The Real Cost of Prisons Weblog

Lawmakers may rethink Measure 11
January 23, 2005

By James Sinks
(The Bulletin)
At the same time, rural Eastern Oregon has seen an influx of corrections jobs from the prison-building boom needed to accommodate thousands of additional inmates.

Next on the drawing board is a new 864-bed, minimum-security facility in Madras, scheduled to open in October 2006.

Yet, while nobody scoffs at less crime and more jobs, a growing number of state legislators say it may be time to take a hard look at Measure 11.

Dissatisfaction with the tough law is nothing new in some camps, but lawmakers have never seriously dallied with substantive changes.

But that may change this year: The assembly faces tough budget choices and politics are shifting at the statehouse.

For the first time since Measure 11 passed, the chairs of both the House and Senate judiciary committees are signaling they are willing to modify some of the sentences.

"There is a growing recognition in this building that the faster-than-anticipated growth of the prison system is having an impact," said state Rep. Wayne Krieger, R-Gold Beach, a former state police officer who now heads the House Judiciary Committee.

He said lawmakers still consider public safety their top priority, and he has no desire to turn murderers or rapists loose.

However, Krieger said he wonders if the high cost of Measure 11's prison terms is siphoning too many dollars from other important public safety priorities, such as dealing with the state's methamphetamine crisis and getting inmates into education and rehabilitation programs before they're released.

MEASURE 11

There are 23 person-to-person crimes with mandatory sentences under the law. The longest terms are 25 years for murder, 10 years for attempted murder and first-degree manslaughter, and eight years and four months for first-degree sex crimes such as rape and sodomy.

The shortest sentence under Measure 11 is five years and 10 months, for second-degree assault, second-degree kidnapping and compelling prostitution.

As of Jan. 1, the state had 5,066 inmates serving Measure 11 sentences, according to the Department of Corrections. That represents roughly 40 percent of the state's inmates.

The motivation for change isn't just financial.

Violent crime rates are on the decline nationally, which suggests Measure 11 may be getting more credit than it deserves for Oregon's safer streets, said Geoff Sugerman, lobbyist for the Western Prison Project, which supports reforming the law.

Judges and defense attorneys say the law has put too much power in the hands of prosecutors, who can threaten defendants with Measure 11 sentences if they don't agree to plead guilty in pre-trial negotiations.

Also, spurred partly by a Bend case from 2004, some critics say the law is too rigid when it comes to prison terms for some first-time offenders.

A Deschutes County 20-year-old with no criminal history was sentenced to more than six years in prison after the deaths of two girls in a street-racing tragedy, but even the judge questioned whether the penalty was appropriate.

Sen. Ben Westlund, R-Tumalo, said people want to justice to be served ‹ but he's not confident that occurred in the case of David Black. His co-defendant was sentenced to six months in a plea deal.

"There's always been a few people that wanted to overturn Measure 11," he said.

"What's different this session is that there are a considerable number of people ‹ while they don't want to overturn it ‹ that want to look at the bottom end of Measure 11 offenses, particularly for those individuals that have no prior record."

Lawmakers in 1997 allowed judges to exempt first-time criminals from Measure 11 sanctions in limited circumstances for three second-degree crimes.

But talking about Measure 11 is much easier than actually modifying it.

THE LAW IS POPULAR

Distrustful of judges and worried about crime, voters approved Measure 11 in 1994 by a 64-to-36 percent margin. It went into effect in 1995.

In 2000, 74 percent of voters rejected a ballot measure that sought to overturn the mandatory sentences.

Steve Doell, director of Crime Victims United of Oregon, which supports Measure 11, said the public is in no mood to see any sentences weakened, and said polling confirms that view.

The facts show that with criminals off the streets for longer, those streets and schools are safer, he said. Crime rates nationally are going down because other states have also adopted tougher sentences, he said.

"If the trend of crime had continued where it was before 1995, there would be more than 34,000 more Oregon victims of rapes, robberies, aggravated assaults and murders," he said.

Still, school advocates are crying foul about the growth in the prison budget, but education accounts for about 58 percent of the general fund budget when colleges are included ‹ while prisons and parole account for less than 10 percent, he said.

"School people and others see the corrections budget as something they can carve into," Doell said. "They want to twist this thing around and say we spend more to send people to prison in this state than to educate kids, and that is malarkey."

Gov. Ted Kulongoski's proposed general fund budget for the 2005-07 cycle calls for a 34 percent jump in Department of Corrections spending to $1.1 billion, compared to a 1.7 percent increase for K-12 schools to $5 billion.

The prison budget also includes community correction dollars, which go to counties to pay for monitoring of parolees and for housing inmates in local jails.

The state is expected to have $11.9 billion in the general fund in the next two years ‹ an increase of $300 million from the Legislature's budget in the 2003-05 biennium.

However, that increase in revenue won't be enough to maintain all programs because of inflation, higher pension costs and larger populations in prisons, classrooms and welfare rolls.

