For the past 25 years, Keith Gavin practiced Islam inside the walls of death row at Holman Correctional Facility in Atmore, Alabama. He was the prison’s imam for a time, leading the row’s Sunni Muslim community in prayer. He’d even adopted an Islamic name, Kamar Kernell Gavin Gabuniquee, meaning “strong prince, strong one, and wonder.” The religion had saved his life, Gavin told me as we sat at a plastic folding table in the prison’s visitation room on Thursday morning. Gavin, 64, wore a knit white kufi on his head; a string of pale green and black prayer beads dangled over his khaki prison uniform. 

It was 10 a.m., and in eight hours, Alabama planned to execute Gavin by lethal injection. He’d filed a handwritten appeal with the U.S. Supreme Court the previous day and was waiting to hear whether it would step in and stop it. I knew that the odds weren’t in his favor. The court was historically hostile to death row prisoners and there was only a very small chance it would let him live, but it wasn’t unheard of—the justices had just stopped an execution in Texas at the eleventh-hour the night before. 

While we waited, we talked about another matter: whether Gavin would get to eat his final meal, a decision that was up to the prison’s warden, Terry Raybon. Gavin had requested halal food, lamb specifically, but Raybon was refusing to let anyone get it for him and it didn’t sound like he was going to change his mind. Even if chances of a stay were slim, they still seemed higher than Gavin getting a piece of lamb.

It was the latest disagreement between the Alabama Department of Corrections (ADOC) and Gavin over his final wishes, all of which arose from his Islamic faith. Last month, Gavin sued the state to ensure that officials did not perform an autopsy on him because doing so would be sacrilegious. The lawsuit came after a breakdown in “meaningful discussion” with state officials, according to a court filing. Alabama eventually relented and allowed Gavin to forgo an autopsy under the condition that he find a mortuary to take his body by 7:30 p.m. after his execution. His supporters raised $4,000 to pay for the pickup and the transport of his body back to his hometown of Chicago for an Islamic burial.

In the days leading up to his execution, Gavin also made requests about what he wanted to eat, the garments he would wear, and his final words before he died. He’d planned to wear his kufi while his imam of 15 years, Aswan Abdul-Adarr, prayed with him in the execution chamber, a proposal he said Raybon had approved, per the state’s execution protocol. 

It’s not uncommon for death row prisoners to make final requests that stretch the bounds of what’s usually permitted on death row. Last year, James Barber led a march to “When the Saints Go Marching In” before he was led off to Alabama’s execution chamber. The prison also allowed his family to bring in a guitar, on which they played “Amazing Grace” at the request of a correctional officer. 

But ADOC officials have been less receptive to the requests of Muslim prisoners facing execution. Though less than one percent of the state identifies as Muslim, a much larger population on death row—around 20 people, or 12 percent—identify as Sunni Muslim. When Domineque Ray asked that his imam be allowed to pray with him in the execution chamber in 2019, ADOC refused, citing security concerns. The decision was criticized by a federal appeals court and three U.S. Supreme Court justices. In a dissent, Elena Kagan wrote that she found the decision “profoundly wrong.”

In the visitation room, Gavin explained that Raybon, the warden, had instructed him earlier in the week to select his final meal, initially saying he could choose whatever he wanted as long as it was under $25. Gavin’s request for halal lamb was an attempt to abide by Islamic teachings that say meat should be slaughtered in the jugular vein, a method that is supposed to result in a quicker and kinder death. Gavin had been unable to eat halal food on death row. (Muslim prisoners had tried unsuccessfully to convince ADOC to start serving halal options, a campaign made all the more difficult by Raybon, who had said that he didn’t know what halal food was, said Gavin. ADOC did not reply to a request for comment about the statement.) 

“I’m a Muslim, I’m supposed to be eating halal food,” Gavin said. “There’s nothing else to eat but junk food. If I had a choice, I’d eat halal food. But I have to eat to survive.” Having a halal meal in the hours before his death would be “truly a blessing,” he said.

The problem with Gavin’s request came when Raybon decreed that if he wanted an outside meal, it had to come from one of the handful of restaurants in the small city of Atmore—even though none of them serve halal food, let alone lamb. The previous day, Kelly Huggins, Gavin’s lawyer, had devised a plan to get him halal lamb by having Abdul-Adarr pick it up on his way from Mobile, some 50 miles away. When she sent an email to ADOC lawyers with the offer, they were unmoved. 

