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

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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?

NOW PLEASE CLICK HERE TO GO AND POST YOUR COMMENTS

Solitary Confinement: Torture or Justified Prison Tactics? July 25, 2008

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The only thing that’s different about the barbaric treatment of Robert King Wilkerson, Herman Wallace and Albert Woodfox from that of thousands of other American prisoners is that they had the dubious distinction of being held in solitary confinement longer than any other known prisoners in American prison history. The three men were held in isolation for more than three decades in the Angola, Louisiana prison.

The ludicrously long solitary confinement of the three former Black Panthers, known as the Angola 3, sparked international rage, was condemned by Amnesty International, prompted a congressional visit, and resulted in civil suits and endless court appeals. The three prisoners were convicted in the 1972 slaying of an Angola prison guard.

There was no physical evidence linking them to the murder. They were convicted on the testimony of a serial sex offender serving a life sentence. Despite information that prison officials withheld evidence from jurors, relied on tainted testimony, and the subsequent recanting of their testimony against the men by prosecution witnesses, the three face yet another round of court fights.

Since the early 1990s, thousands of prisoners have been locked up in tiny cells for days, weeks, months and even years on end. They are kept in the cells for up to 23 hours, with limited visiting and exercise privileges. The trend toward dumping problem inmates in solitary confinement has become standard penal procedure in many prisons. In fact, the penchant for isolating prisoners has sparked a mini-boom in the building of isolation cell prisons, where hundreds of inmates serve virtually their entire sentence in solitary confinement.

California was one of the first to launch the maximum-security isolation cell prison boom in 1989, when it built Pelican Bay. In the next few years, Oregon, Mississippi, Indiana, Virginia, Ohio, Wisconsin and a dozen other states all built new, isolation unit prisons. In 1994 the U.S. Bureau of Prisons built ADX Florence in Colorado. The feds have dumped a virtual "who’s who" of convicted international and domestic terrorists in the prison. They include 9/11 conspirator Zacarias Moussaoui, "American Taliban" John Walker Lindh, Unibomber Ted Kaczynski, former FBI agent and convicted spy Robert Hansen, Olympic Park and abortion-clinic bomber Eric Rudolph, and many others. By the end of the 1990s, more than 30 states operated control-units, or Supermax prisons. By then, the number of prisoners serving their sentence in isolation cells had sharply risen. A Justice Department study found that some states had piled nearly 20 percent of their inmates in these prisons by the end of the 1990s.

The drastic plunge in crime, nationally, has not stopped the rush by states to lock up even more inmates in isolation cells. By 2005, 40 states were operating Supermax prisons. The prisons held more than 25,000 prisoners. Many of them will spend nearly all of their prison years in solitary confinement.

CLICK HERE TO READ THE REST OF THE STORY

Kroger backs alternative to crime measure July 19, 2008

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Having won both major-party nominations for attorney general, John Kroger is turning his sights on opposing one ballot measure and supporting another aimed at property and drug criminals.

Kroger said Wednesday that he opposes an initiative proposed by former legislator Kevin Mannix of Salem, who wants to extend mandatory minimum prison sentences to first-time property and drug offenders. Kroger supports an alternative written by the Legislature to focus on repeat offenders and drug treatment.

"I believe people who are committing repeat property offenses need to be held accountable," Kroger said at a Marion County DemoForum luncheon.

"But the reason I am passionate about this (legislative measure) is that in the long term, if we want to reduce the crime rate and spend less on prisons, we have to have a first-rate drug-treatment program in this state. It’s the No. 1 priority for law enforcement, and this is a good start."

In winning the Democratic primary May 20 — and enough write-in votes to make him the Republican nominee — Kroger campaigned on expanding drug treatment, which the attorney general is not in charge of.

But Kroger said effective treatment must be combined with enforcement if Oregon is to deal with the consequences of methamphetamine, such as property crimes and dislocation of families.

