Opinion: Bill to ease expungements shifts burden onto victims, prosecutors
by Guest Columnist Joshua Marquis
Updated May 05, 11:34 AM; Posted May 05, 6:00 AM
In an April 21 op-ed, Multnomah County District Attorney Mike Schmidt joined the head of the Metropolitan Public Defender in support of making it even easier to erase criminal records and convictions – even those involving felonies and violence to people (“Ease expungement of past crimes and help people gain second chances”).
The two write that the further erasure of criminal convictions is needed to allow “loved ones, friends, and neighbors … to move on from their past mistakes.”
What is telling from their quote is that they view the felons – not the victims – as their loved ones and neighbors. Those victims, who usually are appalled to find the crime against them erased from the perpetrators’ records, are by considerable proportion women, children, the poor and people of color.
Oregon’s law on “expungement” has been around a long time. The original, and worthy, intent was to allow people who had committed lower-level crimes, but otherwise had conducted themselves lawfully, to have the single stain on their record erased by a judge if they had no further arrests in the subsequent three years. I am very familiar with the process, having worked primarily as a prosecutor but also as a defense attorney for four decades. The law typically allowed crimes like shoplifting, vandalism, bad checks and possession of drugs to be erased.
But there has been “system creep” through the actions of criminal defense lawyers, their allies in the Legislature and now a district attorney who speaks like a public defender. Since those halcyon days, the ability to erase convictions after a certain number of years has extended to felony assault, virtually all drug crime – including major drug trafficking – and crimes like perjury, tampering with a witness and coercion (which often involves threatening violence to a witness to ensure they don’t testify). Arrests without conviction have always been eligible for erasure, even for murder.
Senate Bill 397, which Schmidt and his co-author, Carl Macpherson, support, would make the permanent erasure of past crimes even easier by shortening waiting periods for people to erase certain convictions and cutting fees.
It would also completely shift the burden to prosecutors and victims to prove why, for example, a man convicted of beating two girlfriends should have his record erased. The language changes are subtle, but seismic.
Currently, it’s up to judges to determine whether applicants’ behavior in the years since their conviction merits granting the expungement. But under this bill, the court must grant a request for expungement to eligible applicants unless “the court makes written findings, by clear and convincing evidence, that the circumstances and behavior of the person … do not warrant granting the motion due to the circumstances and behavior creating a risk to public safety.”
This is an upside down world, where victims are suspects and criminals are heroes. Burglaries are now eligible for extinction, as are – despite claims to the contrary – virtually all gun felonies, from a convicted felon in possession of a firearm to unlawful use of a firearm.
To get a real-life example of how the law already is too lax, we need only look at cases like that of convicted murderer Joel Terence Abbott. In 1993 Abbott was convicted of murdering his once-girlfriend, Carolann Payne. That wasn’t the first time he hurt her – he was convicted in the mid 1980s of felony assault after stabbing her. But he had that conviction expunged, meaning in the eyes of the law, it never happened. Unfortunately, while his record was erased, his violent ways were not.
Marquis retired as Clatsop County district attorney in 2019 after 25 years in office. He is a past president of the Oregon District Attorneys Association and previously served on the Oregon Criminal Justice Commission. He lives in Astoria.
One of the least-noticed effects of COVID isolation has been the lack of public mourning for people who have died over these past months, whether or not the pandemic played any role in their demise.
I just found out that Thane Tienson, a prominent Portland attorney who came from Astoria and never forgot his home, died suddenly at the age of 74. Thane was a robust and well-met fellow who made an impact on Oregon, the law, and Astoria.
Like too many others during these plague times, he will be missed.
I also learned, only through references in social media, that long-time coast TV journalist Dave Pastor died a few months ago.
These trees did make a sound, even if nobody heard them fall in the forest of our lives.
The Oregonian is running a ceaseless (and thus far unrebutted) war on what is left of Measure 11, re-passed by 75% of Oregon voters in 2000. The most recent piece is by a young man who is just finishing 17 years for a double manslaughter following previous violent felony convictions.
My response, originally accepted by the newspaper, "timed out" because there are more anti-victims op-eds slated for publication. So, here it is for you. ::::
Thirty years ago Oregon’s violent crime rates were skyrocketing. Murders in the state’s most populous county were at an all-time high. Prison sentences were irrelevant; dangerous offenders cycled in and out of prison.