“I believe the warden has explained to Mr. Gavin what his meal options are today,” wrote Thomas McCarthy, an ADOC lawyer, in an email I reviewed. “Mr. Gavin can select from those options or select something from the facility menu, which is what he has been eating. His visitors are also able to provide him with any snacks and beverages available in the facility vending machines.”

When Huggins asked whether any halal option would be available, she got no answer. 

As a last effort on Thursday, the prison’s chaplain asked Raybon whether he could drive to Mobile to pick it up. As Huggins and I visited with Gavin, the chaplain told us that the warden had shot down the plan. 

Soon, Raybon was in the visitation room, wearing a striped crimson University of Alabama polo and his gold warden badge. He dismissed Huggins’ pleas and told us that the halal meal violated protocol, leaving without providing explanation. ADOC’s execution protocol states that visitors can’t bring in food, but mentions no requirement that final meals come from Atmore. I sent questions about the policy to ADOC on Thursday but didn’t receive an answer.

Like the rest of his meals on death row, Gavin’s final meal consisted of junk food: a pint of butter pecan ice cream bought with the remaining money on his commissary account, and a can of Mountain Dew and bag of peanut M&M’s from the visitation room vending machine. 

Gavin seemed perturbed but unsurprised. More than anything, ADOC’s resistance to such a seemingly simple request had created new questions about what it would do later. Would he get to wear his kufi in the execution chamber? Pray with his imam? Would ADOC hand off his body untouched?

Gavin was sentenced to death in 1999 by a jury vote of 10-2 for the 1998 murder of William Clayton Jr., a driver for Corporate Express Delivery Systems. Gavin maintained that he was innocent of the crime, alleging that his cousin was responsible for the killing. 

On appeal, his lawyers questioned the reliability of his sentence for a list of other reasons. Among them, they argued that the jury should’ve had to unanimously agree to sentence Gavin to death. Alabama and Florida are the only two states that allow juries to send someone to death row even when all jurors don’t agree. Approximately six out of every ten prisoners on death row in Alabama were sentenced to death by a split jury, according to a 2023 report by the NAACP Legal Defense and Educational Fund. Efforts to stop the practice have been unsuccessful; a 2023 bill banning non-unanimous death sentences in Alabama never made it out of committee. 

Gavin’s attorneys have also argued that the performance of his court-appointed trial lawyers fell below constitutional standards. His current legal team found that one of his lawyers admitted to being “heavily sedated” due to a broken foot as Gavin’s trial approached. They also say his trial lawyers put together a meager case to convince jurors to spare Gavin’s life when it came time for them to decide whether to sentence him to life without the possibility of parole or death. At the time, his lawyers called just two people to testify: his mother, who they admitted they had not adequately prepared; and a minister who had counseled Gavin in jail.

Gavin’s appellate lawyers later dug up information that they argued could have helped his case. They found that he grew up in poverty and surrounded by violence in Chicago housing projects. He took on the role of caregiver for his 11 siblings and committed crimes to earn money for his family. He was beaten by his father throughout his childhood. At 17, a gang attack sent Gavin to the hospital. By the time he was 21, he shot dead the leader of the gang that attacked him and spent a total of 17 years in an Illinois prison, where he was stabbed by gang members, according to legal documents. 

A federal district court in 2020 ruled that Gavin’s representation at trial was so poor that it violated his right to counsel. “Counsel were totally unprepared,” the judge wrote in a decision that was later reversed by the 11th U.S. Circuit Court of Appeals. 

After the state set Gavin’s execution date in April, his lawyers filed motions trying to stop the execution. When those were rejected, Gavin opted to represent himself, filing his own motions in a final effort to save his life.

On Thursday afternoon, around 3 p.m., Gavin received a petition filed by Alabama Attorney General Steve Marshall with the U.S. Supreme Court asking the justices to let the execution proceed, a response to his appeal for a stay the previous day. With just an hour and a half until he’d be taken away by corrections officers, he looked down at the blank legal pad of paper in front of him. There would be no time for him to file a last rebuttal. “Don’t despair,” Gavin had said throughout the day, and now it was Huggins’ turn to echo the refrain back to him.

Gavin was resolute. “I’m not afraid to die,” he said. 

