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.
JOSHUA MARQUIS on
criminal justice, animal welfare, and the nature of the relationship between popular culture and the law.
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