07/09/17 Kate Gonsalves

This week: the Oregon Legislature has passed a bill to force law enforcement to begin addressing racial profiling, and which also reduces simple possession of some drugs from a felony to a misdemeanor; plus the Oregon Justice Resource Center has released a guide on organizing against mass incarceration, to learn more about it we speak to OJRC Political Director Kate Gonsalves.

Century of Lies
Sunday, July 9, 2017
Kate Gonsalves
Download: Audio icon col070917.mp3



JULY 9, 2017




The state of Oregon has finally taken some steps to stop the practice of racial profiling by police. Racial profiling, of course, is the practice by law enforcement of targeting people who appear to be non-white, though also profiling can occur based on gender, age, and other physical attributes. Profiling is based in bigotry and class bias, and it's also one of the main reasons law enforcement in the US is so haphazard, slipshod, and inefficient.

For decades, I have pointed out that profiling is one of the biggest reasons law enforcement does such a poor job at finding the real culprits when it comes to property crimes and violent crimes. Our police and prosecutors are much better at bringing in the usual suspects and coercing guilty pleas than they are at actually solving crimes. Profiling is also one of the reasons that drug enforcement is so obviously and horribly biased. Police and prosecutors presume that people who are poor and people who are non-white must be guilty of something so they get targeted by law enforcement and treated harshly, while privileged white people typically get a pass.

Well, it appears that some people in Oregon, the state where I currently reside, have been listening. The Oregon Attorney General, Ellen Rosenblum, has been taking a good, hard look at this issue, and her office filed a bill at the beginning of this legislative session to do something about it. It's only a first step, but it's an important one. Presuming Oregon Governor Kate Brown signs House Bill 2355 into law, the state will be forced to begin collecting data to show when and where police in Oregon are engaging in racial profiling.

According to Oregon House Bill 2355, as passed by the legislature, quote:

“No later than July 1, 2018, the Oregon Criminal Justice Commission, in consultation with the Department of State Police and the Department of Justice, shall develop and implement a standardized method to be used by law enforcement officers to record officer-initiated pedestrian stop and officer-initiated traffic stop data. The standardized method must require, and any form developed and used pursuant to the standardized method must provide for, the following data to be recorded for each stop:
The date and time of the stop;
The location of the stop;
The race, ethnicity, age and sex of the pedestrian or the operator of the motor vehicle stopped, based on the observations of the law enforcement officer responsible for reporting the stop;
The nature of, and the statutory citation for, the alleged traffic violation, or other alleged violation, that caused the stop to be made; and
The disposition of the stop, including whether a warning, citation or summons was issued, whether a search was conducted, the type of search conducted, whether anything was found as a result of the search and whether an arrest was made.”

End quote.

House Bill 2355 also mandates training for law enforcement officers, and it sets up mandatory reporting by local, county, and state agencies.

Now, that's good. It's not enough, there's still a lot of work left to do, but it's a good start. Yet that's not the only thing about House Bill 2355 that's I'm pleased with. House Bill 2355 also partly decriminalizes drug use by reducing the penalty classification for simple possession of many controlled drugs, including heroin, methamphetamine, oxycodone, and cocaine, and also allows for people who are convicted of a simple possession offense, now a misdemeanor, to be given community supervision instead of jail or prison.

Again, it's not enough, there's still a lot of work left to do, but it is a good start. I congratulate all the people and organizations who worked really hard to get this bill through, and I hope Governor Brown will do the right thing and sign it as soon as possible. And in the next session, I hope we can get to work to make it even better.

So now, let's hear some of the discussion in the state legislature about House Bill 2355. The Oregon legislature's joint committee on public safety held a hearing on House Bill 2355 in June. First up in this segment is Jason Myers, representing the Oregon State Sheriffs Association. He's followed by Kimberly McCollough with the ACLU of Oregon.

JASON MYERS: Thank you, Chair Winters. Members of the Committee, for the record, my name is Jason Myers, I'm the Marion County Sheriff. I'm here today representing the Oregon State Sheriffs Association and the Oregon Chiefs of Police Association, who are in support of House Bill 2355.