Kroger hopes to use his campaign soapbox, and his experience as a federal prosecutor, to persuade Oregon voters to reject Mannix’s measure and approve the Legislature’s.

Both measures will be on the Nov. 4 ballot, although numbers have not been assigned. If voters pass both, the one with more votes prevails.

Mannix’s measure proposes mandatory minimum prison terms, starting at three years, for first-time property and drug offenders. It’s modeled on his 1994 proposal for violent criminals. Since Measure 11 took effect in 1995, the state’s prison population has doubled to 13,500 inmates.

The Legislature’s measure would increase prison terms for repeat offenders but also require more comprehensive drug treatment.

CLICK TO READ THE ENTIRE ARTICLE

Another View July 9, 2008

Posted by admin in : Effects of Measure 11 , 3 comments

Here’s a letter to the editor of The Daily Astorian dated June 12:

It’s so difficult to convey to people what prison is like, and how it affects families ("Debunking myths about Oregon’s Measure 11," The Daily Astorian, June 12).

Until you live through it, the misconceptions abound - everything from the inmates just sitting around watching TV and being fed three good meals a day, with all their health care needs being met, etc., to the idea that prison is a violent, dangerous environment with rapes and gang wars going on.

No, inmates do not sit around watching TV all day, most of us would not eat the food they are served and medical care is minimal at best, but mostly nonexistent. Yes, it can be dangerous, but so is living in the outside world.

Measure 11 takes punishment to a level way beyond any constructive benefit to the inmate or society. Prison is about loss of freedom for an adequate amount of time. To add on a punitive phase, and keep a person behind bars for an extended period of time as Measure 11 allows, serves no constructive purpose whatsoever.

I would say you would be hard pressed to find an ex-felon who could honestly say that their life got back on track because of their extended incarceration under Measure 11.

Debbi Lester
Vancouver, Wash.

Help Needed For Innocent Man on Death Row June 28, 2008

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One of our best assistants just e-mailed a plea to help a convicted Texas man, sitting on death row.  There is very strong evidence that he is innocent.

Dear Friends,

I have just read and signed the petition: "SAVE JEFF WOOD FROM THE TEXAS EXECUTIONER!!".

Please take a moment to read about this important issue, and join me in signing the petition. It takes just 30 seconds, but can truly make a difference. We are trying to reach 5000 signatures - please sign here: http://www.thepetitionsite.com/1/save-jeff-wood-from-the-texas-executioner

Once you have signed, you can help even more by asking your friends and family to sign as well.

Thank you!

Listen, teens, Measure 11 means prison June 27, 2008

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Here’s a very well-written article from the Oregonian by Renee Mitchell.  It’s so important to know about Measure 11 and how easily you can be ensnared.  There’s no leeway, if accused you are done.  Defense attorneys council their clients everyday to accept a plea-bargain.  There is no way to defend yourself against Measure 11.  All it takes is a statement from a minor.  No proof that a crime occurred is necessary.  Again, only an accusation sends you to prison.  That is the reality and you better pray to God that it never happens to you.

The two 15-year-old Portland girls who were arrested in a recent light-rail verbal and physical attack on a 28-year-old Vancouver woman are facing a tough reality check that should be a good reminder to the rest of us about Oregon’s no-tolerance law:

Measure 11 does not forgive and forget. It does not take into account whether you’re a good student who made a one-time bad choice or a high-school dropout with a long history of drug-related crimes.

If you’re age 15 and above and you get caught doing the wrong thing or associating with the wrong people, you will face Measure 11 charges. And you will be charged as an adult. And if you’re convicted, you will go to prison for at least five years. With no probation. No parole. And no early release.

And it won’t matter if your parents cry themselves a river before the sentencing judge. It also won’t make any difference if your favorite teacher vouches for your potential. The law is the law, and Measure 11 does not excuse childish impulses.

Tiyana Clay of North Portland and Angela Monique Dow of Northeast Portland were allegedly part of a group of boys and girls who hit a woman after she asked them to tone down their disrespectful behavior.

