House Majority Leader Jennifer Williamson began her judiciary committee’s hearing Wednesday on juvenile justice with a powerful disclaimer.
“The testimony we may hear today may be hard to hear, upsetting, traumatizing for some people,” the Portland Democrat told a crowded room in Salem.
Committee members heard nearly two hours of testimony from faith leaders, members of the public, district attorneys and other elected officials, divided over SB 1008. A parent spoke about his murdered daughter, a grown son spoke of how his mother was killed, and a former juvenile offender told his story of transformation to now working in the juvenile justice system.
The bill, which passed the Oregon Senate last week, would make significant changes to the way alleged offenders under 18 years-old are treated under Measure 11, a suite of voter-approved mandatory minimum passed in 1994.
Perhaps most significantly, it would end the practice of automatically prosecuting 15-, 16- and 17-year-olds as adults charged with Measure 11 crimes.
Wednesday’s hearing made one thing clear: The bill defies partisan politics and whatever the Oregon House does with the legislation, there will be those who fundamentally disagree with the outcome.
In addition to changing who gets prosecuted, the bill would also make significant changes for youth sentenced to life in prison. Specifically, it prohibits a life sentence without the possibility of parole if the defendant is under 18 at the time they committed the offense. The Legislature is trying to comply with a series of rulings made by the U.S. Supreme Court in the last decade that said juveniles need to be treated differently in the criminal justice system because their brains are still developing. For those offenders sentenced to life, it also allows for a parole hearing after 15 years if the crime happened before the individual was 18 years old.
The bill would allow youth who commit crimes while they’re under 18 to remain in the custody of the Oregon Youth Authority, even if their prosecution doesn’t happen until after they are 18.
The bill is not retroactive and, if passed, would apply to sentences imposed after Jan. 1, 2020 – something Williamson and Sen. Floyd Prozanski, D-Eugene, stressed during Wednesday’s public hearing.
But even that aspect of the bill was challenged right from the start.
“I believe that’s a debated issue,” said Rep. Mike McLane, a Republican from Powell Butte. “Part of our process here is to vet whether indeed it applies retroactive or not. One opinion by leg counsel does not make a debated issue fact.”
That sentiment was carried further by Lane County District Attorney Patty Perlow, who spoke in opposition of the bill.
“It is a real stir that’s created in my community about this,” Perlow said.
Then she spoke about Kipland Kinkel.
On May 21, 1998, then 15-year-old Kinkel brought more than 1,000 rounds of ammunition, two pistols and his father’s Ruger .22 caliber rifle to Thurston High School in Springfield. Kinkel killed two students at Thurston and wounded 25 others. Later, police found Kinkel’s parents’ dead at home. He had shot them as well.
“The trauma is still very real and you know, you know that’s going to be litigated,” Perlow told lawmakers. “This is a real concern for my community.”
The Oregon District Attorneys Association also spoke against the bill.
“While ODAA agrees the Oregon juvenile justice system could improve, overriding a ballot initiative with a legislative supermajority is not the answer,” said Jackson County District Attorney Beth Heckert, who is the president of ODAA.
Prozanski said in his remarks that when voters passed Measure 11, they also passed Measure 10.
“Measure 10 authorized the Legislature to be able to make changes by reducing a sentence that’s passed by the voters so long as there’s at least two-thirds of the chambers complying and agreeing with that change,” Prozanski testified before the committee.
Prozanski also offered tough words for some prosecutors.
“Unfortunately, in some district attorneys’ offices they have used that position of being able to threaten a mandatory minimum sentence” to force guilty pleas, he said.
Prozanski argued prosecutors can tip the balance in their favor by using Measure 11. He said judges should be allowed to determine a sentence for youth convicted of a crime instead of being forced by a mandatory sentencing guideline.
Many others also spoke in favor of the legislation, including Deschutes County District Attorney John Hummel, who talked about brain science and teens.
“To punish them as adults, when a significant contributing factor to their crime likely was a less than fully developed brain, is unduly harsh and also results in a less safe community,” Hummel said.
He noted that youth serving Measure 11 sentences are eventually going to be released from custody.
“Some people might feel good about dropping the hammer on a kid who commits a crime,” he said. “But if we do that we better keep our hammers handy. Because these kids will get out and when they get out they’ll be more likely to commit a crime than they would’ve been if we’d provided them the support to nurture their brain development.”
One of those kids was Sang Dao. He now works in the Multnomah County Juvenile Department. Years ago, he was incarcerated.
“When I was 17, I committed an inexcusable violent act in the community, which ultimately led to being charged with Measure 11,” Dao said.
In 2007, he was involved in three shootings, one of them a road range incident where he fired into a car carrying three adults and a baby.
Dao said the day before his 18th birthday, he was transferred to an adult jail. Rather than in-person visits from his mom like in juvenile detention, he instead spoke to her through pay phones and thick glass.
“That was a real big eye-opening experience for me,” he testified. “I was subjected to 23 hours of social isolation when I was there.”
Dao said he was offered the opportunity to go to the Oregon Youth Authority, which he said changed his life.
“I was able to understand the gravity of my actions,” he said. “I was able to slow down my life and figure out why I was acting out in the ways that I’ve acted.”
Antoinette Edwards, director of the Office of Youth Violence Prevention for the city of Portland, said the bill must pass.
“For nine years I’ve worked in this role, at the intersection of crime and violence, prevention and healing, of accountability and forgiveness and this is what I know for sure: Measure 11 takes away what we need to begin healing after violence,” she said. “When youth have had other traumas in their lives, often resulting from violence, the poor choices they make can have devastating impacts.”
She said the decision to charge 15, 16 and 17-year-olds as adults should not be dictated by a charge, but rather a judge working in consultation with prosecutors and the defense.
Crime victims pushed back on that notion. Milwaukie resident Randy Tennant, who described himself as a liberal Democrat, pointed out that crimes under Measure 11 are serious offenses, such as murder, rape and robbery.
“This isn’t Johnny stole a bike, this isn’t Johnny shoplifted a car, these are major crimes,” he testified. “My mother was murdered by my nephew.”
He said he understood the desire to see reform in juvenile offenders. “But there comes a point in time where there has to be a certain level of accountability,” Tennant said.
The committee has not yet scheduled a vote on SB 1008.