Once it became clear that the execution would happen, Gavin’s legal team waiting with him inside the prison, which by now had grown to three, asked if he was ready to discuss an unpleasant topic: how the executioners would set the IV lines that would deliver the lethal drugs.

Gavin shuddered, clutching the insides of his arms close to his body, as if to protect his veins from hearing about the stabbing they’d soon endure. He said he’d hated needles ever since he saw people shooting up drugs as a kid in Chicago. 

As if to change the subject, Gavin began writing another letter to his sister, Adriane, and stuffed it into the folder that his lawyers were to send to her in Chicago. 

When the clock struck 4:30 p.m., corrections officers gathered in the hallway that wrapped around the visitation room on all sides. They had changed from the blue polo shirts they wore earlier in the day into formal uniforms of light blue long sleeve button downs and navy pants. One of the officers came in and told Gavin that it was time to go. 

The next time I saw him, Gavin was lying strapped to a gurney inside the execution chamber. His body was bound in a white blanket; his arms outstretched next to him, with IV lines sticking out below both of his elbows. His index fingers were lifted, an Islamic gesture meaning Allah is the only god. Gavin’s eyes were locked onto his imam, Abdul-Adarr, who stood to his left, and his lips were moving, his speech muted by the glass window separating the chamber and witness room. He was no longer wearing his kufi. 

Raybon, the warden, who had changed into a suit, read the execution warrant and turned over the microphone for Gavin for his final statement. “I love my family,” he said, followed by “La Ilaha Illallah Muhammadur Rasulullah,” an Arabic phrase meaning “there is no God but Allah and Muhammad is the messenger of God.”

An officer motioned for Adbul-Adarr to step forward. As they prayed together, Gavin’s lips started moving more slowly until they stopped moving altogether. Eventually, Abdul-Adarr stepped back.

Myself, two of Gavin’s lawyers and media witnesses sat under the glow of a fluorescent pink light watching Gavin die as feedback droned from the speaker above us. Once it appeared that he was no longer breathing, a corrections officer closed the hospital curtain that covered the window into the chamber. He was pronounced dead at 6:32 pm. 

Afterwards, ADOC issued a press release stating that Gavin refused a final meal and made no special requests. 

On Sunday, I spoke with Abdul-Adarr, the imam, by telephone. He told me that after Gavin was taken away by corrections officers, and out of contact with his lawyers inside the impenetrable walls of the execution chamber, ADOC had reneged on its agreement to allow Gavin to die in line with Islamic tradition. The breakdown, which had begun with the meal earlier that day, had spiraled into Gavin’s final moments.

Abdul-Adarr told me that Raybon had personally guaranteed him that Gavin could wear his kufi, a cap many Muslim men wear as an identifier of their religious beliefs, inside the execution chamber. But when Abdul-Adarr finished praying with Gavin in his cell before he was taken to the chamber, a corrections officer made Gavin take it off. 

Abdul-Adarr said the warden had also agreed in writing to let him recite a series of four traditional Muslim prayers with Gavin before pushing the lethal drugs into Gavin’s veins, and that the execution team captain had confirmed the arrangement once they got to the death chamber—but that plan broke down, too.

According to Abdul-Adarr, they were just halfway through the first prayer, the opening chapter of the Quran, when Gavin abruptly jumped ahead to the final statement Muslims are supposed to say right before death: “La Ilaha Illallah Muhammadur Rasulullah.” Abdul-Adarr said he tried to encourage Gavin to keep going but it became clear that would not be possible; shortly after, Gavin’s head, which was upright, fell backwards onto the gurney. ADOC, he said, had already started administering the sedative, rendering Gavin unable to speak. 

“He wasn’t responding,” recounted Abdul-Adarr. “I initially thought it was because of the gravity of the final moments so I just kept going to finish the prayer, but then I realized they had started the lethal injection process while I was still standing right there.”

ADOC did honor its agreement to Gavin after he died. It did not perform an autopsy on Gavin’s body and the agency handed it off to an Islamic mortuary without any issues. Once there, Abdul-Adarr washed it three times, as is required in Islamic tradition, and prepared it for the flight to Chicago. He was buried there on Tuesday. 

Abdul-Adarr said he planned to file a complaint with ADOC over its treatment of Gavin before and during the execution.

