Comparing Legislative Property Crime Ballot Measure to Mannix’s Mandatory Minimum Measure

Summary: Kevin Mannix, author of Measure 11 and four-time loser in election bids for Governor and Attorney General, has collected enough signatures to put another crime-related measure on November’s ballot. Mannix's Mandatory Minimum Measure, which has not yet been officially approved or given its final measure number, creates mandatory minimum sentences for drug and property crimes.

Mannix's Mandatory Minimum Measure would be devastating for Oregon if it passes. It would put upwards of 6,000 new people in the state prison system in the first three years alone. The Oregon Criminal Justice Commission estimates that the Mandatory Minimum Measure would cost the state between $250 and $400 million a biennium, not including the cost of new prison construction. The Department of Corrections estimates this would require up to three new prisons. The human toll and the impact on the state budget would be dramatic and destructive.

In the past two years, Oregon has experienced one of the sharpest declines in property crime in the country, yet Mannix has succeeded in selling the problem. If only he were as good at creating a solution. Mannix’s answer to drug and property crime is simply locking people up, no matter what the cost. Yet, much of this crime is driven by addiction, and under Mannix’s plan it would actually be harder to get people access to drug treatment. People will do long sentences in prison (with no distinction for first time offenders) and be no better off when they get out.

Given how bad Mannix's Mandatory Minimum Measure is, the legislature developed a competing measure for the ballot. There was recognition that if the Mandatory Minimum Measure passes, it would make it even harder to fund schools, healthcare, and human services while taking the criminal justice system in the wrong direction. Unfortunately, although the legislature had some good intentions, they still got caught up in “tough on crime” rhetoric. The legislative referral has some un-needed sentencing enhancements, make no mistake about it, yet the legislative referral does reject mandatory minimums as a one-size-fits-all approach to justice, and it emphasizes the need to expand access to drug treatment as an critical approach to public safety.

Essentially, the legislative referral is built on the notion that first time property crime offenders should have access to community-based treatment and diversion programs like drug court. Second time offenders will do prison time but also have access to drug treatment and earned time, while being tougher on people after that. The referral also includes very long sentences for people who are dealing or manufacturing large quantities of drugs. We think these sentences are unnecessarily long, but we also know that they are reserved for a small number of big dealers who are actually likely to be prosecuted federally. The Mannix proposal sends low-level dealers to prison for 36 months no matter what the circumstances with no judicial discretion continuing the failed strategy of the War on Drugs.

There is no way to sugarcoat the legislative referral. It is not the approach we would have taken. Yet, it is important to note that the human and fiscal impact is not nearly as bad as Mannix's Mandatory Minimum Measure. We are approaching an election where we will be given a difficult choice.

Overview of Mannix’s Mandatory Minimum Measure:

Mannix's Mandatory Minimum Measure focuses on creating strict mandatory minimum sentences. The most severe sentences impact first time offenders and allow for no judicial discretion or earned-time. There is no money for treatment (within the community or prison-based) or access to drug court for first time offenders. The incarceration costs of this proposal are so high that it would most likely lead to the de-funding of the very programs that are proven to reduce recidivism.

Estimated Cost: $250 to $400 million a biennium, not including the cost of new prison construction.

Project Impact on Prison Population: Would add 4,000 to 6,400 new people to state prison system by the end of 2011. Would require up to three new prisons to be built and paid for.

Breakdown of Specific Policies:

• Illegal manufacture or delivery of meth, heroin, cocaine, or ecstasy when Class A felony receives 36 months – mandatory minimum. Includes first time offenders. Not eligible for earned-time. This would impact low-level dealers in all circumstances with no judicial discretion.

• Illegal manufacture or delivery of meth, heroin, cocaine, or ecstasy when Class B felony receives 30 months – mandatory minimum. Includes first time offenders. Not eligible for earned-time. This would impact low-level dealers in all circumstances with no judicial discretion.

• Identity theft would receive 36 months – mandatory minimum. Includes first time offenders. Not eligible for earned-time. No judicial discretion.

