Guest column: No need to remove bar exam to ensure equality
Tuesday, July 13, 2021
What started as first a practical problem then turned into a moral panic for the Oregon State Bar, a quasi-private, quasi-governmental authority that regulates admission and regulation of lawyers, is now becoming a problem for the state and most importantly, their clients.
The bar’s efforts were most recently documented in a July 7 editorial in The Bulletin and then a disapproving follow-up by a Rocky Goodell, a Bend lawyer licensed in Oregon and California.
In full disclosure I have been practicing law for 40 years since being admitted in 1981. Working almost exclusively in criminal law, I was chief deputy district attorney in Bend in the ’90s, as well as similar jobs in other Oregon counties, before becoming the district attorney in Astoria for 25 years. Although I had been working in a DA’s office for 6 years before taking the bar exam, I narrowly flunked my first try, then learning the one question (out of two dozen) that caused me to fail was “criminal law.” I studied harder and passed the bar six months later, and even went on to be recruited to write and grade the criminal question about 15 years later.
Over the years, between 55% and 75% of those taking the bar passed it. Some of Oregon’s most prominent politicians have repeatedly flunked the bar. It is not an intelligence test or even a test of legal acumen That is why — like medicine — we call it the “practice of law.”
Last year the Oregon bar did something remarkably detrimental to both their clients and their members; in the face of COVID-19, they simply threw up their hands and decided anyone — anywhere in the U.S. — who graduated from a law school approved by the American Bar Association would be granted admission to the bar, no exam needed. These “2020 specials” will have several disadvantages; most states will not let them apply without what is called “multistate bar exam” passing grades.
In the long term, the employability of many of these new lawyers is at risk. Since an average of about 40% of applicants flunk, in 2020 they are all “lawyers.” I’m sure there are at least 60% to 70% of those who will make adequate to great lawyers. But if I was still employing lawyers, I’d hesitate at the lack of the vetting of a 2020 graduate, and I suspect more clients may look for someone admitted in 2019 instead. But I’m no longer practicing more than part time, and mostly pro bono.
To make things worse, The Bulletin approvingly tells us that the bar is experimenting with a new program as a permanent alternative to the dreaded bar exam; one would be a different class plan which proves skills in research, oral argument, and teamwork. The other would be an apprentice program requiring 1,000 to 1,500 hours of supervised internship.
Both ideas have great merit, but in addition to, not in place of, a bar exam. The stated goal, is of course, to achieve greater “equity.” At what point do you hold all people with “doctor of jurisprudence” at the end of their title an equal need for competence?
The Bulletin favored these proposals, saying they would mitigate a process that “can be unfair to some students who can’t devote the time to study for it full-time and creates racial disparities.” In what world would it be fair to say that because of their melanin levels, some lawyers don’t really have (or, more importantly, are presumed unable) to achieve as much, presumably creating a two-tier system for lawyers who are unconditionally qualified and those that are not.
Under the existing system, the percentage of minority judges in Oregon far outstrips the percentage of minority lawyers in the state. Isn’t that what Dr. Martin Luther King Jr. always sought? A measure of the content of character, not the color of skin?
Joshua Marquis was chief deputy district attorney in Bend from 1990-94 and appointed, then elected, as district attorney in Astoria from 1994 through 2018.
Wednesday, July 6, 2021
This last, painful session of the Oregon Legislature was difficult for many reasons.
The building was utterly off limits to everyone but legislators and their staff, meaning there was no ability to "lobby" legislators or staff, and the actual hearings were remote, meaning there was none of the usual interchange, conversation and rarely even any questions.
The result has been some awful legislation in the area of criminal justice, what is now often called "social justice." The voices of victims, cops and prosecutors have been ignored, and violent criminals have the full sympathy of the Democratic Party I have actively served my whole adult life.
But the icing on the cake was a June 22 Portland Tribune opinion piece, "Don't disenfranchise people who want to vote," by two current state legislators, Tawna Sanchez and Andrea Salinas. They were joined by a national advocate for convicted criminals, the head of The Sentencing Project.
They are miffed because although they passed many laws that will severely hamper fair and effective law enforcement, their efforts are aimed at allowing the absolute worst, current felony inmates to vote.
To be clear, Oregon has been in the forefront of extending the franchise — the right to vote — to former felons, even those convicted of murder or rape. The only disqualifier is for the roughly 12,000 men and women serving time for a felony inside an actual prison. People in any county are eligible, as is anyone with any criminal record, so long as they are not currently doing felony time in a state facility.
