False and Misleading Statements Used To Promote Legislative Proposal
CRIME VICTIMS UNITED
In early January, 2003, Mary Dyer sent a letter advocating for "Measure 11 reform" to District Attorneys around Oregon. The letter contained many false and misleading statements. On January 31, 2003, Crime Victims United President Steve Doell sent the following reply to Ms. Dyer.
Dear Ms. Dyer:
Your recent Measure 11 "reform" proposal contains numerous false and misleading statements, as documented on the following pages.
Making false and misleading statements in a legislative proposal is a disservice to legislators and is disrespectful of the legislative process.
We have dealt with such tactics since 1995 *. If your proposal has merit, you should not need to resort to a disinformation campaign.
Steve Doell, President
Crime Victims United
cc: Oregon District Attorneys
Refutation of False And Misleading Statements
1. Regarding the state's current fiscal problems, you wrote:
"One of the main contributors to this current dilemma is the cost of implementing all of the provisions of Measure 11."
This is wrong. In the current biennium, the cost of Measure 11 is about 20% of the entire corrections budget and about 1.4% of the total discretionary state budget.
Measure 11 cost was calculated as follows:
Average Measure 11 impact for biennium: 2,897 (from Oregon Dept. of Administrative Services)
"Impact" is the number of prison beds directly or indirectly required by Measure 11.
Total cost: 2,897 * $27,000/year = $78.2 million/year = $156.4 million/biennium
The $27,000 figure is the DOC's $23,000 per prisoner, per year figure plus $4,000 per year for debt service for prison construction.
From July 1, 2001 through June 30, 2002, while Measure 11 cost taxpayers $73 million, the Public Employee Retirement System cost them more than one billion dollars. (Source: PERS 2002 Annual Report, page 64, http://www.pers.state.or.us/Numbers/FactsFigures/2002_cafr.pdf.)
The financial impact of Measure 11 was presented to the voters in 1994 and again in 2000. Each time, it was approved by an overwhelming majority (67% in 1994 and 74% in 2000). Clearly the citizens of Oregon want corrections dollars spent to keep the worst violent criminals and sex offenders off the streets.
2. You wrote:
"Measure 11 has put more pressure on counties to house and feed many pre-trial Measure 11 defendants, as their bails tend to be set astronomically high . . ."
This is wrong. Measure 11 did not change bail amounts.
3. You wrote:
"Thus, for example, a conviction for Robbery 3 would carry a presumptive sentence . . ."
Robbery III already carries a presumptive sentence. It is not a Measure 11 crime.
4. Regarding the "previous sentencing guidelines", you wrote:
"If someone had a single previous person-to-person felony, then the sentence for the new crime would be at least twice as long as it would be for a person with a clean record."
This is wrong. The following table, which contains figures from the Sentencing Guidelines Grid, illustrates that this claim is incorrect.
Crime Seriousness Level
Presumptive sentence in months, no prior convictions *
Presumptive sentence in months, one person felony *
8 (e.g., Man II)
9 (e.g., Robbery I)
10 (e.g., Rape I with weapon)
* Before 20% "earned time" credit.
5. Of Measure 11, you wrote:
"It requires long minimum sentences for 23 person-to-person felonies (originally half that)."
This is wrong. The original Measure 11 covered 16 crimes:
Assault I, Assault II
Kidnapping I, Kidnapping II
Manslaughter I, Manslaughter II
Rape I, Rape II
Robbery I, Robbery II
Sex Abuse I
Unlawful Sexual Penetration I, Unlawful Sexual Penetration II
Sodomy I, Sodomy II
The legislature added the following crimes through House Bill 3439, 1995:
Attempted Aggravated Murder
Conspiracy to Commit Aggravated Murder
Conspiracy to Commit Murder
The legislature added the following crimes through Senate Bill 1049, 1997:
Arson I (when a threat of serious physical injury)
Using a Child in Display of Sexually Explicit Conduct
In addition to adding crimes to Measure 11, Senate Bill 1049 and later, House Bill 2379, specified circumstances in which a judge can use discretion to exempt offenders from Measure 11 sentences.
For juvenile and adult offenders, a judge can depart from Measure 11 to sentencing guidelines for Robbery II, Kidnapping II and Assault II under these conditions:
The offender has no prior conviction for a serious felony crime.
The victim was not significantly injured.
A dangerous or deadly weapon was not used.
