Friday, February 26, 2010

Pornography of Pay: Part II

Prosecutors' pay cut caught in controversy
E-mails allege pressure
by Nick Budnick
Feburary 24, 2010
reprinted with permission in The Daily Astorian
scroll to bottom for the associated editorial, "This Stinks," from The Daily Astorian
(pictures, top to bottom: Michael Dugan, Judy Stiegler, Bill Porter, Josh Marquis)

SALEM — Last July, Deschutes County District Attorney Mike Dugan learned that he and Oregon's other elected top prosecutors had each lost about $5,000 pay. Not only that, but his own wife, Rep. Judy Stiegler, D-Bend, had, like other lawmakers, voted for the bill that slashed his salary in the final days of the 2009 legislative session — not knowing it would hit the elected DAs personally.

For many district attorneys, $5,000 is almost a month's paycheck. And that sum, it turns out, is enough to affect how a public debate plays out at the Capitol.

Though Dugan, a Democrat, won't say much about the politics of the pay cut, several prosecutors say they stayed out of this month's legislative debate over a criminal sentencing bill, hoping the Legislature would restore their unexpected pay cut. The cut is slated to be restored in a budget bill expected to be voted on today.

Some of the state's 36 district attorneys contend lawmakers used the pay cut to pressure the DA s group into an uncharacteristically quiet role on a “fix-it” bill modifying “earned time” sentencing provisions that allow some inmates to be released early. The bill, which effectively puts a six-month moratorium on early release, was approved by both houses and sent to Gov. Ted Kulongoski, who signed it Feb. 17.

The accusations are contained in e-mails obtained by The Bulletin under Oregon's Public Records Law.

On Feb. 10, Clatsop County District Attorney Josh Marquis warned his fellow elected prosecutors not to voice criticisms of an earned time bill, Senate Bill 1007.

“There are many problems with this 'fix' but if any of us say a word they'll cut off our salaries.... so I hope everyone has equity for a loan, savings or has been setting aside money,” he wrote.

In an e-mail to his elected colleagues the next day, Malheur County District Attorney Dan Norris wrote that the Legislature “is buying our silence on (legislation) with our salary ... The Legislature has taken a very dangerous low road by tying our hope that we get the salary (restored) to our rolling over on earned time.”

Truth and rumor
Several key Democratic lawmakers said they don't believe the claim that pay raises were linked to legislative positions. “Neither I nor anyone I am aware of would tie the two together,” said House Speaker Dave Hunt, D-Clackamas County. “It wouldn't be appropriate, and it didn't happen.”

Sen. Chip Shields, D-Portland, clashed with prosecutors last year over the earned time issue. Told of their allegations of improper pressure, he said, “I hope they use more evidence than that when convicting people.”
The prosecutors won't say who they think pressured them to stay silent. But Marquis, who is active in Democratic politics and who is among the candidates to be Oregon's next U.S. attorney, said that based on his inquiries at the Capitol, he firmly believes that “legislators who had the power to do this” made the threat.

He said he wouldn't single out any lawmakers in part because he didn't want to reveal his sources. But he's lobbied on criminal justice bills for close to three decades, and “I think I'm able to distinguish between truth and rumor,” he said.

Marquis, like other prosecutors, refused to discuss the pay politics until the e-mails were obtained under records law.

“I've never seen anything like this, and it's very concerning,” he said of the politics around the pay cut.

The concerns add prosecutors to those who in the last month have complained about pressure politics in the Capitol, a list that includes Oregon Head Start officials, corporate lobbyists and a bank president.

Last week, e-mails surfaced that show that Hunt warned Head Start officials that their budget was at risk next year because the group had failed to support two tax measures on the Jan . 26 ballot, backed by Democratic leaders, and wouldn't fire their conservative lobbyist, Mark Nelson, a leader in the opposition to the measures. For his part, Hunt contends he simply was worried Nelson's role would hurt Head Start.

Pay cut imbroglio
The prosecutor pay cut controversy dates back to November 2008, when voters approved Measure 57, which increased penalties for drug and property offenders, including drug dealers, burglars, car prowlers and identity thieves. But in 2009, legislators wanted to suspend Measure 57 to help close a $4 billion hole in the budget — and they ran into a fight.

Prosecutors protested that House Bill 3508 would effectively let thousands of inmates out early to reduce prison costs. It did so by increasing the amount of “earned time” an inmate could shave off his or her sentence, from 20 percent to 30 percent.

Crook County District Attorney Daina Vitolins said prosecutors fought the bill out of concern for public safety as well as on behalf of thousands of crime victims.

In late June, it became clear the bill would pass, over their objections. So the prosecutors decided to “get out of the way” and support the bill, said Kevin Neely, the lobbyist who represented the Oregon District Attorneys Association in the fight.

