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Path to a second chance

Torture attack sent Portland teen to jail; Oregon criminal justice reform got him and others out

Wearing a pin-striped suit and pink tie, Blue Kalmbach looked nothing like the sullen, swoop-haired 15-year-old who carved a swastika into the forehead of a fellow teen in a Southeast Portland shed in February 2014.

Kalmbach and two accomplices also beat the boy and fired a pellet gun at his chest, finger and groin. Then they stole his iPod.

The crime earned Kalmbach an 11-year sentence and drew banner headlines at the time after a judge condemned him for committing “unthinkable” torture.

Kalmbach’s return to the Multnomah County Central Courthouse on Oct. 7 this fall drew notice mostly from his family, a small circle of legal advocates and prosecutors.

Under a new Oregon law that created additional paths to a second chance, an attorney for Kalmbach, now 24, worked with the Multnomah County District Attorney’s Office to resentence him, shaving two-plus years off Kalmbach’s punishment. Authorities released him that day, sparing him from adult prison when he turned 25.

The law, which took effect in January, allows district attorneys and people convicted of felonies to jointly petition judges for reconsideration of their cases. A judge who agrees can reduce a person’s sentence, swap their charges with lesser ones or erase convictions outright, springing people from jail immediately in some cases or opening new opportunities not available to people with serious felonies in others.

Previously, people with criminal convictions could expunge charges through the courts only if they were misdemeanors or minor felonies, or they could petition the governor for clemency.

Kalmbach is one of at least 70 people across Oregon who have been granted second chances or are awaiting them with a prosecutor’s blessing, a review by The Oregonian/OregonLive found.

Only some of Oregon’s 36 elected district attorneys have embraced the new law created by 2021′s Senate Bill 819. Crime victims and their families have likewise mixed feelings.

Kelli Murrain, the mother of the teen Kalmbach attacked, said her son’s scar eventually healed but he never regained his happy-go-lucky childhood.

“He’s had a lot of trauma in his life and he didn’t deserve it,” she said. “My forgiveness is real slow to happen. I’m not sure it ever will.”

Beyond clemency

In recent years, Oregon lawmakers and voters have approved numerous measures with a more rehabilitative approach to crime and punishment, but some of the rules aren’t retroactive.

Aliza Kaplan, director of the Criminal Justice Reform Clinic at Lewis & Clark Law School and a staunch advocate for progressive changes to the state’s criminal justice system, crafted SB 819 to bridge the gap, applying Oregon’s new attitude to older offenses.

“When district attorneys believe that somebody has done everything right and are safe in the community, they can help someone move forward in their life,” said Kaplan. “For folks inside prison, and outside, it’s a mechanism that can create hope.”

The bill won limited Republican support in the state Senate and House. Gov.-elect Tina Kotek, then House speaker, didn’t vote on the measure, which passed on party lines. Reached Monday, a spokesperson for Kotek did not explain by Wednesday why Kotek skipped the vote.

District attorneys aren’t required to participate in the new push, and the state association that represents them stayed neutral on the legislation, which was modeled after similar efforts in California and Washington.

Victim advocates also didn’t choose sides in the debate, although the Oregon Crime Victims Law Center lobbied to require victims be notified before prosecutors pursued second chances. The final version of the bill, which required only “reasonable” efforts to contact victims 30 days before a hearing, is still inadequate, said Rosemary Brewer, the center’s executive director.

It’s unclear precisely how many SB 819 reviews have happened, as state recordkeepers say individual courts haven’t consistently tracked the hearings. The Oregonian/OregonLive requested the number from each of the state’s district attorneys, though only 21 responded.

Criminal justice reform advocate Aliza Kaplan’s office is stacked with letters from Oregon inmates. December 2021 Beth Nakamura/Staff

Statewide, the majority of the cases come from people who have already completed their sentences — sometimes decades ago — but still face barriers to employment, education or housing because of non-expungeable felony convictions.

Of the confirmed 71 reviews on file so far, more than half were submitted in Multnomah, Lane, or Wasco counties, while 10 largely rural counties said they either hadn’t received or hadn’t submitted any.

Local approach

Multnomah County District Attorney Mike Schmidt appears to be the only elected prosecutor in the state tackling the most serious and potentially politically fraught petitions for reconsideration.

Multnomah County judges have approved nine petitions from Schmidt’s office, with an additional three pending. A small number of those have returned people convicted of violent crimes to the community before the end of their sentences.

Among those freed are Angelo Luster, now 22, one of the so-called “Tracksuit Bandits” who was convicted of an armed robbery spree in 2018 and was sentenced to a little over eight years in prison. He got out four years early.

Agustin Estrada Vargas, now 24, participated in a tire-iron assault outside a Gresham fast food joint in 2015. A judge sentenced him to 8½ years in prison. He got out in May.

Another is Malique Kinnerly-Hicks, now 22, who was convicted of manslaughter in 2018 after his friend fatally shot Shawn Scott Jr. as they tried to rob him of a Louis Vuitton belt in Northeast Portland’s Holladay Park. Kinnerly-Hicks, sentenced to 7½ years in prison, cited his role as a father as a reason to turn his life around when a judge released him last month.

“I will be the best dad to my daughter, and I will keep Shawn’s memory alive in my mind and my heart for the rest of my life,” he told the court.

As in Kalmbach’s case, prosecutors said each of the young men had accepted responsibility for their crimes, demonstrated good behavior and worked to rehabilitate themselves behind bars. They pointed to Senate Bill 1008 — a 2019 law that prevents youth offenders from automatically being tried as adults — as a sign that the cases would be handled differently today. The law wasn’t retroactive.

