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Report On Oregon’s Measure 11 Incites Fierce Debate March 12, 2011

Posted by FairSentencing in : Current News , trackback

A political firestorm has erupted over whether Measure 11 is working, pitting prosecutors against defense attorneys, victim advocates against victim advocates. The state Criminal Justice Commission ignited the arguments with a report that concludes the measure, passed by voters in 1994, hasn’t worked as intended. The final report was issued Friday, though a draft has circulated for weeks.

The commission found, for example, that one effect of Measure 11 has been to shift power to prosecutors, who use the threat of a mandatory sentence to win plea deals on lesser crimes.

“There is a reason the Founding Fathers created an independent judiciary,” said Darryl Larson, a retired judge who chairs the commission. “You have a magistrate who decides who to believe, what to believe and what to do about it. With Measure 11, you have largely done away with that system.”

Proponents of Measure 11, however, attacked the report as politically motivated.

The report was slanted to “push a political agenda, which is anti-Measure 11, anti-incarceration, anti-law enforcement and anti-victims,” said Steve Doell of Crime Victims United.

The renewed debate comes as legislators, looking to save money amid the state budget crisis, face several proposals to change state sentencing laws. Gov. John Kitzhaber is seeking to again defer tougher sentences for repeat property offenders, and legislation is pending to stall Measure 73, which would increase sentences for some sex offenders and drunken drivers.

There’s no question Measure 11 has had a profound effect on Oregon’s criminal justice system. By setting mandatory minimum prison sentences for certain offenses, the measure has been a significant factor in pushing the state’s prison population from about 3,100 in 1980 to about 14,000 in 2010, according to a February analysis by the Legislative Fiscal Office. The commission’s report found that the state prison system would need 2,900 fewer beds had the measure not taken effect.

But while proponents credit the measure with imprisoning violent criminals and driving down crime, critics say it has overloaded state prisons, robbing money from education.

The Criminal Justice Commission, crunching 15 years of data, found fewer people than expected faced Measure 11 charges, though those who are convicted under the measure more often go to prison and serve long sentences.

Researchers compared their findings against assertions made in 1994 by Kevin Mannix, chief petitioner for Measure 11, and concluded that the certainty in sentencing promised by Mannix hasn’t happened.

“The predictable sentence is only arrived at in the minority of the cases where a prosecutor, not a judge, decided it was appropriate and necessary,” the report said. “In only 28 percent of the cases indicted did Measure 11 accomplish the goal of assuring the judge imposed the sentence the chief petitioner claimed was the minimum necessary.”

Prosecutors instead are offering plea bargains for lesser crimes, the report said, resulting in an unexpected shift in power to prosecutors in Oregon’s 36 counties.

That shift troubles Larson, the commission chairman, and organizations such as the Oregon Criminal Defense Lawyers Association and the Partnership for Safety and Justice, a nonprofit victims’ and defendants’ advocate.

Larson worries that prosecutors “can drive people to take deals that are in reality not justice,” he said.

Rob Raschio, an attorney in The Dalles and president of the Defense Lawyers Association, said Measure 11 is a “big hammer” for prosecutors.

“The judiciary in many ways has been made a rubber stamp,” Raschio said. “We believe discretion on sentencing belongs to the judge, not one of the advocates in the process.”

David Rogers, executive director of the Partnership, said increased use of plea agreements “means that the majority of cases are getting resolved in back rooms, not in courts.”

District attorneys agree power has shifted but say that started with state sentencing guidelines crafted five years before Measure 11 was approved.

“The power has always been with the DA,” said Alex Gardner, Lane County district attorney speaking for the Oregon District Attorneys Association. He said it’s no surprise prosecutors are striking more plea deals; they said during the Measure 11 campaign that would happen.

Gardner said Measure 11 has succeeded in ensuring that more violent criminals serve longer prison sentences. He called the report overly critical.

“Measure 11 has been an effective tool for prosecutors trying to protect the community,” he said.

Doug Harcleroad, a former Lane County district attorney now advising Mannix’s Oregon Anti-Crime Alliance, said there is “no question” power has shifted to prosecutors. “In a perfect world, you would want a well-informed judge to listen to all sides and make a decision about what should happen.”

He said prosecutors are best informed, though, about all elements of a case. He also said the report overstated the impact of plea bargains, and understated the “positive results” from Measure 11.

The district attorneys association wrote the state commission that the report “appears to be a document with a tone of advocacy, staking out a negative stance relative to Measure 11 based on opinions and assumptions.”

The report does not recommend changes to Measure 11, but Doell, the victims’ advocate, said it sets the stage for critics to use the state’s financial stress as a reason to seek modifications.

Rogers said the study was long overdue.

“Measure 11 has dramatically changed the nature of Oregon’s criminal justice system. It has cost the state billions of dollars,” he said. “It’s time to judge whether it delivers or whether something needs to be modified and reformed.”



1. steve - March 21, 2011

you all seem to go on the assumption that all inmates were dealt with fairly in the courts. the perfect scenerio if you will. guess what? it does’nt work that way all the time. my sons case start to finished was botched by the police dept. and his appointed attorney and a laughing judge who would not allow an eyewitness in the court who was a retired general with 2 sons as police officers….go figure!…anyway, while you are all trying to figure out whats good or bad about measure 11 more and more “human beings” lives are being destroyed in the prisons and “not” corrected by any means, only more hardened. why dont you all put your heads together and figure a true way of reform for “human beings” instead of worrying about how long you want to lock them up for. billions of dollars that were wasted since this measure could have gone into rehabiltation centers to “help” these people, not make them worse. oh, i forgot, its all about the money. “human beings are trash if they dont act right” lets lock them up and make them worse instead of “helping” them. makes logical sense…and i thought this was a caring nation of its people. turn the other cheek while you lock the cell door so you dont have to worry about it…

2. CB - April 11, 2011

Save our Schools, Cut prison times not Schools