But that wasn't the end of it.

In two budget hearings in June, several lawmakers said that the prosecutors' pay deserved to be cut but said it wouldn't be.

They complained that the ODAA's activism on House Bill 3508 had reduced the scope of the bill and therefore necessitated cuts elsewhere. In a June 22 hearing of the budget-writing Joint Ways and Means Committee, Rep. Nick Kahl, D-Portland, called prosecutors' lobbying an “incursion to the legislative process.”
It was only after the hearings closed that lawmakers were presented with a last-minute budget bill that cut about $170,000 from elected district attorneys' pay.

Lawmakers now say that DA pay was cut not in retribution but because so many deeper cuts were being made elsewhere. “Prosecutors were not singled out,” said former state Sen. Margaret Carter, D-Portland, who co-wrote the budget bill before leaving office last summer.

A personal issue
Stiegler recalls the day in July she learned about it from Dugan, her husband: “I remember Mike coming home and saying, 'Do you know you cut my salary? '”

“And I'm like, 'What are you talking about, dude?'” she said.

Dugan said that he thinks most of the 90 state representatives and senators didn't know their vote would make prosecutors the only elected officials to receive a pay cut last year. “It's my opinion that at least 87 of the people in that building had no inkling whatsoever,” he said.

The news hit district attorneys in a personal way. Prosecutors in smaller counties make about $87,000 from the state, and in larger counties, of more than 100,000 people, about $99,000. On top of that, many counties give their elected district attorneys supplements to boost salary.

Jefferson County District Attorney Steven LeRiche said he has two young sons and a wife to support and said the lost paycheck wouldn't just affect his kids' college fund.

“I'm probably living more month to month than that,” he said. “You're pretty much talking about a month's salary, and what employed person can say they could lose a month's salary and not (feel it)?”

Relations between the elected prosecutors and lawmakers remained tense after the session. Media accounts discussed how thousands of inmates were being released, some of whom had records of violence and sex abuse. Lawmakers vowed to take up a legislative fix to stop further releases of dangerous convicts.

Meanwhile, many prosecutors tried to find out why their salaries had been cut and what they had to do to get it back. E-mails from the elected district attorney's listserv show the first mention of pressure from lawmakers appeared less than six weeks after the pay cut.

On Aug. 12, Tillamook County District Attorney William Porter e-mailed his colleagues in support of a legal challenge to the salary cut, calling the pay cut punishment for their fight against HB 3508. “We are also being blackmailed w/ threats of further cuts if we don't behave ... Let's fight back!”

In another e-mail, Marquis insisted lawmakers told the group that the negative newspaper articles about HB 3508 risked their salaries.

Asked about the e-mails, Neely denied knowledge of any direct threats, instead saying he had typical political discussions with lawmakers when he approached them about getting the DA pay restored. In an e-mail, he called it a “two way street” in which lawmakers sought the district attorneys' support on the legislative “fix” bill, later called Senate Bill 1007.

“Some legislators expressed dismay over the media attention around earned time; I expressed my dismay over the salary reduction,” Neely wrote. “Was I specifically told to play ball on SB 1007 or lose salary money? No. Did legislators insinuate that it would be an easier road if we assisted on SB 1007? Sure. At the same time, I told legislators that it would be pretty hard to ask for the DAs to support anything until our salaries are restored.”

Most district attorneys, in fact, wanted HB 3508 to be fully repealed, not just fixed. But in the end, they decided not to fight it actively, instead co-authoring a polite letter with law enforcement groups. Neither Neely nor any elected district attorney testified on the bill.

Under pressure?
Neely characterized the toned-down stance as a tactical decision to repair frayed relations with the Legislature. Was it motivated partly by desire to restore their salaries? “I'm not sure,” he said, adding that while some prosecutors had that motivation, others didn't.

Stiegler, for her part, said she hadn't heard from lawmakers about DA salaries getting wrapped up in pressure politics, though she knew some prosecutors suspected it.

Dugan and Vitolins say they don't think lawmakers pressured prosecutors.

LeRiche said he doesn't know what to think. But the suspicions aren't good for public faith in the democratic process, he said, adding that legal protections for district attorney pay could be the solution.

“If people are suggesting that you can influence public officials with money, then that's a bad thing, and it shouldn't be part of the process,” he said.

E-mails allege pressure
Dec. 22: Malheur County District Attorney Dan Norris to his fellow DAs on whether they should respond to an Op-Ed supporting House Bill 3508, a bill that let thousands of inmates out early to help ease a budget crisis:

“Failing to respond will encourage legislatures to view our organization as weak and divided. Couple that with the fact that they intentionally cut our salary, and are holding the add back hostage to our keeping silent about a bad policy that we opposed will appear that they can control us for 1.8% of our salary. If we set that precedence we will be encouraging more of the same.”

