Thursday, October 3, 2013

Sex Offenders in Oregon

Maxine Bernstein has written an excellent mega-series in the Oregonian about the failure of sex offender registration in Oregon, a state with the highest number of sex offenders in the country. The failure rate is likely due to the leniency of the laws: Aserial rapist who repeatedly fails to register will NOT go to prison.

Maxine's story follows Mark Beebout, a convicted California child molester who moved to Clatsop County, failed to register, was indicted, convicted and awaiting a likely exceptional 14-month prison sentence when the jail released him eight days before his hearing. Beebout fled to Portland where he murdered two women over the next month.

The well-detailed series includes profiles, maps and videos, including an interview with me (for which the video crashed but the audio remains) and with Amy Lewis, Mark Beebout's off-and-on girlfriend.

Monday, September 9, 2013

Another example of the need for more jail space

A good piece by reporter Chelsea Gorrow on another example of why Clatsop County needs more jail space. Full article after these pull quotes (and on the Daily Astorian's website.).
“Everyone wants to know who is responsible, who released these individuals, like Mark Beebout, Bruce Rogers, the fellow who broke into the same house three times. They ask me to name the judges, name someone responsible, and I could do that, but I don’t see that as terribly productive,” Marquis said. “They’re looking for someone to blame, but the blame is on the system, it’s a system problem. This is a system problem and we need a bigger jail.”   . . . 
“We’ve had all of these incidents, and a lot of others that were not spectacular, as in no one got shot, but it’s just getting worse and I have no doubt that it will keep getting worse,” Marquis said.
Marquis said he also believes Clatsop County needs an inmate release officer, something he hopes to propose in the next budget cycle. A release officer would ask all of the right questions to determine whether a person is likely to reoffend, has a drug addiction, or other issues, he said. Marquis serves in a similar capacity attending the arraignments, but said he is not always able to exclude people from the matrix.      ####

Revolving jail door strikes again
Woman released from custody accused of attempted murder

Posted: Friday, September 6, 2013 10:40 am | Updated: 11:20 am, Fri Sep 6, 2013.
By Chelsea Gorrow
The Daily Astorian

When Sarah Smith was arrested twice in late August for identity theft and fraud charges, by all accounts she should have been in jail for a while.

After all, the 14 counts of identity theft she’s charged with are classified as felonies, among a slew of other charges.

But Smith – who police believe used false identities and stolen checks to obtain Vicodin prescriptions – was released anyway.

And five days later, she was accused of conspiring with Adrian Konecny, 24, to rob and murder Robert Olsen, 56, a former victim of Smith’s. Thursday, Smith and Konecny were both arraigned for attempted aggravated murder, robbery, burglary and assault, as well as other crimes.

Sarah Smith
Adam Konecny
Olsen was beaten severely with a baseball bat just after 3:30 a.m. Wednesday morning in his home after a man kicked in the back door and attacked him. The robber got away with cash. Olsen, who police say is related to Smith, suffered head and rib injuries and walked to the hospital to seek treatment. Astoria Police were notified.

A short time later, while police took down a detailed description of the attacker, a Clatsop County Sheriff’s deputy saw a Jeep in the middle of Lewis and Clark Road facing the wrong direction. Konecny matched Olsen’s description “to a T,” said Astoria Deputy Police Chief Brad Johnston. Konecny was in the company of Smith.

Both were arrested and charged with first-degree burglary, first-degree robbery, second-degree assault. The charge of attempted aggravated murder was added as the investigation progressed – as well as conspiracy to commit each of those crimes. Konecny was charged with unlawful possession of methamphetamine. Smith was charged with a probation violation at the time of her arrest. She is on probation in the Portland area for similar identity theft crimes.

Thursday, Clatsop County Circuit Court Judge Phil Nelson set security on each of them at $500,000. Both are excluded from the matrix – a grading scale to determine who is released if the jail is full.

Question asked

But why was Smith released? Her Jeep, seen on Lewis and Clark Road Wednesday, still had evidence tape on it from the last time it was seized by police.

While this pair has not been convicted, there have been similar, high-profile cases of criminals released from the Clatsop County Jail for overcrowding who have committed more serious crimes.

Clatsop County District Attorney Josh Marquis said they highlight the “system” problem.

“Everyone wants to know who is responsible, who released these individuals, like Mark Beebout, Bruce Rogers, the fellow who broke into the same house three times. They ask me to name the judges, name someone responsible, and I could do that, but I don’t see that as terribly productive,” Marquis said. “They’re looking for someone to blame, but the blame is on the system, it’s a system problem. This is a system problem and we need a bigger jail.”