He’d been reflecting on whether he should have said something about ADOC deviating from its plan while he was in the chamber but doubted officials would have done anything differently. “It was very disrespectful,” he said. “You didn’t give him his last meal. You took his kufi. But you said we would have plenty of time to pray. They didn’t follow their own procedure.”

The post Before Executing a Muslim Man, Alabama Denied Many of His Final Religious Requests appeared first on Bolts.

“I was kind of numb,” Lindsey told Bolts. “I still couldn’t believe that I was convicted and facing death.”

At the time, a death sentence only required a recommendation from a majority of jurors. When the foreman read out the jury’s vote on Lindsey’s fate, it was 8–4. The judge then sentenced him to death. 

Three years later, in 2009, the Florida Supreme Court unanimously concluded that the evidence was “insufficient to support Lindsey’s conviction” and was “equally consistent with a reasonable hypothesis of innocence,” vacating his conviction. He was exonerated and freed from death row. 

Though Linsdey now travels the country speaking about his experiences with the death penalty, he still feels the lingering effects of death row and prefers to spend his time at home alone in his room, away from friends and family. “It was traumatizing,” said Lindsey, who is now the executive director of Witness to Innocence, an organization that advocates for ending the death penalty and is led by death row exonerees. 

After Lindsey’s exoneration, Florida revamped its sentencing scheme to require that jurors unanimously vote for capital punishment in order for judges to impose death sentences. But after a jury voted 9–3 to spare Parkland shooter Nikolas Cruz’s life in 2022, some legislators responded by introducing a bill that removed mandatory unanimity. Instead, only an 8–4 majority would be required for death. 

Last week, Florida Governor Ron DeSantis signed the bill into law, creating the lowest standard among the 24 states that allow the death penalty. “Once a defendant in a capital case is found guilty by a unanimous jury, one juror should not be able to veto a capital sentence,” DeSantis said in a statement. “I’m proud to sign legislation that will prevent families from having to endure what the Parkland families have and ensure proper justice will be served in the state of Florida.”

Opponents, however, say that the legislation will contribute to more wrongful death sentences in the state. Florida’s death sentences are the most unreliable in the country: It is the state with the highest number of death row exonerations, with 30 people since 1973, the majority of whom were sentenced to death by non-unanimous juries. 

“It makes Florida the extreme death penalty state in this country,” said Maria DeLiberato, a capital litigation attorney and executive director of Floridians for Alternatives to the Death Penalty. “We know that non-unanimity leads with less deliberation, less thoughtfulness, is rooted in racism and is designed to silence Black and Brown voices on a jury.”

In 2016, the U.S. Supreme Court ruled that Florida’s capital sentencing scheme violated the Constitution. In that case, Hurst v. Florida, the court ruled 8–1 that the way the state decided whether to sentence someone to death violated the Sixth Amendment, the constitutional right to a jury trial, because the judge, not the jury, was responsible for considering the facts necessary for the imposition of a death sentence. 

Following Hurst, the Florida Supreme Court found that the jury must unanimously agree to impose a death sentence. Lawmakers moved to amend the statute, enacting a jury unanimity requirement in 2017. The change brought Florida in line with the sentencing standards of all other death penalty states, where juries must unanimously agree on a death sentence, with the exception of Alabama, which calls for a 10–2 majority.

As part of the overhaul, approximately 200 of 400 Florida prisoners who were sentenced to death under the old scheme became eligible for resentencing. One study found that the jury had failed to unanimously agree on a death sentence in roughly two-thirds of those cases. As of 2020, 34 prisoners were resentenced to life in prison, four were resentenced to death, and two were exonerated. 

Then in 2020, the Florida Supreme Court reversed course. Three of the seven justices reached retirement age and DeSantis filled those seats with conservative judges from the Federalist Society who pushed the court further to the right. As a result, it concluded in the case State v. Poole that juries didn’t have to unanimously agree on a death sentence after all, and the previous court “got it wrong.” While the decision didn’t change Florida’s capital sentencing law, it signaled to the legislature that if they were to pass a law dismantling jury unanimity, the court wouldn’t get in its way. 

After the jury in Cruz’s case reached a verdict of life without parole, DeSantis urged tougher sentencing. 

“We need to do some reforms to be better serving victims of crimes and the families of victims of crimes and not always bend over backwards to do everything we need to for the perpetrators of crimes,” he said at the time, according to the Associated Press. 