One of the seven criminal charges now faced by the teen girls includes the Measure 11 offense of second-degree robbery because one of the boys stole a purse and ran from the MAX Yellow Line train after it stopped in North Portland.

"It’s very important that people understand what the laws are that affect teens, because there’s not a lot of awareness," says Tom Peavey, policy manager for the mayor’s Office of Youth Violence Prevention.

Rob Ingram, the office’s director, remembers when Ballot Measure 11 was first passed by Oregon voters in November 1994. It set mandatory minimum prison sentences, with no possibility for any reduction in sentence, such as for good behavior.

Shortly after the April 1, 1995, start date, at least five young males in Ingram’s inner circle — a foster brother, a cousin and several close friends — went to prison on Measure 11 charges. A 24-year-old associate still has 50 more years left on his 60-year prison sentence.

"It was definitely shocking and overwhelming for all of us to see that there wasn’t anything determined by their past criminal history or the situation," Ingram says. "There’s no room for mistakes."

PLEASE CLICK HERE TO READ THE REST OF THE ARTICLE

Prison expansions bring small gains June 15, 2008

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The Oregon State Penitentiary was built in Portland in 1851 and relocated to Salem in 1866, where it remained the state’s only major prison for 100 years. Other facilities were built to supplement the penitentiary’s mission, but with the exception of a forest work camp in Tillamook, Oregon’s prisons were confined to Salem until 1985, when the Eastern Oregon Correctional Institution opened in Pendleton.

Then came the great expansion: the Powder River Correctional Facility was completed 350 miles east of Salem in Baker City in 1989, followed by a barrage of prisons named after bodies of water rather than towns: Mill Creek, Columbia River, Shutter Creek, Snake River, Two Rivers, Coffee Creek and Warner Creek. With the opening of the Deer Ridge Correctional Institution in Madras last October, Oregon’s prison industry has grown to 14 facilities, 13,500 inmates, nearly 5,000 jobs and a DOC budget of $1.26 billion. The state now spends more on prisons than on higher education.

As the new prisons were built, wages in rural Oregon stagnated. So it’s not surprising that rural communities have embraced prisons and the jobs they bring. “There’s not a lot of industry knocking at your door in these rural areas,” says Oregon Employment Department regional economist Dallas Fridley, who tracks North Central Oregon. “Given the isolated nature of some of these communities, there may not be that many options for development beyond a prison.”

Employment and income numbers indicate that Oregon’s massive investment in prison expansion has brought local gains that are modest at best. The rural counties that gambled biggest on large prisons after the passage of Measure 11, Malheur and Umatilla, have continued to struggle. In Malheur County, non-farming jobs have increased slightly since the completion of the Snake River prison, but wages have been sluggish. Malheur County has the state’s highest poverty rate, its lowest median income, and is 31st out of 36 Oregon counties in earnings per job.

CLICK HERE TO READ THE REST OF THE STORY

Oregonians Against Measure 11 Will Continue

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Sorry for the brief outage of our site. We were infiltrated again. This isn’t a setback….it just makes us stronger and wiser. We will pursue and continue to educate on the devastation of Measure 11.

The Second Chance Act Becomes Law April 22, 2008

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Thanks in part to work of PSJ members who responded to our Action Alert request with letters and emails to their congressional representatives, the Second Chance Act of 2007 has become law with its signing by the President on April 9, 2008. The Act authorizes $362 million to expand assistance for people currently incarcerated, those returning to their communities after incarceration, and children with parents in prison.

In a sharp change in attitudes about incarceration, many states and private groups have recently experimented with re-entry programs to help released prisoners fit back into their communities and avoid new crime.

“This act represents a major change in crime policy,” said Jeremy Travis, president of the John Jay College of Criminal Justice in New York, who as a Justice Department official in the Clinton administration helped promote the shift.

