My View: New D.A. is doing exactly what he promised
When brand-new Multnomah County District Attorney Mike Schmidt announced he would limit prosecutions against people arrested during the protests for primarily minor and less serious offenses, no one should have been surprised. Schmidt campaigned on a promise to deliver "major reform now" premised on a "smarter approach to justice." Ending the prosecution of peaceful protestors while focusing on those who cause harm flowed naturally from his statements on the campaign trail.
D.A. Schmidt's policy sends what should be an unmistakable message to all of Multnomah County — he will protect everyone's right to protest peacefully, and also everyone's right to be free from violence.
His policy strikes the right balance between equity and safety; it is smart and should be applauded. There is no public safety benefit to prosecuting peaceful protestors. Those individuals, by definition, are not causing physical harm nor are they damaging property. Peaceful protestors also are not deterred from action by the threat of arrest and prosecution — in places where prosecutors are using their power to put everyone and anyone in jail, protestors are nonetheless on the streets demanding sorely needed change on a nightly basis.
Critically, prosecuting peaceful protestors would make us less safe. Every prosecutor has limited resources with which to work. Each decision on where to focus resources is a tradeoff. With budget cuts likely and Covid-19 creating a major backlog, prosecutors need to spend precious time providing support for victims and investigating serious cases. Prosecuting people protesting generations of racism would not only be nonsensical, it would cripple the office's ability to bring justice in cases that matter.
Nevertheless, many who head law enforcement agencies, many police officers themselves, and of course, Donald Trump, want to blame Schmidt's modest policy for the violence that has rocked our community. The Portland Police Association decried the policy and Sheriff Mike Reese tossed out the well-worn line that Schmidt's policy will "embolden people to commit more crimes." The Oregon Association of Chiefs of Police and the State Sheriff's Association just wrote that they would not help in the city until the D.A. used "preventative detention and prosecution," claiming that D.A. Schmidt's policy is creating crime in the community. Donald Trump tweets out "LAW AND ORDER" and criticizes our local leaders for causing dissent whenever the urge so moves him — which is often as he continually seeks to distract the nation from his failure to handle the coronavirus.
Portlanders should not be confused. The violence we are seeing is not the result of Schmidt's refusal to prosecute people who haven't caused harm. It is the result of an intentional attempt, by both the president and our own police, to foment dissent and then blame "liberal policies" for the unrest in a desperate attempt to preserve their power that is now challenged daily.
Much of the violence we have seen of late occurred as armed right-wing vigilantes took to the streets and from our own police. The Proud Boys showed up "to protect the police" by brandishing guns and other weapons at protestors, and violence ensued. As often occurs during right-wing protests, our own police simply watched on as the Proud Boys unleashed weapons, exposing the very reason so many are protesting. We have watched as the police repeatedly unleashed tear gas on our communities and as federal law enforcement officials, sent in by the president, kidnapped Portlanders, snatching them off the street. In August, Trump supporters entered our city with mace and guns. The police did nothing. It ended in terrible tragedy.
None of this should come as a surprise; when people show up with lethal weapons, they expect violence will occur. The police know that this will happen, and yet they stand by and watch. When the inevitable violence erupts, Trump can point to violence as a reason to reelect him and the police can point to it as a reason to preserve their power, hoping people will ignore that their behavior is the reason why people are protesting in the first place. Both hope that the unrest they are causing and permitting will scare people into backing down from challenges to the current power structure and to reforming our system. They are wrong.
Anyone who believes the unrest here is the result of D.A. Schmidt's refusal to prosecute non-violent individuals has their head in the sand and is deliberately ignoring what is happening in this country. We are seeing unrest because we have let generations of trauma and racism go unaddressed, and now, with many calling for it to change once and for all, those with power are doubling down. It is not because a D.A. is refusing to prosecute those who are marching and demanding reform.
We want to be safe here in Portland, like everyone else in America. The way to ensure our safety isn't to stifle peaceful protesters by prosecuting those taking a knee and marching in our streets. To be safe, we need to let our new D.A. focus on those who cause harm. To be safe, we need someone who is willing to focus his resources on those who abuse power, not those who dare to challenge it. To be safe, we need someone courageous enough to keep pushing for the reform we desperately need. D.A. Mike Schmidt is doing exactly what we elected him to do.
Aliza Kaplan is a law professor at Lewis & Clark Law School and director of the school's Criminal Justice Reform Clinic.
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