Media Room

American Constitution Society Annual Board Dinner

Good evening,
It’s a great honor and privilege to be here with you this evening. 
You know, as we move toward the close of another legislative session in Oregon, and as we continue to work through a seemingly endless season of presidential politics, I find myself deeply grateful to the American Constitutional Society.  

Your stated mission is to “promote the vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy and the rule of law.”  

I believe that at this time in our nation’s history – and in Oregon’s history -- this work is more important than ever before.
We are living in a time of significant transition.  For many years, non-lawyer citizens tended to talk about the law only as it related to a couple of Big Ticket topics:  reproductive rights, drug policies, civil liberties.  

In the past, conversations about the day-to-day functioning of the legal system tended to be the province of attorneys.  And those attorneys – okay, WE attorneys – often were more interested in the technicalities of the law and procedure than we were with the larger effects of the justice system on individuals and communities.
But what we have been experiencing for the last two or three years is a loud, prolonged, nationwide conversation about how everyday citizens see and experience our system of justice.  These aren’t the technical conversations that lawyers have when they get together.

Instead, we are witnesses to a conversation that focuses on the ways that everyday Americans (including Oregonians) are affected by our justice system in profound and often alarming ways.  And perhaps just as importantly, we are learning that, for so many citizens, the justice system is viewed as something else.  That, at best, it is indifferent to the reality of their lives, and at worst, it is a malevolent force whose very purpose is to serve the interests of one group of citizens by subjugating others.  
Allegations about police abuse and community responses are the topics that are dominating the headlines. And, of course, they are worthy of serious and prolonged discussion.  

But there are also serious discussions about how our justice system works for or against the most vulnerable among us, even in the absence of malfeasance or abuse.  The idea of “systemic bias,” and what we can do to combat it, is more alive in Oregon now  than at any time in my memory.   
And this is where ACS’s mission comes in, and where lawyers have the opportunity to play a vital role in moving our system of justice to a more equitable and more just place.  Lawyers have both the technical understanding and the real-world experience to identify and explain the disconnect between laws that equitable on their face and unequal in their application to people of different backgrounds.  

They can explain how the law on the books and the law on the streets are often very different things. And they can articulate why the very integrity of our justice system is called into question by so many of our neighbors.  And attorneys can – and must – play a vital role in proposing solutions to address the serious inequities that are manifest in our justice system.
That is what made me originally choose law school as the best preparation for a life I intended to devote to righting these very inequities. 

With that in mind, I want to spend a couple of moments talking about some of the challenges we are experiencing in Oregon’s criminal justice system, what we are doing about them now, and how we can move forward to more fully address them going forward.

There has been a lot of reporting and discussion about the issue of over-incarceration in America.  It is a nation-wide problem.  I recently read an article about mass incarceration in America, and one line in the article really resonated with me: 

“Europe has a social safety net, America has a prison system.  This seems to be borne out by the numbers: from 1980 to 2008, the number of people incarcerated in America quadrupled-from roughly 500,000 to 2.3 million people.  The United States today makes up 5% of the World population, and incarcerates 25% of world prisoners.”
And it gets worse. Not only are we over-incarcerating our citizenry, but we are doing so in ways that are racially and ethnically biased. 

Nationwide, nearly 1 million of the total 2.3 million incarcerated population are African Americans, who are incarcerated at nearly six times the rate of whites. Together, African American and Hispanics comprised 58% of all prisoners in 2008, even though African Americans and Hispanics make up approximately one quarter of the total US population
It would be tempting to blame this phenomenon on other places that are not as progressive or enlightened as Oregon.  But the truth is that this is also an Oregon problem. We must, as a community, accept as fact that our criminal justice system is not free of institutional bias: men and women of color are over-represented at every significant stage, and the impacts on our families and communities of color are profound and unacceptable.
As has been widely reported, a 2016 report prepared pursuant to a MacArthur Foundation grant found that in Multnomah County, our criminal justice system routinely and pervasively treats African American citizens more punitively than white citizens.  According to the data, while they make up only 5 percent of the county's general population, black men and women s represent 27 percent of its jail population.  The study also found that compared to white residents, African American residents of Multnomah County are:
More than four times more likely than to be referred to the District Attorney's Office for a case review;
More than four times more likely to have a case accepted for prosecution;
More than four times more likely to be convicted of an offense;
More than  four times more likely to be sentenced to jail, and
Four times more likely to be required to pay a fine.
 As attorney who practiced in Portland, and as an elected official, I have had the privilege to know almost every judge on the Multnomah County Circuit Court bench for the last 30 years.  
I’ve known the District Attorneys and many of the ADAs.  I’ve known many defenders and private defense counsel.  I honestly believe that each of these men and women have been motivated to participate in our system for the right reasons, and that very few if have brought a conscious racial bias to their work.  
At the same time, it is clear that our criminal justice system is not treating people equitably – the color of your skin appears to be strongly relevant to determining what happens to you once you enter the system. 
That this is true in one of our most progressive communities is upsetting and frustrating and wrong.  And it underscores the suspicion that it is happening statewide.

