Standing in front of a room full of mostly white, suit and tie-clad lawyers in a swanky downtown Portland hotel conference room, Terrence Hayes stands out. Not just because of his appearance — he’s decidedly more dressed down than the buttoned-up audience he came to address — but because until a few months ago, Hayes was a convicted felon.
Hayes was convicted of attempted murder in 2004 by a non-unanimous jury and spent 13 years in prison.
“I was guilty. I was 19 years old. I was a young Black man in America. My parents were drug addicts. My story was pretty typical,” Hayes told the room. “But I was still a human being.”
At the time of his arrest, Hayes was in college and getting good grades, he told the room of legal experts gathered for the keynote address at the annual conference of the National Association of Sentencing Commissions.
“There was just trauma and pain that I didn’t recognize at the time that existed in me,” he said. “And so as a frustrated young man, when I got into conflict, I resolved it in a way that I was taught to resolve it, which is violence.”
Hayes got out of prison in 2016 and this April became the first person in Multnomah County to have his case reviewed under a new state law passed in 2021 which made it possible for district attorneys to revisit old convictions. In Hayes’ case, his conviction was vacated. A felony conviction can have far-reaching impacts and make it more difficult to get a job, professional license, or home loan.
The Oregon Criminal Justice Commission doesn’t track how many people have applied or been resentenced under SB 819 statewide but commission Executive Director Ken Sanchagrin said given the program is still in its infancy, he’d estimate it’s only a handful.
Hayes’ case was handled by District Attorney Mike Schmidt’s new Justice Integrity Unit, a team that is reviewing past convictions and considering them for expungement, clemency or resentencing. Revisiting claims of innocence and speeding up the expungement process was a cornerstone of Schmidt’s election platform in 2020. But after a first attempt in 2021 to get the program up and running sputtered, Schmidt’s vision might finally be coming into focus.
The Justice Integrity Unit was launched in September 2021 under defense attorney Ernie Warren. He quit after just six weeks on the job. Allegations soon surfaced that he’d made inappropriate comments to a younger woman colleague and fell asleep in a meeting with national counterparts. Schmidt said introducing a criminal defense attorney into the prosecutor’s office to establish a brand new program created tensions.
Veteran deputy district attorney Kelley Rhoades, who has been in the office for over 12 years, assumed control of the unit soon after Warren left and has had more success getting buy-in.
Schmidt said having a prosecutor in charge “automatically kind of gave it more credibility within the office.”
“We did hire a defense attorney to come in and be part of the unit so we still have that lens on the work,” he added.
The unit’s work grew when the Oregon Legislature passed Senate Bill 819 in 2021, creating a path for district attorneys in the state to resentence people convicted of any felony other than aggravated murder. The new law took effect on Jan. 1. Now, instead of being limited to taking second looks at people who are currently incarcerated or on parole, they can revisit sentences for people who are no longer involved in the criminal justice system but are still affected by their criminal record.
To be resentenced for a lesser crime or have a conviction vacated under Oregon’s SB 819, the district attorney and a judge must agree that the original conviction or sentence “no longer advances the interests of justice.” Programs revisiting past convictions have become more common across the country in recent years.
Before the new law passed here, someone like Hayes would have had to petition the governor for commutation or a full pardon, Schmidt said. Now, if a district attorney and defense attorney agree, they can go before a judge and a person convicted of a crime can be resentenced to a lesser charge. So a sentence for third-degree assault might be revised down to a sentence for attempted assault, which is not a felony.
“Nobody has a crystal ball,” Schmidt said. “You come up with this sentence and you’re like, ‘This person I think, for public safety, needs to go to prison for 10 years.’”
But he said prosecutors don’t always get it right or circumstances may change and a different sentence might be warranted. For example, people go to college while in prison, show leadership potential or receive letters of support from the community.
“It’s almost like a release valve,” Schmidt said. “You can’t be perfect predictors of the future, but now we can look backwards, if we’re willing to, and say, ‘Hey, maybe we can change that.’”
Speaking alongside Schmidt and Hayes in the downtown Portland conference room, State Sen. Lew Frederick, D-Portland, said the impact of programs like this can ripple through a community far beyond the individual person in question.
“If we are able to get folks expunged, get those kinds of charges off their history, we make a difference to the whole family,” Frederick said. “We make a difference to the whole community. We have homeowners for a change. We have business people. We have people who are able to take classes and go to college.”
