Don't be misled about efforts to abolish truth in sentencing
John Foote and Joshua Marquis
October 22 2020
West Linn Tidings
The dominant voices in the Democratic Party seek to overturn all the pro-victim rights measures that voters in Oregon and Clackamas County overwhelmingly voted into our state constitution.
As Oregon becomes an increasingly one-party state, it becomes even more important that legislators are as independent as possible. As long time Democrats and long term elected District Attorneys in Oregon, we are very concerned that the extremes of the Democratic Party have out-shouted more moderate voices on criminal justice in Oregon.
The dominant voices in the Democratic Party seek to overturn all the pro-victim rights measures that voters in Oregon and Clackamas County overwhelmingly voted into our state constitution. But West Linn/Tualatin Democratic State Representative Rachel Prusak, in her first term in the legislature, voted at every opportunity to choose criminals over victims.
She voted to repeal truth-in-sentencing laws and voted to functionally abolish capital punishment with her votes on SB 1008 and SB 1013 in 2019. She voted to cripple any possibility of a "true life" sentence for the worst murderers and voted to gut adult treatment for the most violent crimes committed by older teenagers.
Prusak has chosen to attack her challenger, West Linn native Kelly Sloop, for daring to raise questions about Prusak's extreme soft-on-crime voting record. Yet she displays either ignorance at what those votes meant, or she willfully voted to go easier on criminals, in deference to the current lords of her party.
Prusak claims that one of the worst murderers in recent history, Max Train Killer Jeremy Christian, is in fact serving a "true life" sentence. That is simply false.
We have both defended, and prosecuted capital (death penalty) murder cases. Because of Prusak and others, the death penalty possibility was yanked away in the middle of the Christian case.
Clackamas County voters remember what may be Oregon's worst murderer, Dayton Leroy Rodgers.
After being repeatedly sentenced to death for torturing and murdering seven women, yet if some trial level judge rules one his many lawyers fumbled at some point, and orders a new trial, then both the death penalty and "true life" are off the table. It is conceivable this butcher might actually be eligible for release on parole if that happens. Thanks, Representative Prusak...
Victims and their families, meanwhile, are left asking for justice for the crimes committed against them. Rachel Prusak and others have denied them justice in some of their darkest hours.
One need only look at months of violent rioting, arson, assault, even murder in downtown Portland to see what it looks like when government looks like when it abdicates to the mob. And when politicians like Rachel Prusak abdicate to the criminals over crime victims and their families, we all lose.
John Foote has served as Clackamas County district attorney since 2000. Joshua Marquis was Clatsop County district attorney from 1994-2018.
Before I quit the American Bar Association out of total frustration, I will concede they gave me ONE paragraph to articulate the support many of us in Oregon had for split verdicts. Split verdicts prevent a single rogue juror, who may be prejudiced against a victim because they are gay, a person of color, or a woman, or Catholic, from issuing a just verdict.
Joshua Marquis, a former prosecutor and criminal defense attorney, was one of the most vocal supporters of split verdicts in Oregon. He notes that the split verdicts rule not only allows jurors to vote to convict but also to acquit. Despite Ramos, the law is still unsettled on that matter, he says.
I've written a scholarly piece about non-unanimous verdicts, which I'll post soon.
excerpt from :
ABA Journal, "Oregon and Louisiana grapple with past criminal convictions made with split verdicts," Matt Reynolds, October 1, 2020.
Portland Tribune, August 12, 2020
Joshua Marquis and Emily Ahyou
'We should expect companies like Nike ... to adapt and end their role in driving the slaughter of kangaroos.'
Some older runners may recall a time when kangaroo skin was used in some running shoes, but are surprised to learn that, while greatly diminished, the practice still exists. A number of footwear giants, most significantly including Oregon's own Nike, the iconic brand founded by Phil Knight and Bill Bowerman. But Nike isn't alone in this reprehensible practice. Adidas, New Balance and Puma are among a dozen companies still using "K-leather," particularly for soccer cleats.
Most of us find kangaroos charming. They're sociable boxers. The females carry their babies around in a pouch. They pose no threat to humans. The recent catastrophic fires in Australia called attention to these remarkable creatures, alerting the world to the effects of climate change and their fragile existence when their habitats are aflame.
Even before the fires raged, these iconic symbols of Australia were the victims of human callousness and cruelty. The government blesses an annual massacre, conducted by commercial hunters, of upwards of 2 million kangaroos per year. The hunting practices are ruthless, often occurring at night, with the hunters shining a light on the marsupials and trying to shoot them in the head. If the victim is female, and lactating, there's an additional casualty: a "joey" yanked from the pouch and decapitated or swung by the legs onto a rock to bash in its head.
Just as America protects the bald eagle, Australia must do better when it comes to kangaroos. The recent fires are a reminder of what's at stake.
The state of California has banned the sale of shoes containing kangaroo leather, but buyers can still find them. But most consumers remain largely unaware of their role in wildlife exploitation, since the athletic shoe industry doesn't often explicitly label its fabrics.
China has finally acknowledged that the rest of the world is repulsed by the dog-meat industry there, and we should expect companies like Nike, which highlight their social consciousness in advertising and as part of their corporate culture, to adapt and end their role in driving the slaughter of kangaroos. Nike and other companies already offer soccer cleats made from synthetic or plant-based fibers. There was a time when we slaughtered bison by the billions and hunted other species into extinction. That is an ugly era in our treatment of wildlife, and the kangaroo slaughter seems more than a little bit misplaced in the 21st century.