Myself and Chief John Teague served on the racial profiling task force that Aaron Knott just spoke of a few minutes ago, and that was about an 18 month process where we worked -- came together on a task force with other stakeholders to take a look at the issues of racial profiling, state law, and ultimately the issues around the PCS policy that you see in front of you. We worked together with these stakeholders, negotiated, and came forth with this recommendation around all of those issues, and obviously we support those.

I just have a couple of comments, and then I'll turn my time over to my partner here. One of the things that was really important for us around the PCS offenders was to ensure that we had the proper funding to supervise, sanction, and offer services to this population, and I can't overemphasize the need that if the -- and I realize this a tight fiscal environment, but any increased resource for treatment will be very, very important to this population, and trying to help them with their addiction, and stay clear of the criminal justice system.

The other thing that we want to make sure is that all of these were handled in circuit court, and we also want to make sure that there was measurement, that the proposed change, and if this change is affected in our community, we want to make sure that it's working the way that we want to to work and keeping our community safe.

Yeah. So with that, we are in support, and I will turn it over to Kimberly.

KIMBERLY MCCOLLOUGH: Co-chairs Stark and Winters, and members of the Committee, my name is Kimberly McCollough, I'm here on behalf of the ACLU of Oregon. I'll try to cut out the parts of what I was going to say that's duplicative of other folks, but there may be a little overlap.

First of all I just want to mention that I feel honored to have served on this task force, it was a really great group of people who all came together to talk about really difficult and complicated, and at times very nuanced issues, and in particularly our law enforcement partners, Sheriff Jason Myers, Chief John Teague, and then later in the process Kevin Campbell from the chiefs and sheriffs were incredibly helpful, and great to work with, and I feel like we can all be very proud of the entire package that we came up with together.

I know that you all are interested in the fiscal issues, but I do think that a little bit of framing, I want to focus my comments just to the drug policy portion of the bill, and I think a little bit of framing is helpful, because I have gotten the question occasionally from legislators, of why is the drug policy and the profiling policy all in the same bill? And I think the reason is because those of us on the task force, as we were having these discussions, quickly realized that profiling and the drug war are really inextricably intertwined, and we couldn't really adequately address profiling if we didn't address this policy that is driving profiling and is amplifying the impacts of profiling.

And what I mean by driving profiling is that, we know from looking at data in other locations around the country that often what we end up seeing is that not only is there disparity in who is stopped, but that those disparities are often much, much higher in the discretionary decisions about who to search, and because drug use, personal drug use, is a private thing, it's a thing with no victim, it's a thing that doesn't, unlike a lot of other crimes, doesn't have evidence sort of strewn about. It's something where searches are really necessary in order to find that activity. Right?

And so the drug war and looking for people and their personal drug possession, right, it fuels discretionary searches and discretionary searches is where we see a lot of those disparities, and then at the back end, you end up seeing these amplified penalties, right, so, in our own data that was shown from the criminal justice system you can really see how that actually has operated, where we have these really significant disparities despite the fact that we know that folks use drugs at roughly the same rates.

So that's just, I think, framing that's really important. That's why this is so --

SENATOR JACKIE WINTERS: Kimberly, I've got other people to testify, and I --


SENATOR JACKIE WINTERS: I -- so, I appreciate hearing some of the background, but, you know, I need you to actually crystalize for us. Thank you.

KIMBERLY MCCOLLOUGH: Absolutely. Absolutely. Not a problem.

So, I did want to just give you, make reference to the fact that I did upload onto your, onto OLIS, some briefing on some poll analysis that we did, we did polling in the state of Oregon, we found that 73 percent of Oregonians support this policy. That support stayed very consistent across party lines, the urban rural divide, and so, really, I think that demonstrates something that we've seen similar in other states where 18 other states, the last one being Oklahoma, have already done this policy, and it's been very bipartisan in most of those places.

As far as the fiscal issues, I think that Jason already really covered it. It was extremely important to us that the money still stay in community corrections. We wrote the bill so that will happen. And we also wrote the bill so that it will stay in circuit court. And, I'd just like to -- as a final note, note that we really do want to make sure that folks get the treatment they need. I know there's another bill in this committee right now, Senate Bill 1041, which is going to look for gaps in drug addiction treatment across the state, and that study I think is going to give us some indication of where we need to fill those gaps, and we will be here supporting those increases in funding for treatment, which we really need across the state moving forward.

