Kevin Sali: The Shifting Politics of Criminal Justice Reform

Saturday, September 12, 2015

Kevin Sali, GoLocalPDX MINDSETTER™

Oregonians and their legislators are currently considering various reforms to the criminal justice system, including the increased use of body cameras for police officers and the recording of grand jury testimony. Whatever one might think of the merits of any individual reform suggestion, it’s been interesting to observe the political atmosphere in which the discussions are taking place. That atmosphere is much more hospitable to reform suggestions than it would have been even a few years ago.

Historically, debates about the criminal justice system have been characterized by two consistent principles. One is a distinctly partisan tone, with sharp disagreements between the left and right sides of the political spectrum. Whether it was Richard Nixon’s “tough on crime” campaigns excoriating the Warren Court’s expansion of criminal defendants’ rights, the “Willie Horton” ads during the Bush-Dukakis campaign, or any number of other examples, the arguments routinely broke down along traditional political lines.

The other is the heavy political cost associated with taking any position associated with criminal defendants. There have been few campaigns at the state or national level in which a candidate has gained by endorsing a pro-defendant position, or suffered by attacking one. The result is that it’s generally been extraordinarily difficult for reform advocates to get legislation passed.

It’s not hard to understand why. As voters, most of us are understandably far more likely to picture ourselves as potential crime victims than as criminal defendants, largely because the fear of being criminally charged—especially for those who consider themselves law-abiding—is far more remote and abstract than the fear of being attacked or victimized. And most pro-defense reform measures, even those designed to protect the innocent, will end up aiding some of the guilty as well. I’ve never served in the legislature, but I imagine it’s not easy to support even the most common-sense reform measure knowing that in the next election cycle one’s constituents will be peppered with flyers screaming “DO YOU SUPPORT RAPISTS? REPRESENTATIVE SMITH DOES!”

But although both of those factors held steady over several decades, there’s reason to believe that their significance is receding. As to the first, there has been growing bipartisan consensus in favor of criminal justice reform—today, for example, National Review and other traditionally conservative publications routinely include articles criticizing law enforcement and prosecutorial abuse and calling for corrective legislation and other solutions.

And as to the second, the traditional pro-prosecution political bias and the corresponding political cost associated with pro-defense reform appear to be weakening. I’m admittedly not the most objective observer because I’ve taken part in these debates myself, but it appears that, for example, characterizing reform legislation as being “something criminal defense lawyers want” is no longer the political kiss of death it may once have been.

I can’t say with any certainty why this is happening, but there are some possible answers. It may be that with increasing criminalization and the corresponding increases in the numbers and categories of people potentially exposed to prosecution, more and more voters are getting a sense of what it’s like to be charged with a crime. There are extreme examples—such as longtime initiative activist Bill Sizemore, who emerged from his own criminal case with pointed criticisms of the system—but that type of direct experience isn’t the only type that can affect one’s views. Going through the prosecution of a son, daughter, friend, or co-worker can be almost as illuminating, and in my experience many of these “vicarious defendants” end up with different views of the system when those cases are over.

The exposure of disturbing official misconduct in high-profile cases has also played a role. For example, the gross prosecutorial misconduct uncovered during the prosecution of the late Senator Ted Stevens sparked legislative reforms across the country, including here in Oregon. And the recent national epidemic of controversial police behavior has similarly had an effect. I’m certainly not one to reflexively criticize police officers’ use of force; their jobs are extraordinarily challenging and risky, and I absolutely believe they’re entitled to fair process and treatment when incidents arise. That said, it’s been interesting to see that there appear to be fewer and fewer citizens reflexively assuming that each recipient of police use-of-force was a guilty low-life who must have had it coming. Whether this is because of changing public opinion, the increased prevalence of video recordings, or some combination of both, it’s a salutary development.

I’ll admit that I’m biased; my career consists primarily of representing those charged with crimes, so I’m naturally going to be especially receptive to any reforms that increase the fairness of the process from the defendant’s perspective. But I genuinely believe that increasing numbers of people in Oregon and elsewhere are having similar thoughts. The reform measures being debated in Oregon right now are significant ones that deserve healthy, robust debate, and there are a wide variety of Oregonians whose perspectives we need to consider—not just defendants and their lawyers, of course, but victims, prosecutors, police officers, and others as well. As we do so, let’s remember that each one of us, and each one of those we care about, could end up in any one of the places at the criminal justice table, and that we all owe it to one another to ensure that the system is fair and just for all.

Kevin Sali is a Lake Oswego attorney representing individuals and businesses in a broad range of criminal, civil and regulatory matters. Kevin spent four years as a high school science teacher in Miami, Florida before earning his law degree from Duke University. He is the author of Scientific Evidence: A Manual for Oregon Defense Attorneys and numerous other writings on a variety of topics in the legal field, and is a contributor to Huffington Post Crime. For more information visit salilaw.com.