Monday, June 19, 2017

Recording Oregon's grand juries is wrong

The bill that would require recording all grand jury testimony is about to pass, will likely add about $150,000 to Clatsop County costs and will have a particularly chilling effect on the testimony of domestic violence and child sexual abuse victims...

Recording Oregon's grand juries is wrong
By Guest Columnist
By Joshua Marquis
Posted on June 18, 2017 at 7:00 AM

Clatsop County District Attorney Josh Marquis argues that recording grand juries will have a chilling effect on justice.  

Spencer Weiner/AP
When it comes to public safety, Oregon has long led the way on progressive policies: Allowing small amounts of marijuana in 1973. Creating some of the nation's first drug courts in 1991. Providing citizen involvement in grand juries, where criminals are charged. Now criminal defense attorneys and a phalanx of well-financed lobbyists who oppose victims' rights are pushing to record grand jury proceedings and make these secret proceedings public.

Their clarion call is "transparency," a new buzzword that, ironically in this case, obfuscates the truth. The fact is that defense attorneys want a new tool to badger and intimidate witnesses, prolong litigation and tie up courts with procedural challenges.

Rather than being honest with the public and the legislature, they enlist surrogates like Irene Kalonji whose commentary "Police killed my son and I deserve to know the truth," was published in The Oregonian's Opinion section on June 6. Kalonji wrote that 19-year old son barricaded himself in a room with a rifle in 2016 and "told emergency responders that he was going to die, threatened to shoot children, and said he believed someone had been sent to torture and kill him." After hours of negotiations with law enforcement and mental health professionals, the standoff tragically ended with his death.

Though not required, the district attorney presented the case to seven grand jurors. Again per Kalonji's commentary, the grand jury concluded that a young man who everyone agreed suffered significant mental health issues "committed suicide by police."

The outcomes Ms. Kalonji seeks are simply not relevant to the debate over recording grand jury proceedings. The legal purpose of an Oregon grand jury is not to bring closure for victims, witnesses or family members of the accused. The grand jury is a reality check for prosecutors, who have been known to "fall in love" with a case only to be told by citizen grand jurors it lacks legal merit. A main reason grand jury proceedings are "secret" is to protect the reputations of those who are accused, but not indicted.

Further, recording grand juries will have a chilling effect on justice. What domestic violence victim will be willing to share her story when she knows that a recording of her statement could be handed over to the man who beat her or her children just days earlier? Even the most optimistic among us know how tragically that could end.

For decades, grand juries have operated inexpensively and efficiently. Adopting recording that would achieve the current judicial standard could exceed $10 million. Recording equipment would be required in every county, expert clerks would be required to operate and service the equipment, and the thousands of hours of recordings would need to be stored for years.

Assuming the legislature adopts this dangerous, misguided policy, most district attorneys, including myself, are likely to reserve grand juries for unusual cases. Instead, we will conduct preliminary hearings, the way California, Idaho and more than 20 other states have to bring cases to trial.

Preliminary hearings offer the most transparency, yet take much more time and could cost the state as much as $10 million annually for a process, which currently isn't required.

Why "fix" a system that isn't broken? In 1994, I was appointed by Gov. Barbara Roberts after my predecessor lied to the Clatsop County grand jury to falsely charge two police officers for crimes they never committed. Her secret indictment and subsequent conviction reassured citizens that the grand jury system works.

There is no chance that recording grand juries will prevent the next violent interaction between a troubled teenager and law enforcement. Rather, it could mean the mental health services Christopher Kalonji desperately needed will be even further out of reach for others. Instead of sinking millions into a solution for which there is no problem, how about the legislature invest the millions on desperately needed mental health services? We might then have a chance to prevent the next tragedy, instead of just recording its aftermath.

Joshua Marquis is in his seventh term as the Clatsop County District Attorney. He also served as president of the Oregon District Attorneys Association in 2001, as well as vice president of the National District Attorneys Association.

Read the column and its comments on the Oregonian's website.

Don't surrender to heroin and meth addiction

The ACLU and it supporters dominated the Wednesday, June 14 hearing on HB 2355-A, chaired by Sen. Jackie Winters. Despite driving 280 miles round-trip and signed up as the only opponent willing to testify, I was not permitted to testify until over an hour into a 90-minute hearing -- and then was reminded the committee's time was too short for me to explain.

This part of an otherwise not controversial racial profiling bill would reduce virtually all heroin and meth cases to misdemeanors. The "harsh penalties" in Oregon are possible jail sentences of up to 10 days, rarely actually served, for the fourth or fifth PCS Heroin conviction.

Most disturbing, and unmentioned in this story, is the almost certainty that by removing felonies as the coercive lever that drives most addicts into drug court, drug court will simply cease to exist.
Supporters of the bill were candid in their belief that law enforcement has no real role at all in limiting open heroin or meth use and addiction.

I'm not prepared to abandon all those humans just yet....

Bill in Oregon Legislature would reclassify some felony drug crimes as misdemeanors

A bill being considered in the Oregon Legislature would change the way small-scale drug crimes are treated in Oregon.

