Sunday, November 13, 2011

This is not a "clerical error". But what is it?

James Willie today. The picture links to the Channel 2 story.
Channel 2 reporter Dan Tilkin did a public service with his story about the outrage over a "clerical error" that might let a four-time killer out of prison more than three years earlier than the judge ordered. But the judge didn't make the "clerical error," as Channel 2 has reported. The Department of Corrections (DOC) did.

On Sunday, July 18, 1999, Martin and Angela Ferlitsch drove their granddaughter Jennifer to the beach.  As they neared the coast their car was met by James Willie. Head on. Martin and Jennifer were killed instantly in the crash. Angela was severely injured but survived. 

James Willie was high on cocaine and alcohol, and not for the first time. He had already served two years in prison for killing his wife and a friend while loaded.

The judge in the second deadly case ordered Willie to serve, by plea agreement, just over 15 years in prison. Here is her order, dated January 11, 2000:
IT IS THE JUDGMENT OF THIS COURT that the defendant is convicted of Count 4, Manslaughter In The Second Degree and is sentenced to the Legal and Physical Custody of the Oregon Department of Corrections for a period of 75 months. 
IT IS FURTHER ORDERED that the defendant is convicted of Count 5, Manslaughter in The Second Degree and is sentenced to the Legal and Physical Custody of the Oregon Department of Corrections for a period of 75 months, to be served consecutive to Count 4. 
IT IS FURTHER ORDERED that the defendant is convicted of Count 3, Assault in The Second Degree and is sentenced to the Legal and Physical Custody of the Oregon Department of Corrections for a period of 70 months. 40 months are consecutive to Count 4 and 30 months are concurrent with Counts 4 and 5. 
The Defendant shall receive credit for time served. 
The term of post prison supervision is 36 months.
The judge's orders are prepared by the court and then sent to my office. We review the orders and if we think they are unclear we can ask that they be amended. There is nothing unclear about this order. Willie was to serve 75 months for killing Martin Ferlitsch, 75 months for killing Jennifer Ferlitsch, and 40 more months for severely injuring Angela Ferlitsch. 

Let's do the math. Willie was sentenced on January 11, 2000. He had been in jail since July 18, 1999, so his "time served" was 6 months minus about 7 days. The judge ordered him to serve 190 months minus those 6 months = 184 months = 15 years and 4 months. Willies' release date would be around May 11, 2015. 

On October 17th of this year my office received a list including about a dozen inmates the DOC plans on letting loose in the next few months.  One name was James Willie, with a  release date of January 2012.  The named and the date jumped at me. I remember the case very well, including the sentencing. The plea bargain I offered under Measure 11 was that Willie had to serve at least 15 more years from the date of sentencing before he could be eligible for release.

The DOC has so far not responded to my November 1 letter explaining the error. The DOC has refused to answer KATU's questions on camera. The DOC apparently has not checked the original proceedings. I have my suspicions about why.

People who have been affected by the James Willies of the world understand the need for truth in sentencing and the reasons for Measure 11. Oregon voters in general understand. A growing chorus of "experts" think they know better.

They don't.

[Part 1 of 2]

Monday, November 7, 2011

Truth in publishing

Letter to the Editor
Medford Mail Tribune

[reposted from Sunday, October 30, to reflect the OpEd as published in the November 7, 2011 Mail Tribune]

Your editorial of Oct. 23 started out with a serious misstatement and went downhill from there.
In your comments praising the Public Safety Commission, which recently met in Ashland, you advised that "Oregonians — especially those who support the state's mandatory minimum sentencing laws such as Measure 11 and Measure 57..." would do well to listen to a Texas state representative who was given the lion's share of the agenda at the Ashland meeting.
With one rare exception, Measure 57 has nothing to do with mandatory minimums. The only part of that law — a compromise crafted by legislators who were reacting to a much harsher alternative Measure 61 — is a mandatory minimum for the rare drug dealer found with an excess of a pound of certain hard drugs — heroin and methamphetamine among them. Contrary to the urban legends about sentencing in Oregon, less than 10 percent of those in Oregon's prisons are there for drug offenses, and more than 75 percent of convicted felons do not go to prison.
You did note that Oregon has been a leader in innovative approaches. Both Jackson and Clatsop County (where I am in my fifth term as district attorney) have drug courts in which the DA fundamentally turns over the prosecution of many drug offenders to a drug court judge who acts as a high-intensity monitor in cooperation with probation officers. One reason is that sentencing guidelines, which regulate all but Measure 11 crimes (which involve only the most violet felonies and most serious sex offenses), dramatically limit a judge's ability to go higher than 20 to 60 days in jail for a felony, often even repeat felony convictions.
Measure 57 was almost immediately suspended by the Legislature, which also increased so-called "good time" from 20 to 30 percent. That makes it very hard to claim we have truth in sentencing when trying to explain to a victim that a 30-month sentence for someone with 5 DUIIs in the last 10 years really only means 21 months.
Oregon is approximately 30th in per capita incarceration in America, and our sentences are significantly lower than most states and most definitely far lower than sentences in Texas.
To caricature Oregonians who want truth in sentencing as "lock 'em up and throw away the key" as you did does little to advance the debate over whether it is necessary to disassemble a justice system in Oregon that has seen dramatic decreases in crime, particularly violent crime.
While violent crime has gone down nationwide, nowhere in America has it fallen as fast and as far as in Oregon. About five years ago, USA Today reported a study that examined positive trends in public health. Some states reported marked decreases in teen pregnancy, others a lessening of infant mortality. But in Oregon, they considered violent crime a public health issue and lauded Oregon for bringing violent crime down more than 40 percent in the preceding years, which not by accident coincided with the enactment of Measure 11.
The most serious sentences that Measure 11 hands down for a crime that does not involve killing another person is rape in the first degree. The Measure 11 sentence is eight years. Is there anyone who thinks that the forcible rape of a woman or a child deserves anything less than eight years in prison?
What is missing in the "message" of the Criminal Justice Commission is a failure to listen to Oregonians — who are not as knee-jerk or simplistic as they are painted.
Truth in sentencing and the acknowledgment that victims have a legitimate role in the justice system came as the result of a long series of initiatives, starting with Measure 10 in 1986 all the way to Measure 73 in 2010. These initiatives are just as much reforms as the protections for the environment or Oregonians' insistence that they should decide when they die, not the U.S. Department of Justice.
There are three major legs of discretionary spending in the state budget —- education at roughly 57 cents, social services at about 26 cents and public safety at about 15 cents of every dollar — which ranges from more than $200 million for public defenders, $10 million for district attorneys and the largest share for the Department of Corrections.
Yet when looking at either benchmarks or public satisfaction, one cannot say we are all that successful at education (despite the best efforts of many dedicated teachers) or that we are doing such a great job at protecting at-risk children (again despite what are often the best of intentions), but the smallest area of state discretionary spending has yielded a state that is far safer than it was a quarter of a century ago, and yet that is where there is pressure to give up and run back the clock?
Joshua Marquis has been the elected district attorney of Clatsop County since 1994. In 2001, he served as president of the Oregon District Attorneys Association and from 2005-2009 was a member of the Oregon Criminal Justice Commission. He write and speaks across the country on criminal justice issues and has leadership roles at both the National District Attorneys Association and the American Bar Association. The opinions expressed here are his and not necessarily shared by these organizations.

NB: Pamela Fitzsimmons makes complementary points in an insightful post, "Getting Squishy on Crime."