The case led state Representative Berny Jacques, a Republican from Pinellas County, to sponsor a bill permitting the death penalty without all jurors agreeing. Under the recently signed law, the jury must unanimously find at least one aggravating factor from a list of 16—such as the crime being “especially heinous, atrocious, or cruel”—in order to consider the death penalty. 

If fewer than eight of the 12 jury members vote for the death penalty, the person will be sentenced to life in prison without the possibility of parole, according to the bill. If at least eight jurors choose death, the judge still has the authority to override their recommendation and hand down a life sentence—and then must explain their decision in writing. 

In pushing the legislation, Jacques, who did not return requests for comment for this story, also pointed to the case of a man convicted of killing a police officer in his county who was spared the death penalty after two jurors voted for a life sentence. “This law will correct a wrong in our statutes, a statute that was based on a flawed Supreme Court ruling that was overturned three years ago,” Jacques told a Florida TV station. He cheered the governor’s signing of the legislation last week in an update to constituents that he posted on social media, saying, “No more in the state of Florida will a small handful of jurors be able to stop the most heinous of criminals from receiving the death penalty.” 

Robert Dunham, former executive director of the Death Penalty Information Center and an adjunct professor of death penalty law at the Temple University Beasley School of Law, cautioned that Florida’s new law will impact people wrongfully facing death more than mass shooters. 

“The effect…will be that people like Herman Lindsey are going to be sentenced to death,” he told Bolts.  “The effect is going to be most pronounced not in the tiny number of mass shooting cases that actually ever make it to trial. The effect will be in the large number of marginal death penalty cases.”

The imposition of non-unanimous jury decisions can be traced back to the Jim Crow era, when laws were created to ensure that white jurors, who reliably made up the majority of jurors in courtrooms across the South throughout the first half of the 20th century, won their desired verdict. In Florida, researchers have found that juries today are still disproportionately made up of white people. A 2021 study conducted by the ACLU of capital cases in Duval County, which is home to Jacksonville, found that Black people were excluded from serving on the jury at rates more than twice of white jurors. A 2010 report by the Equal Justice Initiative found the courts have invalidated more than 33 criminal convictions throughout the state because prosecutors unlawfully struck jurors because of their race. 

“That means that, the jury that is ultimately empaneled in Florida will on average have fewer jurors of color than one-third of the jury,” said Dunham. “And that means that in a jury non-unanimity system, in which you need more than one-third of the jury to ensure a life sentence, that you’ve just disenfranchised the minority community. The other jurors don’t have to listen to them because they don’t have to reach a unanimous verdict.”

In capital cases, the racial makeup of the jury can significantly impact case outcomes. One study published in 2004 found that white jurors were four times more likely to recommend the death penalty during sentencing compared to Black jurors. Jury unanimity has also been shown to impact the integrity of convictions: a 2020 Death Penalty Information Center study found that in the three states that had allowed death sentences by non-unanimous juries—Florida, Alabama, and Delaware (which abandoned the death penalty in 2016)—at least one juror had voted for life without parole in 93 percent of exonerations. 

In Ralph “Ron” Wright’s case, for example, five jurors voted to spare his life. An Air Force veteran and former police officer, he was exonerated in 2017 after spending three years on Florida’s death row. Like Lindsey, there was no evidence linking him to the crime. Wright remembered looking through his window to watch hearses rolling away with prisoners’ bodies on execution days. “You’re thinking ‘Is that day going to come for me?’”

Wright denounced the new law, telling Bolts, “It just makes it easier for someone to be sentenced to death.” 

Clemente Aguirre-Jarquin spent a decade on Florida’s death row even though not all of his jurors voted for life without parole. He was exonerated in 2018 after DNA evidence cleared him and someone else confessed to the crime. 

“It is taking the power from the people. Your vote should be respected. I guarantee you that there will be many, many more wrongful convictions,” he told Bolts.

Ed Brodsky, a state attorney and president of the Florida Prosecuting Attorneys Association, defended the law, telling Bolts that under the previous unanimity requirement, weighing whether to seek the death penalty was a “much more onerous process.”

“So from 2017 to today, we were following this unanimous jury verdict procedure, which I think made it much more difficult, and I think certainly heightened our requirements, and our feelings that certain defendants would be out—you know, would we be able to satisfy that very high burden?” he said. 

