Isaac Laquedem

Endorsements IV - A Clackamas County race and the Portland City Council

Isaac briefly diverts from the Rose City to look southward to Clackamas County and its most important race on the 2022 ballot, which is neither of the races for the county commission, but the campaign for county clerk, in which Catherine McMullen, a Multnomah County elections administrator, is challenging longtime incumbent Sherry Hall.  The most visible function of the county clerk is to supervise the county's elections.  Ms. Hall has racked up an impressive number of unforced election errors since she was first elected in 2002, amassing enough mistakes and bad conduct to fill a Willamette Week article in 2012.  In the ten years since then she's continued to fumble county elections, which WW helpfully compiled into another article this summer.  Voters in Clackamas County should give the office an upgrade that's long overdue, and replace Ms. Hall with Catherine McMullen.

One position on the Portland City Council is on next week's ballot.  Incumbent Jo Ann Hardesty and businessman Rene Gonzalez are in a runoff for a council seat.  Mr. Gonzalez has made street crime and homelessness centers of his campaign.  Commissioner Hardesty responds that she led the push to improve Portland Street Response, a non-police response to persons having crises of mental health, and has supported funding increases for permanent housing.  Underlying their debate is the City's interpretation of a Ninth Circuit case from 2018, Martin v, City of Boise, which some believe bars Portland from prohibiting the homeless from camping outdoors.

Before I turn to the Martin case, let's start with some data.  Since at least 2009 Multnomah County has conducted biennial censuses of homeless persons, though the census scheduled for 2021 was postponed to January 2022.  Homeless persons are counted in three categories: the unsheltered (people living outdoors, in tents, and in cars), people in shelters, and people in transitional housing.  From 2009 to 2019 the number of homeless persons counted in Multnomah County was fairly constant, ranging from 3801 in 2015 to 4655 in 2011.  The unsheltered population was also fairly constant, ranging between 1,591 in 2009 and 2,037 in 2019, with a typical number being about 1,800.

Something changed between 2019 and 2022, because the 2022 census found 5,228 homeless people in Multnomah County (up 30% from 2019), of whom 3,057 were unsheltered, living in tents or cars - up an astonishing 50% from 2019 and unique in the tri-county area.  (Over the same three-year period Clackamas County's count of the unsheltered fell from 371 to 327, a 9% drop, and Washington County's count of the unsheltered went from 232 to 227, essentially flat.) 

What has changed since 2019?  Isaac suggests these four factors, one of which is unique to Portland and another to Multnomah County.  The first is that in 2020 Oregon voters approved Measure 110, which decriminalized possession of many ordinary street drugs for personal use.  Measure 110 was billed as replacing drug policing with drug treatment.  The drug policing has stopped; the drug treatment has not started.  (Read what OPB said about Measure 110 last year.)  Consequently demand for street drugs has increased, and with it the customers' search for funds with which to buy drugs.  Glass repair shops and street-level retailers have become the involuntary funders.

Second is that even as Portland worked to get people off the street and into shelter, Multnomah County happily handed out tents and tarps to enable homeless persons to continue to live outside.  Last year Multnomah County distributed 6,550 tents to the homeless in the county, meaning mainly to people living on Portland streets and in Portland parks, which is somewhere between two and three tents for each unsheltered person in the county.

Third is that Portland took Martin v. City of Boise as barring the city from removing tents and prohibiting public camping unless the city could provide shelter to every unsheltered person in the city.  On this point I believe the city erred.  This short piece in the Harvard Law Review explains the ins and outs of the Martin decision in detail.  My take is that the decision prohibits cities from prosecuting the homeless for sleeping in public at night if shelter beds are available.  If not enough shelter beds are available on a particular night to accommodate all unsheltered persons in the city, then the city may not criminalize those who sleep without shelter.  It may, however, restrict sleeping and camping to designated areas; it may prohibit camping in other areas; it may continue to prosecute the unsheltered who take and dismantle cars.

That brings me to the fourth factor, and back to the city's election.  The fourth factor is that the city council and the Multnomah County district attorney have sent a clear message to the Police Bureau to stop enforcing minor laws, in particular property crimes.  Commissioner Hardesty led that message, both by securing a $15 million cut in the police budget and in pushing to cut another $18 million and 42 vacant police positions, a move that failed in 2020 and is one of the causes of downtown Portland's pandemic of broken windows.

