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Courts Give Measure 11 Mandatory Minimums a Second Look July 29, 2008

Posted by FairSentencing in : Current News , trackback

Representative Chip Shields wrote a good article about the Rodriguez case and how the Oregon Supreme Court has agreed to step in. I’m posting the article here, but then it is very important to go to his website post and read all the comments. There are quite a few, but it is important to read them and ADD YOUR OWN COMMENT. Here’s an excellent place to make yourself heard!

Should juries know the likely sentence when deciding guilt?

In the run up to the primary election, you may have missed this important criminal-justice story. On May 9, the Oregon Supreme Court decided it will consider whether, in the words of James Pitkin at Willamette Week, grazing a boy’s head with your breasts should get you over six years in the slammer. The case is State v. Veronica Rodriguez. Pitkin says, "The jury voted 10-2 to convict Rodriguez for allegedly pulling the back of the boy’s head against her chest." She is facing a six year and three months sentence for Sex Abuse I under Measure 11, the 1994 voter-approved ballot measure penned by Kevin Mannix.

Judge Nancy Campbell, now retired, set aside the Measure 11 sentence and instead sentenced her to 16 months using the state’s sentencing guidelines. She stated that applying Measure 11 in this case would violate the Oregon constitution’s cruel and unusual punishment clause. The Court of Appeals overruled her and reinstated the six year-three month mandatory minimum sentence and in May the Oregon Supreme Court agreed to take up the case.

Click here and here for Willamette Week coverage of the case. The Oregonian covers it here .

What’s interesting is that in April 2000, the Oregon Court of Appeals upheld Measure 11 in an equally controversial sentence given to Justin Thorp– a 16 year old who was sentenced to six years and three months for having consensual sex with his 13 year-old girlfriend. According to news reports (not-on-line unfortunately),

Clackamas County Circuit Judge Robert Morgan determined that such a sentence was cruel and unusual punishment in violation of the Oregon Constitution. Morgan based his decision in part on the fact that the girl said she initiated the sex. Thorp was three years and 10 days older than his victim. But had the difference in their ages been three years or less, it would not have qualified as second-degree rape. At most, he would have faced a misdemeanor sex offense and been sentenced to probation, prosecutors and defense attorneys agree.Morgan opted to sentence him to 35 months in prison, based on state sentencing guidelines. The state appealed, arguing that the 75-month sentence (six years-three months) did not violate the Oregon Constitution.

A 5-4 majority of the Court of Appeals agreed. The case ended there. Thorp had to do all six years and three months.

What’s also interesting is that the Thorp opinion was penned by Judge Paul DeMuniz, who was elected to the Oregon Supreme Court six months later. He is now the Oregon Supreme Court Chief Justice and a man for whom I have immeasurable respect.

Maybe Judge DeMuniz and his Supreme Court colleagues want to give Measure 11 a second look in State v. Rodriguez. But the issues in this new case are much narrower. Unlike in State v. Thorp, Rodriguez and her attorney Peter Garlan are conceding that Measure 11 is constitutional, but are claiming that it’s application against Rodriguez violates the proportionality clause of the Oregon constitution in this case only.

I trust juries, so in 2005, Sens. Carter, Gordly and I introduced HB 2986 , which gives jurors information on the likely sentence the courts will impose upon a finding of guilt. It died for lack of a hearing in the then Republican-led Oregon House.

I’ve been thinking of reintroducing that bill, so I checked in with one well-respected constitutional scholar on the issue. I haven’t gotten his okay to use his name yet, but he wrote back:

As a general proposition, I believe that all human beings should be as fully informed as possible about the consequences of all of their actions before they undertake those actions. Before you put your hand on that hot stove, you should understand that you might get burned. Before you jump into the Clackamas River at High Rocks, you should understand that you might drown in a whirlpool. Before you get on TriMet without a ticket, you should be aware of the penalty if you get caught. And before a jury decides to do X or Y or Z, its members should understand the results that could flow from that decision.

We all want as much information as possible about the consequences of our actions; why shouldn’t we give a jury as much information as possible about the consequences of theirs?

So what do you think? Should Veronica Rodriguez and Justin Thorp’s juries have known they would be sentenced to six years and three months each? Or is justice best served by keeping that information from them and having juries only decide guilt or innocence?




1. Anonymous out of fear in the USA - August 6, 2008

Simply put, as a voter, had I understood that Measure 11 would be so grossly misused so as to put adolescent 1st-time offenders in PRISON for years for non-violent crimes, I would NEVER have voted for it. This will forever cause me to shy away from all future ballot measures involving criminal matters. If a tough-on-crime law presents itself at anytime in my future, it gets my no vote because I will never again trust what the actual implications may really mean. I’m not a lawyer trained to scrutinize every word of the written law. Due to media misrepresentation, before voting I understood it to mean re-offending violent criminals would be more strictly sentenced. Did I miss something here? Evidently so! After seeing the devastation this measure has wreaked on our youth, impulsive teens who sometimes act like, well, impulsive teens, damaging their lives forever, it’s hard to believe I’m living in America. Don’t get me wrong – I’m all for fair and just punishment. I think most of us are. But please, we’re not some third world country where law is ambigious and punishment indiscriminate. Are we? I’m pretty sure we could nickname measure 11 the Don’t-Behave-Impulsively-and-Irresponsibly-as-a-Teenager Law.