On Friday, July 17th, The Oregonian ran an op-ed from Representative Chip Shields responding to our op-ed of July 13th. Here is Representative Shields op-ed (in black text) with our analysis (in blue, italic text) added.

Phasing in Measure 57: Not soft of crime, but smart on crime


This week, state troopers are back on the road 24/7 across much of the state for the first time in years. Had Steve Doell of Crime Victims United and the others who wrote a recent commentary on criminal justice in The Oregonian had their way, this week would be spent gearing up to begin the release of some 2,000 prisoners in order to balance Oregon's criminal justice budget.


Representative Shields makes it sound like we proposed a wholesale, willy-nilly release of 2,000 prisoners. The inmates targeted were low and medium risk non-violent property and drug offenders who were within 6 months of being released anyway. They were to be released over a 2-year period, if the budget required it. They would have been placed on post prison supervision and could have had their early release revoked if they committed a new crime.


The law passed by the legislature will let many of these same offenders, and some more dangerous ones, out early by retroactively giving them earned time that they haven't earned. 800 will be released in September and October of 2009. In total, 4,500 prisons will have their terms reduced by an additional 10 percent over the next four years. If Shields has his way, these cuts in time served, or more drastic cuts, will become permanent corrections policy in Oregon.


Our proposal was a one-time response to this biennium’s fiscal challenge. By contrast, Shields’ aim was to permanently alter the criminal justice system using the fiscal challenge as cover.


We found a one-time release more palatable than the alternative proposed by Representative Shields which included:

• Repealing most provisions of the voter-approved Measure 57

• Effectively reducing probation from two years to one year

• Reducing the maximum jail time for violating probation from 6 months to 2 months

• Reducing post-prison supervision for the most serious crimes from 3 years to 1 year

• Increasing earned time from 20 percent to 30 percent

In short, we preferred our one-time proposal to indefinitely weakening just about every aspect of the criminal justice system.


In their one-sided and misleading commentary, Doell and his co-authors made it seem as if there were a real choice between cutting the criminal justice budget or leaving it whole.


Our op-ed made it clear that there were alternative proposals. Representative Shields knows full-well that our proposals did not “leave it whole.”


Truth is, from the sheriffs to the district attorneys to the director of the Corrections Department, there was broad agreement that the budget for prisons -- like that for schools, higher education and human services -- needed to be cut during this global economic crisis.


Everyone agreed that budgets had to be cut. That’s not the same as saying that everyone agreed with Shields’ approach. In fact, only a small minority of district attorneys supported Shields’ bill and most of that small minority supported it only because of Shields’ threats to decimate public safety budgets. The Oregon District Attorneys Association never supported Shields’ position. Nor did the Chiefs of Police.


The question was how to cut that budget, not whether it needed to be done.


No one questioned whether cuts in public safety were required. We understood their was a budget problem and made proposals that addressed that problem without permanently damaging the criminal justice system.


The legislative group that worked on this issue was presented with a number of choices. The preferred path of some was to simply set free 2,000 prisoners who were within six months of their release date.


Shields makes it sound like our proposal was to indiscriminately release 2,000 prisoners of all stripes in one fell swoop. In fact, our proposal was to release low- and medium-risk property and drug offenders in a controlled release over the course of 24 months. No violent offenders were eligible.


That option wasn't viable for a number of reasons, including the cost of resentencing hearings and the fact that many legislators believed that it was far too risky.


Our plan was limited to low- and medium-risk property and drug offenders. Shields’ expanded earned time is available to high-risk offenders. His plan originally included violent criminals and sex offenders until we blew the whistle on him and if he could, he would expand earned time for them too.


Representative Shields neglects to mention that, under his plan, 800 prisoners will retroactively receive additional earned time. This will require resentencing hearings. In fact, Shields’ plan releases many of the same prisoners who would have received early release under our plan. The main difference is that our plan was a temporary response to the budget challenge while Shields’ plan is a permanent change to the sentencing system. In fact, Shields is not satisfied with 30 percent earned time and wants to increase it to 50 percent.


Instead, we opted for an approach that phased in Measure 57.


“Phased-in” is a euphemism for “repealed” which is the word used in the bill (HB 3508, section 47). Most provisions of Measure 57 were repealed and there is no guarantee that Measure 57 will be reinstated. It is a good bet that Representative Shields will fight reinstatement of Measure 57 in any recognizable form when the time comes.


As Doell well knows and neglected to point out, the bill passed by the Legislature keeps Measure 57 in place until February 2010.


As Shields well knows and neglected to point out, the legislators pulled a fast one on this point. All laws have an “effective date” – the date on which they take effect. Sentencing laws virtually always cover crimes committed on or after the effective date. In this case, the legislature changed the repeal of Measure 57 to cover cases where sentencing occurs on or after the effective date. So while the effective date of the repeal of Measure 57 is technically February 15, 2010, in fact it will be negated for crimes committed as early as September, 2009. The aim was to end Measure 57 almost immediately while giving the impression that they were preserving it.


Then, while significant parts of the measure that affect the worst offenders stay in effect, some of the provisions dealing with lesser property crimes are put on hold until January 2012 -- a date whereby Oregonians will be better poised to honor the promise of Measure 57, a promise that included $40 million in new treatment dollars that, unfortunately, we cannot afford during this worldwide recession.


Evidently Shields believes repeated home invasion burglary and repeated identity theft are "lesser property crimes." These are among the crimes for which sentences were significantly weakened by the repeal of Measure 57 to the point where some prolific criminals will once again receive probation.


The phase-in allows us to keep our public safety system whole. It's not a soft-on-crime approach. It's a smart-on-crime approach . . .