The offender did not put the victim in fear of imminent physical injury (applies to Robbery II only).
A judge can depart from Measure 11 to sentencing guidelines for all second degree sex crimes and for Sex Abuse I under these conditions:
The offender has no prior conviction for a serious felony crime.
The victim's lack of consent was due solely to the victim's age.
The perpetrator was no more than five years older than the victim.
No object other than the hand was used to commit the crime (applies to Unlawful Sexual Penetration II only).
Crime Victims United sponsored and supported Senate Bill 1049 and House Bill 2379 to improve Measure 11 while preserving its core principles.
6. You wrote:
"If someone gets in a drunken fistfight with a friend and bloodies his nose, he is charged with Measure 11 assault."
This is false. Assault II requires proof of serious physical injury or physical injury via a dangerous or deadly weapon. It is extremely rare that a person in the circumstances that you describe is charged with a Measure 11 assault. Such a person would never be convicted. Even if convicted, such a person would be eligible for exemption from Measure 11 under SB 1049.
7. You wrote:
"If a man forces his wife from a room in a domestic dispute, he is charged with Measure 11 kidnapping."
This is false. Kidnapping II require proof that the accused intended to substantially interfere with another's personal liberty. It is extremely rare that a person in the circumstances that you describe is charged with a Measure 11 kidnapping. Such a person would never be convicted. Even if convicted, such a person would be eligible for exemption from Measure 11 under SB 1049.
8. You wrote:
"If a troubled teen playing with matches catches fire to a building in which a person might be expected to be, she is charged with Measure 11 arson."
This is false. Arson I requires proof that the accused started the fire intentionally to damage property. Furthermore, a person can be sentenced for arson under Measure 11 only when the crime represents a threat of serious physical injury.
9. You wrote:
"Due to Measure 11, prisons are being filled with first-time offenders serving at least six years"
This is false. According to your own statistics, "first-time" Measure 11 offenders will represent just 13% of the Oregon prison population as of July, 2003.
(4467 Measure 11 offenders times .35 = 1563 "first-time" Measure 11 offenders. This represents 13% (100*1563/11982) of the total DOC population.)
Furthermore, as explained below, your definition of "first-time offender" includes many people who are not true first-time offenders because they have committed many crimes against many victims. See item 19.
10. You wrote:
"If a mother takes a picture of her child which the state interprets as 'lewd', she is charged with a Measure 11."
This is extremely far-fetched. To be charged with a Measure 11 crime, the picture would have to be of sexually explicit conduct.
11. You wrote:
"If a man's hands wander while dancing and his partner objects, he can be charged with a Measure 11."
This is false. Sex Abuse I requires that that the victim be under 14 years of age or subjected to forcible compulsion.
12. You wrote:
"In the mid-nineties when Measure 11 was voted in, the crime rates in Oregon were at historic lows."
This is false. The following graph shows Oregon's violent crime rate as tabulated by the F.B.I.
13. You wrote:
"Now, when the state's budget crisis is making daily headlines, citizens may want to seriously consider the wisdom of incarcerating for years (for example) a teenager who steals a car for a joyride."
This is false. Stealing a car is not a Measure 11 crime. Measure 11 does not cover any property crimes. See the list of Measure 11 crimes (item 5).
The presumptive sentence for stealing a car is 60 days in county jail but even that would never be imposed in the example you give.
14. You wrote:
"Add to this the fifty million allotted annually for new prison construction, and Measure 11's cost becomes equivalent to nearly a third of the Department of Corrections budget."
This is wrong. According to the October, 2002 Prison Population Forecast from the Department of Administrative Services, page 11, Measure 11 accounts for only 39% of prison growth going forward, so only 39% of new prison construction costs can be attributed to Measure 11.
15. You wrote:
"The most recent corrections population forecast predicts that the Measure 11 prison population will soon match, and then outstrip, the base population, eventually consuming a majority of Oregon's corrections dollars."
This is wrong. According to the October, 2002 Prison Population Forecast from the Department of Administrative Services, page 3, as of July, 2005, Measure 11 population will account for 39.5% of the prison population.
16. You wrote:
"The Department of Corrections has recently been forced to rent prison space from other states as far flung as Arizona."
This is wrong. The DOC has not rented prison space from any state in several years.
17. You wrote:
"Since so much of the corrections budget is now consumed incarcerating Measure 11 convicts, in-prison programs proven to help reduce recidivism have been gutted. Sex offenders receive no therapy while incarcerated."