At least three serious cases have offered the equivalent of the “poster child” for the new jail campaign.

• Mark Beebout was released from the Clatsop County Jail in May 2012 for overcrowding, one week after voters turned down a proposal to expand the jail. He went on to murder two women in Portland and is serving a life sentence.

• Bruce Rogers was released from the Clatsop County Jail in April 2013 after attacking his estranged wife and holding her against her will in his home, assaulting and strangling her. He was released after four days, despite attempts to keep him off the matrix system. He broke into her Warrenton apartment, hid for several hours, then confronted the family, claiming he had a gun. When his estranged wife called police, he barged into the room she was hiding in with her two daughters. She shot and killed him.

• Tony Tischer, 25, of Hammond, broke into an unoccupied neighbor’s home twice last spring, released quickly each time from the jail by the matrix. He returned to the home in mid-March, only to be caught by the resident, who shot Tischer with a shotgun. Tischer is still recovering from his wounds.

“We’ve had all of these incidents, and a lot of others that were not spectacular, as in no one got shot, but it’s just getting worse and I have no doubt that it will keep getting worse,” Marquis said.

Marquis said he also believes Clatsop County needs an inmate release officer, something he hopes to propose in the next budget cycle. A release officer would ask all of the right questions to determine whether a person is likely to reoffend, has a drug addiction, or other issues, he said. Marquis serves in a similar capacity attending the arraignments, but said he is not always able to exclude people from the matrix.

Requesting “no bail” in theory would mean that person would not get out of jail, Marquis explained, but with jail overcrowding that is not always the case. Smith was not to be released on bail the second time, but was “matrixed” out anyway.

Tillamook help

“I think the sheriff hit the nail on the head when he said this would happen,” jail Lt. Paul Tesi said, referring to Tom Bergin’s prior statements on the issue. “There is a lack of beds and a lack of space, and these are the things that are going to happen when we don’t have space inside the facility. It’s sad to say, but we’ve been harping on the need for more space for a while now and it seems to be catching up to us, unfortunately.”

Clatsop County rents space from Tillamook’s jail to help prevent some of the in-custody accused criminals from getting out before their time is served, Tesi said. That space in the neighboring county was recently upped from 10 beds to 18. But it still isn’t enough, Tesi said. And Clatsop County has roughly 1,000 warrants out for criminals who can’t serve time because of the lack of space.

“We’re seeing some of the counties who maybe had one matrix release last year, with over 300 this year. It’s budget cuts, a lack of funding, a lot of mental health issues that the state is pushing down to the local levels. And it’s tough,” Tesi said.

Tillamook can serve as a good role model for Clatsop County if the voters choose to expand the jail. If Clatsop County expanded next week, the jail would still be filled – because there is so much “catch up” work to be done, Tesi said. That’s what happened in Tillamook, but now its judicial system has caught up and the jail is able to generate revenue by renting out the space.

“They aren’t seeing the repetitious crimes because if a person commits a crime, they’ll be in jail for the crime and they’ll be held accountable,” Tesi said. “But here, there’s no accountability for most of it and if you can get away with it, then why not? Here, we see someone commit a crime on Monday, we release them on Tuesday, they commit another crime on Wednesday, we release them on Thursday, and they are rearrested on Friday.

“So instead of just one case to adjudicate, we now have three and that has a huge trickle-down effect on the courts, the DA’s office, the jail, the cost, and really the community, because these people are out there victimizing more people.”

If there is no accountability, Tesi added, then there is no deterrent.

Smith was released for overcrowding Aug. 30. Konecny has prior felony convictions from September 2012 related to robbery in Texas. He is also on probation for those crimes.

© 2013 Daily Astorian. All rights reserved. Photos from the Daily Astorian.

Wednesday, August 28, 2013

A reasonable balance in criminal justice

Guest Column: A reasonable balance in criminal justice
Posted: Monday, August 26, 2013 9:35 am
For The Daily Astorian

I find it ironic that after almost five years in office U.S. Attorney General Eric Holder has finally figured out that there are unfair and draconian federal sentencing laws.

The Daily Astorian’s Aug. 19 editorial (“We cannot afford these prison beds”) ignores the fact that federal sentencing takes up less than 5 percent of all prison beds in America.

The other 95 percent are state and local.

