As Multnomah County grapples with widespread inequities in its criminal justice system, heads turn toward the D.A.
Prosecutors wield a tremendous amount of power in the courtroom, and in an effort to keep it that way, they systematically block attempts to make meaningful reforms to the criminal justice system, states an American Civil Liberties Union of Oregon report released Wednesday.
Their commitment to the status quo contradicts widespread consensus across party lines that mass incarceration is unsustainable and the drug war has failed, argues the report.
In each of Oregon’s 36 counties, an elected district attorney oversees a team of lawyers who decide whether and how to prosecute alleged criminal offenders on behalf of the state.
Together in Salem, they form the Oregon District Attorneys Association, a highly influential lobbying group that effectively promotes legislation to increase its members’ power and blocks legislation that seeks to limit it, proponents of reformative legislation say.
Despite their role in shaping the law and their ability to use a profound level of prosecutorial discretion when enforcing it, district attorneys are rarely challenged when running for re-election, and they largely avoid the public scrutiny that befalls most other elected leaders.
ACLU of Oregon director David Rogers is joining Bobbin Singh, director at Oregon Justice Resource Center, in an effort to educate the public about who district attorneys are and the role they play in Oregon’s criminal justice system and political sphere.
They will lead a panel discussion about these dynamics at 6:30 p.m. April 26 at the First Unitarian Church in downtown Portland. The event is free and open to the public.
The ACLU of Oregon’s report, “Roadblocks to Reform,” found that between 2004 and 2014, 78 percent of district attorney races in Oregon were uncontested, and of Oregon’s current district attorneys, nearly half weren’t elected to their current positions initially.
Instead, they were appointed by the governor and then kept their positions by sailing through elections unopposed.
The report indicates the high rate of gubernatorial appointments is the result of district attorneys’ common strategy of retiring before their term is up. By leaving their position early, it enables them to hand pick their successors, giving them the advantage as running as an incumbent at election.
In Multnomah County, former District Attorney Mike Schrunk faced a challenger for his seat only once during his 32 years as top prosecutor.
Now his successor, Rod Underhill, is up for his first re-election this November, and he too, is running unopposed.
One question Singh said he plans to raise during the panel discussion this Tuesday is whether Multnomah County’s district attorney has policies and practices that are consistent with his constituency.
“We are one of the bluest jurisdictions in the country,” Singh said. “To not have one of the most progressive district attorneys in the country pushing for real and meaningful criminal justice reform, to me, is peculiar.”
Underhill defended his approach to justice reform by noting he played a “significant leadership role” in the creation of justice reinvestment legislation, House Bill 3194, which funds programs aimed at reducing recidivism and prison populations.
“When Rod Underhill says he played a ‘significant leadership role’ in House Bill 3194,” Rogers said, “does he mean a leadership role in watering it down?”
The ACLU of Oregon’s report indicated Underhill initially opposed House Bill 3194, and co-authored an opinion piece with Schrunk for The Oregonian titled “Public safety and sentencing reform: Why overhaul a justice system that is working?”
“The District Attorneys Association worked hard to strip House Bill 3194 of any changes to Measure 11 (mandatory minimum sentences), including modest changes that would mitigate the way youth are treated as adults within the criminal justice system. This was one of the great disappointments of House Bill 3194,” Rogers said.
FURTHER READING: Justice reinvestment: the politics of keeping people out of prison
Underhill said he’s also a primary partner in the Multnomah County Justice Reinvestment Program, created under House Bill 3194, which diverts prison-bound offenders who qualify into an intensive probation with the accompaniment of housing and treatment resources.
“Yes, the modest policy changes that did pass have slowed Oregon’s prison growth,” Rogers said. “But after two decades where we have seen our prison population double and our prison budget quadruple, that is not good enough.”
In an email response to the ACLU of Oregon report, Oregon District Attorneys Association spokesperson Kevin Neely wrote, “The ACLU and Mr. Rogers fail to acknowledge that today Oregon citizens are less likely to be the victims of violent crime than at any time in Oregon’s history.
“We believe the reason district attorneys are so frequently re-elected and so often unopposed is that Oregon’s voters resoundingly support their tireless efforts.”
Rogers found that during the previous six election cycles in Multnomah County, 46 percent of people who voted skipped over the district attorney’s name on the ballot without marking a selection.
“We’re a week away from receiving ballots in the mail, and I can already tell you there’s one very important elected position most voters will unlikely be able to influence, and that is the district attorney race,” Rogers said. “Because nearly eight out of 10 district attorney elections are over before they begin.”
