I think mandatory minimum sentences make for fantastic "I'm tough on crime" campaign fodder, but from a practical public policy standpoint, they do more harm than good.

The circumstances of every case are completely different, and that's why we have judges and juries. Minimum sentencing ties the hands of the judiciary and I think they threaten the balance of power between our three branches of government.

Aside from that, our criminal justice system in its current form is very badly broken. We need to come up with another solution that doesn't involve throwing everyone in jail, because pretty soon there won't be anyone left to pay for the expense of housing all these prisoners.

Some Josephine County officials are looking into the possibility of forming a mental health court locally, which could eliminate a considerable burden on the criminal justice system. I think programs like that should be fully considered before we try more of the same of what has failed to work so far.

Ideally, juries shouldn't know the sentence AND the sentence should be fair. Letting juries know the unfair sentence solves the wrong problem, but that imperfect solution may be better than no solution at all.

i think everyone should have as much info as possible. i don't believe mandatory sentencing is fair, nor effective. judges & juries should do be allowed to do their jobs well. punishment is one element, reintroduction into society should be a focus. so treatment programs, & rehabilitation are crucial. even if a person receives a life sentence they should have options, & be required to work & be productive while imprisoned. in holland every prisoner gets a daily newspaper. i trust chip shields judgment, as he's proven his integrity in my community - N.E. Portland!

If juries do not know what punishments can be given for which crimes or misdemeanors, Justice is indeed blind. If I am a juror I want to know what judgment could be made for which person, in what circumstances--the more information, the better. Measure 11 came about from a sad case. It was an over-reaction, with a "one punishment suits all" solution for cases ranging from slight infractions to terribly serious crimes. I think voters over reacted in approving it.

I believe in fair and realistic sentences. The sentence should fit the crime. Just as there are differences in sentencing for Manslaughter, Second degree homicide and Frist degree homicide, the severity of offense when pronouncing sentnce for Measure 11 crimes should be taken into consideration. Not all mandated minimum sentences fully fit the situation and are sometimes excessive.

While a jury is to determine guilt and only guilt and the judge is to set the sentence, I think, when it comes to Measure 11 offenses, the jury should have as much information as possible, even if that means knowing before hand the likely sentence depending upon their findings of guilt. In murder cases, a second hearing is held for sentencing. With Measure 11 cases, the sentence is set by law and the severity of the offense is not taken into consideration when determining that sentence.

I believe Rep. Shields is on the right track here and I'm all in favor of the proposal. Rep. Shields has proven time and again he is a man of integrity. Let's return some integrity to the judicial system.

This is what you get in a state and a region where the people are dirt-stupid enough to elect judges rather than use a well-designed and mature appointment system so judges are every bit the half-wit politicians that too many of our other elected officials are. We need look no further than Kulongoski - every bit a failure and utter embarrassment to our party when he was a justice as he is a governor --- of the irremediable deficiencies of our system.

Shields, your proposal as stated here without a more sophisticated presentation comes across as yet another example of this kind of cowardice in elected officials. The real question is if you are smart enough to know that or not?

If you want to do something actually progressive and principled, rather than just playing to the peanut gallery, why don't you suggest a law that I have long personally advocated that the politician in the clown suit with the gavel sitting on the bench must inform the jury of these things:

1) Police and prosecutors are allowed to lie to suspects to get them to incriminate themselves, and to grand juries to get an indictment. (In fact, psychological imbalances that allow someone to do this without the normal reluctance help qualify one for those jobs. If you're genuinely serious about justice, Shields, you will need to keep a close eye on our next apparent Attorney-General since he prevaricated calmly about his record during the primary and made his entire campaign about authority in matters that was only granted statutorily by recent scummy Republican legislatures.)

2) In the NW, paternalistic and maternalistic states like Oregon have legislated the right to prosecute cases in which the alleged victim states there is no crime and refuses to cooperate. (That gets to the problems with our idiotic form of citizen legislature which is not the issue here.)

3) Juries have the absolute right of "jury nullification": That is, the Founders by intent gave jurors the power to find they don't agree with the substance of the law, ignore the judge's directions as to the guidelines of deliberation, and in effect dismiss the case if it offends justice.

What you are proposing is a really half-assed version of 3). That is, a law which says that maybe if jurors are informed about the consequences of their verdict, it will cause them to re-interpret elements of the case in such a way they will arrive at their own decision as to what the law is based on their own personal sense of justice.

That kind of typically NW pathologically passive-aggressive approach is intellectually dishonest and runs the grave risk of opening the situation up to prejudice that would result in inequality and more injustice. Jurors should be fully informed about all three matters so they will realize the full gravity of their decision and be charged by the court to demonstrate they have duly given care to their responsibility.

For the readers, if you don't believe me about these matters, and you ever serve on a jury, just bring them up in the jury room and require answers. Better yet, during voir dire look the pol in the costume on the bench in the eye to let him or her know you know that with the greatest probability he or she is just another banal elected official who is as much interested in getting re-elected and a government pension as he or she is in mature form of justice, and ask about them. (Of course, if you do it during voir dire you probably won't get to serve, so you'll have to decide for yourself in which way you do most to further justice.)