So, I'll leave it there.

DOUG MCVAY: That was Kimberly McCollough from the ACLU of Oregon speaking on House Bill 2355 before the Joint Committee on Public Safety in the Oregon Legislature. She was preceded by Jason Myers from the Oregon State Sheriffs Association.


Now, let's hear more from that hearing. First up is Josh Marquis, the District Attorney in Clatsop County, and a strident drug warrior. He's followed by Kayse Jama of Unite Oregon.

JOSH MARQUIS: Thank you. My name is Joshua Marquis and I'm the district attorney in Clatsop County, where I've been for 24 years. I'm here not speaking necessarily for all of the Oregon DAs Association, I want to be very clear that, the -- many of us who are district attorneys see 2355 in two completely different lights. The first part, the part about profiling, I think as broad support, and frankly should be decoupled from the second part involving PCS.

And I will try to be brief, but I think I'm probably the only voice you're going to hear, although I think mine is -- I know is carried by many district attorneys and many in the law enforcement community. We are very concerned, there's really not a war on drugs in Oregon, let's be honest, as somebody who's in court every day, the idea that, that we, as the ACLU says, have harsh drug sentences in Oregon, is frankly ludicrous. The sentence for your fourth conviction for heroin in my county is ten days in jail, probably eight of which will -- is served in jail, in fact after two days you'll probably be released.

For your seventh conviction it's the same thing. Let's be clear on what, what drug laws are not in Oregon. Some of the testimony that has been heard, I don't know by this committee or others, talks about disenfranchisement, and I've handed out something from the Brennan Center. There's a common misunderstanding that if you're convicted of a felony you lose your right to vote, and that is true in some pretty regressive places, like Florida. Oregon is one of a group of states that the only people who lose their right to vote are the 15,000 people, approximately, in prison, and you literally do not go to prison for possession of controlled substances.

The only reason somebody would be in prison would be they plead down. Oregon has, by most measurements, the second lowest rate of prison incarceration for drugs. The most recent data shows six percent.

But the greatest concern I have as a prosecutor who's in court every day, and who, and frankly I can answer Mister Schmitt's question about why are these mushrooming numbers. Because we have a huge heroin and meth crisis in this state, and it crosses racial lines, it crosses class lines, although I would suspect that those people from backgrounds like my own, privileged backgrounds, are going to have a lot easier time finding treatment than those who do not have those advantages.

And, at, one thing this will do is, say goodbye to drug court. It's gone. I've been a defense attorney for a brief period of time, I've been a prosecutor for a lot longer. I also have represented for twenty years on the National District Attorneys board. Now that's only relevant that I've been to other states, I've spoken at other states. I was at a conference in January in Washington, DC, talking about this very bill. And right behind me were representatives of Oklahoma and California. Couldn't find two more different states. Oklahoma's a very red state, very conservative, California's a very blue state.

Both states had recently, as the ACLU points out, de-felonized, or decriminalized in my view, possession laws, and at least the prosecutors in both states thought they were both disastrous. California did it by initiative, Initiative 36 in 2000 [sic: it was actually Prop 47 in 2014], and there's a lot of research that shows that that has been frankly a failure. Drug rates have increased. Oklahoma actually was at the opposite end, people were actually doing two to three years in prison for mere possession, something that hasn't happened in Oregon at least for the most of my 35 years in practicing law.

But, at the crux of drug court is that it is inherently a coercive process. Essentially, someone comes in, and they are possessing a relatively small amount of drugs, I would agree that the amounts set in 2355 are reasonable, they're use amounts. A gram, which is probably -- heroin is now sold by points, meaning a tenth of a gram is a use amount. When I was an investigator, it was a quarter of a gram, or half a gram, or a couple of grams, in any event, it's a lot cheaper now, it's a lot more addictive, it's a lot more powerful.

But the calculus is very simple. A person comes in and says, I don't want to have a felony on my record, because there are collateral consequences, absolutely. You don't lose your right to vote, but there are other downsides, certainly, to being convicted of a felony. And, I personally handle drug court, every Monday, sit there for four hours, talk about each case, every person's record, individually. Do not look at them as a group, you look at them as a person.

