Judith Armatta

Judith Armatta is a lawyer, journalist and human rights activist

LESSONS FROM THE PAST: FATEFUL DECISIONS

“Those who do not remember the past are condemned to repeat it.” George Santayana.

I read a story in the New York Times today (January 17, 2017): “America or Mexico? An Agonizing Decision,” by Caitlin Dickerson. Rachel McCormick, born in the U.S., and Irvi Cruz, born in Mexico and immigrated illegally to the U.S., met in the U.S., married, and had two girls, Sarah, 4, and Anna, 2. Irvi is not a U.S. citizen and cannot apply for citizenship through his wife because he has traveled back and forth to Mexico several times. To apply now, he would have to leave the U.S. for 10 years.

With Trump threatening to deport 11 million illegal immigrants, Irvi and Rachel are faced with a fateful decision: do they remain in the U.S. waiting for the day Irvi is deported or do they pack up and go to Mexico, a strange land where Rachel and the girls will feel a perplexing and, at times, frightening displacement. As Ms. Dickerson wrote: “So the couple were boxed in by two bad options: take a chance on a new life in the small, struggling town in Mexico where Irvi grew up, or stay here and try to ignore the shaky ground beneath them.”

Nine million families of mixed parentage face this same dilemma. This dilemma is not new, though I knew nothing about its forerunner until I began reading The Train to Crystal City: FDR’s Secret Prisoner Exchange Program and America’s Only Family Internment Camp During World War II by Jan Jarboe Russell. In addition to forcing 120,000 people of Japanese ancestry living in the U.S. (62% were American citizens) into concentration camps during WWII, the US government arrested and imprisoned Japanese, German, and Italian noncitizen fathers who were on J. Edgar Hoover’s list of “dangerous enemy aliens,” begun in 1936 on orders from President Franklin Roosevelt. There were thousands of them. Their property was confiscated. Their families left destitute. No criminal charges were brought. They received no due process, no legal representation, no trial. The arrestees were not allowed to see the evidence or confront the witnesses against them (some were spiteful neighbors or coworkers). Nor could they appeal.

Immediately following the Japanese attack on Pearl Harbor, they were arrested and taken from their homes, families, work, and communities. These detainees were sent to a special camp at Crystal City, Texas where they could be reunited with their families who were U.S. citizens. The families had to choose whether to join their loved ones in a prison camp and give up their freedom, or remain separated for the unknown duration of the war and possibly forever. The main purpose of the camp was to gather people the U.S. could exchange for “important” U.S. POWs (diplomats, businessmen, doctors) held in Germany, Japan, and Italy. The program was informally known as “quiet passage.”

The U.S. wasn’t content with “enemy aliens” and their families living in the U.S. They needed more bodies for the one-to-one exchange demanded by Germany. Our government made agreements with 13 Latin American countries to deport Germans, Japanese, and Italians living within them to the U.S., where they would be imprisoned in the Crystal City camp until they could be exchanged. These Latin American immigrants had no ties to the U.S. It was a shocking case of overreach.

Families were faced with a choice: to join their noncitizen parent or husband to be included in what was euphemistically called “repatriation,” or to break up the family, possibly forever. If they joined him in repatriation, they would find themselves in countries they were unfamiliar with, countries at war, where people were starving and could not help, where they had nowhere to live, no means to earn a living. Some died of starvation and illness.

Ms. Russell interviewed a number of the children whose parents were forced to make this choice and tells their tragic stories in this excellent book. Quiet passage was a secret program. It provides a template and a warning. As Ms. Russell concludes: “[T]he issues in the book—the roundup of immigrants, prisoner exchange, the danger of scapegoating in a climate of fear, the trauma of war—are as real today as they were in 1942.”