Under the new law, jurors would still be required to unanimously convict, and the emergence of new technology and forensics such as DNA testing should safeguard against wrongful convictions, Brodsky said. “We’re talking about such a wealth of information that is now available to be presented to a jury so that when we go forward with one of these cases, and a jury makes a determination of life or death, I really feel that they are being given such an overwhelming amount of scientific evidence, forensic evidence, witness testimony.”

After DeSantis signed the bill last week, the law became effective immediately. DeLiberato of Floridians for Alternatives to the Death Penalty said that the sudden enactment leaves many questions about how it will be applied to past, current, and future cases, or how it will affect the approximately 60 prisoners awaiting resentencing under the Hurst decision. Decisions about the application of the law will play out in courts across Florida. For her part, DeLiberato said she will argue that jury unanimity is required and the latest amendment is unconstitutional. 

“While the Parkland tragedy was unimaginable and horrific, we cannot and should not make important legislative decisions based on one case,” she said. 

For Lindsey, 17 years have passed since he was sentenced to death. He said that instead of enacting laws that eviscerate protections for capital defendants, legislators should focus on passing reforms to ensure more people aren’t wrongfully sent to death row.  

“Passing this bill, yes it will create more innocent people going to death row,” he told lawmakers when testifying against it at a legislative hearing in March. “My vote count was 8-4, and we don’t even understand how the jury reached the verdict of guilty, but the jury got it wrong.” 

“When the jury got it wrong in my case, and the Florida Supreme Court ruled unanimously that I shouldn’t have been convicted, there was no bill on this desk to compensate me or get me my rights back,” Lindsey added. “The jury got it wrong then, and I don’t think it’s fair that we change the law now. I think what we need to do is find a way to fix our system, not to continue to break it.” 

The post Exonerees Sound the Alarm on New Florida Law Allowing Death Sentences by Split Juries appeared first on Bolts.

To organizers and legal experts who work on sentencing issues in Oregon, the ODAA’s “colorblind” reading of Measure 11 displays a telling ignorance of how the state’s racist past—from Oregon’s founding, predicated on Black exclusion, to constitutional amendments and laws borne of xenophobia or enacted during a tough-on-crime spree—has shaped its criminal legal institutions today. A recent study by the Oregon Criminal Justice Commission found that Black Oregonians are far more likely to be indicted and incarcerated over offenses that fall within the Measure 11 system than white Oregonians; older studies have found similar results.

The ODAA’s stance on Measure 11 is consistent, though, with the association’s serial opposition to reform in recent years, which has become more conspicuous as political pressures around prisons and policing shift. “ODAA has a track record in Salem of preserving the status quo,” said Shaun McCrea, the executive director of the Oregon Criminal Defense Lawyers Association. 

This brand of tough-on-crime lobbying is now at a crossroads. Changes in public opinion have caught up with DA elections, and two new DAs—Mike Schmidt in Multnomah County, which includes Portland, and Matthew Ellis in Wasco County—were elected in 2020 on reform platforms. This year, they joined forces with Deschutes County DA John Hummel to break with the ODAA’s position on Measure 11. 

In February, the three prosecutors released a letter in support of House Bill 2002, one of the bills that would considerably roll back Measure 11. The letter ties the legislation to demands for racial justice and disputes the assertion that Measure 11 reduced crime, urging lawmakers to approach the ODAA’s memorandum “with caution.”

“I don’t know how they can debate or deny that [Measure 11] had a disparate impact on communities of color,” Schmidt told The Appeal: Political Report. “It’s just the facts.” 

The faction could test the staying-power of prosecutorial associations, which are under fire throughout the country for their carceral approach. And it calls into question how the ODAA will justify its public stances on criminal justice issues when it can no longer speak for all 36 elected DAs in Oregon. The debate over Measure 11 may be a bellwether for these shifts. 

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In 2018, the ODAA released a report titled “The Oregon Criminal Justice System: A Continuing Success Story,” which concludes, “The current success of Oregon’s Criminal Justice System is unmatched nationally and represents the most successful state policy in decades. It deserves to be protected and nurtured.”

The report doesn’t mention that Oregon is one of six states in the country whose incarceration numbers are still increasing, focusing instead on Oregon’s relatively low rates of incarceration compared to other states. And this is not even the most striking elision. Race and racial bias in the criminal legal system are not mentioned once in the report.

