New Mandatory Sentences on Oregon Ballot

Kevin Mannix, author of Measure 11 and five-time loser in election bids for Governor, Attorney General, and Congress has collected enough signatures to put a crime-related measure on this November’s ballot. His initiative, which has not yet been given its official measure number, creates mandatory minimum sentences for drug and property crimes.

Mannix’s mandatory minimum measure would be devastating for Oregon. 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 measure would cost the state between $250 and $400 million a budget cycle, not including the cost of new prison construction. If that were not enough, the Department of Corrections estimates this would require up to three new prisons. In simple terms, the human toll and the impact on the state budget would be dramatic and destructive.

The sad irony of the situation is that in the past two years, Oregon has experienced one of the sharpest declines in property crime in the country according to FBI statistics. Nevertheless, Mannix has succeeded in selling property crime as a critical problem. Unfortunately, the solution he is offering would only make matters worse.

Mannix’s response 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 would serve long sentences in prison (with no distinction for first-time offenders) and be no better off when they got out. Drug treatment would be less available for two reasons:

• Judges would no longer have the discretion to direct people into drug court and community-based treatment when appropriate.
• The measure would shift public funding into expensive prison construction and continue Oregon’s history of defunding programs like treatment that actually reduce recidivism.

Given how bad Mannix’s mandatory minimum measure is, the legislature developed a competing measure for the ballot. Legislators recognized that if Mannix’s 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 alternative has some un-needed sentencing enhancements, although it does reject mandatory minimums as the answer and emphasizes the need to expand access to drug treatment as a critical approach to public safety.

Essentially, the legislative alternative 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 would do prison time but also have access to drug treatment (Alternative Incarceration Program) and earned time, while the proposed alternative is tougher on people with multiple convictions.

The alternative also includes very long sentences for people who are dealing or manufacturing large quantities of drugs. These sentences are unnecessarily long, but they are reserved for a small number of big dealers who likely would be prosecuted in federal court and not by the state. In contrast, the Mannix proposal would send low-level dealers to prison for 36 months no matter what the circumstances, with no judicial discretion and continues the failed strategy of the “War on Drugs.”

There is no way to sugarcoat the legislative alternative. It is not the approach we would have taken. Yet, its potential human and fiscal impact is not nearly as bad as Mannix’s. We are approaching an election where we will be given a difficult choice.

Polling suggests that the best chance of defeating the Mannix mandatory minimum measure is supporting the legislative alternative. If the legislative alternative gets more votes, it will become law and the Mannix measure will fail. Although our hearts and politics make us want to vote “No” on both, we are preparing for a campaign that encourages people to vote yes on the legislative alternative. Sadly, elections too often provide us with unsatisfying choices, and these measures continue that trend this November. We will be voting based on realism and not idealism. 

The stakes are huge in this campaign. All of the public opinion and campaign research suggests that if we want to defeat the horrible Mannix measure we will need to help the legislative alternative get more votes. We do not want to wake up the day after the election and realize that the Mannix measure passed in part because we were overly idealistic with our approach to the campaign. That would be too much to bear based on how much pain the Mannix measure will create in Oregon. 

We didn’t ask for this fight, but we can not walk away. And there is actually potential opportunity in this potential crisis. We have an opportunity to have a statewide dialogue about the best approach to public safety. This election Oregonians can decisively reject traditional mandatory minimums and prison construction as the wrong approach while emphasizing a shift towards prevention and rehabilitation. 

If we are successful in defeating the Mannix mandatory minimum measure, it will open the political landscape for future reform. In that respect, we will be doing everything we can to see that measure go down. 

Now that you have some of our political analysis, we also want to provide a more detailed overview of the proposed policies in these competing measures. 

This measure focuses on creating strict mandatory minimum sentences. The most severe sentences would 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 lead to the de-funding of the very programs that are proven to reduce recidivism. 

Estimated Cost:  $250 to $400 million per budget cycle, not including the cost of new prison construction. 

Projected Impact on Prison Population: Would add 4,000 to 6,400 new people to state prison system by the end of 2011. Would require three to four new prisons to be built and paid for. The cost of each new prison is estimated to range from $400 to $600 million, including interest. 

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 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. 

·         The state would be required to 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. 

The legislative alternative (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 is a necessary part of any real solution. 

Estimated Cost: $140 million per budget cycle; $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: 

* 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 would be in Governor’s Proposed 2009-11 budget, which would be allocated as grants through DOC and Oregon Criminal Justice Commission. 

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

* MCS/DCS for over 100 grams of meth, heroin, cocaine or 200 units ecstasy: Sentence of 34-72 months. Earned-time 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 and many of these cases would be prosecuted federally.  

* 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 allowed. 

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

*Identity Theft: Sentence of 24 months, presumptive if they are a repeat offender. Access to earned-time and the Alternative Incarceration Program 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 with 24-month sentence; adds Criminal Possession Forged Instrument 1 and Fraudulent Use of Credit Card with 18-month sentence. 

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

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

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

  This article was originally printed in the Summer 2008 issue of Justice Matters