Oregon’s district attorneys divided on mandatory minimum jail sentences

By Conrad Wilson (OPB)
Jan. 9, 2021 6:26 p.m. Updated: Jan. 9, 2021 10:40 p.m.

A growing rift between some of Oregon’s elected prosecutors bubbled further into the open on Friday, following a three-hour meeting where members discussed the upcoming legislative session.

Following the meeting, the Oregon District Attorneys Association issued a statement in support of long-standing voter-approved mandatory minimum sentences. But they did so over the objections of some of the group’s newest and most progressive members.

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Hours after ODAA’s statement in support of Oregon’s mandatory minimums, known as Measure 11, the elected prosecutors of Multnomah, Deschutes and Wasco counties issued one of their own, calling the current criminal justice system “unfair” and said they welcomed working with state lawmakers this year on alternatives.

Measure 11 is a suite of voter-approved mandatory-minimum sentences for crimes like robbery, rape, murder and assault. It was passed by voters in 1994 and reaffirmed in 2000.

The dueling statements show a growing divide amongst some of the state’s elected prosecutors as well as an evolution of their constituents on how best to carry out public safety. Mandatory minimum sentences have a profound impact on the criminal justice system. Not only on defendants and crime victims, but also the state’s budget. Roughly, half of the inmates serving sentences in an Oregon prison are incarcerated on a Measure 11 offense.

Since Oregon voters reaffirmed Measure 11 more than 20 years ago, a growing number of progressive prosecutors in Oregon, and across the country, have started to rethink the policies that give them the ability to charge crimes in a way that can also dictate a defendant’s sentence. In Oregon, more than 90% of criminal cases end in plea agreements, rather than going to trial.

Lawmakers in Salem are looking at reforms to Measure 11 during the 6-month legislative session that is set to begin this month. While the Oregon District Attorney’s Association said it’s open to some reforms, it also released the results of a survey it commissioned in December as one way to show lawmakers some voters continued support.

The poll revealed most voters had not heard about Measure 11 but were favorable to the idea once they learned more, yet also supported Oregon lawmakers doing away with all mandatory minimums for violent offenders and instead of giving judges a range of options and the ultimate say when it comes to sentencing. ODAA hired Fallon Research to conduct the survey, which was made up of 600 registered voters and conducted Dec. 10 - 14. It had a 4% margin of error.

Critics say mandatory minimums give prosecutors an advantage during plea negotiations.

Communities of color have also been disproportionately impacted by mandatory minimums, in part, because they’re overrepresented in the criminal justice system.

Supporters of Measure 11 credit it with curbing crime.

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Washington County Courthouse

Washington County Courthouse

M.O. Stevens / Wikimedia Commons

“In the first two decades after the passage of Measure 11, violent crime in Oregon dropped by over half,” Washington County District Attorney Kevin Barton said in a December statement. “While I support responsible conversations to ensure our sentencing laws reflect our current needs and values, I believe that repealing Measure 11 minimum sentences for violent felonies will make Oregonians less safe and is contrary to the will of Oregon voters.”

On Friday, ODAA’s 36 members met and voted to issue a statement in support of Measure 11, stating it was the association’s position.

“The Oregon District Attorneys Association promotes public safety values that include accountability for offenders through truth and transparent sentencing as well as the protection of and advocacy for crime victims and their rights,” the statement read. “Measure 11 is consistent with those values as it is a proven tool to keep Oregonians safe by establishing minimum sentences for the most violent crimes such as rape, violent assaults and child sex abuse.”

The statement said Measure 11 provides crime victims certainty that violent criminals will be punished and that it should remain the law to “keep Oregonians safe.”

During Friday’s meeting and vote on ODAA’s Measure 11 statement, some members objected. Despite those objections, the statement was issued anyway.

District Attorney Mike Schmidt at a press conference Aug. 30, 2020, in Portland, Ore. A man was shot and killed the previous night as a Trump car caravan rolled through downtown.

District Attorney Mike Schmidt at a press conference Aug. 30, 2020, in Portland, Ore. A man was shot and killed the previous night as a Trump car caravan rolled through downtown.

Bradley W. Parks / OPB

Multnomah County District Attorney Mike Schmidt, Deschutes County District Attorney John Hummel and Wasco County District Attorney Mathew Ellis oppose Measure 11. Both Schmidt and Ellis were elected last spring.

Hours later, the three DA’s issued a statement of their own.

“The Oregon District Attorneys Association recently conducted a poll that shows the majority of Oregon voters believe sentences should be imposed by a judge, and not a prosecutor,” the three DA’s said. “Mandatory minimum sentences should be a thing of the past. Our system of mandatory minimums contributes to the rapid growth of our prison population and has led to the disproportionate incarceration of diverse communities. It has not made us safer.”

Despite the fundamental disagreement, Hummel described the meeting as cordial.

Hummel, Ellis and Schmidt said each has made clear to their county’s voters that mandatory minimums are “unfair, frequently excessive and increases disparity in our prisons.”

Some progressive activists have raised the prospect that the three might one day leave ODAA. In their statement, the three progressive DA’s said they hope to continue working with the organization.

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