ACQUIESENCE IS NOT AN OPTION

A foreign power has helped choose our president. Unfortunately, it wasn’t Ireland, Canada, or Norway. Maybe they will come to the rescue as the U.S. falls into chaos or fascism, governed by a cabal of the superclass (read David Rothkopf’s “The Global Power Elite and the World They Are Making, where a number of Trump’s appointees are discussed). It also wasn’t Iran, the Republic of Congo, Vietnam, Guatemala, Chile, Brazil, or Cuba, any of which (and more) could legitimately play tit for tat. The U.S. does not have clean hands here.

Now, I know how the Iranians must have felt when the U.S. orchestrated the removal of Prime Minister Mohammed Mossadegh, following his nationalization of the oil industry until then controlled by British companies. Or the Congolese when the U.S. aided the Belgians in assassinating Patrice Lumumba, the first prime minister of an independent Congo, to preserve our access to uranium used in making nuclear weapons. Or the Chileans after the US-backed military coup that ousted progressive leader Salvador Allende, another ‘fearsome’ economic and social reformer. And on and on. . . .

Despite our sins, can we really allow Vladimir Putin (ex-KGB agent) to ruin our already-battered democracy? It took the Iranians (Persians) over 25 years to get rid of the U.S.-friendly Shah (Mohammad Reza Pahlavi), and his replacement was anything but a democrat. Chileans voted Pinochet out of office in 1988, after 17 years of human rights violations, including murder and disappearances. We’re hoping for only four years max, but it could be eight – and that’s if the citizens still have a meaningful vote. How can we stop this from happening?

Support the appointment of an independent commission to investigate the CIA’s report. Longtime Executive Director of the American Security Project, Jim Ludes, tweeted: "Intel community must brief electoral college about Russia before vote. EC exists to protect republic from candidate under foreign influence." Tell your electors to not cast their votes for Russia’s candidate. Contact your ‘elected’ representatives and senators and tell them to show some spine. And the Democratic Party. Or we’ll all be speaking Russian.

Acquiescence is not an option.

Ethnic Cleansing, U.S. Style or "It Can Never Happen Here"

  • A letter left at several homes in McKinney, Texas: “Our new president Donald J. Trump is God’s gift to white nation. We want to get our country back on the right track. We need to get rid of Muslims, Indians, Blacks and Jews.”
  • Letter sent to a mosque in Northern California: “Trump is going to cleanse America. And he’s going to start with you Muslims. He’s going to do to you Muslims what Hitler did to the Jews.”
  • "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on," Trump said in a news release posted to his website on Dec. 7, 2015.
  • “Kansas Secretary of State Kris Kobach, who helped write tough immigration laws in Arizona and elsewhere, said in an interview that Trump's policy advisers had also discussed drafting a proposal for his consideration to reinstate a registry for immigrants from Muslim countries.
  • “Kobach leaves little doubt that they’re coming for the Muslims. First.” Mark Sumner, “The Precedent for Trump’s Muslim Registry is Japanese Internment Camps,” Daily Kos, November 17, 2016.
  • “You’re going to have a deportation force and you’re going to do it humanely.” Donald J. Trump, December 2015. While Trump now says he will focus first on the “two to three million” undocumented immigrants who have committed crimes, it is unclear whether he will stand by his promise to deport the 8 to 9 million who have not violated the law (other than remaining in the country without necessary documents, which includes people brought here as children).
  • “President-elect Donald J. Trump’s promise to deport two million to three million immigrants who have committed crimes suggested that he would dramatically step up removals of both people in the United States illegally and those with legal status. If carried out, the plan potentially would require raids by a vastly larger federal immigration force to hunt down these immigrants and send them out of the country.” By Julie Hirschfeld Davis and Julia Preston, “What Donald Trump’s Vow to Deport Up to 3 Million Immigrants Would Mean,” The New York Times, November 14, 2016. http://www.nytimes.com/2016/11/15/us/politics/donald-trump-deport-immigrants.html
  • “Earlier this year, Mr. Gingrich called for a new House Un-American Activities Committee to deal with ‘Islamic supremacists.’ That notorious committee’s hearings and the investigations by Senator Joseph McCarthy into suspected Communists represented some of the most severe political repression in American history and destroyed lives. Today, as falsehoods are spread quickly on the internet and accepted as true, this risk may be even more acute.” Faiza Patel, A “'Commission on Radical Islam' Could Lead to a New McCarthy Era,” November 18, 2016, https://www.brennancenter.org/blog/commission-radical-islam-could-lead-new-mccarthy-era

