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The Pieces Are In Place For Crack Reform October 26, 2009

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Julie Stewart, President of FAMM, gives us this update:

Urgent news from the U.S. Senate!
Senator Richard Durbin (D-Ill.) introduced The Fair Sentencing Act – a bill to get rid of the notorious “100-to-1” ratio between crack and powder cocaine penalties.
This means that one more piece of the crack cocaine puzzle is now in place and the picture is nearly complete – the White House and Department of Justice have endorsed the elimination of the cocaine sentencing disparity; the U.S. Sentencing Commission has found the disparity unreasonable; the House of Representatives introduced legislation to equalize crack and powder cocaine penalties last summer; and now the Senate has, too!
We need to put all the pieces together and send President Obama the crack reform legislation he has already asked for!
To do that we need to see the crack cocaine bills voted on and passed in the House of Representatives and in the Senate.  Because as important as it is that the Senate introduced crack cocaine legislation today, if Senators don’t approve the bill, it does us little good.
So, in the next few weeks we’ll give you a chance to contact your Senators and ask for their support.  For a full description of the Senate crack bill, click here.
The best way to support our efforts today is to make a contribution to FAMM!  Every dollar you donate to FAMM will get us one step closer to our goal of sentencing justice and, remember, every dollar you give before December 31 will be matched by one of our generous donors.  Talk about getting some bang for your buck!
Click here to make your online donation today. Together, we can put these last pieces of the puzzle in place!

State Under Fire For Failing To Protect Prisoners October 14, 2009

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The convictions of three former prison workers and pending lawsuits is leading to criticism that the state is failing to protect women inmates from predatory prison workers.

The three former prison employees were convicted this year of sexually abusing inmates at the Coffee Creek Correctional Facility in Wilsonville. Another former Coffee Creek employee, accused of sexual misconduct, is scheduled to stand trial in December.

And another employee has been placed on leave pending the outcome of a state police investigation into allegations of sexual misconduct.

Five women have filed lawsuits against the Department of Corrections and the state.


Early-Release Law Creates Anxiety October 13, 2009

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A new Oregon law, designed to prune prison spending by shaving extra time off sentences for nonviolent offenders, is causing angst for prisoners and massive headaches for county court managers.

Thousands of sentence-reduction cases are flooding into the courts, piling onto crowded dockets.

Acting on the new law, the state Department of Corrections has determined that 4,169 inmates in Oregon’s 14,000-inmate prison system are eligible for enhanced “earned time” sentence reductions.

By last week, 2,492 of the 4,169 cases had been referred to county courts throughout the state for resentencing consideration. The remainder will be sent to the courts within a few months, officials said.

Amid a logjam of cases, some inmates fear that potential early prison departures will get stalled or derailed.

“The anticipation and drama level in the prison has created such a buzz that tempers are beginning to rise and anxiety is becoming commonplace,” Brandon Lawrence, an inmate at the Santiam Correctional Institution in Salem, wrote in a letter to the Statesman Journal.

At issue is the 2009 Legislature’s expansion of what is known as earned release time in Oregon prisons. Earned release time refers to the controversial practice of shortening prison sentences for offenders who demonstrate good behavior and participate in rehabilitation programs.

Legislators increased the maximum amount of time that nonviolent offenders can whittle off their sentences through good behavior from 20 percent to 30 percent. The idea was to save about $6 million in reduced lockup costs in the 2009-11 budget period and allocate the money to other needs in the state’s general-fund budget.

Proponents of the new law say that expanded earned time serves as a powerful motivational tool that gives inmates added incentive to obey prison rules and take part in rehabilitation programs.



Oregon Supreme Court Says Penalties Imposed By Measure 11 Violate the State Constitution October 10, 2009

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Here’s an article from the Eugene Register-Guard:

In a 4-to-3 decision, the Oregon Supreme Court ruled Thursday that the state’s mandatory sentencing law violates the state constitution “in rare circumstances” by requiring a prison sentence of more than six years for all first-degree sexual abuse convictions.

Both supporters and critics of Measure 11 predicted that the opinion will open the door to new challenges of the law that voters approved in 1994. The court is the final authority on the Oregon Constitution.

