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Since the death of George Floyd in late May, nearly 1,000 protesters have been arrested in connection to the Portland riots, but the overwhelming majority will likely never be prosecuted by the Multnomah County District Attorney's Office.
Civil unrest ravaged Portland for more than 100 consecutive nights before the West Coast wildfires in September interrupted the streak. When District Attorney Mike Schmidt took over in August, he promptly announced that his office would presumptively decline to prosecute numerous protest-related charges and only pursue purported acts of intentional violence against the community.
Discontented community members criticized his soft-on-crime measures, but Schmidt pointed to a preservation of "limited resources" for more egregious crimes at a time when the pandemic has resulted in a backlog of cases and the city is seeing an uptick in gun violence and homicides.
"I had to make a decision, based on resources in this office, where we were gonna prioritize," Schmidt told KOIN 6 News. "Breaking windows of businesses, lighting things on fire, stealing from those stores in the protest environment so that's what we're focusing on. We're not using our limited resources on people who aren't doing those things."
However, the number of cases referred to Schmidt's office is actually much lower than during the same period last year. Between May 1 and Oct. 26 of 2019, over 10,000 cases were referred to the district attorney's office. For the same months this year, that number was under 7,000. Protest-related cases comprise about 14 percent.
To date of publication, KOIN 6 News has tracked 978 protest-related arrests and citations made by local authorities since May 28. Of that pool, charges have effectively been dropped in just over 90 percent of known cases.
The district attorney's office maintains that each case is carefully screened. An analysis by KOIN 6 News found that nearly 91 percent of cases have been dismissed or "no complaint-ed" and are listed as "closed" in online court records. Schmidt cautioned against using this figure, alleging that his office is still deciding whether to follow up on those cases.
But when asked by local reporters if it was likely that charges would be reinstated within the statute of limitations, Schmidt admitted: "The vast majority, no, it's not likely to happen. The vast majority of those are going to fall within our policy parameters of no evidence of harm or damage."
Long-time prosecutor and former Oregon District Attorneys Association president Josh Marquis slammed Schmidt's policy, calling his practice "virtue signaling" and inherently biased, because it treats one class of defendants differently than others.
"It basically says the prosecutor has a particular set of politics. And although prosecutors are elected," Marquis said, "your only allegiance is to the law. Never to any political party or political movement."
Schmidt re-affirmed that his policy is not discriminatory, but tailored to "this specific moment" when activists are protesting flaws in the criminal justice system. "We're treating everybody absolutely equal from the start of this policy which is May 29th and going forward," he emphasized, but if protests against a different cause surface in the future, he noted that he may reevaluate the policy.
"This was recognizing that in a moment where people are criticizing how we do business and what they expect to see, we have the ability to chill speech if we are too aggressive in using our authority toward people who are not causing harm," Schmidt continued.
Repeat suspects account for approximately 14 percent of arrests. The overwhelming majority of arrestees are local residents from Oregon state and specifically Portland.
Interfering with a peace officer is the most common charge followed by disorderly conduct. Schmidt argued that if his office prosecuted every one of those arrests, law enforcement "would be effectively chilling speech."
A spokesperson for Portland Police Bureau promised that officers "will continue to make arrests based on probable cause that a crime has been committed."
Marquis, who served more than two decades as a prosecutor, explained that the choice to not prosecute is unique because no authority exists to overrule that decision. If a prosecutor is too aggressive, a judge or jury can strike down the case, but a prosecutor is not forced to bring charges. "If the prosecutor decides there will be no justice, there will be no justice," Marquis summarized.
Without prosecution, Marquis suspected that the uprisings will continue indefinitely regardless of the general election results. The mob that appears night-by-night dressed in black bloc is unappeasable, he asserted.
"There is no endgame apparently other than the destruction of order and civil society in Portland," Marquis pressed. "(After the election) do they continue to riot? I think unfortunately the answer is they probably will because for them, the endgame is the riot."
Contrastingly, Schmidt largely attributed his policy to slowing the disturbances. "If I had decided that I was gonna have a very heavy hand and prosecute every one of those cases, I think we could still be seeing protests on a nightly basis right now," he levelled.
"The numbers aren't perfect — not every arrest is reported, names are frequently misspelled, some suspects aren't arrested or charged until later, and some cases simply don’t show up in online court records," KOIN 6 News wrote in a disclaimer characterizing their collected data.