So Shields, care to clarify whether you are just playing your own bit part in this dramatical farce, or seriously interested in fixing our broken justice system?

Just to make the point clear so some half-wit doesn't quibble:

This is what you get in a state and a region where the people are dirt-stupid enough to elect judges rather than use a well-designed and mature appointment system. As a result judges are every bit the half-wit politicians that too many of our other elected officials are.

Any decision in Oregon that tends to reinstate proportionality of punishment and put judges back on the bench is progress. Mandatory minimums give prosecutors the strongest hand in what is supposed to be: a system of balanced advocacy, before a judge to quide process and law, with the jury determining whether the weight of the evidence tips "beyond a resaonalbe doubt."

With our current justice system we have: the prosecuor's office in substantial control of the grand jury process,the prosecutor's office reducing charges through plea deals with co-defendants, and then the prosecutor's office using the heavy hammer of mandatory minimums to get further pleas. The judge and the jury role is undermined and with it the sense of fairness and equitability. This threatens respect for the rule of law -- the foundation of our democracy.

Our system is very seriously broken. The consequences are reduced faith in our social systems and increased prison costs. Mandatory minimums, and similar inequities in our system, drain both the spirit and the purse of our communities.

So, again, anything the Court can do to rebalance Oregon's criminal justice system, will be welcome progress.

There are many hardened criminals, and deviant maniacs, who, unfortunately, evade legal consequence. The sentencing for Veronica Rodriguez seems cruel and unusual. I hope that you find a balance between demonstrating the reason for Measure 11, to protect the public from destructive influence, and those extreme cases that run the risk of absurdity.

Many of you are missing an important point - if the defense gets to inform jurors about what the potential punishment is, the prosecution will too. So what? Well, outside of M11, Oregon's sentencing guidelines are absurdly weak, reflecting a desire to minimize the prison population. However, if the prosecution proves an enhancement factor to a jury, it opens up a range of much more serious sentences.

For instance, if all you ever do is get caught with less than a gram of meth, the most you're supposed to ever get is 12 months probation, no matter how many times you do it. However, proof that you've been persistently involved in similar offenses or that the offense was particularly bad or another factor opens up a 6 month prison sentence. So, the prosecutor is going to get to tell the jury that, unless they find an aggravating factor, the guy is going to get probation, vastly increasing the chance that they'll find an aggravating factor.

Trust me, I used to practice in Texas and in the military, both of which have jury sentencing. In those jurisdictions, the jury decides the sentence itself, not just aggravating factors. Juries in both routinely gave longer sentences than in Oregon.

Don't get me wrong - I'm all for jury sentencing. I think it's more democratic and better reflects community standards. But I'm also for corrections reform, so that a prisoner's performance in prison matters in determining the amount of time he'll actually serve. Both of these are alien to Oregon jurisprudence at this point in time. People wanted "tough on crime" sentences that didn't allow for parole. They voted for them, and they got them.

Oregon is overdue for sentencing reform. This lady got the right sentence under Oregon's current laws. However, she got exactly the same sentence that a guy would get for a substantially more aggravated situation - think an adult man fondling a 4 year old. Oregon's laws should be reformed so that either judges or juries have the discretion to decide appropriate sentences, and the state should fund adequate prison beds and re-entry programs so that those decisions are actually meaningful.

But this won't happen, because Oregonians, as much as I love them, are too darn cheap to adequately fund state government, whether it's corrections, courts or education.

As I recall, Kroger in the primary campaign talked about "Measure 11 violent offenses". Somehow I don't think this case is what he meant.

What needs fixing is the sentencing structure. Maybe letting the jurors know the presumptive sentence will mitigate their findings, but is that their charge? I don't think it should be. This idea might lead to all kinds of mental rationale in the jury room. I do know that something is very wrong with a sentence structure that criminalizes a 16 year old boy who has consensual sex with his girlfriend who acknowledges initiating the act. That's horrible. That's what needs to be changed.

Chip, part of your problem is that your presentation of facts is biased and inaccurate.

13 year olds are legally incapable of having "consensual" sex, under oregon law. So it is legally impossible for a 13 year old to have "consensual sex" with her 16 year old boyfriend. Oregon law provides an exception to criminal liability in boyfreind/girlfriend situations where their age difference is 3 years or less.

It is unconstitutional for the jury to know the punishment while they consider the guilt. Part of the reason for this is that in most cases a person's criminal history influences the possible punishment.

However, if you are willing to let juries know defendants' criminal histories during the guilt phase of a trial, I am willing to let them know the possible punishments during the guilt phase.

I believe that generally, a concept such as House Bill 2986 (2005) would help control Measure 11's excesses. At the same time, in her post Ariel Hartwell makes the important point that the prosecution also will be able to make use of such an instruction. That point's important, because in some cases it would be to the defendant's detriment for his jury to know what his punishment will be.