In a majority opinion on two appealed cases, Justice Thomas Balmer wrote that for two first-time offenders, Measure 11’s mandatory minimum sentence violated the constitution’s requirement that “all penalties shall be proportioned to the offense.”

Balmer called the penalty so disproportionate to the conduct in those cases that “it shocks the moral sense of reasonable people.”

The ruling vindicated judges in Linn and Washington counties who rejected the 75-month prison term as disproportionately harsh. In the first case, a 36-old-man was convicted for twice briefly touching the clothed buttocks of a 13-year-old girl as they fished in rural Linn County. In the second, a 23-year-old Hillsboro youth counselor was convicted for holding the back of a 13-year-old boy’s head against her clothed breasts for about a minute as they stood in a crowded room.

Linn County District Attorney Jason Carlile, whose office prosecuted one of the cases, called the decision “a dramatic change in the law.”

“This decision interjects uncertainty into criminal law, and that increases litigation,” he said. “Before, we knew what the rules were. Now we don’t.”

The leader of a Portland-based criminal justice reform group also called the ruling historic — but in a good way.

“Measure 11’s mandatory minimum sentencing scheme destroyed the most critical aspect of an effective criminal justice system: the ability to consider the individual circumstance of every case when determining sentences,” said David Rogers, executive director of Partnership for Safety and Justice.

The law has “resulted in many miscarriages of justice,” agreed Greg Hazarabedian, director of the Lane County public defenders’ office and the immediate past president of the Oregon Criminal Defense Lawyers Association. He added that he sees proportionality problems with other parts of the law.

“For instance, to sentence a teenager whose role in a crime was small and who had never been in trouble before the same as a hardened career criminal,” he said Thursday. “That should not be considered just in anyone’s world.”

Measure 11’s author, Salem lawyer and crime victim advocate Kevin Mannix, said he fears the decision will prompt defense attorneys to challenge the proportionality of other mandatory sentences, consuming “thousands and thousands of court hours and dollars.”

Mannix said he agreed with Chief Justice Paul De Muniz, who wrote the dissenting opinion. Mannix noted that first-degree sex abuse under Measure 11 requires that a perpetrator be “acting for his or her sexual gratification. And the chief justice said it is appropriate for society to go out of its way to protect persons under 14 from such touching, even when it occurs through clothing.”

Mannix also noted that the court’s newest justice, former Eugene civil rights attorney Martha Walters, joined in the dissent.

“No statutory scheme is perfect,” Mannix said, “but it’s taken the Oregon defense bar 15 years to find two cases that a judge felt went over the edge.”

Still, he said, the majority opinion set up “a very narrow standard” and upheld the constitutionality of Measure 11 generally.

Another longtime Oregon victim advocate, Steve Doell, hailed Thursday’s decision. While his Crime Victims United group continues to support Measure 11’s mandatory minimum sentences for crimes such as murder and forcible rape, it has long favored judicial descretion for second-degree sex offenses and nonforcible first-degree sex abuse, Doell said. The group successfully pressed legislators to allow more discretion for other second-degree crimes, he said.


CSG Justice Center Launches National Reentry Resource Center October 8, 2009

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The Council of State Governments (CSG) Justice Center announced today its launch of the National Reentry Resource Center—an unprecedented initiative to advance the safe and successful return of individuals from prisons and jails to their communities. Among those served by the resource center will be states, tribes, territories, local governments, service providers, nonprofit organizations and adult and juvenile corrections institutions.

The CSG Justice Center was selected through a competitive grant process by the Bureau of Justice Assistance, U.S. Department of Justice, to develop and direct the resource center in collaboration with the Urban Institute, American Probation and Parole Association, Association of State Correctional Administrators, and the Center for Juvenile Justice Reform at Georgetown University, and an advisory board of 25 national organizations serving the reentry field. Authorized by the Second Chance Act of 2007 (P. L. 110-199), the resource center will provide communities across the country with the best thinking on complex reentry issues, comprehensive resources and myriad forms of support that can help reduce recidivism and strengthen neighborhoods and families. It will provide needed training and technical assistance to Second Chance Act grant recipients and provide a single point of contact for the many individuals and organizations that are committed to reentry issues.