The report also states that in comparison to other elected lawmakers, district attorneys remain largely unavailable.
“Every one of Oregon’s 36 district attorneys actively engages with their community,” Neely said in response. “Often this outreach is done on weekends and evenings, as every DA must see to the day-to-day operation of their office. Oregon’s District Attorneys are not politicians. They are professional prosecutors who are deeply invested in ensuring the safety of the citizens they represent.”
When district attorneys keep their seats without any challenger, it robs the public of robust debate about the state of the local criminal justice system, the report argues.
“Elections elevate public conversations around important issues,” said Rogers, noting conversations taking place in Portland’s mayoral debates around housing, homelessness and the economy.
“The dynamics around district attorney elections and appointments mean that voters don’t get to influence critical policy concerns about the direction of the criminal justice system,” he said, “and I think that’s a problem.”
In Multnomah County, a debate about the direction of the criminal justice system might help solve the dilemmas it’s currently facing.
A MacArthur Foundation analysis of Multnomah County’s justice system found widespread racial disparities, with blacks being six times as likely to end up in jail as whites.
Now commonly referred to as the RED Report (Racial and Ethnic Disparities Report), it analyzed the outcome of different racial groups at every decision point in the county’s criminal justice system, from initial police interaction to post-conviction probation, finding inequities throughout.
On March 4, City Club of Portland held a forum at downtown’s Sentinel hotel to address the findings of the RED Report.
“When I read the report,” Underhill said to the room full of City Club members, “it’s accurate to say that as the district attorney in Multnomah County, I have touch points in essentially every decision point. It’s also more accurate to say my office is more primarily responsible on some of those points. One of those points is sentencing.”
Underhill continued by saying that while he recognizes his office does not add to disparities in some decision points examined, “I also need to remind myself that we do not make it better, we do not reduce that disparity that initially comes to us.”
Singh said Underhill’s talking points that day underplay his role in the criminal justice system.
“The district attorney should be aggressively leading the charge to reduce racial and ethnic disparities in our criminal justice system. He is in the position and has the power to be a transformative figure on racial and criminal justice issues. Remarkably, though, it appears that he is shifting and pivoting away from the problem and not directly confronting the issue.”
What Underhill was referring to at the City Club forum was a section of the report that showed his prosecutors don’t move forward in prosecuting defendants of any particular race or ethnicity substantially more than another.
This means the cases are already disproportionately stacked against people of color before his prosecutors file charges, locking in those disparities.
The RED Report determined blacks, Hispanics and Native Americans are more likely to be sentenced to prison than whites.
With more than 90 percent of criminal cases ending in plea agreements nationwide, sentencing decisions have largely shifted away from judges and into the hands of prosecutors.
Oregon Supreme Court Justice Richard Baldwin said mandatory minimum sentences and other laws passed by voters and Oregon legislature have “cut into the discretion of judges with respect to sentencing.”
He said many judges make themselves available to be a neutral facilitator during the plea bargaining phase, but whether or not a judge is involved in the process, most of the time they simply enforce whatever plea agreement is reached, although they do have authority to deny it.
“Typically there’s a strong interest in encouraging settlement and so trial judges generally will follow the agreement the parties have agreed to on their own,” he said.
According to Lisa Graybill, a legal director at Southern Poverty Law Center, plea bargaining can be efficient, “but can also be a real tool to encourage prosecutors to over-charge so that they can get a plea to the charge that they actually wanted to bring.”
She said over-charging also gives prosecutors more leverage over a defendant to plead guilty to crimes that are more serious than crimes they would have likely been convicted of should they have gone to trial.
FURTHER READING: Youths branded by Measure 11
“It’s a system that’s vulnerable to abuse,” said Graybill. “My job is work on issues related to criminal justice reform and mass incarceration. One of the biggest pieces, that is the hardest to get at, with litigation or policy change, is prosecutorial misconduct and the abuse of discretion.”
Singh agrees. “Currently, the system we have makes it very difficult and rare for prosecutors to be held accountable,” he said.
This is especially true when it comes to Oregon’s secretive and unrecorded grand jury indictment process.
During the past two legislative sessions – and intermittently since 1981 – Oregon District Attorneys Association has blocked bills that would make grand jury indictments more transparent by recording the proceedings.
