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Critics of Measure 11 call for overhaul of Oregon's mandatory minimum prison sentences

KATU Portland logo KATU Portland 3/6/2021 Wright Gazaway
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There’s a push in Salem to overhaul Oregon’s mandatory minimum prison sentencing, first approved by voters in Ballot Measure 11 in the 1990s. Under the system, judges must give specific sentences to people convicted of Measure 11 crimes, including murder, kidnapping, robbery, and sexual abuse.

Some prosecutors contend Measure 11 ensures the most violent criminals serve time and serve it all. However, critics of Measure 11, including some prosecutors, said it gives prosecutors too much power over the sentencing process.

Brad Holbrook knows Measure 11 well, charged in 1999 with sexual abuse. Facing 12 and a half years in prison on two Measure 11 charges, Holbrook turned down a plea offer for probation and no prison time.

If I was guilty, I would’ve definitely taken the deal,” Holbrook said. “I was innocent. So, I wasn’t going to go into the court and lie that I did something I didn’t do.

After a hung jury in his first trial in 2001, a Yamhill County jury convicted him 11 to 1 in his second trial on a single sex abuse charge in 2002; a judge sentenced him to the mandatory six years in prison.

The Oregon Court of Appeals overturned his conviction at the end of 2017 – 15 years after Holbrook started the appeal process, but Holbrook had no doubt that the plea process and leverage of Measure 11 encourage innocent people to take deals.

“No question, yeah. For sure. You offer someone 300 months, you show them 300 months in prison or take a possibility of probation or maybe 2 to 3 years in jail. Certainly, a person who is even innocent would have to consider that,” Holbrook said.

PAST COVERAGE: Lawmakers consider leniency bills for juveniles convicted of Measure 11 crimes

His case highlighted some of what critics say is wrong with Measure 11, including elected prosecutors and defense attorneys. Multnomah County District Attorney Mike Schmidt is one of three prosecutors supporting reforms to Measure 11 sentencing along with Wasco County DA Matthew Ellis and Deschutes County DA John Hummel. The changes the trio support include ending mandatory sentences, giving judges more discretion, and giving people time off for good behavior.

a man wearing a suit and tie © Provided by KATU Portland

“I think judges are in the best place to balance and weigh everything and then come up with, hopefully, a decision that fits the situation and the crime,” Schmidt said.

Schmidt, who campaigned on ending Measure 11, pushed back on critics who said he isn’t using his authority as the district attorney to intervene in Measure 11 charges in his office.

If we charge somebody with a crime that carries a mandatory sentence on it, there’s nothing that I can do about that. That is the sentence that they receive if they are convicted of that crime,” DA Schmidt said. “We really are stuck with what the law is - what the voters pass, which says that the sentences for certain crimes are mandatory.

Schmidt is an outlier among district attorneys but said he will continue lobbying state lawmakers to change the law. The organization representing elected district attorneys, the Oregon District Attorneys Association, and 33 of 36 prosecutors in Oregon oppose changes to Measure 11.

“What we’re concerned about is the potential of changing out a system which appropriately punishes this most egregious conduct with one which has a much wider range of possibilities,” Michael Wu, the ODAA executive director said.

Wu said reforms like time off for good behavior mean less certainty for crime victims, and ultimately, his organization could not support a change that allows people convicted of person-to-person felonies to get out early at the expense of the victim.

READ MORE | Willamette Week: Another look at mandatory minimum prison sentences

Wu also said expanding a judge’s discretion gets rid of consistency and uniformity. Two judges testified in late February before lawmakers and said Measure 11 left them few options at sentencing.

“Ballot Measure 11 was a voter-approved system of sentencing, and voters decided that for these particular crimes, they wanted less discretion. They wanted more uniformity,” Wu said.

Caption: Critics of Measure 11 call for overhaul of Oregon's mandatory minimum prison sentences (KATU Video){{ }}

Critics of Measure 11 said there is still a lack of consistency under the current system that shows up in the plea-bargaining process. Ultimately, Holbrook and others want the judge to make the final decision.

“I’m definitely not somebody who supports criminal behavior or is advocating for being complicit in criminal activity,” Holbrook said. “Other states do it; we’ve done it before. It’s possible to be able to punish people adequately, and judges still have authority to be able to give a tough sentence to somebody who deserves it.”

Overturning Ballot Measure 11 requires a supermajority in both chambers, but there are several pieces of legislation that make changes to sentencing. KATU will follow the votes on all relevant changes in the state capitol.


Video: Oregon lawmakers weigh options amid push to end Measure 11 mandatory minimum sentences (KATU Portland)

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