Consequently, HB 2986 shouldn't be viewed as a pro-defendant Measure 11 reform effort. Instead, it's an even-handed reform effort. This I presume is why the bill didn't carry a statement that, under Measure 11's companion, Measure 10, which requires two-thirds legislative supermajorities in order to pass a bill that would reduce voter-approved sentences such as Measure 11's (so subjects such sentences to an anti-democratic minority-rule principle), the bill couldn't pass without those supermajorities.

On the other hand, given the sponsorship of HB 2986, I'm sure that politically (as opposed to legally), the bill was perceived as a pro-defendant effort. This would explain why it didn't even get a hearing in the then-GOP controlled House.

Regardless, if Rep. Shields decides to take another run at the concept, I'd suggest one change.

As HB 2986 was written, the court would instruct the jury on the sentence that the defendant "may" get. The use of the permissive verb "may" would require such instructions in situations where the judge will have discretion at sentencing.

For example, in a non-Measure 11 case where the defendant would be sentenced solely under the guidelines, the judge will have a range of sentencing options, i.e., an assortment of sentences that he or she "may" impose. An instruction on that assortment of options would be complicated and confusing in any case, and may even be impossible in some cases.

But the main thing is that in this sort of situation, where the judge will have an assortment of sentencing options, any instruction would be speculative. Because until the judge actually makes his or her choice, who knows what sentence the judge will impose? It's exactly for this reason that present, Court of Appeals case law upholds trial court decisions declining defense requests to instruct the jury on the potential sentence.

But an instruction on the sentence the judge "may" impose would not address the situation the courts faced in Thorp and Rodriguez. In both cases it was legally impossible for the judges to impose guidelines sentences, or any other types of sentences, that were greater than the prescribed Measure 11 minimum (which was 75 months in both cases). That meant that in each case the law dictated that the Measure 11 minimum was not a sentence the judge "may" impose; instead, it was a sentence that the judge "shall" impose--i.e., it was a mandated sentence that the judges were required to impose, no ifs, ands, or buts. True, Judge Campbell tried to impose a lesser guidelines sentence in Rodriguez. But so far her effort's been rejected by the higher courts. [One aside: I disagree with Ms. Hartwell's statement that guidelines sentences are "absurdly weak." Consider Ms. Rodriguez's case. Judge Campbell gave her a presumptive guidelines sentence of 16 months. Compared to her conduct, I wouldn't call that a weak sentence.]

But the mandatory nature of the sentences in Thorp and Rodriguez establish that an instruction on the Measure 11 sentence would not have been speculative. Because it wouldn't have been speculative, the effort wouldn't necessarily have been prohibited by the preexisting case law discussed above.

I estimate that in 80% of Measure 11 cases, the Measure 11 sentence isn't just the minimum the court "may" impose; instead, it is the one and only sentence the court "shall" impose. So if Rep. Shields decides to take another run at the HB 2986 concept, I'd suggest changing the bill to allow instructions on the sentence the judge "shall" impose--if in fact the Measure 11 sentence, or some other mandatory sentence (e.g., a repeat gun minimum sentence), is the one and only sentence the law allows the judge to impose.

One last thought--and if you're still reading, I appreciate your tenacity.

The real problem in the Thorp and Rodriguez cases was not necessarily the lack of jury instructions on the Measure 11 sentence. In my opinion, the real problem was the horribly restrictive test under Oregon law that's used to determine whether a particular sentence would constitute cruel and unusual punishment in a given case.

My very good friend, Pete Gartlan, is doing all that he can in Rodriguez to try to persuade the Supreme Court to make the test less restrictive. But nothing would prohibit the legislature from changing the test on its own. (Nothing, that is, except political will, and the fact that any such legislation would butt up against Measure 10's supermajority requirements.)

My point is that the judicial branch isn't the only branch of state government that's in a position to modify the harsh law that got us the results in Thorp and Rodriguez. The legislative branch also is in position to do so. And frankly, the legislature may be just a likely to modify the law as is the Supreme Court.

rbc - I use the term "consensual" to juxtapose it to forcible. I think there is a difference in this case.

Mandatory sentencing has put many people in jail when their "crime" would be better served by a treatment program. Treatment programs have been starved for funding because of the focus on and cost of prisons in this state.

Research shows that the brain development of teenagers and young adults is not yet complete. To incarcerate them for long periods of time for actions that are better suited to treatment is cruel and unusual punishment.

Judges and juries should have more discretion in sentencing then they have under Measure 11.

I couldn't agree more. Defendants must be judged as indviduals and, if convicted, sentenced according to the circumstances of the offense, including factors of mitigation, if any. The one sentence fits all approach does nothing to reduce crime, but, rather, engenders a general disrespect for an unjust and unyielding criminal justice system.

If the justification for measure 11 was that society felt that too often judges erred by not handing out sufficiently harsh sentences one might wonder how many have been subjected to nearly seven years in prison because they were ten days too old. A sixteen year old sent to prison will not emerge a healthy citizen. Does this result in productive citizens or perpetual clients for prison? Every juror should know if they are considering a measure eleven case; better still, measure eleven should be repealed.

Well certainly if we can't seem to fully inform voters and legislators of the consequences of voting for short-sided laws (like mandatory minimum sentencing), the very least we should do is ensure that jurors are fully informed.

