“Although I and, indeed, many members of the judicial branch may prefer a more enlightened sentencing scheme that would permit courts to sentence an offender in accordance with evidence-based practices that, in each case, are more likely to reduce offender recidivism and further community safety than does a mandatory minimum sentencing scheme, the voters, exercising their legislative authority through the initiative process, have mandated that certain crimes receive certain minimum punishments.”

~ Justice Paul de Muniz, Oregon Supreme Court
in State of Oregon v. Rodriguez/Buck,
September 2009

I sat in the small concrete attorney visiting room across from my client, Jeremy. He was 16. He had been brought into custody the night before and was still just sobering up. He had never been in detention before. He had never been in legal trouble before.  I explained to him that that he was facing a mandatory minimum sentence of 70 months – 5 years and 10 months – for the crime he was accused of, and that he would be tried in the adult court system. He was crying and confused. He was experiencing utter despair and disbelief.  How does a 16 year old get their head around something like that?

Drunk, Jeremy had jumped into a car, planning to drive away in it. The owner had left the keys in the car, in an apartment parking lot. The owner saw Jeremy and ran out to stop him. They struggled. Jeremy jumped out and ran. The police caught up with him a short time later. Robbery in the Second Degree. 70 months.

Jeremy didn’t end up doing 70 months. Although a defensible case, he took a plea deal, rather than face the mandatory 70 month consequence if convicted.  He served a year and a half, and engaged in drug and alcohol treatment.

Jose was charged with Sexual Abuse in the First Degree. It was alleged that he had subjected a young cousin to sexual contact.

Jose was 15, Mexican, border-line mentally retarded. He lived with his physically and verbally abusive Dad in a basement “apartment” with a dirt floor. There was heaps of reasonable doubt in his case. He was firm in stating his innocence; there appeared to be a strong motive for the cousin’s family to fabricate charges to avenge a family dispute. I didn’t think that he was capable of aiding and assisting in his own defense. As mentioned, his IQ indicated borderline mental retardation.  I filed the motion and we had a hearing.  Jose sat at the table and drew pictures. He had NO idea what was going on. After two days of evidence, the judge ruled that Jose was capable of aiding and assisting in his own defense in adult criminal court, barely, with accommodations.  Huh?  Although he had a strong defense, and although he maintained that he was innocent of the charges, Jose agreed to a plea deal, to avoid the mandatory minimum sentence of 75 months in prison if convicted. Part of his deal was that same sentence hanging over his head if he violated the conditions of his probation.  Can you imagine what would happen to this boy in prison?  How likely is it that a borderline mentally retarded adolescent with no real adult supervision will be successful on probation?

Passed in 1994, Oregon’s Measure 11, codified as ORS 137.700, became law through Oregon’s initiative process, spearheaded by Bob Kouns, co-founder of Crime Victims United.

The effects have proved problematic, stripping the juvenile and criminal courts of their discretion, slapping lengthy sentences on first-time offenders, crowding prisons, turning juveniles into adults and juvenile crimes into inexcusable adult offenses. Measure 11 sentences Oregonians 15-years and older, despite a lack of criminal record, despite circumstances, despite youth, to lengthy prison sentences to be followed by a lifetime of irrevocable felon rights including: significant employment prejudice, difficulty acquiring housing, and the social stigma of forever being labeled a criminal.

Oregon was not alone in passing tough on crime laws in the early 1990’s, but it’s ballot initiative system and political operatives offer a unique and compelling picture of how crime policy can go awry, even in an otherwise progressive state.  Oregon’s Measure 11 is the story of local politics intertwining with a national tough-on-crime trend, bringing about a blanket law that devastates the futures of youth caught in its wide net.

– Debra Smith Arthur

Debra Smith Arthur is an assistant professor at Portland State University, focusing on juvenile justice and educational equity. Prior to teaching, Smith Arthur practiced criminal defense law in Portland for ten years, specializing in representing juveniles in adult criminal court.