The happy day when county prosecutors will revise their priorities must await the election of 2024.  Portland voters can take one small step toward refreshing the city by giving Rene Gonzalez the chance to argue his policies as a city councilor.

 

Burlington, Vermont slashed its police force. Hilarity did not ensue.

One of the shibboleths of cutting budgets is that the corporation, or agency, or non-profit will have to learn to do more with less. It's not possible to consistently do more with less; otherwise we could cut the budget for [fill in the blank here] to nothing and be able to do everything. Here's an illuminating story about Burlington, Vermont, a small liberal city that decided to cut its police force ... and what has happened since. The takeaway? Violent crime hasn't increased, but the quality of life took a nosedive.  Like Burlington, Portland has reduced its police force, not so much by an intentional budget cut as by attrition and neglect.  The result?  To me, it seems much the same as what happened in Burlington.

The Oregonian finds what the Bureau of Planning and Sustainability didn't want to look for

It's hard to improve on the Oregonian's headline in today's print edition: "$11.5M city contract awarded to executive with history of fraud."  (The story is available online to subscribers, here.)  The reporter, Shane Dixon Kavanaugh, writes that the directors of the Portland Clean Energy Community Benefits Fund, a city office of some sort, awarded a $11.5 million contract to a newish nonprofit corporation called Diversifying Energy to buy and install portable heat pumps and cooling units inside 15,000 homes and apartments.  (That's about $750 per heat pump or cooling unit.)

The story points out three oddities in the city's choice of a contractor.  First is that Diversifying Energy is not even two years old.  Its president, secretary, and executive director Linda Woodley formed the corporation in July 2020, and originally named "Energizing Diversity."  Its 2020 tax return indicates that it received less than $50,000 from all sources in 2020.  Mr. Kavanaugh reports that the City of Portland did award Diversifying Energy a $198,000 contract in April 2021 to upgrade three buildings for air quality.

Second is that Ms. Woodley is subject to an IRS tax lien for not paying income taxes in 2015, 2016, and 2017, and had been convicted of bankruptcy fraud and tax fraud in 1997.

Third is that city staff who evaluated the applications for the grant had concerns about Diversifying Energy's high personnel costs and recommended that the city accept the competing bid.  The city's grants committee rejected the staff recommendation and recommended that the city offer the contract to Diversifying Energy.  The city council unanimously approved the committee's recommendation, also rejecting the staff advice.

Not mentioned in the story, but odd, is that the IRS determination letter for Diversifying Energy was issued not to Diversifying Energy or its prior name when it was formed, but to "Shades of Green" the month before Energizing Diversity was incorporated.   (A "determination letter" is the letter from the IRS that says that a nonprofit organization qualifies as a 501(c)(3) and that contributions to the organization will be tax-deductible.)  The state had two businesses using the name "Shades of Green."  One was in Klamath County and has been in existence for 20 years.  The other was a for-profit corporation called Prisma Point Incorporated, formed by Ms. Woodley in 2014 and still arounds today, operating from the same office as the nonprofit.  It's extremely unusual for a non-profit to have a determination letter that had been issued to a for-profit corporation; in fact, it's not supposed to happen.

Mr. Kavanaugh's story contains the obligatory disclaimer by city officials (there should be a hotkey for that phrase), that "neither city staffers nor grants committee members knew of Woodley's troubling past, Portland officials told The Oregonian / OregonLive, when the news outlet informed them of reams of public records documenting her financial fraud and unpaid taxes.  Nor were they aware of a series of mischaracterizations and possible outright fabrications in her firm's proposal that The Oregonian / OregonLive found during fact-checking, they said."

What conclusion can we draw from The Oregonian and Mr. Kavanaugh finding information that the city missed?  The obvious one is that when city management determines to award someone a contract, it shuts its collective eye to warning signs.  The less obvious one is that the grants committee, part of the Bureau of Planning and Sustainability, awarded the contract on something other than business history, financial qualification, track record, and economic efficiency.  The City Council should insist that the members of the committee explain their thinking before the city allows them to award any other contracts.

It's time to Peel off the military trappings of our police force

On June 11 Governor Kate Brown signed HB 2481, which restricts police departments from acquiring certain types of surplus federal military equipment, including armed drones, grenades and grenade launchers, and firearms silencers.  City police departments must obtain written approval from the city council before acquiring any other military surplus equipment.  County sheriffs must notify the board of county commissioners at least 5 days before asking the federal government for surplus property, but don't have to get the county commission's approval.  The bill as introduced would also have prohibited police departments from acquiring surplus "militarized combat, assault or armored vehicles," a provision that the legislature dropped.