“Smart on crime” is a good marketing but what does Representative Shields mean by it?


• Increasing “earned time” to 50%

• Slashing sentences for violent criminals and sex offenders

• Returning 15 to 17 year olds who commit armed robbery, kidnapping, rape and murder back to juvenile court where they can receive short sentences and even probation rather than trying them as adults


All of these are changes that Shields advocates as part of his “smart-on-crime” vision.


To sell his vision, Shields and his supporters have come up with a clever marketing plan:


• Delegitimize the aspirations of victims of crime for justice

• Exaggerate the incarceration rate and cost of incarceration in Oregon relative to other states

• Dismiss or minimize the successes of the tough approach to crime

• Exaggerate the effectiveness of treatment programs

• Plant a vision in the minds of legislators and the general public of a utopia where we will have less crime with more criminals on the street through the magic of treatment


This is a slick plan to make people believe nonsense.


Seeing society stand up and punish criminals is an essential part of most victims’ regaining of their lives, particularly in cases of violent crimes.


Oregon ranks 30th among states in prison incarceration rate.


Violent crime in Oregon has decreased by 47 percent since Measure 11 took effect in 1995. According to the Oregon Criminal Justice Commission, Oregon prevents 100,000 crimes of all kinds each year because of increased incarceration relative to 1995.


We believe that treatment can have an effect. It is a part of the mix. But treatment is not taken seriously without accountability. To truly know what works and what doesn’t, we must evaluate our treatment programs using rigorous, scientific methods. To date, no Oregon programs have been evaluated using the gold standard – controlled randomized trials. When rigorous evaluation was proposed in the legislature, Shields dismissed it.


. . . that was designed by a prosecutor and a former police lieutenant as well as supported by a bipartisan group of more than two-thirds of all legislators.


Legislators that we spoke with were astounded and alarmed when they were told that no workgroup was put together to develop a plan to deal with these issues. District attorneys, police chiefs, sheriffs and victims groups were all shut out. In the end, Shields’ bill did not have the support of the district attorneys or the police chiefs and gained the support of the sheriffs only at the very end of the session under extreme pressure.


As for bipartisan, in the House, Shields had 35 Democrats and 5 Republicans. In the Senate, he had 18 Democrats and 3 Republicans. To call that bipartisan is really a stretch.


Representative Shields used heavy-handed tactics and threats of deep and widespread budget cuts to bludgeon public safety officials into going along with his plan.


Make no mistake: This Legislature cut more than $2 billion from the budget.


The actual decrease in the budget (general and lottery funds) for 2009-2011 relative to 2007-2009 is approximately $870 million – a 5.8 percent decrease from $15.11 billion to $14.24 billion.


The “all funds” budget (general, lottery, federal, other funds) for 2009-2011 increased by $4.75 billion – a 9.3 percent increase from $51.17 billion to $55.92 billion.


Somehow the legislators found $111 million on the last day of the legislative session to give out to their pet projects. A third of this amount would have preserved Measure 57.


The cuts affected schools, human services and public safety, the three areas that account for more than 93 percent of our state's budget. Our goal in making the cuts is to protect core services and minimize the impacts on all areas. Prisons and other public safety areas had to tighten their belts just like the rest of the state.


Would it have been fair for us to cut schools and colleges more, while holding the prison budget harmless?


No one advocated holding the prison budget harmless.


We're already one of the few states that spend more on prisons than on higher education . . .


Shields uses this statement to give people the impression that Oregon’s use of incarceration is extreme. This is part of the “smart-on-crime” marketing plan. In fact, Oregon ranks 30th among states in prison incarceration rate and only 23 percent of convicted felons in Oregon go to prison.


Whether Shields’ statement is true depends on your definition of “higher education”. If you mean “higher education” as a line item in the budget, where “higher education” means “universities only”, Shields is correct. If you mean all education after K-12, Shields is wrong.


We asked the Oregon Legislative Fiscal Office for figures that would shed light on this issue. LFO gave us these estimated figures for the 2009-2011 biennium:


            Program                                               State Funding  

            Oregon University System                        $830.6 million

            Community Colleges:                               $473.7 million

            Student Assistance (scholarships):            $99.3 million

            Oregon Health and Sciences University:    $79.4 million


This adds up to $1.48 billion and it does not count an additional $104 million in federal funds for community colleges.


By contrast, the total Department of Corrections budget is $1.45 billion. Of that, $217 million is for Community Corrections (parole, probation, treatment). If we make the conservative estimate that all of the DOC budget other than Community Corrections is for prisons, then the expenditure for prisons is $1.23 billion – less than the $1.48 billion total for higher education.


. . . and that's a trend we need to reverse if we are to succeed economically in the future.


No one relished the idea of making the cuts.


You could have fooled us. Representative Shields has made a career of advocating for cuts in prisons spending. Given the chance, Shields not only cut sentences but nearly every other aspect of the criminal justice system that holds criminals accountable.


But when we were faced with fully implementing Measure 57 or cutting state troopers, we chose to keep law enforcement on the streets and highways and keep the public safety system intact. No one said these were easy choices. But we made them to the best of our ability. And Oregon will be better off in the long run because of them.


Representative Shields used the opportunity presented by the fiscal challenge to reinvent criminal justice in Oregon. In the long run, he wants a criminal justice system with far less deterrence, incapacitation or punishment. It is doubtful that crime victims, law-abiding citizens or criminals will be better off for it.


Chip Shields, a Democrat, represents Portland in the Oregon House of Representatives.


Public Safety Battle in 2009 Oregon Legislature