For more than two years, Oregon politicians determined to send fewer people to prison have been butting heads with a group of district attorneys who want to maintain the current criminal justice system.
Newly obtained emails show for the first time how far the fight went: Last year, district attorneys from across the state quietly funneled taxpayer dollars into a lawsuit to overturn the reforms passed in Salem in 2017.
The case was portrayed as one prosecutor—Clackamas County District Attorney John Foote—standing up to Oregon lawmakers. But the emails illustrate a deep divide in the state, with judges and DAs in 19 of the state's 36 counties disagreeing with the Portland-centered political orthodoxy.
The fundraising campaign gathered $10,600, according to emails reviewed by WW. Emails detailing the effort demonstrate that the people who enforce the law in Oregon are not on the same page as the people who make it.
"What they really seek is to destroy our current criminal justice system," Foote wrote in an April 2018 email bemoaning House Bill 3078. "And they are so fundamentally dishonest and deceitful that [they] won't even run on the very principles they claim to believe in. They use words like justice, safety, accountability and reform, but never tell people what they intend by those important sounding labels."
Passed in 2017, HB 3078 reduced mandatory sentences for some property crimes previously governed by 2008's Ballot Measure 57. Many prosecutors opposed the change, saying it would increase crime. Legislators argued the change would decrease prison populations and fix unfair sentencing rules.
Many of the state's district attorneys balked. Staunch supporters of mandatory minimum sentences—which they say are more fair because punishments are not subject to the whims of individual judges—challenged the law by appealing criminal cases sentenced under the new law.
The tactic they chose for their appeal: arguing that lawmakers made the change without the two-thirds majority previously thought necessary to alter a measure approved by voters.
Judges in 12 counties sided with the DAs and ruled HB 3078 unconstitutional for lacking the two-thirds vote. But when defendants sentenced under the old guidelines appealed those rulings, the Oregon Department of Justice declined to defend prosecutors' objections, saying it had deemed HB 3078 constitutional and its lawyers would concede that point in court. It also barred prosecutors from arguing the cases in appellate court themselves, Foote says.
That meant how defendants should be sentenced remained an unresolved question. It also meant prosecutors did not get the chance to argue for their interpretation of the law in the appellate court.
In response, Clackamas County DA Foote filed a civil lawsuit challenging HB 3078, with the support of two crime victims who say they voted for Measure 57. That lawsuit went to the Oregon Supreme Court.
Quietly, DAs from across the state helped Foote pay for the costly legal battle, cutting checks from their county budgets to the Oregon District Attorneys Association.
Emails obtained by WW and invoices provided by the ODAA show 19 counties paid between $300 and $2,000 each to support the litigation, and the association paid a private attorney, Tom Christ, $10,000 to represent Foote and the other plaintiffs.
The payments appear to be legal.
"Generally, local governments can band together to support litigation that they feel is in their interest," says lawyer John DiLorenzo, who has previously represented clients who successfully sued the city of Portland for misusing public funds.
Foote defends the $2,000 he supplied from the Clackamas County DA's office budget for his own lawsuit.
"I, as an independently elected district attorney for Clackamas County, authorized $2,000 from our county budget to defray some of the costs of handling the appeal," he says. "I made this decision because it was in the public interest to defend the decisions of the Clackamas County Circuit Court as well as the legal position of this office. I have no regret doing so."
Foote and the crime victims lost in front of the state Supreme Court on Jan. 31. The new, more forgiving sentencing guidelines stand.
"Thanks to our actions, as unpopular as they may be for certain legislators and leadership in the Oregon Department of Justice, we have shined a light on this issue and obtained clear legal direction from our appellate courts," Foote says. "We respect their authority to make the final call."