To the man with a hammer, everything looks like a nail.  To the police department with combat gear, everything looks like a battlefield.  HB 2481 is a fine start toward restoring the distinction between the United States military and local law enforcement.  Let's continue the work.

One quirk of many American municipal police departments, including Portland's, is that they are structured on military lines, from chain of command down to the titles of the officers: sergeants report to lieutenants, who report to captains.  Compare our fondness for organizing police forces as paramilitary operations with the titles that the British chose for their police officers:  from lowest to highest they are Constable, Sergeant, Inspector, Chief Inspector, Superintendent, and Chief Superintendent.  Only one of those ranks, Sergeant, is drawn from a military title, and above the Chief Superintendents the titles revert to variations on the entry-level position:  Assistant Chief Constable, Deputy Chief Constable, and Chief Constable.  Sir Robert Peel chose the names of those ranks deliberately, to avoid the constabulary being seen in the image of an additional military force, consistent with the nine policing principles that he set to paper in 1829.  His first principle of policing was "To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment."  The second, relevant in Portland today, was "To recognize always that the power of the police to fulfill their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect."

I don't intend to suggest that Portland could cure its policing ills with a change of name, though it would be a good start.  I do believe that if we assign military ranks to our police officers, train them in military thinking, and give them military equipment, we should not be surprised when they occasionally act like a military force.

 

 

Where City Hall should stick the South Park Blocks

Portland Parks & Recreation (what old-timers call the "Parks Bureau") has proposed a master plan for the twelve South Park Blocks, the strip of greenery that stretches from Jackson Street north to Salmon Street, where the Mausoleum Club stops further northward progress.  The plan calls for replacing the stately elm trees that now define the Park Blocks with a mix of other trees. 

Critics (and there are many, including former Parks Commissioner Mike Lindberg, and Professor Bogdanski) differ on whether the Bureau wants to replace the elms over the next several decades as they age out, or intends to cut them down in short order and then replant.  The Bureau says that "many of them are reaching the end of their designed lifespans" (Master Plan, page 9), and it proposes a new design for the Park Blocks that it says "improves the park's resiliency to impacts of climate change; adds art, design elements, and planting treatments that reflect more diverse cultural histories and identities; addresses existing accessibility challenges; creates more flexible, safe, and inclusive spaces; and converts underused street space for park users."  (Master Plan, page 11).

The plan has drawn most of its fire for its proposal to remove many of the elms, whether by normal aging or with mechanical assistance.  The plan has two other failings, either of which will justify the City Council in sending the plan back to the Parks Bureau with an earnest plea to do better.  

The first failing is that under the guise of addressing "existing accessibility challenges" to what is, after all, a collection of flat and nearly level parks (the average grade from north to south is only 3%), all wheelchair-accessible, the Bureau proposes to add hardscape and reduce the earthen area.  The second failing, related to the first, is that the Bureau proposes to add clutter to the blocks.  I'm using "clutter" broadly to mean things that aren't related to any function of a greenspace park.  For example, the Bureau wants to add an interpretive display about Vanport (the temporary wartime city that occupied a site near Delta Park until the Vanport Flood of 1948) to the Park Blocks because Portland State University began in 1946 as the Vanport Extension Center in Vanport, moving to the former Lincoln High School building in 1952.  It's history worth commemorating, and Portland State University has done so on campus, but it doesn't have anything to do with the Park Blocks.

The Bureau estimates the project to cost $2 million to $4 million per block.  Consider whether the Bureau could do more to make greenery accessible to Portland, and resolve some equity issues that have festered for decades, if it devoted the money for even one block to adding street trees in the least-shaded and most neglected areas of Portland, for example, in St. Johns and outer Northeast.  If the Parks Bureau wants to be woke, it should start in the areas that need its help the most.

1764: Criminologist Cesare Beccaria tells us how Portland can make downtown safe again

If downtown Portland is going to cease to be a showroom for the plywood industry and the overnight work of Kennedy Restoration, the city needs to change its response to the occasional protests and coincident property damage.  The police force's nonviolent responses to two recent anti-Biden protests that turned into vandalism is encouraging (here are stories about the response on February 28 and March 11), as it resulted in a number of arrests for actual vandalism instead of the weaker charges of "interfering with an officer" that plagued the city's response to last year's anti-Trump riots.  Still, there is room to improve.  Isaac has a few modest suggestions.

