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.
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.
1 / GUTTING MEASURE 11
The vile duplicity headed by Speaker Kotek, abetted by catatonic Uncle Peter and until recently orchestrated by Jennifer Williamson, is truly disturbing. All the worse because the Oregonian, OPB and other of the larger news mediums either fail to cover their actions or have adopted such obviously biased and "woke" narratives that it would be funny if it weren't so serious.
First were massive changes to criminal sentencing very late in the session and all pre-cooked.
Measure 11 was first passed by a citizen-based group without either the endorsement or the opposition of the state's DAs. It was under constant assault for six years, culminating in Measure 94, led by many major lights who like to call themselves "progressives" (the usual suspects, including Floyd Prozanski, Joann Hardesty, Bowman, Chip Shields, etc), who put together a slick and well-funded campaign in 2000. This time most DAs, myself among the most outspoken, pushed back hard. We even got different reporters and editors (than now) to do a story about how many of the "real scenarios" supposedly showcasing terrible injustice under M11 were in fact either totally made up, or from other states with different laws.
Measure 94 was defeated by a massive 3 to 1 margin -- 73% to 27%, a fact NEVER mentioned in today's stories that seek to tie the measure to as distant a past as possible and assign to Kevin Mannix all credit and blame.
Measure 11 automatically "remanded" juvenile killers and rapists into adult court. If the offender was 17 when convicted, they could serve their entire sentence at the Oregon Youth Authority and never see the inside of the State Prison. There were two exceptions -- one for manslaughter in the first degree, for which the juvenile would be sentenced a minimum of 10 years; and one for murder, with a minimum sentence of 25 years. Either of those two convictions would eventually send the 17-year-old to State Prison.
The law also went a long way toward erasing racial and economic inequities. White, upper-middle-class judges had previously been far more willing to grant probation to someone who looked like their son than to the poor Hispanic convicted of the same serious felony.
Oh, and crime plummeted under M-11 at rates even higher than other parts of America.
Capital punishment, while always controversial, was used exceedingly sparingly by prosecutors and even more so by juries. Oregon's small death row was overwhelmingly white and male (with only one woman on it). I I prosecuted at least 10 potential capital murders, sought death in only two cases, and received a jury verdict of death for one defendant, Randy Guzek (at each of three separate trials).
Now, move to the 2019 session. No more Hardy Myers as AG to advocate for victims. The Oregon Police Chiefs (OACP) and Sheriffs (OSSA) completely sold out in exchange for big salaries and anti-police union legislation. Oregon District Attorneys' (ODAA) "leadership" simply avoided all controversy.
The legislature scheduled "Invited Testimony Only" hearings, packed with the same opponents to Measure 11 as 20 years ago, this time concentrating on the juvenile aspect. There was virtually no real debate. I watched every minute of the hearings, the debate and the vote.
The legislature needed a two-thirds majority to change the constitution. So, in exchange for the exact number of votes needed to overturn M-11, Kotek, Courtney, et.al. promised four GOP legislators from rural Oregon various gifts on the infamous Christmas Tree bill.
In a stunning "Please don't throw me in the briar patch" speech, GOP leader Mike McLane (R-District 55) appeared to deliberately throw the vote. He gave the vaguest of lip service to "what the ODAA wanted," a phrase calculated to inflame legislators who loathed DAs.
McLane didn't vote for the repeal, but he guided in the missile and delivered the coup de grace. McLane resigned his House seat just days later, in July 2019, after five terms, to accept an appointment by Gov. Brown to Circuit Court Judge for Crook and Jefferson counties. Records show McLane was exempted from the usual application process, so didn't have to compete with those who actually filed and were interviewed. Coincidence?
The whole debate was a farce. Kotek and Williamson had pre-purchased four Republicans, all from districts that had reaffirmed by 4 to 1 or greater their constituents' support for Measure 11, putting a quick end to the 25-year-old reform measure. Yes, Measure 11 was a reform, a leveling of the field, a truth in sentencing measure that gave victims a seat at the table.
With M-11 was toast, because much of the constitutional amendment had been "broken" by a two-thirds vote, most legal scholars, myself, believe that the adult part of Measure 11 -- which requires rapists actually serve 8 years, child molesters serve 5, and murderers serve 25 -- can be killed off by a simple majority vote in the 2021 session. If not sooner, given this legislature's zeal to expand one-day special sessions to settle old political scores.
PART 2 : GUTTING THE DEATH PENALTY
Mary Ann Murk, an attorney in Astoria, Oregon, is probably the best and savviest advocate a person facing a mental commitment could have. She writes honestly about the cruelty that some allegedly mentally ill persons are subjected to, and the costs of and emotional burden to the law enforcement officers charged with finding some place for the person to land. These people haven’t been charged with a crime. Their victims are often family members who want them to get help, not spend time in jail.
Oregon’s law on allegedly mentally ill persons (colloquially known as AMIPs) has nothing to do with legal insanity or being unfit to stand for trial. The mental commitment process isn’t part of the criminal code. It’s an attempt to provide a constitutional structure for people suffering such severe mental illness that they pose an immediate physical threat to themselves or others, or who won’t provide for such a basic need as eating.
