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The View From Here

Measure 73: Red Herring

by Rob Raschio, OCDLA President

From the September/October 2010 Oregon Defense Attorney

I am allergic to fish, which makes me particularly repulsed by red herrings. Fish makes my throat swell up, making it hard to breath. So it should come as no surprise that I began to gag after reading the latest red herring from Kevin Mannix – Ballot Measure 73. Should this stinking fish become law, the swelling in my throat will pale in comparison to the swelling of Oregon’s prison system.

Measure 73 is entitled the “Oregon Crimefighting Act” and addresses repeat driving under the influence of intoxicants and major sex crimes. Measure 73 contains two red herrings.

The First Red Herring: Measure 73 changes the current statute on felony DUII by making a third DUII in ten years a felony. The red herring is that it requires a 90-day jail sentence for the offense. Why is it a red herring? Because practically speaking no one convicted of the felony will get 90 days. They will get 13–14 months in prison. Doug Harcleroad, senior policy advisor of Oregon Anti-Crime Alliance, said as much in his letter to the Oregon legislature. He stated, “The Initiative also sets a mandatory minimum sentence of 90-days incarceration (the judge can give more and probably would under sentencing guidelines – 13 to 14 months in prison), and the State shall reimburse the counties for the cost of local incarceration before and after conviction.” Corrections is 10.9 percent of our current Oregon general funds budget, a higher allocation than any other state in the union.

Kevin Mannix wormed his way around the issue of prison terms in an interview with the Oregonian Editorial Board. They wrote, “[Mannix] contends that the state could and would adjust the guideline sentences for these repeat drunk driving cases, ensuring that 90-day minimum sentences approved by voters would not balloon to costly 12- to 25-month prison terms.” Oregonlive.com, July 21, 2010.

Mr. Mannix is misrepresenting the truth. He knows better than to think the legislature will overturn the will of the voters in the way he suggests. He is playing on Oregon voters’ emotions to be tough on drunk driving and sex offenses without being honest about the cost of their decision in tough economic times.

The Oregon Criminal Justice Commission (“CJC”) estimates that Measure 73 will add 527 felony convictions each year. Each of those felonies will carry an imprisonment of at least 13–14 months, which in real terms means a year of prison per conviction. Oregonians spend $36,060 per inmate per year of incarceration. Conservatively, the Measure 73 DUII provision will cost taxpayers $19,003,620 per year. Of course, Measure 73 is a completely unfunded mandate. Voters should know they will be imprisoning people at a significant cost to schools, social services and other state run-programs, or paying higher taxes.

Mannix is a big spender who has severely damaged Oregon’s financial well-being. In 1994, Mannix championed Measure 11, requiring mandatory minimum sentences for certain felonies. That measure has caused a doubling of Oregon’s prison population from 7,000 to 14,000. In the same timeframe, Oregon’s general population has increased by about a quarter. Housing inmates costs Oregonians half a billion dollars a year. This while crime rates have been dropping for reasons unrelated to mandatory sentencing. Measure 73 is more of the same.

Do not be fooled by the language of Measure 73. People will go to prison when Oregonians thought they would get 90 days. Further, Oregonians should ask themselves whether prison is better than treatment. A third DUII is a sign of severe alcoholism. Shouldn’t we treat the problem? Oregon’s treatment options are very limited. It takes around three months to get an indigent person into treatment. The investment of $19,000,000 would significantly improve treatment in Oregon.

Harcleroad says there needs to be harsh punishment for repeat drunk drivers. A third conviction for a DUII currently means significant jail time (generally longer than the 90 days standard proposed in Measure 73), a lifetime revocation of driving privileges in Oregon, a $2000 fine and supervised probation. In my opinion, that is a harsh sentence.

Here’s a helpful hypothetical based upon my experiences as a criminal defense attorney. Nineteen-year-old Billy goes to a party and has too many beers. He gets arrested for DUII on the way home. Gets placed on a diversion to avoid conviction. Three months later, he is out with some buddies, he has some beers with them, and gets behind the wheel again and he gets another DUII. Bad Billy. He now has two DUII convictions. Fast forward. Billy is 28, married, two kids, decent job with benefits. Billy and his wife have a fight, he drives to the bar down the block, has one too many, gets stopped on the way home, blows a .08. Under Measure 73, he will go to prison for 13-14 months. Is that the right result? Taxpayers will spend $36,060 to incarcerate him. Taxpayers will pay for food stamps, health care, housing for his wife and kids. His chances of getting a decent job significantly diminish after he gets out because of the felony conviction. Is that the best result for our community?

The Second Red Herring: the proposition of a 25-year minimum sentence for repeat sex offenders. Oregonians need to know that the impact of this portion of the measure is negligible. CJC estimates 13 offenders a year might be impacted by the statutory change. Further, they estimate that one – one – prison bed will be affected by this law in the biennium 2017-19. Simply uneventful.

Mannix knows it. The language in Measure 73 is designed to persuade voters to burn their tax dollars. Mannix wants voters to pass the measure based upon the fact that sex offenders are bad and need to be punished. He fails to tell the voters the measure will have little effect. In fact, sexual offense victims’ organizations believe that mandatory sentencing has a chilling effect on the reporting of sexual offenses. Most of the time, the offenses are committed by family members against family members. Putting uncle in prison for 300 months has proven too hard for many victims. There is not a judge or district attorney in Oregon who will tolerate a repeat offender who has been imprisoned before. They will be locked up without the help of this red herring.

The measure will lead to 15- to 17-year-old kids being incarcerated for 300 months as repeat sex offenders.

The Citizen Initiative Review, a 24-citizen panel of a broad demographic spectrum from across Oregon heard arguments from both sides of the measure for a full week in August. The result: 21 of the members of the committee found that the measure unfairly limits judges’ authority in sentencing and costs too much. Twenty-one members also agreed that mandatory minimum sentencing has not proven to be a significant deterrent to future DUII or sex crimes! Gail Meyer, Jennifer Williamson and John Potter deserve high praise for organizing our response to this measure in an effective way. The process proves that when educated about the effects of these measures, the vast majority of Oregonians reject them.

You can learn more about the Citizen Initiative Review at www.healthydemocracyoregon.org.

Do not swallow Mannix’s red herring. Urge others not to swallow either. If you would like to take this fight a step further, please consider a tax deductible contribution to the OCDLA’s fund to fight Measure 73 so we can continue to educate Oregonians about its intended consequences.

Finally, please take a moment to read the memorials to Dennis Hachler and Paul Beneke in this issue. Our community lost two champions of Justice in July. “What we do for ourselves dies with us. What we do for others and the world remains and is immortal.” — Albert Pine ◊