The High Cost Of Measure 11

The Oregon Legislature weighs prison and sentencing reforms, trying to strike a balance between economic and legal bottom lines

You need only to look to our neighbors to the south to see the toll a runaway prison system takes on a state budget.

California is desperately working to cut its prison costs, which has ballooned to nearly 10 percent of the state's annual budget, according to the Los Angeles Times. Many point to the state's get-tough-on-crime measures, including a "three-strikes" law, as at least partially responsible for filling the state's penitentiaries to overflowing.

Inside Measure 11

Oregon adult inmates currently held on selected Measure 11 crimes:

First-degree assault: 263

First-degree manslaughter: 304

Murder: 359

Attempted murder: 98

First-degree rape: 615

First-degree robbery: 642

Second-degree robbery: 582

First-degree sexual abuse: 1,058

Oregon Youth Authority inmates currently held on selected Measure 11 crimes:

First-degree assault: 9

First-degree manslaughter: 6

Murder: 2

Attempted murder: 9

First-degree rape: 5

First-degree robbery: 16

Second-degree robbery: 45

First-degree sexual abuse: 40

Adult prisoners held on Measure 11 crimes, by gender:

Male: 5,795

Female: 281

Oregon Youth Authority prisoners held on Measure 11 crimes, by gender:

Male: 189

Female: 3

Adult prisoners held on Measure 11 crimes, by county:

Jackson: 220

Josephine: 162

Douglas: 136

Klamath: 124

The result was a rapid expansion of prison-building across the state and a corrections budget that is eating into what California spends on schools and other state-supported programs.

Oregon's corrections system is not in the same dire straits yet. But the Legislature is considering several reforms in hopes of avoiding a similar fate.

The package of sentencing and prison reform legislation trickling through Salem is in part an effort to keep the state from being forced to build another costly prison.

Among the proposed reforms presented by House bills 3194 and 3259 is scaling back the scope of Measure 11, the state's mandatory minimum sentencing law.

That won't be easy, says state Rep. Wally Hicks, R-Grants Pass, who sits on the Joint Committee on Public Safety.

"I don't think the undoing of Measure 11 is going to happen," Hicks said. "But we do know that figuring out a way to cut costs and keep the public safe is popular."

Changing Measure 11 would require a two-thirds vote in each chamber, which is a tall order, especially for politicians who don't want to come off as soft on crime.

Measure 11, approved by voters in 1994, was intended to keep dangerous criminals off the streets by imposing longer, mandatory sentences.

The crimes that fit under Measure 11 are what police call "person" crimes and include murder, assault and kidnapping.

The consequences of keeping offenders locked up longer may include a lower crime rate, especially among career criminals, but also a growing prison population and its associated expense.

In 2012, the Oregon Commission on Public Safety released a report showing that the state's prison population has grown by 50 percent over the past decade.

Taxpayers now pay more than $1.3 billion each biennium for corrections. The state projects that prison populations will grow by another 2,300 beds in the next decade.

That growth would cost taxpayers an additional $600 million over the next decade, according to the report.

Sentencing reform advocates such as David Rogers, executive director for the Portland-based Partnership for Safety and Justice, say that Measure 11 was a short-sighted way for politicians to prove their "get-tough-on-crime" credentials, but the eventual costs were never fully explained to voters.

Now, as the state continues to struggle through the lasting effects of the Great Recession, the bill is coming due in a big way, Rogers said.

"People have realized that building prisons and then filling them up is not getting the job done," Rogers said. "The costs that Measure 11 has incurred has taken away from local law enforcement, drug courts, education and other services that will keep people out of prison in the first place."

Oregon currently houses just over 14,300 prisoners. The state projects that much of the future growth will be because of Measures 11 and 57. Measure 57, passed in 2008, sets mandatory minimum sentences for drug and property crimes.

The commission forecasts that Measure 11 will add 879 prisoners over the next decade. Measure 57 is expected to add 734 inmates over the same time period. The report notes that Measure 57, which does not involve violent crimes, will be primary driver of prison population growth going forward.

The report suggested removing certain crimes from the Measure 11 rules, including first-degree sexual abuse, second-degree robbery and second-degree assault and allowing a judge to use discretion in sentencing for those crimes.

Judges say mandatory sentencing laws tie their hands when it comes to determining penalties, which means that incorrigible and redeemable offenders are too often treated alike.

Jackson County Circuit Court Judge Lorenzo Mejia said he would like to have some of that discretion back.

"I've been happy to impose some Measure 11 sentences, but other times I've thought to myself, 'This isn't right,' " Mejia said.

Mejia's strongest criticism of Measure 11 is that it applies to anyone age 15 and older. He believes that 15-year-olds should be given an opportunity for alternatives other than mandatory incarceration. Teenagers have a chance to get themselves on track and lead productive lives.

"Teenagers make horrible judgment calls and usually are under the influence of alcohol or drugs when they commit these crimes," Mejia said.

But Jackson County Deputy District Attorney David Hoppe said that removing first-degree sexual abuse from Measure 11 sanctions would be a mistake. The crime involves the sexual abuse of victims under the age of 14 and carries a mandatory minimum prison sentence of six years and three months in prison.

"These are pedophiles who shouldn't be given the opportunity for probation," Hoppe said. "There are things in the system that are in obvious need of reform, but this isn't one of them."

Second-degree robbery should also remain part of the Measure 11 guidelines, according to Medford police Lt. Mike Budreau.

"The fact is, Measure 11 has done the job of keeping violent criminals off the streets," Budreau said. "Second-degree robbery is a serious person crime. We hear from victims who have been subjected to robberies that they are affected by it for the rest of their lives."

Defense attorneys have long decried mandatory sentencing for giving too much leverage to prosecutors as cases move through the system. It is the prosecutor who ultimately decides what is charged in a criminal case.

"It gives all the power to the district attorney," said Michael Bertholf, a public defender with Southern Oregon Public Defender. "They will hold a mandatory sentence over someone's head and it forces them to take a deal on their terms or risk going to prison for a very long time."

Bertholf said giving some offenders the option of probation and treatment is a better alternative to mandatory sentencing.

"If they violate the rules of their probation, then they will go to prison," Bertholf said. "Many of these people, especially the ones sentenced under Measure 57, are drug-involved and would respond to treatment. And treatment is a helluva lot cheaper than building more prisons."

Rogers pointed to recent polling done by his group that suggests public opinion on mass incarceration is beginning to shift. They found that people responded well to the idea of allowing offenders to receive reduced sentences if they finish treatment and education programs in prison and allowing judges to use discretion in some current Measure 11 crimes.

"People also just don't see the benefit of doubling the prison costs," Rogers said.

The sentencing reform being considered by the Legislature is one of the increasingly few areas in which Republicans and Democrats are willing to work together, Hicks said.

He said portions of HB 3194 have real hopes of being approved by the Legislature.

It would provide $40 million in state grants dedicated to local law enforcement and drug courts for treatment. It also would maintain the current service level for state parole and probation services.

The money would come from money saved through some of the sentencing reforms being considered in Salem. Hicks, however, cautions that those reforms may not come from altering Measure 11 in any meaningful way.

"We don't want to build a new prison," Hicks said. "But we do want to hold people accountable for their crimes."

Reach reporter Chris Conrad at 541-776-4471 or cconrad@mailtribune.com.



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