“There are 2.3 million people serving time in our federal and state prisons, and millions of people cycling through local jails every year. Ninety-five percent of all prisoners will eventually be released to our communities and we all have a stake in making sure they are successful,” said New York Assemblyman and Justice Center board chairman Jeffrion Aubry. “The Justice Center is pleased to continue its work with all key stakeholders through the National Reentry Resource Center to develop data-driven, consensus-based reentry policies that reduce criminal activity and best use taxpayer dollars.”

The National Reentry Resource Center will continue the CSG Justice Center’s commitment to collaboration and will draw on the experience and expertise of its many valued partner organizations, as well as its own work in the field. Among CSG’s past contributions is the 2005 landmark report of its Reentry Policy Council—the result of work by 100 of the most respected workforce, health, housing, public safety, family, community, and victim experts in the country. The Justice Center has also made available to the field online tools, a range of publications on prisoner reentry, a newsletter with the latest news and information, and research and resources that guide policy reform and innovative practices.

For more information, visit the resource center’s Website at www.nationalreentryresourcecenter.org, where reentry research, publications and tools will be continually added and updated. To learn more about the Second Chance Act grants, see the U.S. Justice Department release at http://www.ojp.gov/newsroom/newsroom.htm.


Oregon Ruling Is For Justice October 7, 2009

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Here’s an editorial from the Albany Democrat Herald:

Nobody likes the courts making up their own laws, but that’s not what the Oregon Supreme Court did last month when it ruled in favor of prison sentences shorter than what Measure 11 required.

Instead the court faithfully applied the Oregon constitution, which requires that punishment fit the crime. And in two cases before it, one from Linn and the other from Washington County, a four-member majority led by Justice Thomas Balmer found that the stiff prison sentences provided by law were far beyond what any reasonable person would consider proportionate.

In the case from Washington County, a woman working for the Hillsboro Boys & Girls Club was in the game room along with a 13-year-old boy, another staff member and 30 to 50 other children. While the boy sat in a chair, she stood behind him and ran her hands through his hair while the back of his head was against her breasts.

In the Linn County case, the defendant had his hand on a rock on a riverbank while a 13-year-old girl leaned back while fishing and her backside touched his hand. This happened a couple more times, and when they got up he brushed dirt off the back of her shorts.

In both cases, the background included inappropriate contact and communication with the children by the defendants. Both were convicted of first-degree sexual abuse. The law, passed by the voters as Measure 11 in 1994, called for minimum prison terms of 75 months.

The problem here is not Measure 11 but the law on sex offenses. The conduct described by the court in these cases was clearly wrong, but it was far less severe than other kinds of offenses that the law classifies as lesser crimes punishable much less severely.

The trial judges in these two cases – in Linn it was Rick McCormick – saw what any reasonable person would see: Six years and three months in prison was grossly out of step with what had happened in each case. They remembered the constitution, and they also remembered that the main role of the courts is to administer justice. So they imposed lesser terms, far more just than what the strict application of a clumsy statute demanded.

The trial judges did the right thing, and it’s good that the Supreme Court backed them up.


Oregon Supreme Court Rules For Fair Measure 11 Sentences October 4, 2009

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This is indeed a monumental day for all citizens of Oregon. Finally, judges will be able to do their job and mitigate proportional sentences. It should shock the moral sense of all reasonable people that these two situations even became cases. Overzealous District Attorneys were used to having all the power and knew they could win every case a police officer gave them. Why do you think there has been an overwhelming number of people settle out of court?  If you didn’t do anything wrong, were thrown in a room and told to plead guilty to a lesser charge with a relatively light sentence or go to prison for 75 months without the possibility of parole, which would you choose?

In the first successful challenge to Oregon’s Measure 11 mandatory sentencing requirements, the state Supreme Court ruled Thursday Sept. 24 that the severity of a criminal penalty must be related to the gravity of the offense.

