Sunday, February 21, 2016

"A chill wind blowing"

Over the last year there have been some major, and disturbing, changes in what passes for discussion of "criminal justice reform." Most recently it has come from the United States Congress, where both well- and ill-intentioned Senators and Congresspeople have little to no understanding of how the justice system works on the ground.

One of the tropes of popular culture is that people seek election to the office of District Attorney (although called a variety of titles, about 95% of chief local prosecutors in America are elected) so that they may vault to higher office. My story is pretty typical. Having spent almost all my 34 years as a lawyer as a prosecutor, the last 22 as an elected DA, I have never sought other political office. Of the 535 members in Congress, less than 10 ever held office as chief state prosecutors. In Oregon, NO district attorney has ever been elected Attorney General, Governor, or to Congress, and of the current 20 appellate and Supreme Court justices, none were ever District Attorneys. The last elected DA on the U.S. Supreme Court was Earl Warren, 50 years ago.

So why are members of the farther left joining with the far right to demand that we stop what they call "mass incarceration"? In no small part most of them have no clue what they are talking about, but receive their talking points and big bags of money from either left-wing oligarchs like George Soros (usually laundered through his Open Society Institute), or right-wing oligarchs like the Koch Brothers (laundered through their Freedom Forum).

It used to be a joke that a conservative was a liberal who had been mugged. The more recent line is that a conservative is a liberal whose friend did time for some white-collar crime. But both miss (and myth) the point.

The discussion over fair and effective criminal justice is not a classic "liberal/conservative" or Democratic/Republican issue. Most crime victims tend to be poor and disenfranchised. What goes unsaid is the wistful nostalgia for days when judges were free to grant probation to young men convicted of grave crimes because "They just made this one mistake" or "They come from a family that has done so much for our community."

But it's not fair to lay unfairly lenient sentencing on judges. In Oregon, like most states, there has been a 30-year turn away from "indeterminate" sentences that often told criminals (and victims, and the community) that the sentence was "5 years to life." Or the sentences were just a sham. In Oregon, prior to the voter passed Measure 11 in 1995, the average time spent serving "life" for murder was 8 years. Now it's 25. Still NOT a life sentence for the most dangerous demographic, males of all ethnicities ages 18 to 25.

Unfortunately, calls for "Why wasn't this guy in jail or prison?!" have taken on special poignancy here in Clatsop County. On February 5, an outstanding police officer and decent man, Seaside Police Sgt. Jason Goodding, was shot and murdered on duty by a man with 17 felony and 21 misdemeanor convictions.

In Oregon, the District Attorney is in charge of all death investigations. Here is the news conference I gave the morning of February 6, in Seaside:

And since the man who killed Sgt. Goodding was immediately thereafter shot and killed by a police officer, that investigation is particularly charged to the DA. With assistance from many outside Oregon State Police officers, we made sure there was a thorough investigation of the shooting death of Phillip Ferry. After about 10 days and aided by body cams worn by both the officer who died and the one who shot his killer, I "called" the shooting as justifiable on February 16. Here is a clip of that, followed by a KOIN6 news report.

In between my only two public discussions, the community laid Jason Goodding to rest. In my 22 years as DA, thankfully no other police officer in Clatsop County has been killed in the line of duty. There have been two other police shootings, both over 10 years ago. One was a tragic error by an out-of-county SWAT team training at Camp Rilea. The second was the shooting of a man who attacked police with a metal bat after Tasers and  bean bag rounds failed to slow him down.

Police shootings have been a major topic of discussion, not only by both Democratic candidates for president, but now also Republican candidates. More significantly, the President and his U.S. Attorney General for most of his two terms, Eric Holder, were extremely critical of police shootings. While some of those shootings were wrong, even criminal, both local and federal investigators found the most well-publicized, the one in Ferguson, Missouri, to be justified. But the automatic reaction from most politicians is to demonize police and accuse (as one major newspaper did) that "DAs and police were each other's secret Santas."

In the week preceding Sgt. Goodding's murder, more U.S. police officers were murdered in the line of duty than during any recent, similar time period. Yet neither the President, the U.S. Attorney General or the Oregon Attorney General thought this recent bloodbath needed mentioning.

Obama appointee James Comey, Director of the FBI, famously - and courageously - noted that, “The question that has been asked of me, is whether these kinds of things are changing police behavior all over the country,” Comey said during a speech at the University of Chicago Law School. “And the answer is, I don’t know. I don’t know whether this explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior.”

The memorial for Sgt. Goodding drew over 1,000 police officers from as far away as New York. Over 600 non-uniformed people also packed the Seaside Convention Center. The memorial was live-streamed to several other venues and over the air. The speakers were all chosen by Sgt. Goodding's widow. One of the last speakers was our own beloved State Senator Betsy Johnson, who gave this remarkable eulogy, with the Governor and the Oregon AG sitting 15 feet away. By Oregon political standards this video has gone viral with almost 8,000 views. It's 6 minutes is well worth watching.

Phillip Ferry had THREE Assaulting Police Officer convictions and many other felonies, yet he still had an illegal gun; and in his 30-year felony career he spent less than 5 years in prison. But after reviewing all 8 of the convictions my office obtained on Ferry in the 3 years before his death, even the felonies were ineligible for judges to send him to prison, even with his record.

The reality in Oregon is that prison growth is a fraction of what was projected in the wake of Measure 11 or even 10 years ago. More than 75% of felons never go to prison. Seventy percent of those who do earn their way to prison are violent felons. Fewer than 7% are there for drug felonies; even selling heroin or meth rarely gets much, if any, prison time.
Nobody in my line of work believes you can "imprison your way out" of drug addiction. But when the values, particularly in the State Legislature are to financially reward local governments that DO NOT send felons to prison, something is very wrong.