Then citizens – not politicians or prosecutors – forged Ballot Measure 11. This law gave real time for real crime – eight years for armed robbery with a gun where the victim is injured, eight years for the rape of a child, 25 years for intentional murder. Measure 11 laid out minimum mandatory sentences for the worst crimes – regardless of the race or class of the offender.
Now a chorus of felons, defense attorneys and social justice activists are clamoring to return to the days when a “20-year sentence” might only really mean eight months.
Citizen support for Measure 11 has remained solid. When it first passed in 1994, it won with 64 percent. In 2000, opponents attempted to repeal it Measure 94. Voters said no by a three-to-one margin.
Measure 11’s foes now are trying to side-step voters by going to the legislature. Twice in the past, legislators have chipped away at the law. Legislators are always looking to save money in one place to spend somewhere else. Minimum-mandatory prison sentences have been a convenient target. Many victims of violent crime are from the lower socio-economic classes. They don’t have well-financed lobbyists.
In the 2021 legislative session expect to see and hear more stories like the one offered by multiple-felon Martin Lockett a few weeks ago in the Oregonian. Lockett opposes Measure 11, but he is an excellent example of why this law works.
Lockett earned a 17-year sentence for robbery and the manslaughter of two people in 2003. The judge was required only to give him a single 7-½ year sentence for the manslaughters but gave him a longer sentence because of his prior felonies and the heinous nature of his new conviction. Even Lockett conceded he was no stranger to the law. He had already been given second chances for previous crimes and was on probation.
He offered a well-worn excuse for killing two people, saying he “turned over a new leaf – until my troubled relationship with alcohol led me into the most catastrophic mistake one can make while intoxicated.”
Under Measure 11, Lockett could no longer act like a passive actor being led astray.
The substantial sentence he received undoubtedly had a sobering effect on him. It forced him to realize that if he did not change, he would likely spend the rest of his life in and out of a cell. While in prison, he earned a master’s degree and developed new habits.
Now that he will be released from Deer Ridge in June, he displays arrogance when he talks about what he learned while in prison: “My transformation was solely of my own doing, not because any mechanism in the system aided or encouraged it.”
What we know with certainty is that while Lockett was in prison, he did not kill or rob again. He did not hurt anyone in the general public. If his past is any indication, had there been no Measure 11 he would have once again paroled quickly and resumed his bad habits.
Lockett is proud of how progressive Oregon can be and hopes it will end Measure 11. When he is finally released, perhaps he can take a stroll through downtown Portland. He may be surprised at what justice can look like with a progressive District Attorney, like Mike Schmidt.
I hope Lockett settles down into a law-abiding life. If he does, he may find a new appreciation for why Oregonians voted for Measure 11.
People’s tastes and values can change over decades. Mink have an almost unique susceptibility to COVID-19, getting it from and spreading it to humans. Mink farming is an industry whose day is done. Animal Wellness Action encourages the buyout of mink farms.
Guest column for The Astorian
January 15, 2021
"The time for mink farms has passed"
Contagious not just to people, COVID-19 is devastating captive mink populations across the world.
Prominent veterinarians and scientists believe mink are almost uniquely capable of animal to human transmission. There is even concern that such transmission could create a mutant strain of COVID that would be resistant to the vaccine.
Clatsop County is home to two mink farms, both legal businesses.
The Oregon Department of Agriculture disclosed that a mink farm was placed in quarantine in November after a farmer and several mink tested positive for the virus. The state has not publicly disclosed the location of the farm, citing medical privacy reasons.
While the state veterinarian said there was “no evidence that SARS-CoV-2 is in circulation or has been established in the wild,” others pointed out that makes it appear infected mink escaped.
In December, The New York Times reported on the extraordinary events related to mink farming and COVID-19 cases from Denmark: “Not only are mink the only nonhuman animal known to become severely ill and die from the virus, they are the only animal known to have caught the virus from humans and then passed it back. What terrified Danish officials was that the virus that jumped back to people carried mutations that seemed as if they might affect how well vaccines work, although that worry has faded.”
In response to a series of outbreaks from Denmark to Greece to Lithuania, European countries have conducted mass slaughters of thousands of the animals, with an astonishing 17 million mink killed in Denmark alone.