This is wrong. There are many programs available, including education, health, mental health, addiction treatment, cognitive development, job training and work programs.
In-prison sex offender treatment was discontinued because research cast serious doubt on its effectiveness and post-prison treatment was found to be more effective. (See Department of Corrections Spring 2000 newsletter.)
18. You wrote:
"If a felon violates his supervision, he is pulled back to jail or prison."
This is wrong. Most often, when an offender is pulled back to jail or prison, it is because he has committed another serious crime, not for merely violating the conditions of his supervision.
A striking example is the case of sex offender Ladon Stephens (see The Oregonian, 12/26/2002). While under the highest level of supervision in Multnomah County, Stephens allegedly committed five violent rapes and one murder. While the crimes in this case are exceptionally heinous, the failure of supervision is hardly unique (see http://www.crimevictimsunited.org/issues/ repeatoffendersdata.htm).
Response To Other Points
19. You wrote:
"Thirty-five percent of those serving Measure 11 sentences are first-time offenders."
You are using the term "first-time offender" to mean "first-time convicted".
Many so-called "first-time offenders" have committed many crimes. For example, The Oregonian reported (9/8/2002) that Ashley Pond alleged that her biological father, Wesley Roettger, raped her from age 7 through 11. Using your definition, Roettger would qualify as a "first-time offender".
Many so-called "first-time offenders" have committed crimes against many victims. For example, The Oregonian reported (October 3, 2002) that an estimated 46 men alleged that Maurice Grammond molested them when they were children. Using your definition, Grammond would qualify as a "first-time offender".
There is a world of difference between "first-time convicted" and a true "first-time offender".
20. You wrote:
"Among the current mandatory minimums is a handful of what used to be termed statutory sex offenses, in which violence is not an element."
Most people think of "statutory rape" as sex between an adult and a teenager. Measure 11 covers only those cases in which the victim is 13 years old or younger, down to infants.
Nearly all Measure 11 second-degree sex offenses involve sex between an adult and a 12 or 13-year old child. First-degree statutory offenses involve children under 12.
Under House Bill 2379 (see item 5), juvenile statutory sex offenders can be exempted from Measure 11.
21. You wrote:
"If a young man or adolescent has consensual intimacy with a person under the age of 14, even if she lies about her age, he is charged with a Measure 11."
Under House Bill 2379 (see item 5), when the offender's age is within five years of the victim's, a judge can depart from Measure 11 in the case of all second-degree sex offenses and Sex Abuse I. Furthermore, a 12 or 13-year old girl can not legally consent to sex.
22. You wrote:
"The preliminary report from an extensive Rand study on Measure 11 states that research has found no evidence that the law has had any effect on violent crime rates."
For evidence that Measure 11 has had an impact on violent crime rates, see:
23. You wrote:
"When Measure 11 was voted in, Oregon was prospering and its price tag apparently did not deter voters."
The estimate of financial impact in the 1994 voters' pamphlet overestimated the financial impact of Measure 11 by more than a factor of two, and yet voters approved Measure 11 by a two-thirds majority. Furthermore, in 2000, when voters were presented with an accurate estimate of financial impact, they voted to keep Measure 11 by a nearly three-to-one margin.
24. You wrote:
"According to the Oregon Department of Administrative Services, Measure 11 is responsible for the majority of this state's prison population growth over the past six years."
The October 2002 prison population forecast from the Oregon Department of Administrative Services says "Thirty-nine percent of the total growth is directly or indirectly due to the passage of Ballot Measure 11."
25. You wrote:
"Over a hundred million dollars a year is spent incarcerating Measure 11 inmates."
This expenditure is less than 2% of the annual state budget. It was presented to the voters in 1994 and again in 2000. Each time, it was approved by an overwhelming majority (67% in 1994 and 74% in 2000). Clearly the citizens of Oregon want corrections dollars spent to keep the worst violent criminals and sex offenders off the streets.
26. You wrote:
"Oregon ranks eleventh among states in overall population growth, but second in per capita income spent on prison construction."
As of December, 1998, the average cost of building a prison bed in Oregon was $78,000, compared to $46,000 in other states (source: Audit 98-43, page vi, from the Audits Division). This may explain Oregon's rank.