Aug. 12: Tillamook District Attorney William B. Porter's e-mail to his fellow elected district attorneys, discussing whether the DA's association should mount a legal challenge to a pay cut the Legislature approved for them:

“Why not go there? We are duly elected constitutional officers. We are being punished for exercising our rights as citizens and our duty as DAs. The Governor has consciously chosen to just let it happen. We are also being blackmailed w/ threats of further cuts if we don't behave. The legislators that hate us are already out to cut our pay more. Let's fight back!”

Feb. 10: Clatsop County District Attorney Josh Marquis to his fellow district attorneys on whether they should point out flaws in Senate Bill 1007, a bill to fix problems with HB 3508:


There are many problems with this “fix” but if any of us say a word they'll cut off our salaries ... or more accurately refuse to reinstate our June 2011 paycheck so I hope everyone has equity for a loan, savings or has been setting aside money. This WILL pass. There is nothing we can do about it.”

Feb. 11: Malheur County District Attorney Dan Norris to his fellow DAs on whether they should ask Sen. Floyd Prozanski for help getting their pay restored in light of their restraint in speaking out:

“The legislature (Floyd et al) is buying our silence on earned time with our salary. We have always taken the high road, and not traded policy for a pay raise. The legislature has taken a very dangerous low road by tying our hope that we get the salary that the law requires to our rolling over on earned time. This is a very dangerous precedent. I should have spoken more forcefully last month, but I had already said enough. It is too late to change our course. However the pay cut worked so well this time for the legislature that it will become the way that they neutralize us in the future.”

In a series of e-mails obtained under Oregon Public Records Law, elected county district attorneys claimed lawmakers were using DA salaries to pressure them to keep silent about bills changing the rules on inmates' early release thanks to “earned time.”

Nick Budnick can be
reached at 503-566-2839 or

This stinks
It is time to remove politics from Oregon prosecutors' compensation
editorial, February 25, 2010

It is a wonder that Oregon is so backward on compensating county prosecutors. The latest sordid wrinkle in this story was reported Wednesday by The Bulletin of Bend. An Associated Press version of the story is in this edition. The allegation in the Bulletin's story is that Oregon district attorneys' salaries were cut by the 2009 Oregon Legislature as retaliation for their pressure on criminal sentencing and that key legislators have bought silence from DAs on criminal sentencing legislation in the 2010 session by threatening legislation that would alleviate the damage done in the prior session.

All of this stinks.

Oregon's county prosecutors are notoriously inadequately compensated. How bad does it have to get before a core group of legislators end this disgusting drama? And where is Gov. Ted Kulongoski, who served as the state's top law enforcement officer?

A good solution would be to tie the salary of prosecutors to the compensation paid to Oregon judges. That was proposed in Clatsop County when county commissioners reduced the local share of District Attorney Josh Marquis' salary.

In the imbroglio in Clatsop County, the commissioners' implicit motive was to drive DA Marquis from office.

The legislative game described in The Bulletin's reporting reflects badly on the leadership of House Speaker Dave Hunt. The Oregonian, in a recent Sunday report, described Speaker Hunt's retaliation against businesses and others who opposed ballot measures 66 and 67.

Speaker Hunt is only the latest political leader who acts as though there is no tomorrow. It is a fatal flaw in the political gene pool. It appears in every generation. In this malady, Richard Nixon and Huey Long are Speaker Hunt's political ancestors.

It is beyond ridiculous that district attorneys' compensation is a tactic in the Capitol's soap opera. Let's remove that from the table by enacting a link between Oregon judges' compensation and that of county prosecutors.

Wednesday, February 10, 2010

Sentencing guidelines neglect animal abuse

Pet Talk: Oregon's animal-abuse laws lose their bite under state sentencing guidelines
By Jacques Von Lunen, Special to The Oregonian
February 09, 2010, 3:58AM

The laws Oregon has to protect animals from abuse look great.

They look good enough, in fact, to ensure the state perennial bragging rights for being among the toughest in the nation on animal abusers.

Problem is, looks aren't everything.

Prosecutors say that in court, where it counts, they are hampered by Oregon's sentencing guidelines, which make animal-abuse laws all but useless. Budget concerns shut down attempts to correct the situation in last year's legislative session.

The problem lies with trying to convict people of felony animal-abuse charges.

Prosecutors say that lower-level offenses -- letting animals live in squalid conditions, for example -- carry adequate sanctions for the most part. But they say the punishment does not fit the crime when it comes to those who have killed or tortured animals.