Thank you for your persistence, Representative Shields.

Mandatory sentences serve the burgeoning 'prison industry' and little more, especially in cases that Rep. Shield's has illustrated here. Judges need to be given a certain amount of latitude in sentencing so it meets the crime and doesn't overkill it.

Chip

The whole idea of mandatory sentences attached to specific offenses fills our prisons and takes mature humanity out of our Justice System and clogs our prisons. I advocate the repeal of Measure 11. In the meantime a reform such as you contemplate would mitigate some of the absurd consequences of Measure 11.

You all really are not interested in the temendous success, are you? You have certain ideas about mandatory sentencing and it matters not if you are completely misinformed.

You just don't like them and here you are hoping again they go away and the crime comes back.

Steve and rbc - get psychiatric help if you actually believe mandatory minimums are anything but evidence of a very broken and childish criminal justice system. They are nothing but gutter politics by sociopathic politicians who prey on fearful, damaged people like you. Shame on you, though, for being an ignorant, willing tool of those kind of depraved politicians.

1reader likes this

Chip, The thing that shocks me about 2986 is that it might be considered innovative and controversial. Of course juries should be aware of the consequences of their actions. Chris Lowe's point is a good one: if this results in convictions being hard to obtain despite clear evidence, it will dissuade prosecutors from filing charges. Unlike Mr. Lowe, I see that as right and proper. If a law becomes unenforceable due to inappropriate sentencing mandates, then the law needs to be changed. This should give prosecutors an incentive to push for reform. If this be a "crude and indirect" way to do this, it is still better than "no way". This is exactly why juries are composed of lay citizens rather than legal professionals. They are the fail-safe by which common sense and common decency can over-ride laws that bring nonsensical or indecent consequences. MLW and RBC make the most troubling point: that revealing potential sentences can reveal the defendant's criminal history. Or at least they could appear more appropriate if the history were available. I don't see a good way around this; this may just be something we have to consider part of the experiment. Jess Barton's concern seems easier to address: if a range of sentencing is or is not available, then that is exactly what needs to be communicated to the jury.

The attention given to this issue should be maintained. A review of the consequences of measure 11 would likely show that only a few have the means to pursue an appeal. The US has twenty-five percent of the world's prisoners and five percent of the world's population. With 52% of the US population living in states with severe budget problems the system is out of whack.

1reader likes this

Here is something else for the public to consider. These two individuals mentioned by Shields will have to register for the rest of their lives as sex offenders. Imagine what that law means for the 16 year-old boy who made the bad choice of having sex with his 13 year-old girlfriend. It means that not only did he spend six years incarcerated with extremely troubled and frequently violent juveniles learning all sorts of ways of becoming a real hardcore criminal, but he will pay everyday of the rest of his life for this choice he made as a boy. Jobs are difficult to obtain and careers do not exist for registered sex offenders. Nobody wants to rent to a registered sex offender. If he fails to register, he will face criminal charges.

His sentence does not end when he walks out of the door of prison. His sentence never ends. Unless he comes from a family able to support him for the rest of his life, or manages to connect up with a partner willing to provide him with a place to live and the necessities of life (what are the chances?) then he is condemned to a life of poverty unable to rent anything but the meanest of apartments or motel rooms.

We do not approach justice with reason in our society. We approach it with emotion. We do not approach justice with the highest good of the community in mind, we approach with a desire for revenge even when we have no idea why we a seeking vengeance.

There should be stricter guidelines placed on the charges themselves and prosecuting attorneys need to take more responsibility toward the community when leveling charges against a suspect.

We would be better off if there were a "devil's advocate" in every district attorney office to examine the actual merits of a case and the charges brought, rather than its winnability.

We have lost our way.

1reader likes this

Jnd, You can either continue misunderstandsing M11 or get informed.

http://www.crimevictimsunited.org/measure11/index.htm

I have trouble characterizing having sex with a 13 year old as a "mistake", regardless of the age of the offender. Your point is better taken when discussing a 15 year old and an 18 year old. However, this discussion has overlooked two important safeguards.

First, district attorneys are elected and take Measure 11 charging and plea decisions very seriously. Oftentimes, they will forgo M11 charges at either the charging or plea stage, despite having a strong case. There's a strong anti-democratic thread going through this argument. Mandatory minimums under M11 are overwhelmingly popular. Repeal attempts have failed. DA's rarely get re-elected on anti-M11 platforms. We don't have to like them, but we should respect the will of the people, since it's been so obviously stated, time and time again.

Second, unless waived by the defendant, all M11 cases are heard by juries. They have the option to 1) nullify if they don't like a case or 2) not find a sexual motive in cases like the one cited above,thus acquitting the defendant. Again, there's this theme of "people are too stupid to make these decisions."

I'm not saying M11 is the greatest thing since sliced bread. However, rather than carping about it, perhaps we should come up with an alternative that people like - such as repealing the mandatory minimums and guidelines and putting sentencing in the hands of the juries or judges, both of whom are supposed to represent the will of the people in the justice system.