Schmidt funnels the work to his Justice Integrity Unit, which launched last year under a former criminal defense lawyer who lasted about a month. It’s now led by Deputy District Attorney Kelley Rhoades, a 13-year veteran of the DA’s office.

“The system hasn’t done a good job of recognizing that people are capable of change, especially with our young,” Rhoades said. “Neuroscience shows that your brain isn’t even developed at that point.”

Not every case involves those currently in custody.

Terrence Hayes spent nearly 13 years in state prison after he shot and wounded a Portland man in 2004 when he was 20, in retaliation for a shooting that wounded Hayes and his friends earlier that year.

After his release, Hayes found faith, got married and became CEO of a small firm that removes graffiti for the city.

But he still faced barriers during background checks, including a $300 rent increase from a landlord who found out about his attempted murder conviction, Hayes recalled.

“I didn’t need 819 to do the work I’m doing,” said Hayes, now 39. “I needed it to give me opportunities that the system has stopped me from having — housing, credit, business ownership and growth.”

In April, Hayes became the first successful petitioner in Multnomah County, when Judge Melvin Oden-Orr vacated all of Hayes’ convictions so all charges are now listed in court records as dismissed.

Another petition came from Kyle Colleen Black, a Portland woman who was convicted in 1996 of bludgeoning her grandmother to death with a hammer to collect an inheritance while in the throes of alcoholism.

The parole board determined Black completed her 25-year sentence in January, but the now 57-year-old remained in prison to serve two more years for a separate aggravated theft after she embezzled $40,000 from an appliance store. Prosecutors and Black’s lawyers said the consecutive sentence was excessive.

Her punishment ended Oct. 11 after Oden-Orr heard testimony that Black had become a model prisoner who had been given a special role as a mentor to prisoners in solitary confinement.

“I want everyone to know that sorry has a look,” Black said. “The hope of changing is real.”

Stances vary

Many district attorneys outside Multnomah County draw a hard line on homicides, child abuse and violent felonies.

Ten prosecutors told The Oregonian/OregonLive they hadn’t found a single petition worthy of sending to a judge.

“To be honest, it’s just bad guys who don’t want to do their time,” said Baker County District Attorney Greg Baxter, who hasn’t forwarded any resentencing petitions from his eastern Oregon office.

Tillamook County District Attorney William Porter put it even more bluntly: “I do not entertain SB 819 petitions.”

The law-and-order prosecutors in Portland’s suburbs have used the new measure, but cautiously.

Clackamas County has reviewed 70 petitions and approved three of them, while Washington County has reviewed 71 petitions and approved two, with an additional four pending, officials said. The cases involved crimes that had happened long ago but couldn’t be expunged.

“We haven’t seen any compelling reason to second-guess a sentence that is currently being served,” said Chris Owen, chief deputy district attorney for Clackamas County.

In contrast, Multnomah County prosecutors have submitted 12 petitions — after reviewing about 60 petitions of the more than 300 drafted by prisoners and the formerly incarcerated.

Washington County District Attorney Kevin Barton said the state’s previous methods for granting leniency were adequate. Ultimately, he said prosecutors needed to do the sentencing math right the first time.

“I see it as one more tool in my tool belt,” Barton said of the new law. “Is it a super important tool? No, but it’s something that can be helpful.”

In Lane County, District Attorney Patricia Perlow has fast-tracked more petitions than any of the state’s most populous counties. They include some that cut sentences for people in custody.

Lane County Chief Deputy District Attorney Christopher Parosa said 16 petitions had cleared his review and been filed in court, with 11 approved by a judge. His explanation: The district attorney’s office pursued harsh punishments for offenses like first-degree burglary or identity theft as recently as a decade ago.

“If you committed a series of property crimes, it was not uncommon for us to send you to the Department of Corrections for as much as 20 years. That’s not what was happening around the state,” he said. “You would get maybe five years.”

Wasco County District Attorney Matthew Ellis, who won office in May 2020, is also giving the new law a warm embrace, using it to sometimes review cases that happened under his scandal-plagued predecessor.

A committee that his office convened has unanimously approved 10 petitions, including those of three teens who were charged and convicted of beating and robbing a fellow youth in an alleyway in The Dalles in 2018. Two of the teens were released two years early, Ellis said, with the third case pending.

“These are people who have been legitimately rehabilitated or have been over-sentenced in the past,” said Ellis.

A new journey

Back in the Multnomah County courtroom on Oct. 7, Kalmbach’s supporters told Judge Oden-Orr that the young man had completed essentially every rehabilitative program in the book, earning a high school diploma, college credits and numerous job certifications in custody.

His streak of exemplary behavior for six-plus years is believed to be the longest on record at the Oregon Youth Authority, according to his lawyer, Natalie Hollabaugh Johnstone.

“He is the first to admit that no part of his conduct was acceptable,” she said in court.

The young man served nearly nine years of his 11-year sentence, but was months away from a transfer to state prison, where he would have been placed among a “significantly more criminalized population,” said Rhoades, the deputy district attorney.

Kalmbach told the court he planned to “take it slow” after his release. He wanted to work as a barber using the license he earned in juvenile detention.

“I feel ashamed that I had to go through this experience,” Kalmbach said. “But I have learned that the possibilities are limitless.”

Oden-Orr then dismissed his kidnapping conviction and reduced his punishment for second-degree assault to time served.

In a few hours, Kalmbach would be free.

“This is not the end of his journey,” Oden-Orr said. “This is the beginning of the next phase.”