When a Prosecutor Throws His Money Around to Keep His County “Tough on Crime”

May 16, 2019

Back in 2009, the Oregon legislature passed a law to remove marijuana from Schedule 1, the most restricted category in the state’s controlled substances classification. But before that bill was passed, Washington County Deputy District Attorney Bracken McKey spoke to the legislature, in opposition to marijuana being placed any lower than Schedule 2.

The content of his testimony, given on August 12 that year, is shockingly offensive.

After sharing an anecdote about a then-ongoing case involving domestic abuse and child neglect, McKey said: “I’m not suggesting that everyone who smokes marijuana beats their wife and withholds medical attention from their children, but in cases where there is neglect or abuse, marijuana is often a component.”

He also quoted an anonymous physician, who allegedly said to him, “Marijuana makes people lazy and stupid and they don’t pay attention to their children.”

The legislature ended up delegating the decision to the Board of Pharmacy, which duly reclassified marijuana as a Schedule 2 drug. While it is hard to say whether Deputy DA McKey’s testimony had an impact, he continues to act in a political capacity that raises serious questions of propriety.

McKey, it just so happens, donated to Judge Bailey’s re-election campaign shortly before the case began.

McKey is currently prosecuting an aggravated murder case in front of Washington County Circuit Judge Charles Bailey. Local reporters have previously described Judge Bailey’s uncivil demeanor and cruelty toward his fellow judges.

McKey, it just so happens, donated to Judge Bailey’s re-election campaign shortly before the case began last year; years earlier, he actually ran an election campaign for the judge.

After the defendant’s attorneyhaving experienced what he saw as unfavorable rulings by Judge Bailey in the caselearned of this relationship, he filed a complaint against Judge Bailey with the state judicial ethics board.

The web gets more tangled still. On the 2006 campaign trail, Judge Bailey had received a glowing endorsement from McKee’s boss: then-Washington County DA Bob Hermann.

Hermann made national news in 2016 for jailing a woman who had been raped by a prison guard, in order to force her to testify. The woman, who had a history of problematic drug use, received almost as much jail time as her rapist.

When former DA Hermann announced his retirement in 2018, the county scrambled to figure out who would replace him. Eyes quickly set on Kevin Barton, a young deputy DA whom many considered Hermann’s protege.

Indeed, DA Kevin Barton is about as close a political match to Hermann as it gets, though he seems to arrive at a draconian punishment philosophy through Old Testament logic.

As a law student, he wrote for the Notre Dame Journal of Law, Ethics & Public Policy, a publication with the mission of imbuing American law with “traditional Judeo-Christian principles.” One of Barton’s articles—titled “Game Over! Legal Responses to Video Game Violence”claimed that violent video games make kids violent, contribute to school shootings, and should be criminalized in the same way sexual content is with regard to minors. (The Supreme Court of the United States shot this argument down on a 7-2 vote in 2011.)

Barton also speaks for for Shared Hope International, a Christian anti-sex trafficking nonprofit that treats all sex work like sex traffickingin a fashion described as  “tough-on-crime undergirded by Christ-like compassion.”

Barton’s challenger in 2018, Max Wall, ran a campaign focused on criminal justice reform.

Should prosecutors be able to throw their money around to ensure that their personal moral values shape the law that they then enforce?

McKey donated $5,000a pretty whopping sum for someone on a deputy prosecutor salaryto Barton, whose election victory meant that he became McKey’s boss.

Should prosecutors be able to throw their money around to ensure that their personal moral values shape the law that they then enforce?

There is no national standard. In Oregon, the State Bar imposes no restriction. New York’s state bar, for example, has forbidden deputy prosecutors from donating to their bosses, though that would still not cover someone like McKey, who donated to his prospective boss.

The patchwork localism of our criminal justice system means that realistically speaking, this does not seem like an issue that a Congressional mandate could solve.

And with few journalistic outlets regularly running investigations into criminal justice accountability, it is too often left up to voters to dig for themselves if they’re to connect the dots.

Photo by Colin Watts on Unsplash

Rory Fleming

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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