So: what can we as attorneys committed to ensuring the “vitality of the U.S. Constitution and the fundamental values it expresses” do to address these issues here at home? 

How do we restore confidence in The System by making it more fair for all?
There is no silver bullet, of course, but it seems to me that there are some things we can do, and I’m pleased to say that – even though we have a long way to go --  we’re already making some progress.

In 2013, the Oregon State Legislature passed House Bill 3194, which made changes to felony sentences in the hopes that we would reduce the number of non-violent offenders going to prison.  

The savings on prison beds (and the money we would save not having to break ground on a new prison for male inmates) was intended to be “re-invested” into the communities so they could focus criminal justice assets on medium and high risk offenders supervised in the community.  This approach is referred to generally as “Justice Reinvestment.”  And it is working. 
In Lane County, they have seen the sentences for property crimes drop by an average of 9 months.  The county is using the “reinvested” funding to increase the capacity of comprehensive reentry services for offenders returning to the community, thus hopefully helping to reduce the “revolving door” of incarceration for many of those re-entering society. 
Here in Multnomah County, the defense, prosecution and court use a comprehensive risk-and-needs report designed to inform the sentencing process and better calibrate how convicted individuals can be managed safely in the community.  

The work in Multnomah County has resulted in almost 200 fewer prison intakes from Multnomah County alone. 
The work of Justice Reinvestment has also resulted in an unprecedented collaboration among the courts and attorneys in many jurisdictions. We are hearing stories of defense lawyers and prosecutors working together to achieve rational outcomes in cases that protect the community without unnecessarily throwing away lives and rending families through mindless incarceration.
As Governor, I remain deeply committed to Justice Reinvestment, and will for the rest of my time in office continue to advocate for this common-sense work to bring Oregon’s scales of justice back into justice.
One thing we haven’t done yet, but that seems obvious and necessary is to address the funding of indigent defense services in Oregon.   The MacArthur Foundation study I referred to earlier noted that for every 1,000 cases in which a criminal defendant is charged in Multnomah County, public defenders represent the defendant in 750 cases.  

These public defenders are talented, committed lawyers, but they are also vastly underpaid, both objectively and in comparison to the district attorneys appearing opposite them.  

The result is that public defender offices find it harder to retain their most talented attorneys, and those attorneys carry enormous caseloads with limited support.  Simply put, if we adequately fund indigent defense, that will go a significant way toward addressing the racial imbalances in our criminal justice system.

There is, of course, much more to be done.  And I appreciate that the ACS here in Oregon and nationwide is committed to the work of protecting liberties and preserving the credibility of our institutions of justice.   My office and I are eager to hear your ideas, your concerns, and the lessons of your experiences around these issues.

It seems appropriate to close with one of my favorite Hans Linde quotes.  

Justice Linde once wrote: “If this republic is remembered in the distant history of law, it is likely to be for its enduring adherence to legitimate institutions and processes, not for its perfection of unique principles of justice and certainly not for the rationality of its laws.”  

It is vital to the legitimacy of our institutions and processes of justice that they offer every individual a fair and equal opportunity to resolve disputes on the merits.  

I look forward to our discussion, and to our shared work in helping to secure – in the words of the ACS Mission— “genuine equality, access to justice, democracy and the rule of law.” 

Thank you.