Mandatory minimums and Measure 11 gave prosecutors a limitless platinum credit card but no accountability for the costs they impose on Oregon
Nationally, very few studies have examined how mandatory minimum sentencing laws have been applied from indictment through conviction. Even fewer studies have looked specifically at how Oregon’s Measure 11 (M11) changed the disposition of cases. Prior Criminal Justice Commission (CJC) research studied how mandatory minimum sentences have been imposed after conviction, but no data has been available to track the impacts of M11 on affected-cases from indictment through conviction, until recently.
Previous CJC research has examined crime rates, criminal justice spending and incarceration rates. FN1
(FN1 – See our 2010 Crime Report (http://www.ocjc.state.or.us/CJC/docs/Crime_Report_2010.pdf ) for an analysis of recent crime trends or our 2007 Report to the Legislature (http://www.ocjc.state.or.us/CJC /CJC2007Reporttolegislature.pdf) for an analysis of the impact of crime on incarceration.)
The purpose of this report is to analyze M11 and how it has been applied over the past 15 years. This analysis provides a comprehensive examination of the differences between Oregon counties, crime types and other factors in the dispositions of M11 indicted cases. The report also attempts to quantify the discretion used in M11 application, and how discretion has changed hands over time. The analyses of these dynamics show that M11 did not eliminate tough individual sentencing choices, rather it continued the transfer of discretion from judges to prosecutors which started when Sentencing Guidelines were passed by the legislature and went into effect on November 1, 1989. M11 went into effect in 1995 and required mandatory minimum sentences that were longer than Guideline sentences and furthered the power and discretion of prosecutors to control sentences through charging practices and plea bargaining process. This sentencing discretion is now controlled, to a large degree, by how the various prosecutors in the state choose to apply M11. This discretion “flip” by Sentencing Guidelines and M11 has had a substantial impact on sentencing in Oregon. [Emphasis added]
In the early 1900s the state of Oregon utilized a parole system of sentencing. Offenders sentenced under this system received a maximum term of imprisonment. The parole board had discretion to allow offenders to serve out a great portion of their sentences in the community rather than in prison. This “discretionary” parole system did not provide a release date for individual offenders, victims or other involved parties.
In a move to create equity among inmates who were serving similar crimes, a matrix sentencing system was adopted in 1977. Under this system, inmates received their sentences from judges, and then prior to entering prison were given an estimated release date by the parole board.
In the late 1970s and 1980s, violent crime increased substantially in Oregon. From 1960 to 1979 Oregon’s violent crime rate increased by 680 percent. Prison overcrowding led to inmate litigation against the state, attempted legislative intervention, failed ballot measures to fund prison construction, and the initiation of the Oregon Prison Overcrowding Project, which sought to deal with Oregon’s overcrowded prisons. (For perspective, the inmate population was just under 2,800 inmates in 1980, and just under 3,800 in 1986; by July 1989 the inmate population had grown to 5,300.) The pressure of increased crime combined with the inability or failure to build more prison beds caused great pressure on the parole process, so that paroles increased during this period of time.
As a part of the Oregon Prison Overcrowding Project, the Oregon Criminal Justice Council was created to plan and coordinate Oregon’s sentencing and corrections systems so parole would no longer be an issue. In 1987, the legislature directed the Criminal Justice Council and the Oregon Sentencing Guidelines Board to create a set of sentencing guidelines for Oregon. In 1989, the Oregon Sentencing Guidelines were adopted by the legislature, to apply to all felonies committed on or after November 1, 1989. The guidelines brought “truth in sentencing” to Oregon by making sentencing more predictable, proportional, and fair, and by ensuring offenders would serve the bulk of their sentences without eligibility for early parole. The guidelines also took into account the amount of prison capacity Oregon had at the time they were developed.
The guidelines, a matrix of grid blocks, based sanctions (probation or prison) and sentence lengths on crime-severity and the individual offender’s criminal history. Crime severity and criminal history scores together determined the presumptive sentence for each offender. Under sentencing guidelines the judge’s discretion to sentence felons up to the maximum allowed by law was significantly restricted. Before the guidelines, judges could sentence Class A felons up to 20 years of prison, Class B felons up to 10 years of prison and Class C felons up to five years of prison. The judges considered many factors in imposing sentence but ultimately they could sentence offenders with no prior record to the maximum sentence if they so decided. Sentencing guidelines limited this discretion and required the judge to impose the “presumptive sentence” unless there were substantial and compelling reasons to depart upward or downward. Sentencing guidelines also eliminated parole, thus offenders served their entire sentences, less earned time of up to 20 percent.