All 16-year-olds should go to jail...the boys at least. They're not responsible. Mating with an inviting 13-year-old is something the great majority of 16-year-old boys would do without a thought (check your biology textbook if you don't know why). Most of them wouldn't even have a clue what the consequences are, even if they stopped to think about it (ha!).

So why wait for them to do it? This is simply endangering our state's young women. Throw them all in jail until they turn 21 and are allowed to DRINK. This will calm them down.

One can't help but wonder if male judges involved in sentencing cases like this don't feel just a pang of jealousy...

Why are mandatory minimum sentences overwhelmingly favored by a sufficient majority to retain measure 11? For more than twenty years the first several minutes of television news is a crime blotter. It has created a perception of more crime than is deserving of the draconian measure 11. The pracices of overcharging and bargaining for a plea is at fault; lawyers and judges seldom face consequences for their misconduct. District Attorney's shield the police from consequences as well. The system is out of whack.

Thank you for asking for replies.

I am opposed to any legislation that Kevin Mannix has proposed so far. I like to see who is supporting him and when I see a rich man in Texas is paying I have questions. What does he get out of it? He wants to build expensive prisons to house persons whose crimes are more medical issues than crimes that merit prison. I volunteer in a prison and when I hear each man's story most of them have to do with abusing alcohol and drugs. I suggest the persons could be better served with rehab for far less money. and/or drugs. There must be a better and less expensive way to use medical help on the outside rather than paying a huge amount for prison.

Mandatory sentencing seems to be good for lazy politicians looking for easy way to get elected - and not much good for anything else. Certainly not good for the two defendants in the companion piece. Sending a 16 year old boy to prision for six years will only make him extreemly familiar with the concept of violent rape - namely his own! The sentencing of the woman is equally absurd. The entire concept of manditory sentencing needs to be revisited and soon. The whole reason we have judges is to blend the needs of the law and that of justice so that they do not become mutually exclusive terms as the clearly have in both these cases. Manditory sentences often reduces the role of the judge to that of referee. I do have some reservations about jurors knowing the sentencing before deliberations. However those reservations pale into insignificance compared to some of the outrages done by maditory sentencing. Maybe a few Not Guilty verdicts will get the chances of travisties of justice put in place by manditory sentences addressed.

Fine Chip. Let's bring REAL honesty to sentencing. Let's tell juries what the sentences will really mean when they convict someone of home burglary and the judge can't give them more than 20 days. Since Measure 11 are a minority of sentences, let's ask jurors what the penalty should be for a man who has "consensual sex" with a 10-year old. Do you really think most jurors will think 8 years is the right sentence? (that's the draconian Measure 11 Chip hates so much). The fact is that the conduct described in the sob sister WW piece would elicit radically different responses if we switched genders. Rep. Shields has advocated AGAINST truth in sentencing, trying to cut 30% or more off sentences that already are too short. If you REALLY want to make sentencing democratic then do what a couple of state have done and let juries sentence up to the statutory maximum or down to probation. Somehow I don't think Rep. Shields and the rest of the criminal defense bar part of the Democratic party would like that. Remember that when Chip and his well-funded friends tried o repeal Maesure 11 in 2000 Oregonians rejected it by a 75-25 margin! Mandatory sentences came about because rich white kids got probation for crimes that poor brown ones went to prison for (armed robbery being a prime example). John Kroger got elected because he recognized that the vulnerable and under-represented in our justice system are in fact women, children, and people of color. They are called victims of crime.

Oregonians did not really know what they were voting on when they passed measure 11. They were emotionally swayed by television ads picturing a toothless derelict and asking if you wanted this man molesting your children.

Nobody wants someone convicted on overwhelming evidence of a grievous crime to have a light sentence. Everyone deserves and should demand fair and appropriate justice for all. Terrible consequences result when the DA's have all the power, and the judges hands are tied.

I personally know of an adult male that was convicted of sex crimes because he brushed dirt off the pants of a 13 year old girl. How does this instinctively protective action merit a prison sentence of 75 months?

A number of top-notch defense attorneys have stated that there is no defense if you are accused under measure 11. No evidence of a crime is needed. The only requirement is an underage person stating they were scared. If a minor feels "uncomfortable" about a situation, that's all it takes to obtain a conviction.

How many excellent teachers, care-givers, pasters, etc. do you think Oregon has lost because of justified fear of getting accused and having no way to defend themselves?

Josh.

I supported Measure 94 in 2000, which would have reverted Oregon sentencing back to the sentencing guidelines developed a few years prior to Measure 11. The voters disagreed. But I don't think most voters think Measure 11 is perfect. I would like to improve it. I know you too have supported some narrow changes to Measure 11, like SB 1049.

But the question on the table is would you support HB 2986? Would it be workable? I truly would like your opinion.

On Measure 11, I absolutely agree with Truth in Sentencing , which the rest of the states and the federal government define as persons convicted of a Part 1 violent crime serving on average not less than 85 percent of the sentence imposed.