Nearly everyone who is arrested at a riot is booked and released the same night.  One person arrested on February 28 was released almost immediately because of Covid-19 restrictions at the jail.  The jail is not in fact empty, despite Covid-19.  If the county is willing to keep a few beds open at the jail, then at least a few of the persons arrested at riots could be held overnight or until the prosecutors can bring or drop charges, usually for constitutional reasons within 72 hours.  The city's and county's current policies allow situations such as the one on March 11 in which a homeless man, newly arrived in Portland, was arrested by Portland police at 3:03 p.m. for causing damage at a bank office, booked into the jail at 4:00, released at 8:30, and then arrested at 10:45 p.m. by federal agents for slamming a scooter into a window of the federal courthouse. 

The metric to apply is that the number of persons held overnight or through the weekend will be equal to, but not more than, the number of windows broken in a particular protest.  If no windows are broken, then no one will be held overnight.  (Actually, if no windows are broken, no one should be arrested for breaking windows, but that may be too logical to implement.)  

I've come around to cautiously supporting the Portland police technique of waiting until protesters break windows, and then "kettling" and identifying those that are in the group that includes the culprits.

I came to this conclusion, still rather hesitantly, after reading the essay of Professor Daniel S. Nagin, entitled "Deterrence," that appeared in volume 4 of the report "Reforming Criminal Justice"  in 2017.  Professor Nagin used as his starting point the conclusion of Milanese criminologist Cesare Beccaria in 1764 that "one of the greatest curbs on crime is not the cruelty of punishments, but their infallibility.  The certainty of punishment even if moderate will always make a stronger impression."  Nagin's refinement of Beccaria's theory was to add that it is "the certainty of apprehension, not the severity of the ensuing consequences, that is the more effective deterrent."  Lengthy prison sentences, he said, are an inefficient way to prevent crime; "crime-prevention policy should instead focus on bolstering the certainty of apprehension."  Given the county's reluctance to prosecute crimes of minor vandalism, the most effective way to deter those crimes is to increase the certainty of apprehension, even if the only punishment is a weekend in the lockup.

Now that Metro has $250 million/year to end homelessness, how will we know if it succeeds? Isaac has some recommendations

One recurring criticism of Metro's income tax to aid the homeless, which the voters approved yesterday, is that it comes without any clear plan for how it will use the $250 million/year that the tax will raise to assist the roughly 2,000 chronically homeless people in the metropolitan area or the roughly 38,000 people who are not chronically homeless, but are without a home for some part of the year.

How much is $250 million/year compared to other government budgets?  Portland Public Schools, the largest school district in Oregon, spends about $650 million/year and employs 4,100 people to educate 50,000 children.  The City of Eugene, Oregon's second-largest (population 171,000), spends about $580 million/year, of which about $180 million is through its general fund.  Metro's operating budget (excluding capital investments through its Natural Areas bond fund, its $650 million Affordable Housing bond fund from 2018, and other bonded funds, is about $500 million/year.  The new income tax equals about half of Metro's current operating budget.  It represents a major expansion of Metro's responsibilities.

How, then, shall Metro evaluate whether it's using these new tax dollars wisely?  And how shall the public evaluate Metro's use of this torrent of involuntary largesse?  (I say "involuntary largesse" because about 85% of the voters earn less than the minimum required to pay the tax.)  I'd like to propose that before Metro signs even one contract with a social service agency, a well-spirited nonprofit, or a politically connected consultant, it must establish quantitative performance measures and require each prospective contractee to commit to how it will help Metro meet those measures.

I have a few performance measures to suggest:

• Assist at least X people/year who are homeless by emergency (e.g., domestic violence, foreclosure, eviction) to be sheltered within 48 hours, and then assist them to be housed within 14 days after being sheltered
• Reduce the number of people who are sidewalk-homeless for 7 days or more to zero
• Convert at least X people/year from tent-homeless to sheltered
• Provide effective inpatient treatment for drug addiction to at least X homeless people/year
• Transition at least 75% of the people they serve to be housed and free of addictions within one year of receiving their first service

How will we know if this measure has accomplished its purpose? 