* * *

Maybe I’m slow, but it took me until a few days ago to realize that opposition to immigration and support for deportation of immigrants with or without documents is not solely based on fear of losing jobs. The majority of those targeted for exclusion are Latinos and Middle Easterners. That is not economic based. That is xenophobic based. The fear is of a non-white non-Christian majority, loss of power, and loss of a European and Christian culture. The goal is ethnically cleansing the U.S. of as many “others” as possible to maintain white dominance.

A state can accomplish ethnic cleansing in several ways: by “voluntary” exodus or exchange of populations (unlikely); by forced removal assisted by threats, burning homes, attacking and killing people; by mass murder of a large segment of the hated group. That is called Genocide. I’ve seen it before when I lived in the former Yugoslavia, the violent breakdown and separation of a multiethnic, multi-religious society into ethnic and religious groups: Orthodox Christian Serbs, Catholic Croats, Muslim Bosniaks, Kosovar Albanians (though a large percentage are Muslim, the attempted cleansing of Kosovo was based on ethnicity). Ethnic cleansing begun as a forced movement of people ended in mass murder and the genocide of Bosniak Muslims. It nearly ended in genocide for the Kosovar Albanians. And the once multinational Bosnia-Herzegovina is now split in two: the predominantly Bosniak and Croat republic and Republika Srpska, the predominantly Serb republic. After massive loss of life, genocide, and the destruction of cities and homes, the U.S. brokered a deal to end the war in Bosnia (the Dayton Accords), a deal that rewarded the aggressor Bosnian Serbs with the land they’d taken by force.

Before I left for the Balkans, I was chatting with a clerk in a small Grants Pass shop. By then, the Bosnian war had ended and the war in Kosovo was two years away. The clerk decried the fighting among citizens of the same country, neighbor against neighbor. “It could never happen here,” he assured himself. Apparently, his high school history class did not teach about the Civil War . . .

• Or the U.S. government’s genocide and removal of Native Americans from their tribal lands onto reservations.

• Or our second original sin, the kidnapping, rape, and enslavement of millions of Africans who created a big chunk of American wealth.

• Or state constitutional amendments, passed on the eve of the Civil War, prohibiting African-Americans from residing or remaining after dark (including in Oregon). Thousands of towns and cities, called sundown towns, followed suit.

• Or Jim Crow segregation, forced labor on chain gangs, and lynching that eviscerated the emancipation of black people.

• Or the internment of 100,000 Americans of Japanese ancestry during WWII.

• Or the Chinese Exclusion Act of 1882, prohibiting the immigration of Chinese, not repealed until 1943.

• Or the American Eugenics Movement that sterilized 70,000 people, mostly women, and confined in mental institutions a long list of undesirables (including among many others paupers, blind and hearing impaired people, promiscuous women), a movement brought to its ultimate conclusion by the Nazis, at which point it lost favor in the U.S.

• Or F.B.I. director J. Edgar Hoover’s and Senator Joe McCarthy’s Communist witch hunt of the forties and fifties that ruined people’s lives for mere association with Communists.

• Or President Dwight Eisenhower’s 1953 executive order banning gays and lesbians from federal employment.

• Or today’s imprisonment of one out of three young black men, denying millions of them participation in civil society as voters, candidates, and jurors. Think how that might change election results. Forty percent of the 2.2 million people locked up in U.S. prisons are African American. Their percentage in the U.S. population is 6.5%.

Guantanamo Bay lay in the future. As did the Draconian local and state laws banishing anyone convicted of a sex offense (including consensual sex between youth, streaking, public urination, all lumped together with serial rapists) to the outskirts of towns, placing them on a “sex offender” registry, and stamping sex offender into their passports.

