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.
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.
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.
During the 2019 Oregon legislative session, most Democratic lawmakers (not Sen. Betsy Johnson or Rep. Brad Witt or Rep. Jeff Barker) along with four Republicans (bribed with special projects for their districts) voted to erase the vote of 74% of Oregonians. Those Oregonians, in 2000, reaffirmed the part of Measure 11, a sentencing bill first passed in 1994, that holds older teenagers accountable, making "adult time for adult crime."
Measure 11 applies only to the violent crimes of murder, manslaughter, rape, robbery, and kidnapping. Since the legislature's vote in 2019, not one person under the age of 19 has been "bound over" as an adult for murder.
Not even for the robbery and murder of 18-year-old Ian Olson. Olson's killer was 15 at the time (he's now 17). Shooting Ian Olson in the head was the culmination of a two-month binge of violent assaults, a dozen of them. The killer will remain in the juvenile system. Under no circumstances can he be held past the age of 25. He has no record, for in fact he was never "convicted."
Based on my experience, under Measure 11 the most likely outcome would have been that the young attacker would plead to First Degree Manslaughter, be sentenced to 10 years, and serve all that time in the Oregon Youth Authority, not in an adult prison. Now, he will have no record whatsoever. There will be no permanent record of him having been "adjudicated". When he is released, he can truthfully answer "No" when asked, "Have you ever been convicted of a felony?"
In a Eugene case, where a 16-year-old beat a sleeping homeless man to death, an even greater injustice is possible. According to a report by Noelle Crombie in the Oregonian: "State officials this week said Kirkpatrick [who has been charged with murder] is subject to a legal loophole that could have implications for his sentence if he is found guilty. By law, the Oregon Youth Authority is allowed to lock up offenders who are sentenced before they turn 19. if Kirkpatrick is found guilty and is sentenced after age 19, he is only eligible for probation. He turns 19 later this year."
These cases are difficult for journalists to cover. Court records, even arraignments, are not public, though the actual proceedings must be. A case involving a juvenile is reported on only when the reporter discovers the date and location of a court hearing, or learns about it from the victim's family. Otherwise, the crime and its perpetrator become the tree that makes no sound because it fell when nobody was around to hear.
What's next in the dismantling of the people's vote? The wholesale abolition of Measure 11 as it applies to adults. Convicted of murder, a person would likely spend only eight years in prison, instead of 25. A man convicted of violent rape or rape of a child (Rape in the First Degree), instead of an eight-year sentence currently, could (and sometimes did before Measure 11 was enacted) get probation.
This isn't justice. It's worth contacting your legislator and telling them to abide by the people's repeated votes.
Even I have been reluctant to criticize other prosecutors, since there are often other issues of which observers are ignorant.
But the malfeasance and dishonesty of the new District Attorney in Portland, Mike Schmidt, demands comment. The producers at KOIN said there was too much fear about speaking out, and that nobody else was willing to go on air and say what I did on the record.
Schmidt worked less than five years as a junior prosecutor in Portland before taking a series of jobs in the state bureaucracy. He was elected by a wide margin in May, with only a 47% voter turnout, and was scheduled to take office in January. Schmidt's predecessor, Rod Underhill, had endorsed Schmidt's opponent and abandoned his post early, likely so that he wouldn't be associated with Schmidt's positions.
Schmidt had converted to George Soros-like dogma which calls for DAs not to prosecute many crimes. He has already announced a long list of crimes, even felonies, that he won't prosecute. He's refused to file charges in over 90% of the arrests made of rioters in Portland over the last 3 months.
My quotes from KOIN's November 1 story ::
“If the prosecutor decides there will be no justice, there will be no justice”
JOSHUA MARQUIS on
criminal justice, animal welfare, and the nature of the relationship between popular culture and the law.
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