To give an idea of how tiny this number is, it represents roughly one half of 1% of the population.
Let's be clear, this very proposal had not one, but two bills in the 2021 session, neither ever even got voted on. At testimony on the Senate side, almost 100 people submitted written testimony and roughly half opposed the bill . According to their opinion piece, the legislation would even grant the 30-odd killers on death row the right to vote on matters like the death penalty or criminal sentencing.
The authors' poster boy for this proposal, which is far beyond what each state (except Vermont and Maine) provide, is a man named Anthony Williams. He is serving a life term without parole for a particularly brutal murder several years ago. He committed the crime when he was 17, so to receive a life without parole sentence is extremely unusual.
Williams speaks about the "150-person riot" he took part in at the Oregon State Correctional Institute after he had been allowed to spend several years in the Oregon Youth Authority. He wasn't in the adult prison until he was 25.
Authors of this bill, and their opinion piece, really, really want people like Williams to decide who your school board should be, whether the drunk-driving laws should be made more lenient, or even if Measure 11 should remain law.
It would be comic, if it were not so unjust, to suggest the very worst in our community should be given the right to decide others' lives. Once released, those rights automatically return to them.
Oregon already wipes away all legal barriers once a person leaves prison. There is no reason to reward the 0.3% of the population who are in prison with the vote.
When slavery was abolished, an intentional clause allowed deprivation of liberty upon lawful conviction of a serious crime.
Joshua Marquis of Astoria was Clatsop County district attorney from 1994 to 2018. He is active in the National District Attorneys Association.
Opinion: Bill to ease expungements shifts burden onto victims, prosecutors
by Guest Columnist Joshua Marquis
Updated May 05, 11:34 AM; Posted May 05, 6:00 AM
In an April 21 op-ed, Multnomah County District Attorney Mike Schmidt joined the head of the Metropolitan Public Defender in support of making it even easier to erase criminal records and convictions – even those involving felonies and violence to people (“Ease expungement of past crimes and help people gain second chances”).
The two write that the further erasure of criminal convictions is needed to allow “loved ones, friends, and neighbors … to move on from their past mistakes.”
What is telling from their quote is that they view the felons – not the victims – as their loved ones and neighbors. Those victims, who usually are appalled to find the crime against them erased from the perpetrators’ records, are by considerable proportion women, children, the poor and people of color.
Oregon’s law on “expungement” has been around a long time. The original, and worthy, intent was to allow people who had committed lower-level crimes, but otherwise had conducted themselves lawfully, to have the single stain on their record erased by a judge if they had no further arrests in the subsequent three years. I am very familiar with the process, having worked primarily as a prosecutor but also as a defense attorney for four decades. The law typically allowed crimes like shoplifting, vandalism, bad checks and possession of drugs to be erased.
But there has been “system creep” through the actions of criminal defense lawyers, their allies in the Legislature and now a district attorney who speaks like a public defender. Since those halcyon days, the ability to erase convictions after a certain number of years has extended to felony assault, virtually all drug crime – including major drug trafficking – and crimes like perjury, tampering with a witness and coercion (which often involves threatening violence to a witness to ensure they don’t testify). Arrests without conviction have always been eligible for erasure, even for murder.
Senate Bill 397, which Schmidt and his co-author, Carl Macpherson, support, would make the permanent erasure of past crimes even easier by shortening waiting periods for people to erase certain convictions and cutting fees.
It would also completely shift the burden to prosecutors and victims to prove why, for example, a man convicted of beating two girlfriends should have his record erased. The language changes are subtle, but seismic.
Currently, it’s up to judges to determine whether applicants’ behavior in the years since their conviction merits granting the expungement. But under this bill, the court must grant a request for expungement to eligible applicants unless “the court makes written findings, by clear and convincing evidence, that the circumstances and behavior of the person … do not warrant granting the motion due to the circumstances and behavior creating a risk to public safety.”
This is an upside down world, where victims are suspects and criminals are heroes. Burglaries are now eligible for extinction, as are – despite claims to the contrary – virtually all gun felonies, from a convicted felon in possession of a firearm to unlawful use of a firearm.