That's because of sentencing guidelines.

On paper, someone who bludgeons puppies with a crowbar or throws a kitten in a fire -- real Oregon cases -- could, if convicted, go to state prison for five years. At least that's according to Oregon's statute on aggravated animal abuse (ORS 167.322)

But in reality, any judge sentencing a felon has to obey Oregon's sentencing guidelines. And in the case of animal abuse, the guidelines defang the law.

Oregon's sentencing guidelines are structured as a grid that weighs the severity of a crime and the criminal history of the offender.

Imagine a checkerboard with crime categories on one side and criminal history scores on the other. Through this grid runs a jagged line. Everything north of that line means prison time. Anything below results in probation.

A judge can point to the category of the crime in question, run a finger across the grid to the column under the offender's score and read the range of sentences that can be meted out.

Under Oregon's guidelines, aggravated animal abuse -- which the law defines as "maliciously killing or intentionally torturing an animal" -- is a Level 3 crime. At that level, even someone with a record of multiple violent crimes lands in the probation zone. There'll be no prison no matter how heinous the offense.

Judges have some discretion. A process called departure allows judges to add time in county jail -- as long as 12 months for the worst offenses -- to a probation sentence. And offenders who repeatedly violate the terms of their probation can ultimately end up doing the full time.

But neither scenario is very likely. And that's infuriating to prosecutors.

"We have what sounds like a tough law," says Josh Marquis, district attorney in Clatsop County. "But there is literally no way to get prison time, no matter how horrible the (animal-related) crime."

Heidi Moawad, deputy district attorney in Multnomah County, says, "Level 3 doesn't appropriately reflect the seriousness of these crimes."

Jean Kunkle, deputy district attorney in Marion County, says, "The fact that it's ranked 3 is frustrating."

All three have faced the sentencing limitations in cases in which offenders got off on probation or received a few months in county jail for, say, beheading or stomping to death an animal.

Anyone who thinks it's a waste to spend tax dollars on putting away a cat killer should read about the link between animal abuse and other violence.

"There's an absolutely undeniable link between person and animal cruelty," Marquis says. "All of the serious sexual psychopaths have animal cruelty in their backgrounds."

Moawad says animal abuse has played into domestic violence cases that she has seen: Spouse and child abusers kill or maim family pets to exert pressure on their victims.

Just to be clear: This isn't about hunting or telling people how to take care of their animals. This is about the few cases of malicious, intentional, torturous killing -- the cases that the vast majority of society agrees are ghastly.

If laws reflect a society's values and if Oregonians value their animals, then why, when it comes to punishing animal abuse, does Oregon lag other states?

Scott Heiser, director of the criminal-justice program at the Animal Legal Defense Fund, says that sentencing guidelines in Texas and Virginia, for example, indicate that a conviction of aggravated animal abuse in those states would most likely land you in prison.

And he cites a case in Wisconsin: Randy Lee Whitney was convicted of killing a woman's kitten by stomping on its head in 2005. His sentence was four years in prison. In Oregon, says Heiser, who used to be the Benton County district attorney, Whitney would most likely have gotten "a whopping 60 days (in) jail as a condition of a 24-month term of probation."

Animal abuse's ranking in Oregon's sentencing guidelines almost changed during the last legislative session.

The Criminal Justice Commission prepares recommendations for each crime's ranking, which the Legislature then must pass.

Marquis, the Clatsop County D.A., served on the commission until April. Moawad, his Portland colleague, testified before the commission. They made their case.

The commission recommended that the Legislature raise the ranking for aggravated animal abuse to Level 8 and the ranking for first-degree felony animal abuse -- cruelly killing an animal in front of a child, for example -- to Level 6.

Marquis thought he'd ended his commission term on a high note. "This was something I thought we'd accomplished," he says.

There was just one problem: money.

The Legislature's committee on ways and means -- the budget folks -- struck down the recommendation.

"There was a serious shortfall in the Department of Corrections budget," says Craig Prins, the commission's executive director. "We were reducing time served for guys who already have hurt people."

He says legislators favored the recommendations in principle but couldn't afford to add to the prison population.

But it's not as if the higher rankings would have flooded Oregon's prisons.

"I don't think the Legislature is in a position to say this is too expensive," Marquis says. "We can afford to send three or four really bad animal offenders to prison."

The prosecutors haven't given up on changing the guidelines.

"Maybe in better fiscal times," Kunkle says.

The door is not closed on the issue. Prins says either the Legislature or the commission could take it up again. But, he cautions, budget forecasts make that unlikely.

Unless the public demands such a change.

"My hope is that we could encourage legislators to give it another try," Moawad says.

-- Jacques Von Lunen