The Netherlands has taken it a step further. There, the government has banned all fur farming effective in March. While concerns over animal cruelty were factors in the original discussion, the impetus for the expedited action was the concern about mink farms becoming superspreader venues.
The concerns about mink farming and COVID-19 warrants immediate action in the U.S., just as we’ve seen in Europe. But even without that perilous circumstance, there are plenty of good reasons to ban fur farming. It is an outdated business, much like ivory harvesting, Styrofoam packaging and cigarette advertising.
As we are told in a widely accepted text of spiritual wisdom, “For everything there is a season.” For our health and out of respect for the nearly universal aversion to animal cruelty, government should begin a buyout of all mink farms, fairly compensating the breeders and permanently ending the practice. This process has been used in other parts of the world to discourage farmers of plants like coca and poppies that are easily made into cocaine and heroin.
The world is replete with examples of past practices considered commonplace, if considered at all, that for reasons relating to health, the environment or changing sensitivities, are simply no longer appropriate. There is no need to engage in moral virtue signaling, either by condemning those who wear mink, or by refusing to acknowledge that mink farming has been a legal industry.
As Wayne Pacelle, president of the Center for a Humane Economy notes, “Minks are superspreaders of this virus. They are also wild animals, and they don’t belong jammed in cages on factory farms.”
Joshua Marquis, a former Clatsop County district attorney, is director of legal affairs for Animal Wellness Action.
Guest Column: Former district attorney says don't change Measure 11
Bend Bulletin, Nov 24, 2020
In a Nov. 12 editorial, The Bulletin’s editorial board claimed that mandatory sentencing for the most violent felonies was “ripe for change,” and that “people have been looking at the ways Measure 11 can get things wrong.”
These are not new arguments. Measure 11 passed first in 1994 by 65% of voters, then was reaffirmed in 2000 when 73% rejected repeal. It mandates a five-year sentence for child molesters, eight for violent rape, 10 for first degree manslaughter, and 25 years for murder. Measure 11 does not apply to whatever drug crimes exist, or burglary, or even the lower felony levels of assault and rape.
Long-time Measure 11 foe Sen. Floyd Prozanski, cited by The Bulletin’s editorial, is one of the usual suspects who for a quarter-century have been telling the vast majority of Oregonians they are wrong to vote for mandatory minimums.
This would be understandable if it were still 25 years ago. Even I didn’t endorse Measure 11 when it first came on the ballot in 1994, which coincided with my first year as an elected district attorney. But it wasn’t long before I came to realize what many understood: that without mandatory minimums, privilege and status often affected the sentence of a convicted person. Rapists of a certain socioeconomic class could and often enough did get away with probation only, and served no time at all. Some people I helped convict of murder in the 1980s and early 1990s would often serve only eight years on what was touted as a life sentence.
Eight years is not too much for the rape of a child. A cold-blooded, premeditated murderer deserves to serve at least 25 years, not a third of that.
There is no question that Measure 11 has lessened racial disparities in sentencing for the most severe and violent crimes. There is no evidence that it has increased conviction rates. What it has increased is accountability, and it’s for that very reason certain prosecutors like Deschutes DA John Hummel avoid charging under Measure 11.
They apparently prefer the old system, where who you knew helped decide your sentence, and victims had no rights.
The effort to “refashion” Measure 11 will come early in the 2021 legislative session and will be about repeal, not “adjustment.” The “presumptive sentencing” system The Bulletin’s editorial referred to simply set maximums, not minimums, and gave rise to the very inequities that drove support for Measure 11.
In 2019 the Legislature dismantled the portion of Measure 11 affecting juvenile sentencing late at night and as much in the dark as possible. They did not refer the measure to voters, as they should have. In 2021 they will again, late at night and with little or no public notice, gut what voters have resoundingly said twice what they want.
And if this isn’t bad enough, there will be promises that the changes “will only apply in the future.” They made the exact same claims when they gutted capital punishment in SB 1013, and now we are told it is retroactive.
Joshua Marquis was district attorney in Astoria from 1994-2018. He was chief deputy DA in Bend from 1990 to 1994.
JOSHUA MARQUIS on
criminal justice, animal welfare, and the nature of the relationship between popular culture and the law.
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