Willamette Week | By Katie Shepherd
Across the country, many Republicans—even the Koch brothers—are locking arms with liberal reformers to reduce incarceration.
Oregon’s criminal justice system is relatively enlightened, but the incarceration debate is furious here as well.
In 1995, voters approved Measure 11, imposing mandatory minimum sentences for certain violent crimes and thereby limiting judicial discretion. It gave prosecutors substantial leverage.
“Our criminal justice system is set up to give outsized power to district attorneys,” says Bobbin Singh, executive director of the left-leaning Oregon Justice Resource Center. “This imbalance gives DAs and prosecutors enormous control.”
Oregon’s recent criminal justice reform efforts have focused on reducing incarceration and limiting DAs’ power. On Aug. 27, the ACLU of Oregon launched an advocacy campaign that seeks to restrict the authority of the state’s district attorneys, calling them “the most powerful people in the criminal justice system.”
In 2013, the pendulum swung toward reformers in Oregon—a bit. That year, lawmakers approved modest reductions in mandatory sentencing. This year, they increased the pace of reform, defelonizing personal possession of heroin and meth—and, in another blow to prosecutors, requiring the audio recording of all grand jury sessions.
“We are seeing some shift that’s happening at the Legislature,” says the ACLU’s Rogers. “People are recognizing more and more the power and influence that DAs have.”
One power district attorneys retain, however, is the blanket affidavit. Matarazzo is not the only judge who’s feeling prosecutors’ wrath.
In 2009, while Schrunk was still district attorney, his office affidavited Marilyn Litzenberger, another Multnomah County circuit judge with very public views on judicial independence, and refused to allow her to hear any felony cases brought by the state. The office still affidavits Litzenberger on some felony cases.
A number of judges across the state have had similar blanket affidavits filed against them recently by district attorneys, according to the ACLU of Oregon.
They include Judge Josephine Mooney in Lane County, Judge Cameron Wogan in Klamath County, and Judge James Fun in Washington County.
“We’ve seen a number of DA offices look to wholesale disqualification of a specific judge based on a perceived bias,” said the ACLU’s Rogers. “It’s very concerning.”
Kevin Neely, who lobbies for the Oregon District Attorneys Association, says the practice is fair because both defense attorneys and prosecutors can affidavit judges—and it falls well within a DA’s legal prerogatives.
“That’s the balance that’s in the court system,” Neely says. “DAs have the right to affidavit judges. It’s not just Rod—there are a handful of judges who have been affidavited around the state. That is in adherence to the law. They can’t state that any DA in the state is doing anything or operating in any way other than in accordance with the law.”
Some criminal justice reform advocates worry that even as lawmakers seek to rebalance the criminal justice system, the power of affidavits could curtail the independence of the judiciary.
“The person who is supposed to be in control of the justice system,” Parry says, “is the judge.”