• Burglary in the first degree would receive 36 months – mandatory minimum. Includes first time offenders. Not eligible for earned-time. No judicial discretion.

• Forgery in first degree when someone has a previous felony conviction or two previous misdemeanor convictions would receive 18 months – mandatory minimum. Not eligible for earned-time. No judicial discretion.

• Motor vehicle theft when someone has a previous felony conviction or two previous misdemeanor convictions would receive 18 months – mandatory minimum. Not eligible for earned-time. No judicial discretion.

• Theft in first degree when someone has a previous felony conviction or two previous misdemeanor convictions would receive 14 months – mandatory minimum. Not eligible for earned-time. No judicial discretion.

• Burglary in the second degree when someone has a previous felony conviction or two previous misdemeanor convictions would receive 14 months – mandatory minimum. Not eligible for earned-time. No judicial discretion.

• The state shall reimburse counties for cost of pretrial incarceration. Some people have suggested that this might create an economic incentive for DAs to go to trial more often rather than providing plea bargains.

Legislative Referral Overview:

The legislative referral, which does not yet have a ballot measure number, is meant to be a more balanced approach to dealing with property crime. It includes some problematic sentencing enhancements along with proposed investments in community-based and prison-based drug treatment and diversion programs. It is built on the principle that addiction often drives property crime and therefore drug treatment needs to be part of any real solution.

Estimated Cost: $140 million a biennium; $40 million of the total cost is set aside for drug and alcohol treatment, drug court, prison-based treatment, intensive supervision for parole and probation of addicted offenders who are at high risk of re-offending, and jail space for people who fail diversion programs.

Projected Impact on Prison Population: Would add 1,400 new people to state prison system by 2013-15 biennium (no analysis on needed prison beds available yet).

Breakdown of Specific Policies:

• Manufacturing of Controlled Substance (MCS) & Delivery of a Controlled Substance (DCS) for over 500 grams/units meth, heroin, cocaine, ecstasy: Sentence of 58-130 months. Earned-time is allowed.

MCS/DCS for over 100 grams meth, heroin, cocaine or 200 units ecstasy: Sentence of 34-72 months. Earned-time is allowed.

Our analysis is that these long sentences would impact a very small number of people because they focus on very large amounts of drugs.

• MCS/DCS of drugs to a minor: Sentence of 34-72 months. Sentence exception for first time offenders if they are less than three years older than the minor. Earned-time is allowed.

• Aggravated Theft of a Person 65 Years of Age or Older involving $10,000 or more: Sentence of 16-45 months. Earned time is allowed.

• Identity Theft: Sentence of 24 Months, presumptive if they are a repeat offender. Access to earned-time and the Alternative Incarceration Program is allowed.

• Amends Repeat Property Offenders ORS 137.717 scheme: Increases 19-month sentence to 24 months; increases 13-month sentence to 18 months; adds Robbery 3 to 24-month sentence; adds Criminal Possession Forged Instrument 1 and Fraudulent Use of Credit Card to 18-month sentence.

First time offenders have access to community based treatment, probation, and diversion programs. Repeat offenders are given bottom of range upon second conviction. There is a two-month sentence enhancement for each previous conviction with a 12-month cap.

There is some judicial discretion for downward departures. Earned time is possible and sentence reductions for completing the Alternative Incarceration Program as well.

If three years pass after someone completes parole or probation for related offenses, their previous convictions no longer count toward Repeat Property Offender enhancements if convicted again.

• Allows DA-directed diversion to drug court even for property crime offenders. Currently, property crime offenders are rarely given access to drug court diversion when their crime is clearly addiction-driven (except in a few counties).

• Promises $40 million in new funding for community-based treatment, drug court, intensive supervision, jail beds (to provide sanctions to those who fail drug court,) and prison based treatment. Money will be in Governor’s Proposed 2000-11 budget. It will be allocated as grants through DOC and Oregon Criminal Justice Commission.