To get a real-life example of how the law already is too lax, we need only look at cases like that of convicted murderer Joel Terence Abbott. In 1993 Abbott was convicted of murdering his once-girlfriend, Carolann Payne. That wasn’t the first time he hurt her – he was convicted in the mid 1980s of felony assault after stabbing her. But he had that conviction expunged, meaning in the eyes of the law, it never happened. Unfortunately, while his record was erased, his violent ways were not.
Marquis retired as Clatsop County district attorney in 2019 after 25 years in office. He is a past president of the Oregon District Attorneys Association and previously served on the Oregon Criminal Justice Commission. He lives in Astoria.
One of the least-noticed effects of COVID isolation has been the lack of public mourning for people who have died over these past months, whether or not the pandemic played any role in their demise.
I just found out that Thane Tienson, a prominent Portland attorney who came from Astoria and never forgot his home, died suddenly at the age of 74. Thane was a robust and well-met fellow who made an impact on Oregon, the law, and Astoria.
Like too many others during these plague times, he will be missed.
I also learned, only through references in social media, that long-time coast TV journalist Dave Pastor died a few months ago.
These trees did make a sound, even if nobody heard them fall in the forest of our lives.
The Oregonian is running a ceaseless (and thus far unrebutted) war on what is left of Measure 11, re-passed by 75% of Oregon voters in 2000. The most recent piece is by a young man who is just finishing 17 years for a double manslaughter following previous violent felony convictions.
My response, originally accepted by the newspaper, "timed out" because there are more anti-victims op-eds slated for publication. So, here it is for you. ::::
Thirty years ago Oregon’s violent crime rates were skyrocketing. Murders in the state’s most populous county were at an all-time high. Prison sentences were irrelevant; dangerous offenders cycled in and out of prison.
Then citizens – not politicians or prosecutors – forged Ballot Measure 11. This law gave real time for real crime – eight years for armed robbery with a gun where the victim is injured, eight years for the rape of a child, 25 years for intentional murder. Measure 11 laid out minimum mandatory sentences for the worst crimes – regardless of the race or class of the offender.
Now a chorus of felons, defense attorneys and social justice activists are clamoring to return to the days when a “20-year sentence” might only really mean eight months.
Citizen support for Measure 11 has remained solid. When it first passed in 1994, it won with 64 percent. In 2000, opponents attempted to repeal it Measure 94. Voters said no by a three-to-one margin.
Measure 11’s foes now are trying to side-step voters by going to the legislature. Twice in the past, legislators have chipped away at the law. Legislators are always looking to save money in one place to spend somewhere else. Minimum-mandatory prison sentences have been a convenient target. Many victims of violent crime are from the lower socio-economic classes. They don’t have well-financed lobbyists.
In the 2021 legislative session expect to see and hear more stories like the one offered by multiple-felon Martin Lockett a few weeks ago in the Oregonian. Lockett opposes Measure 11, but he is an excellent example of why this law works.
Lockett earned a 17-year sentence for robbery and the manslaughter of two people in 2003. The judge was required only to give him a single 7-½ year sentence for the manslaughters but gave him a longer sentence because of his prior felonies and the heinous nature of his new conviction. Even Lockett conceded he was no stranger to the law. He had already been given second chances for previous crimes and was on probation.
He offered a well-worn excuse for killing two people, saying he “turned over a new leaf – until my troubled relationship with alcohol led me into the most catastrophic mistake one can make while intoxicated.”
Under Measure 11, Lockett could no longer act like a passive actor being led astray.
The substantial sentence he received undoubtedly had a sobering effect on him. It forced him to realize that if he did not change, he would likely spend the rest of his life in and out of a cell. While in prison, he earned a master’s degree and developed new habits.
Now that he will be released from Deer Ridge in June, he displays arrogance when he talks about what he learned while in prison: “My transformation was solely of my own doing, not because any mechanism in the system aided or encouraged it.”
What we know with certainty is that while Lockett was in prison, he did not kill or rob again. He did not hurt anyone in the general public. If his past is any indication, had there been no Measure 11 he would have once again paroled quickly and resumed his bad habits.
Lockett is proud of how progressive Oregon can be and hopes it will end Measure 11. When he is finally released, perhaps he can take a stroll through downtown Portland. He may be surprised at what justice can look like with a progressive District Attorney, like Mike Schmidt.
I hope Lockett settles down into a law-abiding life. If he does, he may find a new appreciation for why Oregonians voted for Measure 11.
JOSHUA MARQUIS on
criminal justice, animal welfare, and the nature of the relationship between popular culture and the law.
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