I support making Measure 11 offenders serve not less than 85 percent of the sentence imposed. If you'd go along with that, and help bring us in line with the rest of the country, I wouldn't be as interested in expanding earned time for non-Measure 11 offenders from 20 to 30%, even though there is evidence that expansion of earned-time to that degree would result in reduced recidivism.

And on my well-funded friends, Measure 11 has the most well-funded friends of all...Kevin Mannix and Loren Parks. Measure 11 did not organically arise from the will of the people or the legislature's failure to act. It arose out of Loren Parks' checkbook, just like Mannix's new property crimes measure. Granted, locking up violent people longer is generally a popular proposition and that's why Measure 11 passed. Letting violent people out "early" as is what was argued against Measure 94, is generally not a popular proposition and that's why its repeal of Measure 11 failed. Not a big surprise.

And I suggest that most people had little idea that our sentencing structure was greatly strengthened through the sentencing guidelines passed with the DA's participation just a few years prior to Measure 11 passage.

And I think you'll concede that the DA's like to use Parks and Mannix as leverage to get what they want in the way of longer sentences. I know you're a good Democrat Josh, but in the end, Loren Parks is your very strange bedfellow.

I dispute what you say about mandatory minimums reducing racial disparity. Representing an historically African-American district, I can tell you that many here (my friend Fred Stewart perhaps excluded) feel that mandatory sentencing did not improve racial disparity in sentencing since 1994, but that it often shifted the power of sentencing from judges to the DA who decides what to charge outside of open court.

But you can prove your case on Measure 11's effect on fairness and racial disparity in sentencing by encouraging your colleagues in the Oregon District Attorneys Association to provide the data comparing the ethnicity and criminal histories of those convicted of Measure 11 offenses to those originally charged with a Measure 11 offenses, but whose charges were later plead down to a lesser charge. I think most of the time the DA's get it right, and the DA's in Multnomah County are certainly sincere in their efforts at fairness, but it would be interesting to see if disparity exists at all in that context.

And I don't think John got elected because of his support for Measure 11. He worked incredibly hard. He conceeded not an inch of territory. He ran a very tight campaign that focused on treatment, which I think reasonated with Democrats. I also think John's views on holding corporate polluters and corporate criminals accountable really reasonated. I'm a Macpherson fan, but I wouldn't sell John short by saying he won because of Measure 11.

Josh Marquis calls us to bring 'real honesty'. He was one of two prosecutors, the other being Stapleton, who were removed for misconduct in a murder trial in Lincoln City. They failed to reveal exculpatory evidence in an attempt to convict a fifteen year old of murder. This is detailed in the book by Gerry Spence. Now other than the fact that this zealous intimidation and willingness to suppress the evidence that cleared a fifteen year old seems to be in the past, isn't it interesting to have Marquis advoating honesty? More importantly, how many can get Gerry Spence to work pro bono? And by the way, can you name the county in which another member of this team of corrupt prosecutors is now a District Attorney? Doing, by the way the same corrupt kind of law enforcement? Hint: there is an unsolved murder in that county where the sheriff burned the evidence, ie, a blood soaked mattress before any DNA tests were performed. He was just re-elected.

There is a fundamental problem with Chips' bill. It is in direct contravention to jury instructions given to every criminal jury that specifically directs jurors NOT to consider what penalty might be imposed if the defendant is convicted. Again, do you REALLY want jurors determining sentences? Fine with me if you do across the board, not just in Measure 11 cases. Sentencing Guidelines are a resource-based formula that acts as a mandatory maximum. In other words a judge can ONLY sentence a defendant to X (usually days in jail for a felony) but is NOT limited in any way as to how LOW the judge can go. So if you are really concerned about giving judges' discretion how about letting judges sentence a convicted felon to any sentence within the statutory maximums but then require (like the Feds) that they serve at least 85% of that sentence. The reason is that it might cost a whole lot of money. That's a problem few want to discuss. To provide afequate defense, enough troopers, meaningful drug treatment, it all costs a lot of money and doing it on the cheap cheats everyone. Prosecutors like me don't get frequent flyer miles for the number of people sent to prison. In smaller counties like mine we run into the families of everyone - defendants and victims all the time - and accordingly are accountable not just politically but socially as well. I didn't support Measure 11 when it passed and I've never take Loren Parks money and I doubt if Chip would be happy if some group like NAMBLA gave money to help defeat Measure 11. That argument is just specious. As to effects of Measure 11 on ethnic minorities all you have to do is go to DOC's website and you'll see that the proportion of people of color going to prison for M-11 is almost exactly the same as any other felony that results in prison. And in debating this law for more than a decade I can say categorically that the people who scream the loudest are what I call "Measure 11 Moms," invariably white upper-middle class family members who think that their little darling just had a little slip up when he had sex with that 9-yeart old vixen and that THEIR son should be given special consideration. Measure 11 is the most color-blind legislation in criminal law. It has been the legialature's refusal to address the real concerns about crime and consequences that have resulted in initiatives that may well be financed by people you don't like. But we are DEMOCRATS here and we beleive that the people should have a greater say in formulating public policy that just the elites. You may not like Parks or Mannix but the same voters who elected Pete DeFazio, Ted Kulongoski, Ron Wyden, and John Kroger also overwhelmingly supported all of these "tough on crime" measures that Chip has fought so hard both before he came to the legislature and now that he is a leader in one wing of the party to which we both belong. I have been a very active Democrat for decades and I don't want to cede the issue of victims rights to the Republicans. If you want to beef up programs in prison for drug abuse you'll find a lot of support from prosecutors like me. But if you keep trying to figure ways to trick the public into thinking we live ina penal colony dominated by bloodthirtsy and uncaring prosecutors we won't find many areas of consensus. I would hope that the Kroger-McPherson race taught some in our party that it is a new political world out there and you can't be doctrinaire about criminal justice issues unlesss you run froma districts like Chip or a few others in the Portland metro area that will elect them for all eternity. There are other parts of Blue Oregon, and people like Jeff Barker and Betsy Johnson represent them.

