 2015.
A huge policymaking area where we are spending significant attention is around certain ballot measures proposed for the November 2016 ballot.
For example, there is an effort to move a measure forward that would prevent any public funding of abortions in Oregon. Terrible stuff. Oregon is the only state in the country that we are aware of that has no statutory restrictions to abortion access. We are proud that Oregon has been able to successfully defeat a wide range of attacks on women’s reproductive health over the past several decades. But we can’t take anything for granted. The proposed ballot measure would have a severe impact on low-income women. And for all the public employees in Oregon who appreciate having abortion covered in their health insurance, they should be concerned as well. The ACLU filed a challenge to the ballot title language, and we will continue to work with a strong group of allies to push back.
There are also three separate ballot measures that have been filed that are steeped in anti-immigrant fervor. The ACLU of Oregon is an active participant in a coalition organized to defeat all three measures.
One measure, Initiative Petition 40, aims to make Oregon an English-only state and prevent crucial services and programs from happening in other languages. IP 52 would make it harder to work by requiring Oregon businesses to use an inaccurate and cumbersome federal program, E-Verify, to check employment eligibility. (Ballot measures receive the designation “IP,” or initiative petition, while still in the signature-gathering process.)
And IP 51 would turn back the clock on voting rights and would eventually purge the entire Oregon voter list and force people to re-register, showing physical proof of citizenship. Oregon could go from having one of the best sets of voting laws in the country to some of the worst.
The sad irony of these xenophobic policies is they would hurt most Oregonians.
These efforts go back to your first question. The prejudice that is driving these efforts is advanced by a shameful rhetoric flowing from several presidential candidates. The politics of fear is being used to divide our communities.
We need to remind ourselves of the strengths of being a country where diverse cultures have come together. There’s no contradiction between a nation where we speak a common language and a nation where many of us remain proud of our ethnic and cultural heritage, including our native languages. There’s no contradiction between a nation with a shared culture, founded on the idea of freedom, and a nation whose culture reflects the melting pot that is America.
Our collective well-being in Oregon and this country is very much linked to our ability to recognize that we have a shared fate. We have got to move past thinking in terms of “us” and “them.”
E.G.: Will ACLU Oregon pursue another bill aimed at making grand jury proceedings more transparent, and if so, do you think it will have a better chance this time around, given the outrage over the failure of a grand jury to indict the officers who killed Tamir Rice?
D.R.: The Oregon Criminal Defense Lawyers Association was the lead group advocating for the grand jury transparency bill, but it was definitely a priority of the ACLU of Oregon as well. Collectively, we will absolutely be working to pass a similar bill in 2017.
It should be well known that the main barrier to the legislation came from district attorneys. Frankly, their opposition was disgraceful. It is appropriate that you connect this issue to what happened to Tamir Rice. There is a very real dynamic people often refer to as the “Thin Blue Line.” It refers to the ways members of law enforcement work to protect each other. So, when a police officer is accused of unjust violence, other officers resist stepping forward and sharing what they know or saw if it might bring accountability to the situation.
It is important to note that those dynamics are not just present within police departments, but that they also extend across law enforcement agencies. People have suggested for years that district attorneys have been complicit in and culpable of protecting police from misconduct charges. Are DAs using the closed nature of grand jury hearings to present biased information that prevents police officers from being indicted? If that is happening, it’s despicable. And, if it is not happening, then district attorneys shouldn’t be fighting efforts for more transparency to the grand jury process.
FROM OUR ARCHIVES: Calls for greater police accountability
There is a huge divide between law enforcement and a large number of communities these days, particularly communities of color, and it is not getting any better. If we are going to address the distrust in and lack of credibility of law enforcement, we need to increase transparency and accountability. And we need to see law enforcement leaders provide some leadership in those efforts.
E.G.: You come to the ACLU from Partnership for Safety and Justice, where you fought fiercely for criminal justice reforms. What justice system reform goal from PSJ do you most hope to continue fighting for at the ACLU?
D.R.: First of all, I think Partnership for Safety and Justice continues to play a very important advocacy role in Oregon, and I very much support their work. It has been heartening to see progress and momentum being built here and around the country on criminal justice reform.
Leaving aside police practices for a moment, we still have some real work to do addressing incarceration levels. Despite positive reforms, there is too much emphasis on incarceration and prison as a crime reduction tool, which has incredibly limited value.
Oregon needs to more seriously tackle sentencing reform. We have draconian mandatory minimums, like Measure 11, that treat 15-, 16- and 17-year-olds automatically as adults. Justice can’t be served by a one-size-fits-all sentencing scheme where judges have no power to weigh the individual circumstances of each case. The ACLU of Oregon is still assessing how we can best complement the work of other organizations and community leaders on the issue, but we will continue to be in the mix.
The District Attorneys Association is a real roadblock to progress. Mandatory minimums give them most of the power within the criminal justice system, and in order to hold onto that power they defend regressive policies. We need to remember they are elected leaders and should be held accountable for their work and policy positions just like voters engage legislators.
E.G.: Are you talking about the power these minimums give DAs in plea bargaining agreements?
D.R.: When you can charge people with a very serious, very scary offense that carries a very long sentence, people are much more likely to plea – and that’s how most cases are taken care of.
E.G.: You say there is too much emphasis on prison as a crime reduction tool. What would you suggest instead, and what’s the cost difference?
D.R.: There’s very little that’s more costly than incarcerating people. Incarceration is the most expensive and least effective approach to public safety.
Drug court could be made available to a wide range of people. There are places that are focusing that intervention on a small population of folks who have been engaged in pretty low-level types of criminal behavior, like simple possession, and I think that there’s a legitimate question of whether or not people who have been arrested for simple possession need any intervention. I think it depends greatly on context.
But that’s just part of what needs to happen if we’re thinking about developing a multi-faceted public safety strategy. There needs to be the kinds of community investments that are not criminal justice oriented at all, that are flowing toward creating job opportunities, changing educational opportunities – the types of things that really transform communities.
That said, it all comes down to dollars and cents, and I think finding money in the budget is a challenge, a logistical challenge and a political challenge.
FROM OUR ARCHIVES: The politics of trying to keep people out of prison
E.G.: ACLU of Oregon has long fought the “war on marijuana.” Would you be willing to pursue decriminalizing any other drugs? Why or why not?
D.R.: The war on drugs has failed. Criminalizing drugs hasn’t reduced drug abuse, but it has ruined people’s lives and filled our jails and prisons.
Even for those who are never incarcerated, collateral consequences from arrests and convictions can significantly derail people’s lives. Felony convictions can lead to lost jobs, ineligibility for housing, suspended driver’s licenses and restricted access to federal student loans and much more.
And, we know that people of color have had to bear the brunt of these misguided and cruel policies, with disparate enforcement and sentencing for black people, in particular.
FROM OUR ARCHIVES: The war on the war on drugs
Right now, when it comes to decriminalization, we are entirely focused on making the legalization of marijuana a success in Oregon. But in regard to our larger drug policy in the U.S., it is past time to implement policies that put more focus on treatment, prevention and harm reduction.
