The 2021 Legislature’s mass incarceration-oriented “bill for an act,” Senate Bill 218, is the worst piece of criminal law legislation that I’ve seen since 1997.[1]
Misdemeanors
As powerful as the racial/ethnic impact statement law might be, it’s not where collective actions should end. Consider an Oregon law, first created in 1997, that bars certain citizens from criminal jury service—an activity that the United States Supreme Court long ago established as a hallmark of citizenship. The law excludes citizens who have “been convicted of a felony or served a felony sentence within the prior 15 years,” and for five years excludes persons convicted of "misdemeanor[s] for violence or dishonesty." In 1999, Oregon voters approved a legislative referred ballot measure, which inserted these exclusions into the Oregon Constitution.
Drug Crimes
For these reasons, Oregon should abolish these exclusion laws with all deliberate speed but shouldn’t stop there. The legislature should scour their states’ criminal codes to root out other racial proxies. In Oregon, that includes the state’s drug-free school zone law, created in 1989, which enhances sentences for certain drug crimes.
Assault
Murder
True reform would amend the legislative law. Recognizing the conflict of interest, amendments would prohibit district attorneys from taking to the grand jury cases involving police killings and assaults of defenseless persons. Instead, the Governor—or the Attorney General (as was done in the prosecution of Derek Chauvin’s murder of George Floyd—would appoint a special prosecutor to handle the case (through to the end).
Probation Violation
Also, if a specialty court resumes criminal proceedings consequent to a probation violation, the defendant will be tried to the bench and may suffer delay. Even if the prosecution evidence is insufficient to support a conviction, the defendant will be barred both from moving for judgment of acquittal, and from appealing the conviction on grounds of insufficient evidence. Moreover, the defendant will be barred from (i) offering relevant defense evidence, (ii) confronting and cross-examining unreliable and untrustworthy prosecution witnesses, (iii) challenging hearsay and irrelevant evidence offered by the prosecution, and from appealing convictions on the three additional grounds just mentioned.