The View From Here

An Ode to Optimism

by Dave Ferry, OCDLA President

From the June/July 2017 issue of The Oregon Defense Attorney.

After many years dominated by tough-on-crime politics, and the very recent national political move to the right, could it be possible that criminal justice in Oregon is looking up? Am I a crazy optimist, or are there really signs of improvement for civil rights proponents, sentencing reform advocates, and the criminal defense field more generally?

I have been working criminal defense cases since the dawn of the millennium (not as long as many of you, but a reasonable duration). In that time I have seen a number of changes in the Oregon criminal justice landscape. Perhaps because I aspire to be an optimist, and only dabble in realism, I have recently begun to sense a pattern —looking through an optimistic lens, with a dash of imagination, it almost appears there is a blossoming of a new era of greater protection for civil rights, greater dignity for the human beings caught up in the system, greater understanding of the ways sentencing can be used to protect Oregonians (moving from warehousing towards rehabilitation), and greater rationality in the system as a whole.

I acknowledge the possibility that I may simply be delusional. Obviously, the average sentence length has increased dramatically in the last couple of decades, and I cannot point to many new legal rules that have provided significantly greater protections for criminal defendants. But there are signs that the peak has been passed, and the tide is turning. That the groundwork has been laid and attitudes have shifted. The time may be upon us when the hammer blows we have been striking for so long will finally start bending the metal of our laws into better tools for justice.

Consider: When I started doing this work, the pay disparity between state prosecutors and defense providers was alarming. It largely still is, but legislators I have met no longer laugh at pay parity. Some defenders have started to see the fruits of those changing views, and I believe that more will follow (just as soon as we achieve a concurrence between legislators’ understanding of the need and budget dollar availability).

When I started, Ballot Measure 11 was the flavor of the month, popular amongst the citizenry and politicians alike. Now its support appears tepid, and opposition is gaining momentum. An ever growing number of voices oppose its oversized and inflexible provisions, and some have begun to openly call for its reform, if not repeal. There are even district attorneys who have broken ranks and admitted its flaws.

Although repeat property offender statutes such as ORS 137.717 were enacted since I started, those began as a compromise to avoid even more draconian measures proposed by the architect of Measure 11. And statutory penalties have been reduced since, not increased. When I first returned to Oregon, the architect of Measure 11 and other tough-on-crime initiatives was serving in Oregon’s House of Representatives and then ran for Governor. Now he is out of elected office. Recently, the attorney general filed a bar complaint against him, and elections officials tossed out the signatures on his last proposed ballot measure because of rule violations.

When I started at the appellate division, it was generally presumed that the Court of Appeals always read the state’s briefs first and would get around to reading ours only later. Maybe. A fair number of oral arguments in my early years left me feeling that some members of the panel had not spent the same amount of time with both sides’ briefs. Now the appellate bench compliments this office regularly on the quality of its briefs, and often portions of defense briefs are reflected in the written opinions.

When I started, “tough on crime” won nearly every major election in the state. While it isn’t without power today, at least one prominent elected official chose to attend a recent OCDLA event during campaign season.

So, while it may appear that I am reading tea leaves and coming to an unreasonably optimistic conclusion from their random designs, there are reasons to think that attitudes really are shifting. The work that we do has always been needed, even when it has felt fruitless. But I am beginning to think there is a harvest approaching.

I do not suggest that now is the time to relax and rest on our laurels. Ours is work that must always be done. Because there will always be fear of those that threaten the safety of our communities, there will always be political pressure to be tougher on crime. This fear will always produce incentives to cut corners on personal liberties and scrimp on dignity and mercy. An active and vigilant criminal defense bar will always be needed.

What I suggest in this, my final View From Here, is that progress in some of the areas that our community cares about most — like procedural fairness and sentencing reform — is looking a little more possible than it has in a long time. So, I wish you all good luck as you keep swinging those hammers. If I am right, it just may be that the days and months ahead will start to reveal that better system we have been trying to build all along.