Furthermore, from 1960 through 1984, while violent crime rose by a factor of 7.2, the State of Oregon built one new prison with a capacity of 400 beds. Now that the people of Oregon have decided to hold violent criminals strictly accountable, we have to make up for past failures.
Oregon's rank is further explained by the fact that many other states completed their prison expansion programs before Oregon started a serious response to crime.
For further historical perspective, see:
27. You wrote:
"The cost of prosecuting and defending against such high-stakes charges are an overlooked but pricey expense."
Also overlooked is the cost of re-apprehending, re-trying and re-incarcerating repeat offenders. Since a large percentage of Measure 11 inmates are sex offenders and since the recidivism rates for sex offenders are notoriously high, the cost to taxpayers of releasing such offenders is also often overlooked, not to mention the cost to victims.
28. You wrote:
"From work release, electronic home detention, diversion programs and other alternatives to incarceration, convicts can successfully be managed while paying for their own supervision, saving millions of tax dollars in the process."
Alternative sanctions are appropriate for low-level and first-time property offenders, not for violent criminals and serious sex offenders (see Measure 11 crimes, item 5).
Florida has tried this idea and it was a disaster. On 12/29/2002, the Orlando Sentinel reported that, over a period of 20 years, criminals under house arrest committed 234 homicides and 538 sexual assaults. A Sentinel editorial from 1/2/2003, called this a "public-safety calamity".
29. You wrote:
"The sentencing guidelines, along with dangerous-offender, habitual-offender, consecutive-sentencing, and three-strike laws, are more than sufficient to weed out those who have proven themselves a true menace."
If all of this were true, our recidivism rate would be zero percent.
30. You wrote:
"For many offenders, there are less-costly alternatives to lengthy prison terms which are more likely to reduce recidivism and are just as effective in protecting society."
See item 28.
31. You wrote:
"Measure 11 allows for little distinction between the minority of offenders who need long, predetermined sentences and those who have made an isolated, uncharacteristic, criminally-stupid mistake."
Measure 11 makes the distinction between people who have committed violent crimes and serious sex offenses and those who have not.
The characterization of violent crimes and serious sex offenses as "mistakes" takes euphemism to a ridiculous extreme. Robbery, kidnapping, assault, child molestation, rape, manslaughter and murder can not honestly be characterized as a "mistake".
32. You wrote:
"One of the law's provisions is that 15-, 16- and 17-year-olds are to be prosecuted as adults if they are charged with a Measure 11 offense."
Prior to Measure 11, juveniles who committed even the most violent crimes, including forcible rapes and homicides, were often sentenced to three years or less in the juvenile system. Some forcible rapists received probation. For graphic examples, see:
Such sentences appalled the families of the victims and shocked the sensibilities of the community. There was increasing contempt for law on the part of juvenile offenders. This is the reality from which Measure 11's remand provision emerged. At least 35 other states have similar or broader mandatory remand provisions.
33. You wrote:
"Resources diverted to incarcerating these young people might better be spent educating them."
Young people convicted of Measure 11 offenses have already squandered their mainstream educational opportunities.
Once convicted of a Measure 11 offense, these youths go to the Oregon Youth Authority where they receive treatment and counseling and are required to attend school. Those who want to become educated, law-abiding citizens have every opportunity to do so.
Most of these youths are on a collision-course with disaster and the Oregon Youth Authority is their best and often last chance to get their lives back on track.
34. You wrote:
"Special interest groups: There are groups which mass-produce such measures and shop them around from state to state."
Measure 11 was written in Oregon, by Oregonians, for Oregonians. In this case, the "special interest groups" include crime victims, law-abiding citizens, Oregon voters and law enforcement.
On the other hand, the special interest groups who have fought Measure 11 are criminals, friends and families of criminals, and criminal defense attorneys.
35. You wrote:
"The financial backers of these organizations are a 'who's who' of those who truly benefit from mandatory minimums; from the prison construction industry, to prison guards' unions, to handcuff manufacturers, to telephone companies which make a mint from the captive market of incarcerated long-distance callers."
To our knowledge, no one who made a financial contribution to the passage of Measure 11 has any connection with any of the aforementioned industries or any other business that might benefit from its passage.
36. You wrote:
"Most law enforcement officials recognize that Measure 11 has been an expensive failure."
To the contrary, the overwhelming majority of police chiefs, sheriffs, and district attorneys support Measure 11. In fact, many district attorneys who originally opposed Measure 11 now strongly support it.