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

Posted by FairSentencing in : Current News , trackback

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.



1. Glenna Cook - October 17, 2009

I just some how think that Kevin Mannix must have something shorting out upstares to belive that his Measure 11 law is at all just for anyone.
I also thought that our Judge’s had a very powerfull
job to do but I guess I was wrong. I see now that it’s
a job any ol D.A. can do, I’M 53 year’s old and very
shocked that anyone could think for one moment
that Measure11 is o.k.

2. tam - November 16, 2009

Measure 11 is not ok. The child porn law isn’t clarified at all. I know an 18 year old sr in highschool who was videoed having sex with his 17 year old girlfriend. The DA said this fell under all the legal MS 11 guidelines for childporn which is “pics of anyone under 18. Period.” and used that to get a plea bargain out of him for a lesser charge. He had to take the probation for this lesser charge that the DA offered -which was harsher than the law stated if he wanted the plea deal at all. The kid had to register as a sex offender, quit school, quit his job, move out of his house because he wasn’t allowed to be around his sibling who was a minor even tho he had 3 siblings all willing to vouch that he had never touched or abused any of them. After a year of living in rent by the month cheap motels he became depressed and ‘gave up’ He left the county he was under supervision in and even though he turned himself after a week (thanks to some good friends trying to talk to him) he is now serving 3 years in prison.
I think it’s time to re-vote on Mandatory Minimums. Now that we know what it is let’s THROW IT OUT.