But that level of cultural change may not happen fast. In the eight months the law has been on the books, Schmidt’s office has resentenced just three people, including Hayes.
Another man, charged when he was a minor and tried as an adult, had his first-degree assault conviction vacated and reduced to second-degree assault. The resentencing reduces his sentence from seven and a half years to five years and 10 months.
A third man, also a minor tried as an adult, pleaded guilty in 2018 to second- and first-degree robbery. He was sentenced to more than eight years in juvenile detention. When his sentence was reviewed by the Justice Integrity Unit, he pled to a lesser charge and was released to live with his grandmother.
There are an additional six people awaiting a resentencing hearing. As of May 5, Schmidt’s office has received 301 applications under SB 819.
The Justice Integrity Unit has also received 6,543 expungement applications since Jan. 1. These applications are in addition to the requests made under SB 819 and mostly involve requests to erase records of lower-level offenses. Of those, Schmidt’s office has agreed to send 1,853 forward to a judge for consideration. Expungement applications require less legal review since there is a legally defined set of qualifications. Applications that fall under SB 819, on the other hand, are fully at the district attorney’s discretion and require more work to process, including consulting with victims and the Department of Corrections.
Similar programs have launched across the country in recent years and have gained momentum in counties that elected progressive prosecutors. In Philadelphia, District Attorney Larry Krasner’s Conviction Integrity Unit has exonerated more than 25 people, re-sentenced more than 300 juveniles and granted 31 commutations, according to the district attorney’s website. Chicago’s Cook County has granted over 200 exonerations since launching a Conviction Integrity Unit in 2012, according to the University of Michigan’s National Registry of Exonerations. And in Houston’s Harris County, 148 people have been exonerated by the district attorney’s Convictions Integrity Unit.
Hayes, who is the executive director of a nonprofit helping people transition out of prison, said that although he supports Schmidt and this program, the criminal justice system may not be the best tool to fix the criminal justice system.
“I don’t think the system really has the capacity, but guess what, the system has the power,” he said.
Getting enough support to pass SB 819 in the state legislature meant getting district attorneys from across the state on board. That was made easier by empowering them to decide which cases will be revisited. Hayes is skeptical of the arrangement and said absent district attorneys following through and using the new tool at their disposal, it could become another tool to control incarcerated people by dangling unfulfilled promises of shorter sentences or vacated convictions. He’d prefer to see a non-governmental entity reviewing applications.
Already, according to Schmidt, the mere existence of the new law is leading incarcerated people to change their behavior.
“People all of a sudden understood they had a chance that people would look at their sentences,” Schmidt said. “They started taking classes. They started reconnecting with families outside of the institutions … they actually had some hope to change their behavior.”
Hope can be a powerful force when you’re incarcerated, Hayes said. His friends who are still in prison have called him excited about the prospect of one day having their records cleared.
“While I simultaneously hate that you’ve empowered the system, I simultaneously love the fact that now men and women have another law that actually can help their lives,” he said.
The hard part will be making that promise a reality. Even the most well-intentioned policies meant to undo centuries of white supremacy can be derailed by the tendency of white-dominated power structures to instinctively recreate themselves.
Hayes, who acknowledges he could have been perceived as something of a prop in the Benson Hotel’s Crystal Ballroom, said he’s comfortable filling that role because his voice carries weight with people in power.
“I really am the individual calling supremacy out,” he said. “I really am the individual that’s sitting on those committees saying that this is the same behavior that’s caused the Black community to exist where it is.”
With Oregon Gov. Kate Brown’s time in office nearing an end, Schmidt said his office’s resources have been consumed by a tidal wave of clemency petitions. He hopes once those are processed, the Justice Integrity Unit can turn its focus back to processing applications.
Hayes, a successful small business owner and talented public speaker, is by his own admission an easy sell for the new program. But as Schmidt parries unsubstantiated political attacks claiming he’s somehow responsible for a spike in violent crime, other applicants for the program could be politically perilous.
Schmidt reminds critics that programs like this, which attempt to right the justice system’s previous wrongs, are one way of rebuilding fractured relationships.
“It’s hard for us to get witnesses. It’s hard for us to get victims that are willing to talk to law enforcement,” Schmidt said. “This is one way that we can build trust with communities that we’ve broken trust with.