Street Roots • April 22-28, 2016
widespread racial disparities, with blacks
being six times as likely to end up in jail as
whites.
Now commonly referted to as the RED
Report (Racial and Ethnic Disparities
Report), it analyzed the outcome of different
racial groups at every decision point in the
county’s criminal justice system, from initial
police interaction to post-conviction
probation, finding inequities throughout.
On March 4, City Club of Portland held a
forum to address the findings of the RED
Report at downtown’s Sentinel hotel.
“When I read the report,” Underhill said
to the room full of City Club members, “it’s
accurate to say that as the district attorney
in Multnomah County, I have touch points in
essentially every decision point. It’s also
more accurate to say my office is more
primarily responsible on some of those
points. One of those points is sentencing.”
Underhill continued by saying that while
he recognizes his office does not add to
disparities in some decision points
examined, “I also need to remind myself
that we do not make it better, we do not
reduce that disparity that initially comes to
us.”
Singh said Underhill’s talking points that
day underplay his role in the criminal justice
system.
“The district attorney should be
aggressively leading the charge to reduce
racial and ethnic disparities in our criminal
justice system. He is in the position and has
the power to be a transformative figure on
racial and criminal justice issues.
Remarkably, though, it appears that he is
shifting and pivoting away from the problem
and not directly confronting the issue.”
News
What Underhill was referring to at the
said.
City Club forum was a section of the report
According to Lisa Graybill, a legal director
that showed his prosecutors don’t move
at Southern Poverty Law Center, plea
forward in prosecuting defendants of any
bargaining can be efficient, “but can also be
particular race or ethnicity substantially
a real tool to encourage prosecutors to over
more than another.
charge so that they can get a plea to the
This means the cases are already
charge that they actually wanted to bring.”
disproportionately stacked against people of
She said over-charging also gives
color before his prosecutors file charges,
prosecutors more leverage over a defendant
locking in those
to plead guilty to crimes
disparities.
that are more serious
The RED Report
than crimes they would
"Oregon is the only state
determined blacks,
have likely been
in the union that relies
Hispanics and Native
convicted of should they
on grand jury to indict all
Americans are more
have gone to trial.
likely to be sentenced to felonies and still does not
“It’s a system that’s
prison than whites.
vulnerable to abuse,”
record the grand jury»"
With more than 90
said Graybill, “My job is
GAIL MEYER
percent of criminal
work on issues related
OREGON CRIMINAL DEFENSE
LAWYERS ASSOCIATION
cases ending in plea
to criminal justice
“agreements nationwide,
reform and mass
sentencing decisions
incarceration. One of
have largely shifted away from judges and
the biggest pieces, that is the hardest to get
into the hands of prosecutors.
at, with litigation or policy change, is
Oregon Supreme Court Justice Richard
prosecutorial misconduct and the abuse of
Baldwin said mandatory minimum sentences discretion.”
and other laws passed by voters and Oregon
Singh agrees. “Currently, the system we
legislature have “cut into the discretion of
have makes it very difficult and rare for
judges with respect to sentencing.”
prosecutors to be held accountable,” he
He said many judges make themselves
said.
available to be a neutral facilitator during
This is especially true when it comes to
the plea bargaining phase, but whether or
Oregon’s secretive and unrecorded grand
not a judge is involved in the process, most
jury indictment process.
of the time they simply enforce whatever
During the past two legislative sessions -
plea agreement is reached, although they do and intermittently since 1981 - Oregon
District Attorneys Association has blocked
have authority to deny it.
bills that would make grand jury indictments
“Typically there’s a strong interest in
more transparent by recording the
encouraging settlement and so trial judges
proceedings.
generally will follow the agreement the
Gail Meyer, legislative representative for
parties have agreed to on their own,” he
LAUGHINGPLANET.COM
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Oregon Criminal Defense Lawyers
Association, said by repeatedly blocking
these bills, prosecutors made it so “Oregon
is the only state in the union that relies on
grand jury to indict all felonies and still does
not record the grand jury.”
There are two ways an Oregon prosecutor
can bring felony charges against a
defendant:
They can file a complaint that’s heard
before a judge who weighs the evidence and
the cases made by both the prosecutor and
defense attorney before deciding whether or
not to move forward with an indictment.
This is a process that’s rarely used, said
Meyer.
The other way to bring charges is
through grand jury indictment, and it’s easy
to see why this method is so popular with
Oregon prosecutors.
In a grand jury indictment, the prosecutor
presents his or her case to a grand jury
made up of seven randomly selected
citizens, and asks the citizens to indict the
accused party.
There is no judge or defense attorney
present. The prosecutor decides which
witnesses to call, what questions to ask and
what evidence to present
The grand jury can also ask questions
before making its decision. Because these
indictments are not recorded, aside from the
hand-written and often illegible and
conflicting notes of jurors, the defense is
not privy to the circumstances under which
their client was indicted and there is no
judicial oversight
“No one really oversees it” said retired
See PROSECUTOR, page 11