Portland Is No Progressive Paradise—Just Look at Its District Attorney

    On the surface, for a certain kind of person, Portland, Oregon has it all. It is extremely bike-friendly. It takes environmentalism very seriously in general—at times, too seriously. It is considered “too liberal” for a proper “gayborhood,” because, as one resident put it, “Everybody’s kind of gay in Portland.”

    And yet Portland is not the cutesy progressive paradise one might imagine after watching the first few seasons of Portlandia. As one skit from the show parodically explained, Oregon’s most populous city is extremely white. The state itself was founded as a white nationalist utopia.

    The racism is not just historic, either. In 2004, it was revealed that Portland Police Sgt. Mark Kruger is a neo-Nazi, who built a shrine to fallen Nazi leaders; he kept his job and had his disciplinary record scrubbed a decade later. And Portland Police Lt. Jeff Niiya frequently exchanges friendly texts with the leader of an alt-right hate group, it was revealed in Februarybut Portland Mayor Ted Wheeler accidentally botched the investigation into that by virtue-signaling his distress. When it comes to law enforcement accountability, at least, it is fair to call the city a mess.

    And despite its white-dominated population, Portland is no paragon of human rights in the drug policy arena, either.

    The core of Portland’s criminal justice approach to drugs is no better than most US cities, and more conservative than many.

    Its district attorney (for Multnomah County) is Rod Underhill. Elected back in 2012, the Democrat is a pretty straightforward tough-on-crime prosecutor at first glance. When he ran for DA, he pledged to crack down on gangs and sex work. He even has a made-for-television origin story: Underhill became so taken by the 1995 murder of Yolanda Panek that he built a successful case despite the absence of her body. Yolanda Panek’s mother renamed Yolanda’s son “Rodney,” after the prosecutor.

    Underhill has also been frank with the media about his younger brother’s decades-long struggle with problematic drug use. “Sometimes [I was] mad as hell, wanting nothing to do with him, and sometimes [I was] wanting to help,” he told the Oregonian in 2012. “I believe in second chances. When I say second chances, it was his 102nd chance.”

    DA Rod Underhill. Photo via Multnomah County District Attorney’s Office.


    Yet the core of Portland’s criminal justice approach to drugs is no better than most US cities, and more conservative than many. Multnomah County Sanctions Treatment Opportunities Progress (STOP) Drug Court was founded in 1991, then ostensibly revamped after a 2013 law required specialty courts to use evidence-based “best practices.” Actual changes did not happen for another four years, however, when the “Treatment First” program started.

    The county now uses a risk assessment tool to sift out “high risk/need offenders” from other drug users who got caught by police. Both still have a mandated, supervised treatment regiment, but now the two populations are kept apart in group sessions.

    Rod Underhill’s office claims on its website that assessments are carried out by “appropriately trained and qualified professional staff familiar with the harm reduction philosophy.” But questions remain about what that means when the program keeps people clutched at this office’s mercy.

    The office does not hide that it still charges people with felony drug possession counts, although in some cases, these will simply be reduced to a misdemeanor. People often plead guilty to misdemeanors without thinking they are a big deal, but these convictions also have lasting consequences, such as limiting one’s ability to find employment.

    Underhill recently boasted that felony drug possession convictions are way down in his county due to Treatment First. But that is to be expected, regardless: Oregon defelonized drug possession in 2018, even for so-called “hard” drugsthough only for people without prior felony convictions and with fewer than two drug possession convictions. To the surprise of many, police chief and sheriff associations supported that change.

    If drug policy were Underhill’s only flaw, he would still (sadly) be within the upper echelons of American prosecutors. Unfortunately, he is draconian on virtually every point.

    While there was no reason to suspect Underhill would be a criminal justice reformer based on his initial campaign, his tenure has still attracted the negative attention of watchdog groups.

    In 2016, Harvard Law School Fair Punishment Project identified Multnomah County DA Rod Underhill as one of six elected local prosecutors most unwilling to admit the innocence of wrongfully convicted people, despite overwhelming evidence of error. Underhill doggedly fought to maintain the wrongful murder conviction of Lisa Roberts, a middle-aged Black woman who has since been officially exonerated.

    Two of those six top prosecutors identifiedTampa State Attorney Mark Ober and San Bernardino County, California DA Mike Ramoshave already lost their seats, while three others (including Underhill) are up for reelection in 2020. The other prosecutors are Kym Worthy in Detroit and Leon Cannizzaro in New Orleans.

    If drug policy were Underhill’s only flaw, he would still (sadly) be within the upper echelons of American prosecutors. Unfortunately, he is draconian on virtually every policy point.

    He supports mandatory minimum prison sentences under Measure 11, and for years used the threat of Measure 11 charges to coerce children into giving up important legal rights. He supports the death penalty, while his predecessor, Mike Schrunk, did not. Underhill also has an entire neighborhood prosecution squad dedicated to zealously pursuing petty “broken windows” offensesand two of those prosecutors’ salaries are paid for directly with private business interest money.

    And as if all of this were not enough to raise an eyebrow about Underhill’s conduct, he exhibited the gall to hire a Cody Berne as a deputy prosecutor in 2016. As a Portland police officer, Berne was one of three white cops who shot a Black man named Keaton Otis 23 times during a 2010 traffic stop.  

    Terresa Raiford, a Black Lives Matter activist running for Portland mayor in 2020, said at the time that Berne “shouldn’t be prosecuting anybodyit’s sickening. It speaks to our justice system, our un-justice system.” Jo Ann Hardesty, a politician who has since become the first ever Black woman on the Portland City Council, said at a vigil for Keaton Otis, “I’m really concerned [that] when white women march, Portland officers put on pink hats and smile. And when Black men march, they put on riot gear.”

    That leaves Rod Underhill with at least one constituencythe Black communitythat probably cannot wait to see him retire. But Multnomah County is only about 5.6 percent Black. Underhill may have to worry about keeping his job in 2020, but only if the city’s white population starts demanding real human rights for people who use drugs.

    For all Portand’s progressive credentials, criminal justice and drug policy are one area in which Seattlewhere prosecutor Dan Satterberg actually supports harm reduction by backing safe consumption spacesis undeniably the cooler of the two great cities of the Pacific Northwest.

    Portlandia photo via Wikimedia Commons

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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