These cases are heartbreaking. They are usually brought by concerned family members, rarely by the cops, never by the district attorney’s office. Here’s a fairly typical example:
A family member repeatedly calls Clatsop Behavioral Healthcare (CBH) because their adult son is convinced outside governments are communicating with him through microwaves that only he can hear. One day he threatens to blow up a local government building to stop the voices. He yells, screams, takes out the kitchen knives and begins cutting himself.
A crime hasn’t been committed. The police won’t engage, even if the family says they’re afraid of what the son might do. CBH will send one or two case workers to assess the situation and write a report. If they believe the son meets the qualifications, CBH will apply to the court for an order. If the judge believes the person qualifies under Oregon law, she will sign a warrant of detention. At this point the sheriff’s office is delegated the responsibility of transporting the person to whatever mental hospital between Coos Bay and the Idaho border is available.
Let’s say the person is “decompensating” -- falling apart -- in a store. Making a terrible and frightening scene but not destroying any property. The store is likely to call the police. The police will likely come to ensure a crime hasn’t taken place. This is one of the social services we’ve come to expect the police to provide. They will try to “de-escalate,” or calm down, the person, and possibly suggest he leave the store. Police are trained in de-escalation. The officer is there to make sure no one is getting hurt and that the guy doesn’t have a weapon. Once the officer has assured that, she will call CBH to have that agency come and assess the person. Often CBH doesn’t or can’t immediately respond, so the officer has to stay around to make sure the person is safe and that the situation doesn’t escalate. If the officer can articulate an imminent danger, she can hold the person temporarily, usually in the back of the police car, until CBH arrives.
There are many scenarios. Some are worse -- for everyone -- than others. The important point here is that police don’t investigate and make judgments about mental illness. Mental health workers do. The budget of CBH is larger than the sheriff’s office and the district attorney’s office combined. (All CBH funding comes from the state and some federal sources.) And yet we definitely need more funding for mental health. We also need the police, and probably more funding for them, at least in Astoria. I can guarantee you that if a family member calls CBH and says their son has lost his mind and is waving a butcher knife around, CBH is going to call the police, and wait for officers to respond before going in themselves. (That’s one other reason why officers wear 40-pound vests: to prevent themselves from being stabbed in the chest.)
No mental health facility for those who need temporary commitment is available anywhere on the north coast. Semi-independent housing was closed years ago. Drop-in crisis services have been dramatically reduced. Neither our hospitals nor our jail have a room for people whose primary issue is acute mental illness (despite years of attempting to convince both CMH and Providence Seaside to do so.) The Oregon State Hospital was massively downsized over a decade ago. The only options are within a small patchwork of hospitals ranging from Coos Bay, Corvallis, Portland, and Ontario.
A shackled 9-hour ride in the back of a sheriff’s patrol car is demeaning and terrifying, as most of the people are in active psychosis and believe they are being abducted by aliens or sent for medical experiments. They are clearly suffering and usually haven’t committed a crime, and certainly haven’t been charged as yet. Nor should the sheriff have to engage in this sometimes dangerous and almost always unpleasant duty.
What can we do? Mandate that all hospitals have the ability to do psychiatric evaluations every day of the week. Create a treatment and evaluation facility close enough to avoid the long ride. Assign transport to a non-police agency. But consider what might happen when the allegedly mentally ill person attacks the driver or bolts the car on the Santiam Pass in mid-winter. Once social workers have the training, legal authority, and desire to run after and restrain someone in the grip of a psychosis, they might as well be police officers.
There are many dedicated people working in the field, but we fail the profoundly mentally ill. The police are the least culpable of all.
Some proponents of Defund the Police want to refocus how police work is done. Many police departments themselves might welcome this because many consider the proper work of police to be detecting and apprehending criminal suspects, not doing social work. Some proponents, like the city leaders in Minneapolis and Seattle, have made clear they seek abolition. In practical terms that will mean that unless an actual crime is underway, and likely a violent crime, police officers will respond only to purely criminal calls. That, of course, does nothing to avoid confrontations with robbers high on meth, and men with anger management problems who’ve beaten their girlfriend to a bloody pulp. A serious car crash might be ignored absent immediate evidence of drunk driving.
Police reforms, treatment of the mentally ill -- these issues should go well beyond politics. The Great Cauliflower, as I’ve often called Reagan, didn’t open the mental institutions on his own. Nor did Nixon. The call to deinstitutionalize came well before either of these conservatives, and arose from more liberal outrage. Ken Kesey’s “One Flew Over the Cuckoo’s Nest” was published in 1962. In 1963 Kennedy proposed and signed into law the “Community Mental Health Act,” which would have built local mental health facilities to replace institutions. The Act was poorly funded due to the costs of the Vietnam War. Medicaid’s passage in 1965, signed into law by Lyndon Johnson, incentivized moving patients out of institutions.
Just as former speaker of the house Tip O’Neill said, “All politics is local.” By extension, so are the solutions.
JOSHUA MARQUIS on
criminal justice, animal welfare, and the nature of the relationship between popular culture and the law.
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