HB 2355 is aimed at reducing unjust profiling in Oregon. However, the part of the bill that deals with drug crime classification has drawn most of the controversy.

"This bill runs up the white flag," said Joshua Marquis, district attorney for Clatsop County. "It surrenders to heroin and meth addiction. The message we're sending, not only to criminals but the community, by de-felonizing these drugs is, 'it's just that big of a deal.'"

Marquis says a felony drug crime, simply by the nature of its severity, acts as a deterrent to future drug use.

"We're talking about providing the incentives, frankly the coercive tools to force people who are in addiction into treatment," said Marquis.

The ACLU of Oregon fired back at that assumption.

"The idea that there isn’t still some penalty associated with not going through your treatment and not actually doing the things you’re supposed to do when you get this misdemeanor, that’s just absolutely false," said Kimberly McCollough, policy director for the ACLU of Oregon. "The war on drugs has failed. We need to start treating drug use and addiction as a public health issue."

The debate over drug crime classification has overshadowed the main goal of the bill -- reducing profiling in Oregon. The bill would require law enforcement agencies collect data on the age, race, ethnicity, and sex of a person contacted during a traffic or pedestrian stop. That data would then be reviewed by 2020 and it would be used to develop strategies for reducing profiling. Drug crime classification became part of the bill during task force discussions.

"The drug war is inextricably tied up in and intertwined with the issue of profiling," said McCollough. "In order to find out who's using drugs or who possesses drugs there's a real incentive to try to search folks. What we found is that profiling is often amplified, that disparities are often amplified in those discretionary decisions to search someone."

The bill is still in committee but proponents are optimistic about its eventual passage.


Thursday, March 30, 2017

Public safety, not percentages


Guest column: Public safety, not percentages 

We evaluate each case person by person

By Joshua Marquis
Special to The Daily Astorian
Published on March 30, 2017 12:01AM

In journalism, research and trial law, you learn that the questions asked are as important, sometimes more so, than the answers. Recent articles in The Daily Astorian have discussed a state program called “justice reinvestment” without asking some pertinent questions.

One might assume from some of the glossy graphs from Salem that Clatsop County is sending a stunningly high percentage of people to prison.

A deeper dive shows otherwise. On a statewide average, 24% of felons were sent to prison last year following conviction. In Clatsop County, that rate was 21%. Nineteen Oregon counties send felons to prison following conviction at a higher rate than does Clatsop County.

Where Clatsop County’s prosecutors and judges are tougher is in a smaller set of cases known as downward departures. In these cases my office will recommend giving the offender a second (and often third, fourth or fifth) chance by agreeing to probation — if the offender will agree to serve a set number of months in prison (generally less than 24) should a judge determine their probation is not properly fulfilled.

Clatsop County sends 14% of its felons to prison in this manner, a rate still lower than four other counties, including the most populous, Multnomah.

Judges are the only ones who can send people to prison and are only mandated to send felons to prison for first-degree Measure 11 crimes such as murder, manslaughter, sexual abuse in the first degree, or rape in the first degree. In 2008, prosecutors and Portland-area legislators formed an unusual alliance to pass a more sensible measure to beat out Measure 61, which would have also mandated prison terms for many first-time burglars and car thieves. Measure 57 was supported by almost all of the state’s elected district attorney’s, including myself.

The Legislature’s response? They suspended Measure 57 at their next regular session, claiming it would cost too many prison beds. Then in 2013, they hammered out the justice reinvestment plan, again rolling back portions of the measure. (Several legislators, like our own state Sen. Betsy Johnson, did not support crossing the voters.) In theory, money that would not be spent on state prison beds for second-time home burglars or four-time identity thieves, would be diverted to the counties for local programs.

But justice reinvestment creates a negative bounty, essentially paying parts of the justice system to not send repeat property offenders and drug dealers to prison.

Clatsop County felons often chalk up four or five violations before a judge says “enough” and revokes their probation. Many felons struggle with addiction issues. Efforts are made through Drug Court and Mental Health Court, in which my office participates, to assist these people, allowing them multiple fails.

Importantly, Salem is famous for pushing unfunded mandates on local governments. The justice reinvestment dollars are likely to expire or simply dry up in a couple of years.

Only a judge can decide to send a felon to prison. We are fortunate that our three Circuit Court judges make good decisions.

So, when looking at the data proffered by Salem, consider these questions:

• How robust are the local Sheriff’s Office, Oregon State Police, and local agencies? In Clatsop County, they all do excellent work. But the more felons they catch, the more will be prosecuted. And, by the way, the fewer honest citizens will become victims of crime.

• Is there a local jail with available beds that could take some felons who might otherwise be sent to the state prison? Not in Clatsop County.

• Does the county have a significant tourist trade, or what we legally call “transient population?” The Daily Astorian reported recently that 42% of driving under the influence of intoxicants defendants did not live in Clatsop County.

My office carefully evaluates each case — not based on what the data will show at the end of the year, and hoping to “come up with good numbers.” We evaluate each case person by person, considering both the defendant and the victims, and the resources available, and make decisions based on public safety.

read the OpEd on the Daily Astorian's website