The ODAA’s notion that Oregon’s criminal legal system represents “a model for the rest of the country” may not jibe with the experience of many BIPOC Oregonians, who are arrested, sentenced, incarcerated, and assaulted by police at disproportionate rates. “That most of the DAs in Oregon are still denying that race is an issue in our criminal legal system really just highlights how much they are fighting to reinforce white supremacy in Oregon, even after the year of uprisings that we just had around race and policing,” Madeline Carroll told the Political Report.  

Carroll organizes with Oregon DA for the People, which formed in 2017 to educate the public about DA power and hold elected prosecutors accountable. Oregon DAs have long enjoyed minimal scrutiny. “Since so many DAs run unopposed, they don’t really need to run campaigns,” Carroll said, which allows them to skirt accountability. 

An Oregon tradition of DAs effectively anointing their chosen successor with the complicity of governors, as the Political Report documented last year, has meant that many DAs first land their job without facing voters. Ellis, Hummel, and Schmidt all faced voters before entering office.

Aliza Kaplan, director of the Criminal Justice Reform Clinic at Lewis & Clark Law School, said that Measure 11 reinforced this  status of Oregon DAs as unchallenged arbiters of the criminal legal system because it tied the hands of the other legal actors during the sentencing process. “Measure 11 gives full power to the prosecutors and takes all the power away from judges to use discretion,” she explained, adding that state DAs “think they know what is best for public safety, for every single situation and person.”

To Kaplan, this explains the ODAA’s efforts to preserve Measure 11. “They want to maintain their power,” she told the Political Report.

The ODAA did not respond to a request for comment for this article. Elsewhere, it makes the case that Measure 11 is crucial to public safety, and that it reflects the will of the voters: Oregonians initially voted for Measure 11 in 1994 and upheld it in 2000. 

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This legislative session is not the first time lawmakers have considered curbing mandatory minimums, and it is not the first time the ODAA has stepped up in opposition. “ODAA has a long history of lobbying against modifications to Measure 11, even if proposed changes reflect a better, more modern approach to criminal justice,” McCrea told the Political Report via email. 

In 2019, for instance, the ODAA lobbied against Senate Bill 1008, a wide-reaching reform that exempted minors aged 15 to 17 from Measure 11 sentencing. But despite the association’s opposition, the bill ultimately passed, in a watershed moment for criminal justice reform in the state.

Bobbin Singh, founding executive director of Oregon Justice Resource Center, said that his organization and the ODAA were both at the table as SB 1008was crafted, and the association never offered constructive feedback during the planning process. Schmidt, Portland’s DA, confirmed that the ODAA “didn’t say anything while [SB 1008] was in the workgroup,” though he added that he was not intimately involved in the bill’s creation.

“It was only once we got into the legislative session that we began to see them push back in ways that were fairly insidious,” Singh said. “They were misleading the public with the reports they were putting out about the data, and how it was impacting youth.” Singh was particularly appalled by the ODAA’s publication of identifying data of people who had committed crimes as minors, as well as personal information about the victims of those crimes. And at one point, there was an uproar when a DOJ employee used her agency email account to send an anti-reform mailer on behalf of the association.

When SB 1008 passed, Singh said, it was the first “real transformative reform” advocates were able to win despite the ODAA’s opposition: “I think that they are making themselves less and less relevant because of their approach.”

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Even when the ODAA has supported certain reforms, advocates believe they have done so as a way to gain leverage on other issues. Such was the case with Oregon’s non-unanimous jury law.

Until 2018, Oregon and Louisiana were the only two states in the nation where a defendant could be convicted by a non-unanimous jury for any crime other than first-degree murder. Kaplan’s scholarship has uncovered the anti-Semitic and anti-immigrant origins of Oregon’s non-unanimous jury rule. “The law was based in xenophobia,” she told the Political Report, “but the truth is, over the years … especially in a state with so few people of color, the law has played out in a discriminatory way towards Black and brown people.”

These days, Terrence Hayes spends his time fighting for Black liberation with groups like Oregon DA for the People, Portland Freedom Fund, and Liberation Literacy. Many years ago, facing criminal charges, he was offered a plea bargain of 70 months in prison. Hayes took the gamble, exercised his right to trial, lost, and ended up spending 13 years behind bars. “Was there not a better answer for a 19-year-old boy than to throw him away and lose his whole twenties?” he asked.