CORRECTIONS FUNDING

The cutbacks even touch corrections funding: Sheriffs say the projected state dollars fall far short of what's needed and the state may reduce alcohol and drug counseling for inmates.

The Department of Administrative Services projects the state's prison population will climb from 12,778 in July 2004 to 14,279 in July 2007.

A report due Monday from an adult sentencing task force convened by Oregon Attorney General Hardy Myers won't recommend any changes to Measure 11, said Department of Justice spokesman Kevin Neely.

Department of Corrections director Max Williams, a former legislator, said no convenient silver bullets are handy for solving the ballooning prison budget.

"The public expects us to hold bad actors accountable for their actions," he said. "But it does beg appropriate policy questions, such as how do you sustain that level of growth over time."

Sen. Ginny Burdick, D-Portland, the chairwoman of the Senate Judiciary Committee, said lawmakers need to "provide the maximum amount of public safety with the dollars we have available."

"Prison beds are the most expensive public safety option we have," she said. "Where those beds are necessary to protect public safety, we must use them. But if there are ways we can be creative and can move away from prison beds without compromising safety, we should."

Among her suggestions: Allowing convicts to reduce their sentences via good behavior and participation in programs like school and alcohol and drug intervention, and examining whether elderly and disabled inmates can be released early when they don't pose a safety risk, she said.

As a tradeoff, the state can invest more resources in programs to combat meth and to help criminals learn to function in society and stay clean, she said.

"We know 95 percent of them are coming back to our communities," she said. "What do we want them to look like when the get back? Do we want them to deal with their meth and drug or alcohol problems, or just keep them locked up as long as we possibly can and then dump them out in the street?"

In the Bend case, Circuit Court Judge Stephen Tiktin said he didn't want to sentence David Black to a 75-month sentence.

But because the 20-year-old was found guilty of second-degree manslaughter in connection with the deaths of two girls in an automobile wreck, the judge had no choice.

The fatal wreck occurred Aug. 9, 2003, on rural Alfalfa Market Road.

Danielle O'Neil, 16, lost control of her car and spun into the path of a van. O'Neil and her passenger, Stephanie Beeksma, 15, were killed.

Prosecutors successfully argued that Black and co-defendant Randy Clifford had raced Gates and were culpable.

Clifford negotiated a plea settlement with prosecutors, pleading guilty to criminally negligent homicide and fourth-degree assault. Neither of those are Measure 11 crimes.

But Black refused a similar offer and maintained his innocence ‹ and it ultimately cost him.

Clifford was sentenced to six months behind bars while Black was sentenced to 75 months under Measure 11.

That disparity that wasn't lost on Black's family or Sen. Westlund.

"You have to ask, was justice served?" he said.

Senate Minority Leader Ted Ferrioli, R-John Day, said it often seems incomprehensible to families that a first brush with the law can lead to a Measure 11 sentence.

But, he said, that's the law the public wants ‹ and he can't justify loosening it because of the budget or other concerns.

Ferrioli expects lawmakers will ultimately take a pass on modifying the law.

"Cannibalizing Measure 11 that was adopted by the people is not my idea of living within your means," he said.

"The goal of the corrections division is rehabilitation and protection of the public, but first you've got to get criminals off the streets."

MEASURE 11 COSTS

Western Prison Project lobbyist Sugerman said lawmakers are coming to grips with the high cost of maintaining a one-strike-and-you're-out law.

"It doesn't recognize that some people who commit crimes will never commit crimes again," he said.

"We are seeing a tremendous drain on state resources into that corrections system and there is a greater recognition that something is out of balance."

He said lawmakers could postpone the need for the Madras prison by allowing for sentences to be shorted for both Measure 11 and non-Measure 11 convicts.

However, that's not likely to earn cheers in Madras, where the community has dealt with several false starts on the project. The prison is expected to create 500 family-wage jobs and be a catalyst for growth in Jefferson County.

But Sen. Avel Gordly, D-Portland, said it's "twisted" to look at the state's prison-construction spree as economic development.

"There is no end in sight to the prison explosion," she said. "We've got to get control of corrections costs and do it this session if we are to work our way out of this corrections crisis."

At the same time, the public is spending less on programs that help at-risk children and that help adults learn to be good citizens.

"We have to be very clear with the public we understand protecting communities is always the first priority, but how are we making a community safer when we warehouse prisoners, build more and more beds but then neglect prevention strategies when they are locked up?" she said.

"That doesn't help us once people get out, and they are going to get out."

Krieger, the head of the House Judiciary Committee, said lawmakers should ask tough questions about whether Measure 11 is the best approach.

If it turns out to be the most cost-effective public safety tool, then great, he said.

"Some people are afraid to touch it," he said. "But I'm not."

James Sinks can be reached at 503-566-2839 or at jamess@cyberis.net.
http://www.bendbulletin.com/news/story.cfm?story_no=15457