BALLOT MEASURE 11
In 1994, voters passed Ballot Measure 11 (M11), which created mandatory minimum prison sentences for 16 violent or sexual offenses and created a mandatory waiver for juveniles who were 15 years of age or older who committed those 16 crimes. Since 1994, the original M11 has been amended by the legislature, so that six additional crimes carry mandatory minimum sentences. The legislature has also increased certain sentences in the original initiative, and since 1997 has also allowed certain offenders convicted of “second degree” or less serious offenses to be eligible for an “opt out” of M11 if they meet certain criteria. These laws, and the original M11, are now found in Oregon Revised Statute at ORS 137.700, ORS 137.707, and ORS 137.712. For purposes of this report, the term “M11” includes all the crimes that carry mandatory minimum sentences in these statutes where the original 16 crimes were codified, where the additional crimes were added by the legislature, and where the “opt out” provisions are found.
The chief petitioner, who placed M11 on the ballot, justified the measure’s mandatory minimum sentences, which were substantially longer than the sentences for most offenders under the guidelines, based upon both “justice” grounds and “utilitarian” grounds.
The chief petitioner’s justice argument in favor of M11, in the 1994 Voters Pamphlet was straightforward: “The mandatory minimum sentences for the violent crimes listed in this measure are the minimum required for justice to society and the victim.”
Our analysis makes it clear that more than 70 percent of offenders indicted by a grand jury for committing one of the crimes in M11 and the 6 crimes added to the original crimes by the legislative process, were not convicted of the most serious offense in the indictment. Most of these offenders resolved their case by pleading guilty to a lesser charge in a bargain offered by the prosecution, and the sentences in those cases range from probation to prison. If one assumes that the State only indicted cases where there was evidence the M11 crime was committed, and we do, either justice was not served in the 70 percent of cases that were disposed of with a conviction for a lesser crime carrying a lesser sentence, or the proscribed mandatory sentences was not necessary for “justice to the society and the victim” in those cases.
The chief petitioner fleshed out his utilitarian argument for M11 in the 1994 voter’s pamphlet as follows:
“Requiring solid, minimum prison time for violent crimes will result in:
– Incapacitation. The criminal cannot commit other crimes while in prison. This will reduce actual crime in society.
– Deterrence. Career criminals will learn that crime does not pay in Oregon. Some of them will leave, or change their ways.
– Predictability of Sentences. Right now, the range of sentences is so broad, and the reasons for increasing or reducing sentences so broad, that it is hard to predict what actual sentence will be imposed. With these mandatory minimums, everyone will know the exact minimum sentence which must be served for the crime.
– Comparable Sentences. All judges in Oregon, no matter how soft, must impose the minimum sentence for a violent crime when a jury has found the criminal guilty. Sentences can be higher if the circumstances call for it, but they cannot be lower.”
Whether mandatory minimum sentences have provided the four outcomes promised by the chief petitioner will be considered in depth in this report. How it has fulfilled these promises is the bulk of this report, but can be summarized as follows:
• Incapacitation. Measure 11 did increase the use of incarceration to incapacitate offenders by requiring Oregon to grow its prison system to hold offenders for longer terms of prison. The increased need for prison beds was mitigated by the way the prosecution has applied the measure and mandatory minimum sentencing in general.
• Deterrence. The effectiveness of the measure as a crime deterrent is indeterminate, but it is clear that many of those indicted and convicted for these offenses were not “career criminals” in that they had little or no prior felony record.
• Predictability of Sentences. The measure did provide predictability for the minority of cases where the state sought a conviction for crimes that carried the sentence proscribed by the chief petitioner. It created this predictability by eliminating judicial discretion if the prosecution obtained a conviction for that crime. This report focuses on the application of mandatory sentencing in Oregon in thousands of cases over more than a decade, and makes clear the predictable sentence is only arrived at in the minority of cases where a prosecutor, not a judge, decided it was appropriate and necessary. This report delves into the factors that increase the likelihood a prosecutor will seek a conviction that calls for a mandatory minimum sentence and examines the broad disparity in sentences for the 70 percent of cases where the prosecutor uses the “leverage” of the mandatory sentence to obtain a plea bargain to a lesser charge.
