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Former prosecutor Adam Foss in Bend, Ore., on April 8, 2019. Emily Cureton / OPB

The district attorney in Deschutes County has a plan to stop prosecuting more than 200 misdemeanor crimes unless his department gets a mandate from the county commission in the form of more funding.

The idea isn’t just about money though, it’s part of a movement against mass incarceration.

U.S. states, including Oregon, lock people up at a higher rate than most countries in the world, especially people of color. District attorneys, according to some, are the most powerful actors in the criminal justice system.

Influenced by these ideas, Deschutes District Attorney John Hummel recently hosted an advocate for prosecutor-driven change. Former prosecutor Adam Foss came to Bend in April to meet with lawyers, judges and social workers. Foss also talked to OPB's Emily Cureton about the role of DAs.

This transcript has been edited for length and clarity.

Q&A With Adam Foss

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Emily Cureton: What does accountability look like in an ideal criminal justice system?



Adam Foss: I'll talk about what it looks like now because what we say as prosecutors [is] we hold people accountable and that means we punish them. We incarcerate them. We shame them and we blame them. We label them when we give them these convictions and criminal records so that they live with it forever.

Everything that we've done because of mass incarceration has made us less safe. We have 70% recidivism. This is a uniquely American legacy. We are the worst of the worst. And the only place that I've seen actual accountability, where you see people articulating the harm they've done and understanding in a deep way about what that harm means, is in restorative justice.

People are confronted either with their victim or a surrogate victim and they are allowed to have this exchange. They have a deeper understanding of the harm they caused, but the person who's been offended against or the community that has been offended against also understands that's not the best example of who they are. And as a result, we should give them a chance to repair the harm and come back to the community in a meaningful way.

Cureton: As many as nine out of 10 people in Deschutes County are white. Next door in Jefferson County, the Census puts that at six out of 10. How does the message change, if at all, in a place like Central Oregon?

Foss: It doesn't. It's about privilege. It's not about what that privilege looks like. It's about the fact that even in Bend, the disparities are out of control. It's not about black or white; it's about haves and have nots.

Cureton: We've just seen a report out of the Deschutes County District Attorney's Office looking at itself in a harsh light — some of the consequences it says of not having enough people, not having enough money, and not having enough time. Do the things that you're talking about take more time than traditional prosecution?

Foss: Yes and no.



So, my problem with the time debate is that we have prosecuted a ton of things that we don't need to be [prosecuting]. The amount of time that we spend on garbage cases, like possession of drugs — understanding all the problems that come with drug addiction — the amount of time that we spend on prosecuting those things, as opposed to the amount of time that we would spend on treatment, is counterbalanced. The amount of time that we spend on traffic violations in the prosecutor's office, as opposed to trying to help people get their licenses and get the registration in order is again a counterbalance.



It doesn't make any sense. So the cost to me is never about, 'We don't have enough time to do it.' It's, 'How do we reinvest our time so that we get more return on our investment?'

Cureton: A lot of the calls for changes to the criminal justice system are focused on policing and sentencing. What are the questions we should be asking about prosecutors?



Foss: First, who is your elected prosecutor? I continue to be baffled, even three years after this movement started, to go into rooms of very smart people and say, 'Do you know your elected prosecutors?' and they don't.



What do they do, and what are they capable of? And then start checking down the lists: Is there a plan in their office to deal with mass incarceration? Are they thinking about things like rolling back the war on drugs, which has been completely counter-productive? Are they addressing the racial disparities that have been proven time and time again in the criminal justice system? And what are the mechanisms by which they're doing that?



Ultimately, are they serving the needs of all victims? Not just the victims that have the loudest microphone at the state capital, but the victims who are too afraid or too distrustful of the system to pick up the telephone.