• No one will be camping on downtown Portland sidewalks because the program funds are providing shelter.  (Several court decisions have held that cities can't criminalize sleeping outside if no shelter spaces are available.  Ergo: make shelter spaces available.)
• There will be no tent cities along the Springwater Trail.  (See previous metric.)
• The open-air drug markets will have disappeared.
• Our parks won't be needle dumps.
• Several thousand people a year will have moved from street to shelter and from shelter to housing.

We've just voted to expand Metro's mission by 50%.  If, three years from now, our sidewalks and parks are still tent cities, then we should admit that the measure has failed, repeal the tax, and think of something else.

If people moving to Portland are causing our housing crisis, the city should take one simple step

... which is to instruct Prosper Portland to cease at once all efforts to attract new employers to Portland, and instead encourage job growth (if at all) only in Clark County.

Maybe it's time to move Tubman Middle School farther from the freeway

I've been amused watching the conniptions of our local politicos about the two most significant obsolete portions of our local freeway system: the Interstate Bridges and the Rose Quarter section of Interstate 5. I sense there's a lot of overlap between those who are pushing to replace the two three-lane Interstate Bridges with two new three-lane bridges (on the one hand) and those who oppose widening the two two-lane sections of Interstate 5 where the Rose Quarter has grown up around it. That section of Interstate 5 is the only urban section of Interstate 5 between Canada and Mexico that hasn't been widened to six lanes - even in Eugene, Salem, Ridgefield, and Castle Rock (population 2,234) this vital commercial link has six lanes.

I've read only one sound objection to improving the Rose Quarter section to match the rest of the urban freeway, which is that Harriet Tubman Middle School is next to the freeway and widening the freeway would make the air quality at the school even worse. I don't begrudge that objection - the school was built in 1952, 14 years before the freeway opened - but it's sometimes occurred to me that the school district might have noticed the freeway's presence before it put millions of dollars into remodeling the building a few years back, and perhaps even considered moving the school to a new location farther from the freeway.

Misquotation run riot: Hamilton gets credit for Phillips' work because Phillips credited Hamilton for Madison's work

Law and academe share a fondness for citation.  Nothing more interesting than a cliché may be quoted without attributing the quotation to its source.  As the saying goes, "Be original - but find someone who said it first."¹  

The Hatfield courthouse in downtown Portland has an imposing quotation carved high on a wall on the ground floor:  "THE FIRST DUTY OF SOCIETY IS JUSTICE", in majestic capitals, unsourced.  Federal judges cite the saying to remind lawyers of their obligation of professionalism.  But who first said it?  The courthouse wall attributes the saying to "Jury Assembly Room," likely a pseudonym.  I doubt that anyone in the courthouse knows who actually said it.  If you were to ask the courthouse occupants for the name of the author, my guess is that half would confidently attribute the saying to Alexander Hamilton and the other half wouldn't know. 

Alexander Hamilton said and wrote a lot of things, and he's occasionally credited with this fine saying.  He isn't, however, the author -- people wrongly identified Hamilton as the author because the man who actually stated the phrase in a public speech followed it up with a mention of Hamilton.  None of the online information I found that credits Hamilton as the author states where and when he said or wrote it.

The actual author was a prominent abolitionist, Wendell Phillips (1811-1884), who said it in a speech at the old Boston Music Hall on Winter Street on January 20, 1861.  That speech and another that he gave the next month were published later that year.  In that speech, talking of the impending Civil War, he said:

Mr. Seward says, "The first object of every human society is safety;" I think the first duty of society is JUSTICE.  Alexander Hamilton said, "Justice is the end of government.  It is the end of civil society."  If any other basis of safety or gain were honest, it would be impossible.²

There is the original quotation, straight from Wendell Phillips in 1861.  Unfortunately for the reputation of Mr. Phillips, his next two words were "Alexander Hamilton."  HIs actual quotation of Hamilton's words:  "Justice is the end of government.  It is the end of civil society" is taken from Federalist Paper No. 51, and therein lies another irony in the history of this quotation: Hamilton wrote more than half of the Federalist papers, but he didn't write No. 51 -- James Madison wrote No. 51.

The irony? Today some mistakenly credit Hamilton for the words of Wendell Phillips because Phillips mistakenly credited Hamilton with the words of James Madison.

¹  Isaac Laquedem, http://isaac.blogs.com/isaac_laquedem, retrieved March 23, 2018.

²  Wendell Phillips, Disunion: Two Discourses at Music Hall, on January 20th, and February 17th, 1861 (Boston: Robert F. Wallcut, 1861), page 6.