Throughout U.S. history, we have isolated and demonized an ever-changing group of people to scapegoat as “the other,” placing them outside constitutional protections. The template was created at the formation of the United States. It’s handy because it can be reused and applied to any disliked group.

Will we ever learn?

To end on a more positive note, I will quote a letter from my senator:

“Like you, I'm stunned.

“This is a dark and disturbing moment for our country, and you have every right to feel the way that you do right now.

“This election result is troubling in what it says about American values and what it means for our future. But that's not a reason to despair. It's a reason to work even harder.

“It's going to be more important than ever in the wake of this election that we stand up for equality, diversity, and justice. That we love and support our fellow citizens, immigrants, refugees, and anyone fearing a surge of hate, discrimination, and exclusion. It's up to us to fight for the values we cherish and the progressive vision we hold dear." Sen. Jeff Merkeley

A 40-YEAR-OLD SECRET

For 20 years, I was an advocate for women and children subjected to rape and domestic assault. I trained other advocates. I gave speeches. I lobbied the legislature and helped change laws that made a woman’s reputation evidence of consent to sexual assault. I wrote articles, gave presentations to legal colleagues, served on boards and committees, taught college and law school classes. I explained, as did other advocates, that sexual assault was not the victim’s fault, not because of what she wore, where she was, who she was with, or what she was doing. Silence did not equal consent.

            Since Donald Trump’s locker room talk was made public and numerous women came forward to tell of his groping and sexual assaults, tens of thousands of women have tweeted about their own experiences with “alpha” males. Experiences they kept silent about or only shared with one or two trusted friends – because they were ashamed and felt it was their fault, because it is considered normal, something women just have to put up with.

            All of this brought back my own shameful memory of sexual assault when I was a young Congressional aide. In the backseat of a car driven by my boyfriend, I sat next to the Congressman’s campaign director. When he put his hand up my skirt and touched me under my panties, I said nothing. I didn’t scream or tell him to stop. I didn’t announce it to my boyfriend. I endured it. And I felt ashamed because it happened and because I didn’t stop it. Until a few days ago, I never told anyone. Until a few days ago, I never thought of it as sexual assault. I felt complicit. I never looked back on that incident through the lens of rape victim advocate. I never told myself what I told victims. “It’s not your fault.” Even as I write this, I still feel ashamed. Almost 40 years later. I wonder if the campaign director ever felt shame or remorse?

            I’m telling about it now to support what other women have bravely revealed. We live in a rape culture, where men with power have license to use women for their sexual pleasure and as an expression of their dominance. It needs to stop.

           

MORE CAGES FOR WOMEN?

• “The United States has more than twice the number of women in jails and prisons than are incarcerated in China, Russia, Brazil, or any other nation.” Equal Justice Initiative, August 26, 2016.

• Between 1980 and 2014, the number of incarcerated women increased by more than 700%. The Sentencing Project. • The imprisonment rate for women is increasing at a far greater rate than that for men. In Oregon, since 2007, the male population increased 2% while the female population increased 22%. Partnership for Safety and Justice (PSJ).

• Oregon’s female prison population soared after Ballot Measure 11 passed, necessitating the shift to a new prison in 2001 -- Coffee Creek Correctional Facility

• 70% of women in Oregon’s prisons were convicted of nonviolent property or drug crimes. PSJ.

• 85-90% of women in prison have a history of being victims of violence prior to their incarceration, including |domestic violence, sexual violence, and child abuse.

• Seventy percent (70%) suffer from a mental illness.

• A 2007 study of women entering Oregon prisons found that 91% had co-occurring substance abuse/dependence and mood disorders.

• For the lack of 20 beds, the Oregon Department of Corrections asked the Legislature for $10 million to open another prison for women.

In 1980, I joined a now-defunct organization, Prisoners’ Legal Services of Oregon, as a staff attorney. At the time, Oregon had three prisons: the ancient maximum security Oregon State Penitentiary (OSP), the medium security Oregon State Correctional Institution (OSCI), and the women’s prison, Oregon Women’s Correctional Center (OWCC).

