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Measure 11 worked as intended if not as advertised

A recent article in the Oregonian lamented the fact that "The promises of Measure 11, Oregon's get-tough-on-crime measure passed in 1994, haven't been met..." The true lament should be that voters were misled in 1994 as to the real impetus behind the passage of Measure 11: To take the authority and discretion in determining an appropriate sentence for a convicted person away from the judge and place it in the inscrutable hands of the prosecutor. If reducing the judicial role in sentencing, as most familiar with Measure 11 agree, was a major consideration in putting Measure 11 on the ballot, then, sadly, Measure 11 is a resounding success.

As the Oregon Criminal Justice Commission noted in its recent draft report that prompted the article, Measure 11 "... left the decision about what sentence to seek in thousands of the most serious cases up to the individual district attorneys, and their deputies,.." This is because the prosecutor for the most part controls the initial charging decisions in criminal cases. Additionally the individual prosecutors have unchallenged authority to decide whether or not to offer a person a plea offer to a lesser non-measure 11 offense.

The authority that Measure 11 gave to individual prosecutors is powerful. By charging people with Measure 11 mandatory minimum sentence crimes, prosecutors gain a tremendous amount of leverage that they might not otherwise have in plea negotiations. Although Measure 11 does not affect the rules of evidence or the likelihood of a particular person being found guilty after a trial, it does change the calculus of the decision to go to trial. If you are charged with a Measure 11 offense, no longer can you refuse an unjust plea offer and hope that a judge considers the entirety of your case and life at sentencing. No longer can a first time offender hope for leniency from a judge, for except in certain second degree measure 11 offenses, there is no escape from the mandatory minimum Measure 11 demands. As the report correctly notes, Measure 11 "marginalized" if not eliminated any meaningful role of the judge in the sentencing process.

One of the most frightening aspects of Measure 11 noted in the report continues to be that it provides "no rules, guidelines, or law" about how the prosecutor should decide whether or not to charge someone with a Measure 11 offense. Nor does it supply any rules, guidelines or other considerations that must be considered by the district attorney in determining whether or not to seek the mandatory sentence or offer the defendant an opportunity to plea to a lesser offense. This has resulted in a situation, noted in the report, where similarly situated persons charged with the same crime may face vastly different potential outcomes based only on where they happen to commit their offense in Oregon. It took until 2009 for the Oregon Court of Appeals to first overturn a Measure 11 sentence as cruel and unusual in a case involving a first-time offender.

According to the original voter's pamphlet, Measure 11 was sold to the voters in 1994 on the grounds that it would: incapacitate serious offenders,  Deter "career criminals," reduce sentencing disparity and increase sentencing predictability. Measured by those standards, Measure 11 is a miserable failure.As the report notes, only 28% of measure 11 offenders are convicted of the highest charge in their Indictment; 7 out of 10 people charged under Measure 11 are first-time offenders, and any notion of decreased sentencing disparity and increased sentencing predictability is completely debunked by the report.

Looking deeper though, the major impetus behind measure 11 was to take away the traditional, open and on-the-record sentencing discretion of the judge and turn it over to the prosecutor to be wielded behind closed doors and in secret. This was and is an insult to the hundreds year old tradition of the adversarial system in our criminal justice system. Our system of criminal justice was founded on a four  party system: the prosecution, the defense, the jury and the judge. Put simply, the prosecution prosecuted, the defense defended, the jury decided if the prosecution had proven its charges beyond a reasonable doubt, and if so, the judge decided upon a fair sentence based on all the material presented by both sides. Measure 11 takes the judge out of the equation for the most part. If a defendant goes to trial and loses, he or she gets a Measure 11 sentence. If a defendant cuts a deal with the prosecutor, the judge typically has no say in the sentence. Sentencing power in Measaure 11 cases now truly rests with the prosecutor.

If you or a loved one find yourself charged with a Measure 11 offense it is imperative that you seek the counsel of an experienced oregon criminal defense attorney.

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Kohlmetz, Steen & Hanrahan, P.C.

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