ACLU takes aim at Measure 11 in a plan to cut Oregon’s prison population in half

Oregon State Correctional Institution east of Salem (Salem Reporter/Aubrey Wieber)

In recent decades, Oregon’s prison population has ballooned. In 2016, it was nearly five times that of 1980.

In January, 14,713 people were held in Oregon prisons.

Now, a civil rights group is proposing Oregon cut that population in half, targeting the state’s minimum mandatory sentences required under Measure 11.

Criminal justice reformers have long blamed what they see as the state’s harsh sentencing for increased inmate populations.

Gov. Kate Brown agreed with that in a recent conference call with reporters.

“Ballot Measure 11 was certainly a factor in that if not the major contributor” of the increase in the prison population, Brown said.

The American Civil Liberties Union recently released a national call for reform, releasing a plan for 24 states to date. That included a proposal for how to cut Oregon’s prison population in half by 2025. The report looked at a number of policies affecting prison populations, and found Measure 11 to be the most significant contributor.

Measure 11 offenses range from first-degree robbery to aggravated murder. The sentences range from nearly six years to life sentences. But the community impacts of Measure 11 extend beyond the sheer number of years imposed.

The report proposes measures to reduce the prison population by 6,895 people, saving more than $500 million. The proposal includes sentence reform, easier access to sentence reduction through programs and good behavior, and a departure from sentencing teens in adult court.

But Measure 11 advocates say the law has worked. Oregon’s crime rate has dropped since it was implemented in 1994, though at a rate similar to the national decline in crime.

Clackamas County District Attorney John Foote said the ACLU report makes “sweeping statements” not based in fact.

“The current leadership of ACLU has radical views about public safety, and this report is a good example,” Foote said.

To implement the reforms, Measure 11 would have to be heavily amended or repealed. Foote served on a state committee recommending public safety reform to the governor in 2012 and said the reforms would return crime rates back to that of the 1980s.

Under Measure 11, prisoners do not have access to reform programs. That’s because participation in programs shaves time off sentences, and Measure 11 offenders by law must serve every day they are sentenced to. The result, for instance, is that drug addicts don’t have access to treatment and domestic abusers don’t have access to anger management classes.

Juveniles 15 years and older are automatically charged as adults, and bail in Measure 11 cases is often set at $250,000 per count. Both issues, the ALCU report found, can lead to defendants taking plea deals for lesser charges rather than risking conviction of a more serious charge at trial.

“It shows Measure 11 is being used as a hammer to force pleas,” said Bobbin Singh, executive director of the Oregon Justice Resource Center.

Steve Doell, president of Crime Victims United, an organization that advocates tough-on-crime policies, said his organization would not endorse any of the ACLU reforms.

As of Sept. 1, 6,136 men and women were held in Oregon prisons on Measure 11 offenses — more than 40 percent of the entire prison population. The lengthy sentences for such a large population impacted the overall time served. According to the report, average time served jumped 21 percent from 2001 to 2013.

“Generally speaking, if we are going to think about reforms to the criminal justice system, we have to begin looking at reforms to policies like Measure 11,” Singh said.

Singh said Measure 11 takes a one-size-fits-all approach to a complex issue. It doesn’t, for example, look at intellectual deficits, socio-economic status or, in the case of juveniles, brains that aren’t developed.

“We believe the criminal justice system should fit the complexities of peoples’ lives,” he said.

Measure 11 also doesn’t allow a judge to give someone a break due to an otherwise clean criminal record. The ACLU report found that as of 2008, 70 percent of those sentenced had not been convicted of a felony before.

The report also found a connection between recidivism and the lengthy Measure 11 sentences. In 2017, more than one in five people booked into prison was there for a probation violation. Because Measure 11 prisoners can’t earn time off a sentence, they have no incentive to use their time in prison constructively, the report stated.

“What we want to do is incentivize pro-social behavior,” Singh said.

However, a report from The Pew Charitable Trusts found that of the 41 states that reported recidivism rates in 2004, Oregon’s was lowest at 22.8 percent.

Foote said recidivism is the result of poor supervision of people on parole and probation, and pointed to a 2007 report from the state Criminal Justice Commission to the Legislature. Foote said it specifically found that more incarceration leads to less crime.

However, the report also stated that long sentences can have negative effects.

“An example of the competing nature of the goals is that there is no evidence that incarceration alone reduces the likelihood an offender will commit crime when he or she is released from prison,” the report stated. “In fact, some studies indicate a long prison stay makes it more likely the offender will commit crime when returned to society.”

While states throughout the country, both red and blue, have spent the past two decades repealing mandatory minimum sentence laws, Oregon voters haven’t. In 2000, a ballot measure to repeal Measure 11 was soundly defeated, with 74 percent voting against it.  

Doell argued that Measure 11 has helped make Oregon safer.

“The violent crime rate has declined over 52 percent since the voters passed Measure 11,” he said, adding that he believes the law accounts for at least 65 percent of that.

Doell said there is no downside to the sentencing law.

“Victims receive a measure of justice and criminals receive just deserts,” he said. 

Foote said it’s important to find the right balance, but the more people you lock up, the less crime there will be.

“Incarceration reduces crime,” Foote said. “When they are in a jail cell, we know where they are. It’s just common sense.”

In 2008, Oregon voters approved Measure 57, imposing minimum sentences on property crimes.

The ACLU report found the female prison population grew as a result. From 2000 to 2017, the female population more than doubled, the report found, and in 2016 nearly half of all women entering the prison system had been convicted of a property offense. In that time, the female population more than doubled, the ACLU report said.

“Measure 11 and policies like Measure 11 were driven by fear and hysteria, and not really grounded in evidence,” Singh said. “And so the biggest hurdle we have is to reframe the conversation in evidence.”

Brown was quick to agree with the ALCU report finding that Measure 11 has had an adverse effect on prison populations. She didn’t directly answer, though, when asked if she had plans to spearhead a movement for repeal. She said she hopes reform continues to be considered, specifically with juvenile offenders, but said she is not aware of any proposals for the 2019 Legislature.

Have a story tip? Reporter Aubrey Wieber: [email protected] or 503-575-1251.