The Second Chance Act seeks to promote public safety by reducing recidivism rates among people reentering communities after prison. Presently, two-thirds of formerly incarcerated people are rearrested within three years after release. The services to be funded under the Second Chance Act include:

“From our perspective, this is a huge development,” said Michael Thompson, director of the Justice Center of the Council of State Governments. “Governors, legislatures, corrections and law enforcement agencies around the country were all very supportive of the act.”

More information can be found in an April 8, 2008 NY Times opinion “U.S. Shifting Prison Focus to Re-entry Into Society” and the Sentencing Project’s web story “President Bush Signs Second Chance Bill.” FAMM’s website contains an excellent fact sheet of Frequently Asked Questions.

DNA frees man who spent almost 23 years in prison for rape April 16, 2008

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After spending nearly 23 years in prison for a rape he did not commit, Thomas Clifford McGowan on Wednesday heard the words that set him free.

“Words cannot express how sorry I am for the last 23 years,” said state District Judge Susan Hawk, moments after overturning his convictions. “I believe you can walk out of here a free man.”

McGowan, 49, won his freedom after a DNA test this month proved what he had always professed: that he did not rape a Dallas-area woman in 1985 and then burglarize her apartment. He was convicted of both crimes in separate trials in 1985 and 1986 and sentenced to life each time. The primary evidence against him turned out to be misidentification by the rape victim.

“I’ve been living a life of a living hell and my nightmare is finally over with,” McGowan said after the hearing. “This is the first day of my life. I’m going to go forward.”

Hawk’s ruling, which now must be affirmed by the Texas Court of Criminal Appeals, makes McGowan the 17th Dallas man since 2001 to have his conviction cast aside because of DNA testing. That’s the most of any county in the nation, according to the Innocence Project, a New York-based legal center that specializes in overturning wrongful convictions.

Overall, 31 people have been formally exonerated through DNA testing in Texas, also a national high. That does not include McGowan and at least two others whose exonerations will not become official until Gov. Rick Perry grants pardons or the Texas Court of Criminal Appeals issues its rulings.

The crowded courtroom included dozens of McGowan’s relatives. Also attending were three Dallas County men who had been wrongly convicted and eventually exonerated by DNA testing. They greeted McGowan with handshakes and hugs, and one gave him a $100 bill to “get him started.”

McGowan, wearing a button-down shirt and slacks, looked trim and relieved. He said he prayed frequently and was benefiting from some “powerful forces.” While in prison, one of McGowan’s sisters died, and he said he missed watching his sibling’s children grow up.

“I know God forgives, so hey, I’ve got to forgive, too,” McGowan said. “It’s not going to benefit me to be harboring anger or resentment.”

McGowan’s wrongful imprisonment began in May 1985 when a Richardson woman returned home and came upon a burglar in her apartment. The man bound her hands with his belt, raped her at knifepoint and then loaded his car with several items stolen from her apartment, according to court documents.

Police eventually presented the woman with a photo array of seven men. She picked out McGowan’s photo, saying she “thought” he was the attacker. But police told her she had to be certain and “couldn’t just think it was him,” she testified in court. It was then that she said McGowan was “definitely” the attacker, according to court documents.

Just a few words from a police officer can significantly influence whether a witness identifies the wrong person, Innocence Project Co-Director Barry Scheck said.

“It’s not that the police officer involved in this matter was intentionally doing anything wrong. He wasn’t,” Scheck said. “That kind of a forced choice response … is very, very damaging.”

More exonerations are expected in Dallas County, where District Attorney Craig Watkins has set up a program in which law students, supervised by the Innocence Project of Texas, are reviewing hundreds of cases in which convicts have requested DNA testing to prove their innocence. About 10 Dallas County cases are in various stages of investigations and DNA testing, and another exoneration is likely within the next few weeks, prosecutors said.

Watkins said he plans to lobby other prosecutors to put in place similar programs.

“This should not be a pilot program that lasts two or three years,” Watkins said.

The DNA from McGowan’s case yielded a full profile that is now being run through state and federal databases, assistant prosecutor Mike Ware said. If a match is found, it could identify the true rapist.