Corporate talk of sustainability and social consciousness must have practical features. Those representations fall flat when you consider the company is behind the largest mammalian slaughter of wildlife in their native habitats in the world.
The slaughter of kangaroos plays no legitimate role in Nike's corporate culture. It is instead something that any sane person or company would conceal and minimize. But in our era of global communications, there's no way to hide a body count of this scale.
It's time for Nike to blaze a humane path and help push the take the entire industry out of the business of mass wildlife killing.
Just do it.
Joshua Marquis is director of legal affairs for Animal Wellness Action and lives in Astoria. Emily AhYou is Oregon state director of Animal Wellness Action and lives in Clackamas.
3 / WHAT NEXT?
Things to look for in the 2021 regular Oregon legislative session:
The coup de grace to the rest of Measure 11.
Measure 11 no longer requires a two-thirds legislative majority, and the legislature will never refer it back to voters, who would very likely re-affirm the measure for the third time. Voters who have had a family member or a friend murdered know that there are some very bad people in Oregon, and we're all better off if they're kept away from us. Those very bad people can be released after serving only eight years of a supposed "life sentence." Eight years for killing somebody for no good reason.
Even worse, if only for sheer numbers, rapists and child molesters could get sentences as low as probation only, no prison. Even those sentenced to prison will likely be released within two years by Parole Boards, accountable to nobody but the Governor who appoints them, and hearing only information about how well the person is doing in the hyper-structured environment of the Oregon prison system.
Racial inequities in sentencing will start to rise again as judges, many appointed by Kate Brown, will be sympathetic to young men who are vouched for by their wealthy parents, school leaders, and clergy. Exactly the way the same groups of people rallied to save Randy Guzek, who butchered Rod and Lois Houser in their home at 3 a.m. in the summer of 1987.
But this time, it's likely to be worse than it was when many of us were younger and fired up by these injustices.
We are at a dark intersection of political correctness and overwhelming white guilt about racism that somehow translates into hatred of all law enforcement and a call to repeal 30 years of true reform that brought justice and even equity to many crime victims who, far out of proportion to their number, are women, children, and people of color.
2 / GUTTING THE DEATH PENALTY
After gutting Measure 11 (see Part 1), next up was Oregon's death penalty, in existence in its present form by two popular votes, first in 1977, then again in 1984.
In its extreme confusion, SB 1013 was either the worst bill ever drafted or a brilliantly worded time bomb intended to destroy Oregon's death penalty. Led by now politically radioactive Jennifer Williamson (who at the time thought she could have her pick of Secretary of State or Attorney General), Williamson knew she'd never get the two-thirds majority to overturn the vote of the people. She had a new plan. In theory she would technically amend and greatly limiting capital punishment. In reality, her goal was to cripple the death penalty, limiting it to circumstances that were unlikely to ever occur.
Murdering a judge or juror is no longer a capital crime. Nor is killing four people as part of a family slaughter. The new law allows prosecution for terrorist murders, but only if the terrorists are part of an organized group, like Al Qaeda, and kill two or more people. Under this new definition, Timothy McVeigh wouldn't qualify for capital murder. Nor Anthony Garner, whom I convicted in 2002 of torturing a woman to death, his second murder conviction.
In fact, of the 34 people on Oregon's death row, only three would be eligible under the new rules.
Filed at the last minute, SB 1013 received little attention or discussion. Concerns that the bill would be retroactive were met with on-the-record assurances by both Williamson and Solicitor General Ben Gutman that the bill absolutely was not.
The bill didn't reach a vote until ten days before sine die. It passed the House 33 to 26. A week later, on June 29, just two days before the session ended, SB 1013 passed the Senate by a 17 to 10 vote. It was signed gleefully by the Governor in a private, invitation only ceremony, attended by legislators who engineered it and leading opponents of capital punishment.
Senators voting NO: Baertschiger Jr, Bentz, Boles, Hansell, Heard, Johnson, Knopp, Olsen, Thatcher, Thomsen
Representatives voting NO: Barker, Barreto, Boles, Bonham, Boshart Davis, Clem, Drazan, Evans, Findley, Hayden, Helt, Leif, Lewis, McKeown, Meek, Mitchell, Nearman, Post, Reschke, Smith DB, Smith G, Sprenger, Wallan, Wilson, Witt, Zika
THEN things started getting interesting. Just a month later, in July 2020, the Oregonian's Noelle Crombie reported that despite specific assurances from, Ben Gutman, AG Ellen Rosenblum's top lawyer, and assurances from the bill's sponsor, Jennifer Williamson, the law, now part of state code, was in fact retroactive. Any of the 30-odd people on death row could seek to overturn their death sentence decades after their convictions.
Since several of the murderers were convicted before 1991, there was no "life without parole" option. A new hearing could immediately release them from prison. Randy Guzek, for example, was sentenced to death by four different juries, had already served 32 years, and could conceivably walk out of prison.
There was great gnashing of teeth and rending of garments. Even the Oregonian's editorial board, which was now opposing capital punishment after of supporting it, called for a Special Session.
Several prominent lawmakers wrung their hands. In late August Gov. Kate Brown said she would call a Special Session to fix this injustice.
It never happened.
Special Sessions are being called almost monthly now. But in the midst of a closed Capitol and COVID-19, there just wasn't the time or energy to fix their "little mistake."
JOSHUA MARQUIS on
criminal justice and the nature of the relationship between popular culture and the law.
See the Archives page for posts prior to January 2019.