And if somebody is asked, by -- asked, well, I have two choices, I could either, I could take this felony conviction, or I could go through this drug court program. It's pretty arduous, they have to show up every week, they have to pee in a cup, they have to -- they have to stay clean for six months to graduate. If they graduate from the program --

SENATOR JACKIE WINTERS: I'm not -- I'm not going to have to hurry you up too? Now, come on.

JOSH MARQUIS: Okeh, I will, I will try, I don't think, Chair Winters, thank you, but I think you're, this, I'm the only person you're going to hear this from.

That, that drug court will only work if it's a felony. I can tell you, the defense attorney, as a former defense attorney, and you should ask current defense attorneys, what is their suggestion going to be to somebody who comes in and is looking at a misdemeanor? And the answer is, that basically what this, what this part of 2355 does, is it sends up a white flag on heroin and methamphetamine. It says to the people of Oregon that we are now going to consider this as about as serious as writing graffiti on a wall or stealing a video game. Those are Class A misdemeanors.

And, and I think that is, frankly, I'm not worried about having more customers. I'm in a recession proof business. So the number of felonies that come into my office are not going to affect my staffing or my funding, or the amount of money that you all give to district attorneys or the countries to, this is bad policy, and what I would urge each of you to do, because you're going to get different answers, is talk to your district attorney, find out, but this is a one size fits all that I think is going to be a disaster. Thank you. I'd be happy to answer questions but I know you have other witnesses.

SENATOR JACKIE WINTERS: Yeah. Well, I've only got four minutes left. Kayse.

KAYSE JAMA: Chair Winters, Co-Chairs, members of Committee, my name is Kayse Jama. I am the Executive Director of Unite Oregon. We work to improve the lives of people in communities across the state. I'm here today to strongly urge you to support House Bill 2355, as it is currently written.

SENATOR JACKIE WINTERS: Kayse, can you do me a favor? Because you have a written document. Can you kind of summarize it for me?

KAYSE JAMA: Thank you, Chair. So, I actually, as I'm also a member of the task force, we have met about 18 months, and I want to share with you, this has been one of the most rewarding experiences, being a member of this task force. We did hard work, we, you asked us, work to do, and we come to you to pass HB2355.

I want also to let you know that profiling, racial profiling, may be the most visible form of profiling, but it's not the only type of profiling. We know that other forms of profiling have been found across the state. Unite Oregon, as a member of about 78 organizations who have endorsed and supported this policy, so on the community side of it, we believe is really the right thing to do.

In terms of the piece of the drug policy, I do believe that, and our members believe that, this is a public health issue, and I think Oregon is, it's well -- it's about time that we see it as a public health issue and treat it as a public health issue, and reduce drug possession from a felony to misdemeanor.

So we support actually the policy, and I think it's the right thing to do. I do believe that Oregon is spending about $200 million in the colleges, and we spend about $800 million on incarcerating people, and I think that number is just, it's striking, tells the story of why we need to reform this drug policy issue. So with that said, you have my comments, and I urge you to vote this bill out of committee, HB2355. Thank you.

SENATOR JACKIE WINTERS: Thank you. Thank you. And, we have time for maybe one question. Senator Frederick.

SENATOR LEW FREDERICK: Thank you. It's not so much a question, as a comment. I am very pleased to see how this worked out, coming out of the 2015 session. I began work on this particular, these particular issues when I first arrived in the legislature in 2010, and I am pleased to see that we're slowly beginning to have an impact on this issue.

I think it will, may help us turn around a number of the other problems that are associated with the drug war, with the profiling issues that affect poorer communities, and I'm very encouraged, very encouraged by this bill.

DOUG MCVAY: That was Kayse Jama of Unite Oregon speaking in favor of House Bill 2355 before a joint committee of the Oregon legislature. Kayse was preceded by Clatsop County District Attorney Josh Marquis. Again, House Bill 2355 has been passed by the Oregon legislature and is on the governor's desk awaiting signature. As the bill was brought forward by the state attorney general, Governor Brown is expected to sign it into law.


The Oregon Justice Resource Center has produced an exciting new guidebook for organizing to end mass incarceration. Here's the OJRC's political director, Kate Gonsalves, to tell you about it.

