The View From Here

But Who Will Bell the Cat?

by Ed Kroll, OCDLA President

From the November-December 2015 issue of The Oregon Defense Attorney.

If I were to say, “The machinery of state criminal justice systems is disproportionally controlled by district attorneys,” I doubt I would get much disagreement from the defense community. Unfortunately, the general public probably doesn’t fully understand the power of prosecutors. But, that tide may be changing. Recently, conservative New York Times columnist David Brooks wrote a piece on solving America’s destructive policies of mass incarceration. He took inspiration from John Pfaff of Fordham Law School, whom Brooks found to be “wonderfully objective, non-ideological and data-driven.” In looking at all the factors that contribute to mass incarceration, it wasn’t harsh laws but rather the prosecutors that drove it.

Pfaff suggests that prosecutors have become more aggressive in bringing felony charges. Twenty years ago they brought felony charges against one in three arrestees, but now it’s around two in three. Why? Per Professor Pfaff, the prosecution function is political, and they want to show toughness to raise their profile as they look to get reelected or move to higher office.

Interestingly, it appears that the United States is the only country that elects its prosecutors. Further, says Pfaff, prosecutors are paid by the county and prisons are run by the state, so the financial burden of what prosecutors do (at least in terms of felony incarceration) is not theirs to bear. But it is difficult to prove these theories since “the prosecutorial world is largely a black box.” With a decentralized system of elected prosecutors, changing this behavior is our Everest.

In Oregon, district attorneys and the ODAA are the single greatest barriers to state-level sentencing reform. For definitive proof you need only look at the 2013 bipartisan effort to reform Oregon’s sentencing laws. From that “blue ribbon” commission came a fairly comprehensive set of reforms that was supported by virtually all players in the justice system, except one. The prosecutors.

In the spectrum of elected officials, DAs are simply the most powerful, especially when it involves criminal justice policy. Knowing that, you might reason that there would be quite a scramble to land one of these jobs. Yet there are few contested elections for DA positions, and voters and the press generally pay little attention to the office. Most DAs choose to step down in the middle of their term, with their hand-picked successor waiting in the wings. The successor puts in for the appointment, and with no other candidates, the Governor’s office must de facto make the appointment.

Without involvement from voters, community organizations, opinion leaders or the media, the immense power that DAs wield goes unchecked. And this power is generally in the hands of white males. When you look around Oregon you see little in the way of ethnic and gender diversity and less in the way of public scrutiny.

What appeared to be a contested election in Multnomah County a few years back fizzled. Well-respected DA Mike Schrunk decided to retire, but instead of stepping down mid-term he chose to let the citizens of Multnomah County have their say in his replacement. Three candidates declared—Sean Riddell, formerly of that office and the DOJ; Rod Underhill, the then-current chief deputy; and Kellie Johnson, then a senior prosecutor then in that office. The first two candidates are white males. Due to many issues that need not be rehashed here, Mr. Riddell dropped out of the race. Ms. Johnson soon followed, leaving Mr. Underhill as the last one standing. Thus, there was no contest, no debate, and no public examination of the district attorney’s roles, policies and practices.

So, what’s the point? The point is that the defense bar is in the best position to challenge the “black box” and to shine a public light on the negative impact of DA policies. It should be our job to make sure the media is asking the right questions: “What do you think is the most effective way to deal with low-level drug offenders? Would the exorbitant cost of prison and jails impact your charging and plea bargaining policies? Are you aware of racial disparities in drug law enforcement? What would you do to minimize these disparities? How would you handle the fatal use of force involving the police? What would you do to reduce the number of juveniles brought into the criminal justice system?”

Why not take it a step further? Consider running for district attorney or make yourself available for consideration for appointment. Frequently, DAs leave office before their term ends. Sometimes it is unplanned and sometimes it is a strategically planned departure made in the hopes of moving an “heir apparent” into office. In any case, defense lawyer participation can help focus the policy discussion and improve accountability.

Of course, discussing this idea reminds me of the old Aesop’s Fable of belling the cat. All the mice agreed that putting a bell on the cat was a necessity, but none were able to do so.

Is it tough to put yourself in the spotlight and challenge a DA? You bet. But doing so could lead to real change in culture and policy. Maybe you are not ready to take the challenge but can think of someone who is. Talk it up in your county. Identifying and recruiting viable and committed candidates is the first, and maybe toughest, step. There are a number of former prosecutors in our ranks.

Make no mistake – the DAs are well funded and politically connected. But we can be too. Make it a point to introduce yourself to political leaders and the Governor’s office. Talk to OCDLA–PAC chairman David McDonald. Money is a vital ingredient of the political process, and he reports a significant uptick in donations and participation. DA’s or heirs apparent typically draw strong support from law enforcement agencies as well, but in at least some areas, those agencies themselves are losing the public’s trust.

Challenging DAs and fostering change is not impossible. Most recently, former public defender and OCDLA lobbyist John Hummel challenged a sitting DA in Deschutes County and won. DA Hummel has taken a leadership role regarding the recent OSP crime lab irregularities; his previous defense experience is tempering the conversation.

It takes planning, focus, discipline and smart-on-crime messaging to effectively campaign for a DA seat. And it will take more than one new voice and one new perspective to change a culture. But, change can be made and defense lawyers can play a big role. Just think about it.