The premis that harsh punishment deters criminal conduct would seem more viable if those enforcing laws were also subjected to sanctions. What punishment was meted out to the prosecutors who suppressed exculpatory evidence in a murder trial? Did it change their behavior? Or was there in fact no penalty.

measure 11 is only used to benefit the countys for money. having personally been thorough m11, this is one of the most cruel and out of control measures in the state of Oregon. It is way passed the time frame to be reformed, TO MUCH TALK AND NO ACTION!! to many innocent men and women are behind bars, because of HEARSAY CASE.people FLATOUT LIE to put someone in prison!! there is no DNA that can prove alot of innocent people~~start NOW and do some changes~~

Measure 11 is a horrible law. It does no good to punish someone that has a drug addiction or other addictions by just giving him or her the max sentence for the crime he or she commited do to the drugs and throwing away the key. That is not solving anything. Rehabilitation and programs to help these peeople get off drugs would be good. The system is messed up. We spend so much money on building prisons and our children have no good education and we are closing schools . Is that what we want ???? These people that get locked up they do come out one day and they will be again part of the society. How did we help them by just locking them up?? There has to be a better way than this. With M-11 the punishment does not fit the crime in so many cases. There has to be a REFORM OF M-11.People deserve good time. Just as you adn I we do good at our jobs we get raises so do these people deserve good time. There are ALOT of men and women locked up that they should not be, and that they would be a benefit to the society. People need to read the fien print and more before they just vote on something because you never know when it hits close to home and then what.

I have to agree with Maryann -Measure 11 is a horrible law! My teenage son is being charged with a Measure 11 crime and he is developmentally & emotionally disabled. What is it going to teach him?? This is not a community "helping" raise a child, this is CRUEL & UNUSUAL PUNISHMENT. What is society going to expect from him when he is released? Even though my son is chronologically 16 yrs old, he is mentally & emotionally 10 YEARS OLD. So, in effect, Measure 11 is cruel and unusual punishment--especially when the system locks up children who have deficits. I feel that this Measure, in his case, is more prone to be called CHILD ABUSE By the system ---the system we trust?? In his case he was heavily influenced by a peer.It is not a sex crime, no assault was committed but they are still trying to push to send him away for 7 years.Any DA who is sending him to prison for this long of a time must also have deficits. He has been sitting in juvenile hall for 6 months. This is insanity!!

It's just like liberal Democrats to find ridiculous exceptions to the intent of laws and use them as excuses to weaken the law. Sometimes you do it in reverse, by using exceptions to pass a law, as when you fought to provide secret abortions to ALL teens to avoid the scenario of some pregnant girl being thrown in the street. No legislation would have helped make that family functional. But I digress. Most measure 11 offenders are vicious thugs that I don't want loose in the same state as my kids. Maybe reflexive criminal sympathizers should ask themsleves why they're desperate to help predators escape punishment but couldn't care less about their victims. Merkley's intent is to appeal to other hand wringers in the jury pool. But I hope my family is never victimized by a violent creep that ends up with a jury like that on his side.

The last comment sums up the extemely neurotic moral autism of the ultra-right.

That the mandatory sentencing is just one part of the reversal of justice- and a blunt instrument to crush gray area circumstances and lump them with the vilest crimes imaginable is the product of shallow minded political opportunists.

The Rodriguez case stands for the propostion that mad cow, herd hysteria can incriminate even the most technical and miniscual malfeasance- and that contingent upon finding 10 jurors sexually neurotic enough to recoil with shrill alarm that the little boys head touched a, gasp, breast!

Again, where do we find such born again/yesterday persecutors and why are they driven to consume massive resources over this pettiest of disagreeable behaviors?

It is a disgrace to Oregon that some county is so hillbilly in-bred that it is able to field 10 citizens good and true to convict someone on such specious charges,

How do such prosecutors sleep at night? Or is this how they get their ya-yas- destroying someones life over this ridiculously stilted accusation? Are they borderline personalities- addicted to their own ego driven cruelty?

How about mandatory psychological profiles and a mandatory month in prison for anyone seeking to e power to inflict their authority over other human beings?

In my opinion the prosecutors in the Rodriguez case are far more vicious and criminal than the person who's life they have likely ruined.

As a district attorney who opposed Measure 11, but who has seen that many aspects of the measure have been extremely beneficial (a dramatic fall in violent felony crimes and consistency in sentencing), I would like to offer several thoughts.

Often many times the discussion about Measure 11 gets lost in what I personally believe to be false issues. For example, many people are unaware that Measure 11 has been significantly modified by the Legislature since its initial passage. What is called the 1049 concept (after the original house bill number) has been used to allow judges the discretion not to impose the mandatory sentence (including probationary sentences) in many Measure 11 cases. I have personally supported many of the bills that have done this. The result is that a substantial portion of current Measure 11 cases are not truly cases with a mandatory minimum sentence anymore.

This is significant in the context of discussion of sex abuse cases that are based on the status of the victim—in this discussion the victim being under a certain age. A bill that I supported allowed 1049 treatment by judges for a limited number of these cases. I have supported—and will support in the next legislative session—an expansion of the circumstances in sex abuse cases where the judge will have the discretion not to impose the mandatory minimum sentence. In the past such proposals have gotten lost in the debate between those who want to repeal Measure 11 and those who don’t want any change. I hope next year will be different.

Thank you Mike. Many of us were thinking Measure 11 was still the same thing that passed and the "tough on crime" folks (like the "NCLB is perfect" folks) were saying "anyone who wants to even discuss changing a word of it is some kind of subversive!

This is very interesting:

"Often many times the discussion about Measure 11 gets lost in what I personally believe to be false issues. For example, many people are unaware that Measure 11 has been significantly modified by the Legislature since its initial passage. What is called the 1049 concept (after the original house bill number) has been used to allow judges the discretion not to impose the mandatory sentence (including probationary sentences) in many Measure 11 cases. I have personally supported many of the bills that have done this. The result is that a substantial portion of current Measure 11 cases are not truly cases with a mandatory minimum sentence anymore. "

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 proportionately 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.

Regarding should the jury know what the penalty will be if a person is found guilty? Here is a brief response. Isn't that information available to any who will read the law? If it is then should we have a situation where some jurors happen to know the law, and some don't? Shouldn't all be equally informed? Is there some reason that those who know the law, cannot tell the others what they know? Is the law to be secret? If you knew that the law was severe, say a hand to be cut off if the person steals whatever, then would you say, "Guilty" when you knew the law was extremely harsh for a relatively minor offense?
Crucifixion to many of us may be more barbaric than the crimes for which the person was crucified? What is wrong with the jury knowing the consequences of their decision? If the punishment was not in accordance to the offense, and if this somehow influenced the decision of the jury, then maybe it rightly should? Isn’t it conceivable that such knowledge could lead to laws that are just but not extreme?

I could not have said it any better than "Anonymous out of fear in the USA" has said on Aug 6th.

The only difference is that I did NOT vote for Measure 11 because I was one of the few who could see it would not improve public safety. It has created more criminals and bled the taxpayers dry, trying to keep our (first-time offending) kids in prison. It's completely despicable, and I pity not only those thrown headlong into the criminal "injustice" system, but also those amazingly selfish people like Kevin Mannix who just throws his ideas up on the wall to see if they'll stick, so he can enhance his own political life at the expense of his community. Now I know why it's easier to die when you're old. By the time I'm elderly, I will not recognize my state or my country, and I won't want to stick around and fight any longer for the ideals that we are all SUPPOSED to believe in (ie, justice, compassion, fairness and intelligence).

Posted by: Anonymous out of fear in the USA | Aug 6, 2008 11:19:53 PM

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 proportionately 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.

Thank you, Anonymous. You said exactly what is happening. My own son is doing prison time on a Measure 11 charge and he acts impulsively and is easily influenced by other kids. He also has a 6 year mental health history. Can you believe that Judge Ryan and the DA sentenced this child(CHILD-that is what he is) to 5 years & 10 months in prison??? Everyone who knows my son knows he has mental health issues & he is developmentally disabled. How can a JUDGE & a DA put a child of this nature in prison for so long??My son was Influenced by a peer and they know this. Do they care? No Not at all --because it's not THEIR child.I have had my son taken from me because I was alcoholic.The system said I abused him by drinking-I have been sober 6 years- NOW WHO IS DOING THE ABUSING????How can you take him from me saying that I am abusing him and then turn around and put him in prison for so many years-isn't that abuse?? Especially with a child who is easily influenced by others. Judge Ryuan and the DA knew that the victim thought it was a joke-it's in the police reports. Everyone who knows my son tells me he is a likeable child likeable child. Well I will tell you-the State of Oregon-you have one pissed off mother here.Ronnie Kliewer defense attorney thought this was a good deal for my son? No way.Something tneeds to be done about this law because you are putting a naive child who is easily influenced by others in prison--for what? so he can learn how to do worse crimes. I am really disappoiny=ted in this state and what is becoming. They say it takes a community to raise a child-well what happens when the community TURNS ON YOU AND YOUR CHILD?? Measure 11 needs to be thrown out because they are putting some of the wrong people away and they are not looking at the circumstances.It's messed up!!!!!!