Today, there are 14 prisons. OWCC was built to house 80 prisoners. Historical records show a discrepancy regarding the number actually held in the 1980s – anywhere between 57 and 200. The 2015 female population at Coffee Creek Correctional Facility, which replaced OWCC in 2001, was at least six times greater at 1,263. The number of black women in prison is three times that of white women; for Latinas it is twice as many.

In 2013, the Legislature passed HB 3194, the Justice Reinvestment Act. Its purpose is to shift money from prisons to less expensive programs that keep people out of prison, such as addiction treatment, mental health services, community corrections, and re-entry programs, and prevent the building of additional costly prisons. Yet recently, only three years later, the Department of Corrections asked the Legislative Emergency Board for $10 million to build another prison for women. After a public outcry, the DOC reconsidered, though the request may still come before the Oregon Legislature in December 2016.

The crux of the problem is Oregon prosecutors who hold the power to decide which crimes to charge and what a defendant will accept as a plea to avoid a trial and possibly longer sentence. According to human rights groups, prosecutors are over-charging, sending more women to prison for longer periods (using Oregon’s Measure 11 mandatory minimum sentencing law*). They impeded and lessened the impact of HB 3194, the 2013 reform. And, some at least, are continuing to undermine efforts to reduce or flatline Oregon’s prison population. This, when Texas has closed three prisons and diverted hundreds of millions of dollars to programs that keep people out of prison.

As Shannon Wight, deputy director at Partnership for Safety and Justice, wrote in a recent Street Roots article:

“For now, though, we must look to county prosecutors to avoid this unnecessary state expense. Due to mandatory sentencing laws in Oregon, prosecutors have almost absolute control over who goes to prison and for how long. Instead of spending millions to open a new prison for women, legislators should be asking prosecutors to find more appropriate ways to sanction and support women who would otherwise go to prison when other approaches to accountability are more effective.

“Opening a new prison will not lower the rates of non-violent crimes, nor will it reduce the number of people affected by such crimes. We know that the most effective approaches to crime involve accountability, treatment and services to help people chart new and successful paths. Helping our community means investing in such programs, not incarcerating more women for non-violent offenses.” (August 18, 2016)

 

*Measure 11 passed by Oregon citizens in 1994 (and subsequent amendments) established harsh mandatory minimum sentences for 21 crimes. Judges cannot vary from that minimum, often 75 months, though the Oregon Supreme Court held that judges may consider individual circumstances in rare cases. Youth 15 years or older charged with a Measure 11 crime are automatically remanded to adult court and faced with the same mandatory minimum sentences.

MOTHER OF EXILES

In 1875 or thereabouts, my great grandpa left the Ukraine where he’d been sent into military service by the Russian Tsar. He was hungry. The soldiers barely survived on paltry rations. So he ran away. Deserted. And came to America. He was an economic immigrant.

Today, some in the U.S. disparage economic immigrants and want to keep them out. How are they different from my great grandfather? Should he, I wonder, have been denied entry? And, if him, what of the young man, the teenager fleeing drug cartels that will force him to kill or be killed? He seeks safety more than food. What of the young girl fleeing a gang who raped and killed her friend when she declined to be a “girlfriend?” There are treaties that require us to accept asylum seekers. Yet we return them to near certain death or torture.

America, the land of immigrants. Somewhere, along our way, we have forgotten, what is inscribed on a tablet in the pedestal of Lady Liberty:

The New Colossus

By Emma Lazarus

Not like the brazen giant of Greek fame,

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles.

From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

"Keep ancient lands, your storied pomp!" cries she

With silent lips.

"Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"

THE COMING DARK AGE

I stare out my office window with a blank mind. Panic attacks me. At least I know this feeling and know it will pass. Please. It exhausts me. I feel sick. Lie on the couch and stare some more. Police are killing black people. They argue that we should wait until an investigation tells us what we see with our own eyes through on-site video. Cops shooting black men up close. Are we to ignore the context and our history? A country birthed in racism. Decades of brutal slavery. Gains from a civil war lost with the assassination of a president and a cowardly, racist Congress. Jim Crow segregating, dehumanizing black people. Black men returned to slavery, forced to work on chain gangs. White defiance of federal law. Imprisonment of black people hides continued segregation. One million black people reside in America’s prisons and jails, nearly half of all prisoners. Two million two hundred thousand (2,200,000) black people cannot vote because of a felony conviction, even after serving their sentences. Why do white (Republicans) need more voting restrictions?

A black man, former soldier, kills five white cops in Dallas. Another black man, former soldier, kills three cops, two white, one black in Baton Rouge. Paralysis. Sadness. Fear for what happens next. Gratitude for President Obama. Who is still hated and blamed.

A proto-fascist running for president of the United States. The choice of the angry, disaffected, racist white (largely) men. Our demons have been loosed. The worst elements of our nature. Sanctified, legitimized at the highest levels. White supremacists are no longer marginal. Trump retweets them. They support him.

Hatred for Hillary grows. She is not allowed to make mistakes. Misogyny is always hidden, even from ourselves. Polls say she and Trump are running neck and neck. Citizens dislike her as much as they dislike him. Few will vote with enthusiasm. Most say they will vote against. I remember an election stolen. I remember Joe McCarthy. I fear a coming Dark Age.

"When will we ever learn . . . ?"

"Regarding the hate-filled killings in Orlando: Skimming Facebook today, I have seen two posts that recall incidents in American history where more than 50 people were killed (Wounded Knee in 1890 and the East St. Louis killings of African-Americans in July 1917). Such things simply reinforce my belief that the American press lacks historical insight or sacrifices it in the name of expediency. But in the grand scheme of things, what does it matter? Native Americans, African Americans and the LGBT community have one thing in common; they are the targets of hate. Ranking them by numbers simply provides an index of available targets and killing resources, nothing more. Orlando is simply the latest indictment of society's desire to prove superiority through lethal force." -Timothy Charles Butz

I met Tim eons ago in Washington, D.C., where we were both living in the 1970s. He was an activist with Vietnam Veterans Against the War, hailing from Ohio. I was working for Rep. John Seiberling (D-Ohio), an anti-war congressman. I thought Tim’s comments on his Facebook page were thought-provoking and worth sharing. This is not a competition, it is a tragedy, one more in a long line. “When will we ever learn. . . .?”

A Menu of Whom to Hate and a Means to Express It

For the disaffected, the U.S. offers a menu of whom to hate: African-Americans, women, LGBTQ folks, Muslims, Jews, Latinos, government workers, among others. Early Sunday morning, Omar Mateen aimed his anger and hatred at the LGBTQ community. Forty-nine dead, over 50 injured in a matter of minutes.

In Charleston, South Carolina, 2015, a disaffected young man selected a group of African-Americans gathered in a bible study group. He murdered nine. In Chapel Hill, North Carolina, 2015, another disaffected man killed three Muslim students. In Oak Creek, Wisconsin, 2012, a White Supremacist shot and killed six people at a Sikh Temple. In Colorado Springs, Colorado, 2015, an anti-abortionist shot and killed three people at a Planned Parenthood Clinic. In New Mexico, 2016, a husband and father was charged with the murder of his wife and four daughters, three days after the Orlando massacre.

In the U.S., the disaffected are offered an easily available and lethal means to express their anger and hatred: guns. To kill more in a short time, military-style assault weapons can be purchased. The popular AR-15, used by Omar Mateen, shoots eight rounds per second. That’s 240 rounds per minute. 1200 rounds in five minutes. It enables one lone gunman to murder 49 people and injure 53 in less than a minute (I don’t know how long it took Mateen). Americans own 10 to 12 million AR-15s. When was the last time you heard of someone with an AR-15 preventing a massacre?

And who will be next target – for there will be a next time?