• Comparable Sentences. The chief petitioner focused on requiring “soft” judges to impose the minimum sentence if a jury found the offender guilty. This report shows that juries only hear about 15 percent of the cases involving mandatory minimum sentences, and in the other 85 percent of the cases there is broad disparity in the sentences arrived at by the plea negotiation process in Oregon’s 36 counties.
DATA COLLECTION METHODOLOGY AND ANALYSIS
The Oregon Judicial Information Network (OJIN) contains information on all charges in Oregon, the dispositions and sentences on those charges, as well as demographic information of offenders. Use of OJIN data allows analysts to identify the initial charges in the formal accusatory instrument, charges returned as indicted by the grand jury, how often individual offenders are convicted of those charges and the sentences imposed based on those convictions.
For this analysis we rely on the language of ORS 132.390, concerning the grand jury, to provide the best information about what crime actually occurred and what the state would seek to prove at trial if an offender asserts the right to a jury trial. Our analysis then considered the movement from indictment to conviction as the point in the system where application of prosecutorial discretion impacts the actual sentence for the crime. Using this methodology, we were able to track changes in convictions before and after M11’s passage. We also used well accepted statistical models to examine factors that influence if an offender is convicted of a M11 offense or if an offender is sentenced to prison.
• The typical M11 offender is white (74 percent), male (91 percent), adult (89 percent) and has no adult felony convictions. Only 30 percent have been previously convicted of a felony, 15 percent have been convicted of a person felony and 15 percent have been previously incarcerated at an Oregon prison.
• In 2009, offenders who were charged by a grand jury with at least one M11 crime, and were convicted of that crime or a lesser felony made up 34 percent of prison intakes, and 64 percent of all prison months imposed.
• Statewide, 29 percent of offenders charged by a grand jury with committing at least one M11 offense were convicted of the most serious crime in the grand jury indictment. Sixty-two percent of offenders indicted for at least one M11 crime were sentenced to prison.
• M11 is applied differently across counties. In the five most populous counties, Multnomah County convicts the lowest percentage of M11 indicted offenders for a M11 crime at 36 percent, while Marion County convicts 63 percent. Counties apply M11 differently, and those differences are statistically significant even after controlling for other factors such as age, gender, race, and criminal history. Offenders indicted for a M11 in one of the five most populous counties are 79 percent more likely to be convicted of a M11 and twice as likely to receive a prison sentence as offenders in the other 31 counties. (This is counter to the prevailing myth that officials in counties in Eastern Oregon, away from Oregon’s four largest cities, would be more likely to convict of the most serious offense carrying the longest sentence.)
• M11 is applied differently across demographics. Juveniles and females indicted for a M11 are both less likely to receive a M11 conviction. These differences are statistically significant with juveniles and females both being about 20 percent less likely to be convicted of a M11. M11 conviction rates also differ by ethnicity. Blacks who are indicted for a M11 are about 15 percent less likely to be sentenced to prison than whites, and Hispanics are about 40 percent more likely to be sentenced to prison than whites.
• M11 indicted offenders who go to trial are nearly four times more likely to be convicted of a M11.
• M11 indicted offenders who have a private attorney are about 25 percent less likely to be convicted of a M11.
• A M11 indicted offender’s criminal history is important in determining whether they are convicted of a M11. A M11 indicted offender with three or more prior person felonies is nearly twice as likely to be convicted of a M11.
• Upon the passage of M11, fewer M11 indicted offenders were convicted of their most serious offense. During the 1990s, offenders who were subject to M11 were 34 percent less likely to be convicted of their most serious offense than those who committed crimes before the passage of M11.
• Upon the passage of M11, M11 indicted offenders were much more likely to go to prison and more likely to receive a longer prison sentence. Offenders who were subject to M11 were 36 percent more likely to go to prison and their median length of stay in prison was 81 percent longer.
• If Oregon voters had not passed M11, Oregon would require an estimated 2,900 fewer prison beds, about one third of the initial official estimate.
Senate Bill 1049 (1997), which allowed guidelines sentences for some M11 offenses, had little or no impact on the prison population. The prison months imposed for indicted offenders changed very little after passage of the law.