“It Is Public Safety to Get People Out of Incarceration”: Q&A with Portland D.A. Candidate
Michael Schmidt, who is running for DA in May in Oregon’s largest county, shares his views on criminal justice reform during and beyond the pandemic.
Daniel Nichanian | April 2, 2020
This article originally appeared on The Appeal, which hosted The Political Report project.
Mike Schmidt, who is running for DA in May in Oregon’s largest county, shares his views on criminal justice reform during and beyond the COVID-19 crisis.
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.
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.
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.
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.
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.