By David Rogers, Contributing Columnist
Gov. John Kitzhaber convened a diverse set of public safety
system stakeholders to examine ways Oregon could improve public safety while
also reducing prison spending. The governor’s Commission on Public Safety
examined an immense amount of data and research to understand what was and
wasn’t working within Oregon’s approach to crime as well as what national best
practices are. They released their recommendations in December of 2012 and
received a wide range of support, but District Attorneys are staunch and vocal
opponents.
The media has devoted significant attention to the district
attorneys’ (D.A.s) opposition to reform efforts but done a poor job
scrutinizing the D.A.s’ claims or questioning the underlying reasons for their
aggressive opposition. Let’s briefly examine the validity of opposition
arguments as well as exploring the generally unspoken motivation for district
attorneys’ opposition to sentencing reform.
First let’s examine the very premise of why reforms are
needed. The state projects that in the next decade, our prison system will need
to bring online another 2,200 prison beds at a cost of at least $600 million.
The governor and many others believe we can’t afford to grow our prison system
at that rate and doing so would weaken Oregon’s ability to invest in more cost
effective public safety strategies. This is the context for reform.
The district attorneys, on the other hand, are questioning
whether these prison projections are legitimate. They suggest that there is no
impending threat of the prison system growing out of control and that the
state’s 10 year prison population forecasts are consistently higher than they
should be, ranging from 7 percent to 14 percent. They also argue that Oregon’s
incarceration rate is lower than the national average. In short, the D.A.s
suggest that there really is nothing for people to be concerned about.
Here is what the District Attorneys choose not to talk
about. Oregon’s prison population has grown by almost 50 percent since 2000,
and we are rapidly trending in the wrong direction. Our incarceration rate has
grown three times faster than the national average since 2000. Despite long
term prison population forecasts trending high, the last twenty short term
(two-year) forecasts have, on average, been accurate to within one percentage
point. Oregon’s prison growth is not being imagined.
Second, the D.A.s are asking why we would try and fix
something that “isn’t broken.” This is not a new argument for them. They argue
that crime rates are low because the system is working.
Let’s just play along with the D.A.s’ arguments. Just for a
minute, let’s assume the current level at which we rely on our prison system as
the primary public safety strategy was “working.” Is there a reason why Oregon
shouldn’t ask the question: can we do better? Partnership for Safety and
Justice believes that there is a lot about Oregon’s approach to public safety
that works well. But why can’t we aspire to get better?
The Commission on Public Safety created a set of
recommendations focused on getting resources to the programs that are best
equipped to prevent crime, support the people who have been harmed by crime,
and give formerly incarcerated people a chance to succeed when they come home.
We can’t get there without some safe and sensible sentencing reforms that
reduce prison growth and spending. Even if elements of our system are working,
increased investments in front-end crime prevention such as addiction
treatment, mental health services and life-saving victims services would be an
improvement.
Despite exaggerated claims by district attorneys, the
commission’s recommendations are modest. The commission didn’t propose an
overhaul to the way Oregon addresses crime. Rather this is about modest changes
that strengthen the areas of our system that work the best and getting
resources to the right places.
So why are district attorneys really so opposed?
In the early 2000s, the state of Oregon contracted with the
Rand Corporation to provide an extensive report on the impact of Measure 11,
Oregon’s mandatory minimum law. The 154 page report was released in 2004. The
following quote is taken from the report’s section entitled “Effect on Balance
of Courtroom Power.”
Traditionally, there has been a system of checks and
balances within the courtroom wherein each of the parties involved in the
adjudication process — the judge, district attorney, and defense — wield a
certain amount of power and are able to exert influence over the outcome of
each case. It is widely understood, however, that adoption of mandatory
sentencing policies has shifted this balance, providing the district attorney’s
office with far greater authority over case outcome than is provided to other
system actors.
The Rand study highlighted the unspoken dynamic that is the
foundation of DA resistance to even modest reforms to mandatory sentencing
schemes. Mandatory minimum sentences take power out of the hands of judges,
preventing them from weighing the individual circumstances of each case, and
puts that power in the hands of prosecutors. This created a huge shift in
control and influence within Oregon’s criminal justice system. The D.A.s have a
clear self-interest in holding on to the policies that have given them a
tremendous, and some might say inappropriate, level of power within the system.
Mandatory minimum sentences provide a heavy-duty
prosecutorial tool used to encourage plea agreements on the D.A.s’ terms. D.A.s
have no interest in giving that up. It would be nice if there was more
transparency about this self-interest so the public could have some filter for
understanding the manufactured arguments against public safety reform efforts.
The governor and the Legislature are working on fine-tuning
Oregon’s approach to public safety. They are not starting with the premise that
we have a broken system. But they are working with the assumption that Oregon
cannot continue on a path where prison spending overwhelms and under-resources
the most cost effective approaches to building safe and healthy communities.
It’s unfortunate that the district attorneys have taken such an unyielding
opposition to being smart on crime. In this case, it seems like their own
self-interest has gotten in the way of their ability to support the best
policy.
David Rogers is the executive director of Partnership for Safety and Justice. PSJ is a statewide, non-profit advocacy organization dedicated to making ORegon’s approach to crime and public safety more effective and just.
This article appears in 2013-05-10.