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: