Oregon has one of the worst criminal justice systems in the U.S.

Oregon Has One of the Worst Criminal Justice Systems in the Country. These Prosecutors Are to Blame.

Oregon Has One of the Worst Criminal Justice Systems in the Country. These Prosecutors Are to Blame.

The law, lawyers, and the court.
Jan. 13 2017 12:54 PM

Red Justice in a Blue State

Oregon has one of the worst criminal justice systems in the country. These prosecutors are largely to blame.

The Pioneer Courthouse
This courthouse in Portland, Oregon, was built in 1869 and serves as the U.S. Court of Appeals for the Ninth Circuit.

Glenn Scofield Williams/Flickr CC

Here’s a riddle: What state incarcerates a higher percentage of its black population than Alabama, Florida, and Louisiana?

I’ll bet you didn’t guess Oregon.

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Indeed, the Beaver State locks up its black citizenry at a rate twice that of Georgia and Mississippi. Oregon also has the second highest rate of youth transferred to adult court after Florida. It is the only state besides Louisiana that allows non-unanimous jury verdicts in criminal cases, and it is the only state besides Texas to require “future dangerousness,” a discredited and scientifically bankrupt jury determination, as a determining factor in sentencing people to death.

How does Oregon, a state that has voted blue in every gubernatorial and presidential election since 1988 and which was one of the first states to legalize marijuana, end up with a criminal justice system that more closely resembles the Deep South than its West Coast neighbors?

The blame lies in significant part with Oregon’s out-of-touch elected prosecutors. These powerful forces within the criminal justice system help to explain the gap between two seemingly incompatible Oregons: one with a governor who has placed a moratorium on executions, and the other whose retrogressive and racially disparate criminal law enforcement policies have led to the seventh highest rate of black imprisonment in the nation.

A prime example of these prosecutors run amok is Josh Marquis, the elected district attorney of Clatsop County and a former president of the powerful Oregon District Attorneys Association. In an era where even conservatives like Newt Gingrich and the Koch brothers are fighting to wean America from its addiction to prisons, Marquis recently called “the claim that mass incarceration is out of control” one of those “urban legends accepted by conservatives and liberals alike.” Back in 2006, Marquis authored a law review article titled “The Myth of Innocence” and wrote in the New York Times that “Americans should be far more worried about the wrongfully freed than the wrongfully convicted.” More recently, he opposed a new law to expand post-conviction access to DNA evidence, legislation that made it easier for people to prove their innocence.

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Marquis is a veritable font of absurd positions on criminal justice reform in Oregon.

Both the Oregon State Sheriffs’ Association and the Oregon Association Chiefs of Police support reclassifying offenses involving the possession of a small amount of drugs from felonies to misdemeanors. Josh Marquis opposes the plan.

An Oregon trial court judge concluded that “race and ethnicity was a motivating factor in the passage” of Oregon’s peculiar non-unanimous jury law. The judge expressed “serious concern” about the impact that the law, which passed “during a period of racial tension when the state had seen an explosion of organized racial hatred and the rise of the KKK,” continues to have today. In local coverage of the case, John Hummel, the elected prosecutor for Deschutes County, said that a jury verdict with two dissenting views is one that “we shouldn’t have confidence in.” Yet, Marquis is quoted in the same article in support of non-unanimous jury verdicts.

Josh Marquis is, of course, not the only prosecutor responsible for the stains on Oregon’s justice system. Rather, he is symptomatic of a system that is overly influenced by a narrow band of thuggish prosecutors who wield outsized power both in the Oregon District Attorneys Association and in fanning the flames of fear across the state’s media landscape. Two others warrant similar attention: Bob Hermann, the elected district attorney for Washington County, and John Foote, the elected prosecutor for Clackamas County.

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Washington County is Oregon’s second most populous county and its district attorney, Bob Hermann, is the most recent president emeritus of the Oregon District Attorneys Association. Hermann came under fire in September for jailing a rape victim on a material witness warrant—a legal action that allows prosecutors to detain witnesses to ensure their testimony at trial—while her alleged attacker, a prison guard, awaited trial on sexual assault charges. He also jailed a man for two-and-a-half years on a material witness warrant even though the man—who is indigent, appears to be intellectually impaired, and has no formal education—committed no crime.

The Oregon Supreme Court recently reversed a life sentence for a 13-year-old boy whom Hermann had charged as an adult for his participation in a robbery and homicide with a 19-year-old co-defendant. After the ruling, which said that the trial judge must compare the maturity and capacity of the 13-year-old to the typical adult before allowing the case to proceed in adult court, Hermann said he still believes the boy belongs in the adult system.

Hermann also opposed the ballot measure to legalize marijuana for adults over 21, which passed in November 2014, and implied that its supporters were “marketing to our youth.” He also suggested that Oregon could need “ ‘taste testers’ in our schools and at our kids’ birthday parties” because of the legalization of edible pot. Hermann expressed little similar concern when a deputy prosecutor in his office who supported racial profiling said this on her Facebook page: “If you’re looking for a terrorist, look at a young Muslim male. If you’re looking for a gang shooter, look for a young black guy. If you’re looking for a child molester or a mass shooter, look for a white guy. That’s just common sense.” That deputy was suspended just one week.

Then there is John Foote of Clackamas County, which is part of the Portland metropolitan area. In 2010, when the legislature suspended a ballot measure that had increased penalties for drug and property offenders, Foote resorted to evoking stereotypes of addicts who engage in “meth-fueled crime binges where they are doing tens of crimes per day.” He also lamented “the rise in juvenile property crime rates,” which he believed “occurred largely because the state has adopted a hands-off policy for juvenile drug offenders by not detaining youth on drug offenses.”

Foote does not discriminate by gender in his advocacy for retrogressive criminal justice policies, even if his public stances about incarcerating women have been tone-deaf at best. The Oregon Criminal Justice Commission found that when it comes to incarcerating women, the state significantly outpaces the national average. This phenomenon is getting worse, not better: Between 1994 and 2015, the rate of female incarceration in Oregon tripled. When asked about the drastic increase in the number of women Oregon incarcerates, Foote delivered this remark: “They need a time out.”

Oregon is the land of food carts, hoppy beer, and biking. It also is home to a few “lock ’em up” district attorneys who continue to stand in the way of smart criminal justice reform. Until these voices are recognized as overly influential and out-of-touch, Oregon’s surprisingly overly punitive and racially disparate justice system will remain out of line with the state’s progressive reputation.

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Robert J. Smith is a senior fellow at Harvard Law School’s Charles Hamilton Houston Institute and a visiting scholar at the University of Texas at Austin School of Law. Follow him on Twitter.