Hayes was convicted despite the fact that only 10 of his 12 jurors were convinced of his guilt. If his trial had happened in nearly any other US state, he would have walked free.

 In 2019, the ODAA announced it would spearhead a referendum that would let voters decide whether to end Oregon’s non-unanimous jury law. “I think they read the writing on the wall,” said Singh. “It was an inevitability that non-unanimous juries were going away because it is such a relic of white supremacy.” The U.S. Supreme Court had just agreed to hear a Louisiana case examining the constitutionality of  non-unanimous juries.

Singh also suspects that the ODAA pushed for the referendum because it came with a caveat. The association wanted to tie the end of non-unanimous juries to a measure that would end a defendant’s right to request a bench trial rather than sit before a jury. To Singh, that maneuvering spoke volumes. The association “looked at it as an opportunity to use it as leverage to compromise,” he said. “At the end of the day, ODAA tries to protect the asymmetric power dynamic that exists.”

The Supreme Court put an end to non-unanimous juries in 2020’s Ramos v. Louisiana, finding that the law was directly connected to “the rise of the Ku Klux Klan and ‘efforts to dilute the influence of racial and ethnic and religious minorities on Oregon juries.’” Kaplan pointed to the cases her clinic is currently reviewing to determine whether the Ramos decision applies retroactively. A disproportionate amount, she said, involve defendants of color. The law is gone now, but its impact on their lives—on Terrence Hayes’s life—lingers.

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Years of grassroots organizing by the communities most affected by the state’s unequal systems, victories like the passage of SB 1008, momentum from the uprisings last summer, and the brutal repression that followed in Portland have all set the stage for a new legislative session in which the ODAA may have to confront its waning influence. 

The presence of three vocal dissenters within the association can’t hurt.

“If nothing else, we are certainly elevating the issue to the community,” Schmidt, the Multnomah DA, told the Political Report. “Before, ODDA was just a bloc; now, we have a vocal minority. We’re talking to legislators. We’re doing interviews. We’re trying to get the word out that we don’t agree.”

Schmidt told the Political Report that while the ODAA’s executive board is responsible for making decisions about the association’s stance on less politically consequential matters, “on issues that they know are the big issues, they’ll ask the membership to vote.” There, it appears that a distinct lack of consensus is still not quite enough to tip the scales in a new direction. During the debate that preceded the association’s public statement on the measure, Schmidt said he voiced his critique of Measure 11 to the group. It didn’t make much difference: “They heard what I said … and then they roundly rejected it.”

Despite the outcome, Schmidt feels that his effort was not without purpose: “I don’t think that my position has made an impact on them. But, you know, I have had side conversations with a few of them, and they have expressed to me that maybe there is some area to move on this. By me being there and having a conversation, maybe there’s some people who are really thinking it through.”

During his campaign, Schmidt said he’d leave the ODAA if elected; thus far, he has remained part of the association. The district attorney feels there’s value to him challenging the ODAA’s stances from within. Some of his constituents agree; some don’t. 

The refusal of DAs Schmidt, Ellis, and Hummel to toe the party line on Measure 11 and other reforms is “definitely creating some complication for the organization,” Kaplan said. “I just hope that his decision to stay makes it so that their organization can have a diversity of opinions and groups, and that he’ll still be able to maintain his important reform measures.”

The decision point may come when DA Schmidt is eventually asked to pay dues that will almost certainly go towards lobbying efforts he opposes. On that point, he wouldn’t commit: “I’m seeing how this session goes, and I think that will tell me a lot about whether I feel comfortable paying those dues.”

Hayes and Carroll both fought for DA Schmidt’s election, but they don’t see the work as over—far from it.

“We’re maintaining kind of a ‘frenemy’ relationship with Mike Schmidt’s office where we support the things that they do that are aligned with our platform, and we continue to hold them accountable for the things that they’re doing—or not doing—that don’t align,” Carroll said. She spoke approvingly of Schmidt’s decision not to press charges against protestors arrested this summer, but criticized his office’s reluctance to suspend cash bail and free people from jail during a COVID-19 outbreak.

“Until the DA’s office holds police accountable for murdering Black men and women—as long as they’re unwilling to uproot a historically and fundamentally racist system—I’m not impressed,” said Hayes. “The process just started. We’ll see what they do.”

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