The Invisible Revolution - Power of the U.S. Prosecutor

In the 1970s when I was a prisoners’ rights attorney, Oregon had three prisons – the old maximum security prison, a newer medium security lock-up, and a place to hold the far fewer women who were incarcerated. Today, there are 14 prisons, euphemistically called “correctional institutions.” The big prison building frenzy grew out of the War on Drugs and the tough on crime movement in the 1980s and 1990s (with its beginnings in the 1960s).  States passed ‘three strikes you’re out’ laws, mandatory minimum sentences, lengthened sentences, did away with good time, increased remand of juveniles to adult court, and criminalized more and more behavior. The result left the U.S. with 25% of the world’s prisoners (and only 5% of its population). The cost and ripple effects were enormous.

Highly significant, but little noticed, was a historical change in our criminal justice system, as power shifted from judges to prosecutors. Today, prosecutors decide what charges to file (regularly overcharging to coerce a plea) and what kind of plea bargain and sentence to offer. At least 90% of cases are resolved through a plea bargain, giving the lie to the right to trial by jury. Mandatory minimums attached to certain crimes tie judges’ hands – and the prosecutor emerges as the most powerful person in the criminal justice system.

Over the last few years, a widespread, bipartisan movement for criminal justice reform has emerged. Usual adversaries like the American Civil Liberties Union (ACLU) and the Koch Brothers have joined forces, recognizing that our current policy of mass incarceration is draining economic and human resources, destroying communities, and not achieving the kind of safe and democratic society we want. A number of states preceded federal reform by acting to reduce their prison populations, led by Texas, New York, and New Jersey. Oregon might well have been among them, had it not been for opposition from district attorneys.

This week, the ACLU of Oregon released a report exposing prosecutorial obstructionism that severely limited criminal justice reform efforts initiated by former Governor John Kitzhaber in 2010. For three years, a commission he appointed studied mass incarceration in Oregon and how to reduce it, given its unsustainable cost. District attorneys were a part of that discussion until, at the 11th hour, they walked out. The commission submitted its report to the governor who designed a fairly comprehensive reform agenda to submit to the legislature in 2013. The prosecutors attempted to bury it. In the end, as the ACLU report reveals, they made a deal with the governor. For removal of certain reforms, including one that would limit Measure 11’s automatic placement of juveniles in the adult system, the district attorneys’ association would not oppose the bill. But, the bargain went one step further. It required the governor to agree not to introduce any further sentencing reform for five years. David Rogers, the report’s author and executive director of the ACLU of Oregon, states: “Such an agreement was unprecedented.” That agreement should not bind Governor Kate Brown, however.

While the governor’s 2013 legislation has slowed growth of the prison population, the state still had to open another prison this year. With Oregon’s continually increasing population, the Department of Corrections (DOC) predicts continued growth of the prison population. While the percentage of men sentenced to prison is falling, that of women is rising. The DOC does not know where they will put them. The ACLU report concluded that, “It is hard to imagine we will significantly and sustainably make our approach to public safety and crime more effective and more just until we see a different kind of engagement from and with district attorneys.”

Contributing to the problem of prosecutors’ obstructionism is their near lack of accountability to the public. While district attorneys are elected in all of Oregon’s 36 counties, they mostly run unopposed (the report found that was true in 78% of elections over the past ten years). In addition, the practice of a D.A. stepping down before her or his term is over allows the governor to appoint a replacement, giving that person (usually a chief deputy in the D.A.’s office) an advantage in the next election. The appointment process lacks transparency. Are there criteria by which potential appointees are judged? We don’t know. Nor does the general public know much about the district attorneys they elect. The ACLU report calls for public education about the role of the district attorney and the philosophies and backgrounds of those seeking the office.

As the report also makes clear, there are progressive district attorneys who have developed smart on crime programs. Over my career, I’ve had the honor of working with some of Oregon’s best prosecutors. They should be a role model for those up and coming deputy D.A.s instead of ‘tough on crime’ obstructionists stuck in the last century.

The ACLU report can be downloaded at:

http://aclu-or.org/sites/default/files/Roadblocks_to_Reform_Report_ACLUOR.pdf