Gail Meyer, legislative representative for Oregon Criminal Defense Lawyers Association, said by repeatedly blocking these bills, prosecutors made it so “Oregon is the only state in the union that relies on grand jury to indict all felonies and still does not record the grand jury.”
There are two ways an Oregon prosecutor can bring felony charges against a defendant:
They can file a complaint that’s heard before a judge who weighs the evidence and the cases made by both the prosecutor and defense attorney before deciding whether or not to move forward with an indictment. This is a process that’s rarely used, said Meyer.
The other way to bring charges is through grand jury indictment, and it’s easy to see why this method is so popular with Oregon prosecutors.
In a grand jury indictment, the prosecutor presents his or her case to a grand jury made up of seven randomly selected citizens, and asks the citizens to indict the accused party.
There is no judge or defense attorney present. The prosecutor decides which witnesses to call, what questions to ask and what evidence to present.
The grand jury can also ask questions before making its decision. Because these indictments are not recorded, aside from the hand-written and often illegible and conflicting notes of jurors, the defense is not privy to the circumstances under which their client was indicted and there is no judicial oversight.
“No one really oversees it,” said retired judge Neal Lemery. He served as the Tillamook County District Attorney before taking the bench to preside over courtrooms in several of Oregon’s coastal communities.
“When you take a felony case to grand jury, the jurors say ‘OK.’ They don’t know the law,” he said. “The old joke is: The DA can get a grand jury to indict a ham sandwich.”
But keeping the grand jury process behind closed doors isn’t the only priority of the prosecutors’ lobby.
“As a collective, the District Attorneys Association has a pretty consistent history of opposing progressive criminal justice reforms,” Rogers said.
In addition to its opposition to changes to mandatory minimum sentences, he said, “we’ve seen relative inaction around issues of trying to fix racial disparity within the system.”
Oregon Justice Resource Center, in part, works to exonerate those who have been wrongly convicted. It’s director, Singh, said the Oregon District Attorneys Association, through the Multnomah County District Attorney’s Office, initially came out against amendments to a statute that allows individuals who have been convicted in Oregon access to DNA testing to prove their innocence.
“The Oregon Department of Justice, the Chiefs of Police, advocacy organizations and an unanimous legislature all supported the amendments,” said Singh.
He said eventually, the district attorneys group went neutral on the bill, but because of its initial opposition, getting the amendments out of committee was a challenge.
“District attorneys oppose any legislation that will reduce their power base in the courtroom and in the plea-bargaining process,” said Meyer.
And the scales of justice are already tipped in the prosecutor's favor.
Lemery said district attorneys have police resources, a crime lab and larger budget at their disposal when building a case. In contrast, public defenders have huge caseloads and very limited resources.
District attorneys are also paid substantially higher salaries than public defenders.
In recent weeks, Street Roots has reported on how decisions made by prosecutors have a tremendous impact on the local criminal justice system, from the office’s focus on the issuance of thousands of non-violent quality-of-life charges that disproportionately affect communities of color, including people experiencing homelessness and mental illness, to the practice of trying juveniles as adults under Measure 11, only to have them plead guilty to a lesser crime.
“How would Rod (Underhill) characterize his leadership in addressing the severe racial disparity in Multnomah County’s criminal justice system?” Rogers asked. “The numbers are terrible and the district attorney has the most power in the system to address the racial disparity. He continues to prosecute black people for low-level offenses at seriously disproportionate rates. This is not only incredibly damaging to individuals and our community, but serves little to no public safety value.”
FURTHER READING: Broken windows prosecuting
As county and city officials grapple with an inequitable criminal justice system that continues to suffer from dwindling resources, Director of Metropolitan Public Defenders Lane Borg said it’s time to take “a hard look” at whether or not some low-level charges should be filed. Borg also took part in the panel discussion at City Club of Portland in March.
Multnomah County Chair Deborah Kafoury recently announced proposals to cut the number of beds at county jails, but absent from public discussion has been the prosecutorial policies that can send people to those beds in the first place.
“There are some very serious issues that we don’t really get to talk about as voters or as the public, because we haven’t had a contested DA race in this county for, I don’t know how long, more than 30 years?” Rogers said.
His agency’s report recommends that district attorneys across Oregon be held accountable for their policies and practices. It also encourages more challengers in district attorney races and asks that the governor “lift the selection process out of secrecy” and appoint district attorneys who are prepared to modernize and reform the criminal justice system.
Contact Street Roots staff reporter Emily Green at emily@streetroots.org