KATE GONSALVES: Well, it's a 33 page guide. It really was generated out of the community. We had several people who were quite distraught after watching many of the cellphone videos of police use of force, interactions that are happening nationally, and also, we had many other community advocates who were sitting at home watching documentaries like The 13th, or reading Bryan Stevenson's book, and they really wanted to plug in, and they wanted to do something, but, because the systems of mass incarceration are so complicated, many people just didn't know quite what to do. And so we created this advocacy guide to give people a tangible way to start plugging in.

DOUG MCVAY: Folks listening probably are familiar with the old adage "Think globally, act locally." Is that kind of the idea?

KATE GONSALVES: That's exactly the idea, and I think it's kind of a different approach. Many people, when they think of issues of mass incarceration, they think about either, you know, the new administration and the powers of the president, or they think of police interactions in the streets, and also they think of prisoners in jails.

So, but the real point of this guidebook is really to focus people's attention to communities where they live, work, and hold power, and give them tangible ways to get involved, quite frankly just in their backyard, because, although many prisoners are housed at the state level, in prisons, they enter into the system at the local level, and those are a variety of different decisions made by local level actors that, honestly, have escaped a lot of attention, such as folks like our district attorneys, judges, city councilors. Many of these people have powers over the criminal justice system, and they're much more accessible often that trying to contact people in Washington, DC, and they hold a lot more power here in Oregon.

DOUG MCVAY: The term "power mapping." Could you unpack that?

KATE GONSALVES: Sure. So, I come from a long community organizing background, and the concept of power mapping is a tool that's been used by social justice organizers for generations, but it's rarely applied to criminal justice issues. The idea is really just to make a relational grid, and to start charting out who holds power, who holds influence over the issue you're trying to advance.

And so the reason this tool is so particularly relevant for criminal justice issues is because folks like John Pfaff have talked about the system really is not a system at all. There's several different bureaucracies, and organizations, and agencies, that are intertwined within the entire criminal justice system, and many of these different bureaucracies, you know, they have their own cultures, or they don't work well with each other.

And so, trying to figure out this maze is a really daunting first step, and if you sit down with a group of other interested advocates and you start really drawing out where the power lies, it's really the first step towards taking action beyond just sitting at home feeling outraged. It's really the first step to really start building power by organizing.

DOUG MCVAY: So what listeners do?

KATE GONSALVES: So, in the guide, we created twenty actions Oregonians can take. But, part of that, I would say, is just starting to build community. Come together with other individuals who want to work on these issues. Get off the couch and start organizing. That's the only way systems have ever changed in this country, is individuals becoming outraged and then combining with other like minded individuals and organizations already doing this work, to really start pushing more strategically for change.

And so, with that, I would obviously do a shameless plug and say please read and share the guide. We are happy to give presentations, and help with power mapping, if there is a community group who has a specific justice related issue they want to work on. We're happy to be a resource. We can't do this work alone. I think the number of people the justice system impacts, compared to the number of people trying to do this work, is just this huge wave, and we can't do it alone. We need more people to get engaged, and get involved.

And so, there's many opportunities in the guide of how people can start plugging in where they live, and I think this work really is empowering, because once you use your voice, you know, the first time you testify might be a little terrifying, but after that, it becomes less so. And then you start, you know, giving your elevator pitch to, you know, folks you meet along the way, and slowly this bumps these issues up to the top of people's agendas, because elected officials start really hearing from their constituents and they say, oh, this is an issue I better get on top of, I'm getting contacted on a regular basis. And so, it's amazing the power of what these small actions can really translate to, and again, taking that action locally can then bleed over to act as examples for the state to follow.

If we start doing smarter things here in Multnomah County, we become an example that, you know, the sky hasn't fallen, that other district attorneys, or other sheriffs, or other county commissioners, can start doing differently. And so it's really critical for people to start plugging in. They can connect with us online at OJRC.org to get a copy of the guide, or to request a presentation. They can, you know, join our mailing list, follow us on social media just to stay up to date with some of the work we're doing here at OJRC. But that would be the first step.

DOUG MCVAY: That was Kate Gonzalves with the Oregon Justice Resource Center talking about their new guidebook for organizing to end mass incarceration. It is a must-read. I highly recommend it to all of my listeners. Download your copy from the OJRC website at OJRC.org.