In a 4-3 ruling, justices said that in “rare circumstances” trial court judges can impose lesser sentences than those required by Measure 11.

Approved by voters in 1994, Measure 11 set required sentences for certain serious crimes, taking away the discretionary power of judges.

Thursday’s ruling does not repeal Measure 11 and it does not affect any sentences beyond those in the two cases that were appealed to the Supreme Court. But it is the first chink in a law that has been hailed by some for lowering crime and called Draconian one-size-fits-all justice by others.

The ruling stems from two child sex abuse convictions in which trial court judges determined that Measure 11 sentences were too severe.

Veronica Rodriguez was convicted in 2005 of sexually abusing a 13-year-old boy she met while working at the Hillsboro Boys & Girls Club. Her crime, according to the Supreme Court ruling, was bringing the back of a boy’s head in contact with her clothed breasts in a room of 30 to 50 people for about one minute.

A trial judge in her case said the Measure 11 sentence of more than six years was too harsh. Rodriguez served 16 months in prison and was released in October 2006.

The other case involves Darryl Buck who was sentenced in Linn County in 2006. Buck touched the clothed buttocks of a 13-year-old girl who was sitting next to him fishing. When the girl stood up, Buck brushed the dirt off the girl’s shorts with two swipes of his hand.

The judge in Buck’s case imposed a 17-month sentence, not the 75-month prison term mandated by Measure 11. The judge said a six-year sentence would be “grossly unfair” given that the touching was “outside the clothes, it was without fondling, it was not a situation where it was forced.”

Neither Buck nor Rodriguez had criminal records.

The state appealed the trial court sentencing decisions. The Court of Appeals affirmed the convictions and said the sentences would “not shock the moral sense of all reasonable people” and were not unduly harsh.

Both Buck and Rodriguez served their reduced sentences. Thursday’s decision means neither of the two will have to return to prison. The ruling by the Supreme Court affirms both convictions but finds that the mandatory minimum Measure 11 sentences were so disproportionately severe they “shock the moral sense of all reasonable men as to what is right and proper.”

The court’s decision means trial court judges can now determine whether Measure 11 sentences are proportional to the offense.

“This is a good win for the state,” said Peter Gartlan , a public defender who represented Veronica Rodriguez and Darryl  Buck in their appeals. “This means there are restrictions on legislative sentencing schemes.”

Although the ruling is historic, it does not present a legal challenge to Measure 11, according to Margie Paris, dean of the University of Oregon Law School.

“The measure itself stands,” Paris said. “It is still operative and mandatory minimums apply, except for when they don’t, which is very narrow.” But, she added, “The court said we need to have sentences of different magnitudes.”

Megan Johnson, a senior deputy district attorney in Washington County, which prosecuted Rodriguez, said the decision will have little impact on the way her office conducts itself.

“We are going to continue to do our best to try and protect vulnerable kids and use the law as written and interpreted to do so,” she said. “We’re pleased the convictions were upheld and pleased Veronica Rodriguez served a prison sentence for her conduct.”

Kevin Mannix, the Salem attorney and former legislator who wrote Measure 11, said the decision applies only in cases in which defendants have no criminal histories.

“These were two extraordinary cases out there on the rim. I do not see the sky is falling,” he said. “Out of the thousands of Measure 11 cases over the last 15 years, we have two cases where rare circumstances have been found and Measure 11 sentences are not being applied.”

Measure 11 applied mandatory sentences for 16 violent and sex-related offenses. Controversial from the beginning, the measure set off a prison-building spree and increased Oregon’s prison population by 80 percent.

“Measure 11’s mandatory scheme destroyed the most critical aspect of an effective criminal justice system: the ability to consider the individual circumstances of every case when determining sentences,” said David Rogers, executive director of the nonprofit Partnership for Safety and Justice.

Thursday’s ruling, he said, “is a profound acknowledgement that mandatory minimum sentences can be deeply problematic.”

This decision is good news for basic civil rights and fairness. But it’s also good news for Oregon taxpayers who throw millions down the rabbit hole of the state prison system. These egregiously long sentences for these types of situations are unjust and a burden on an a system already under serious pressure.