Oregon’s Tough-on-Crime D.A. Association Faces a Reckoning
Three district attorneys are speaking out against Oregon’s "one-strike-you’re-out" law and breaking ranks with a prosecutors’ lobby that has long pushed for harsh policies.
Piper French | April 9, 2021
This article originally appeared on The Appeal, which hosted The Political Report project.
In January, as Oregon’s legislature began evaluating possible reforms to Measure 11, known as Oregon’s “One Strike You’re Out” law for its harsh sentencing rules, the Oregon District Attorneys Association (ODAA) weighed in. The association that lobbies on behalf of the state’s district attorneys argued in a report that Measure 11 and its mandatory minimum rules has not contributed to racial disparities in Oregon’s criminal legal system: “Measure 11 addresses conduct, not color.”
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.
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.
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.”
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.
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.”