Congress passed draconian federal drug sentencing laws in the late 1980s, largely at the request of members of the Black Caucus which represented cities that were being decimated by the violence of crack cocaine trafficking. Still, it takes a lot to become a “federal case,” whether it involves cocaine, marijuana or money.

In Oregon a marijuana grow of less than 1,000 plants is generally too small to warrant federal prosecution. In the mid-1990s, I was told that an attempted theft from the U.S. Forest Service of about $750,000 was so small-time that it would be ignored unless I tried the case as a special federal prosecutor. I did, and convicted the man.

Oregon sentencing law allows for a maximum of 30 days in jail for almost all drug felons except those with very violent records. A person whose only crime is their addiction will not benefit from prison. Each of Clatsop County’s three circuit court judges operate “speciality courts” designed to keep felons out of prison or jail. Judge Nelson’s Drug Court even offers low-level heroin dealers the opportunity to keep a felony off their record if they will stay clean for six months and follow through on treatment.

Oregonians urgently need in-patient drug facilities and treatment plans, both in and out of correctional facilities. At the Meth Summit held here a few years ago, I was struck by the number of recovering addicts who personally thanked Sheriff Tom Bergin and me for locking them up, giving them a chance to get clean and stay clean long enough to realize they were on the wrong path.

When you look at incarceration numbers, you need to remember that there is a distinction between prison and jails. Prisons are reserved for people convicted of felonies. They are paid for either by the state or by the federal government. Jails hold a wide variety of criminals, generally for short stays, and are financed locally.

Prisons take up less than 6 percent of Oregon’s budget and much less of the federal budget. The cost of doing what Oregon did in the 1960s and 1970s – almost wishing its way out of crime – resulted in the highest crime rates in modern history. Oregon has since reached a balance of incarceration and probation.

Oregon’s U.S. attorney (like Colorado’s top federal prosecutor) said very recently that the problems Holder has recently described aren’t happening in their districts. As Willamette Week reported in a story reprinted recently in The Daily Astorian, Oregon’s system imprisons only the most dangerous and persistent felons.

The latest editorial also claims “we currently imprison more than 700 (people) per 100,000.” Where? Not in Clatsop County. Not in Oregon. Even the latest figures from the U.S. Bureau of Justice Statistics placed the total incarceration rate, including federal and state jails and prisons, closer to 540 per 100,000. And according to 2012 figures from the Oregon Department of Corrections, the rate of felons going to prison from Clatsop County was 180 per 100,000. The statewide average for that year was 143 per 100,000.

In Oregon, 75 percent of felons never go to prison, and more than 65 percent of today’s 14,200 inmates (one-third of 1 percent of the population) are in prison for violent crimes – felony sexual assault, kidnapping, robbery or homicide.

Calling the prison system a “crippling system” is a false cry for economy. An effective and balanced system, with treatment centers and adequate probation officers to work with the majority of offenders who are not incarcerated, will cost a significant amount more than we’re spending now. But the result will be a safer, freer and less fearful society.

An effective criminal justice system lies between hysterical calls to lock everyone up and throw away the key, and accusations of exorbitant costs to keep hundreds of thousands of people in prison simply because of a minor misjudgment.

To see how justice works in Clatsop County, I invite you again to come and watch the various drug and treatment courts in action. Or come to court any day at 1:15 when the people considered most dangerous are brought before the court for the first time to determine whether they should even stay in jail.

Thursday, July 25, 2013

The Grasshoppers are old masters now

Newspaper by neighbors comes home
By Bob Welch
Register-Guard columnist
PUBLISHED: 12:00 A.M., JULY 25

Whoever placed the 12-by-14-inch manila envelope on Heather Kliever’s porch near Laurelwood Golf Course last Friday left no name or message.

Kliever carefully opened it and there they were: more than a dozen copies of “The Grasshopper,” a kid-produced newspaper from the Fairmount neighborhood dating to the ’60s.

“I was giddy,” says Kliever of someone who apparently responded to a blurb she’d written about the paper for the Fairmount Neighborhood newsletter.

There, before her, was a sampling of the kind of in-your-face journalism that earned “The Grasshopper” a 1966 mention in Sports Illustrated — “Ryan Snellstrom’s sister got hit in the nose with a bat”; an exclusive interview with Gov. Tom McCall; and a two-hour session with runner Steve Prefontaine.

A newspaper once lost to time, now not only found, but officially part of the collection at the Lane County Historical Museum.

“It was fabulous,” says Eugene attorney Derek Johnson, 54, a staff member who, ironically, lives in the house near Hendricks Park that once served as the paper’s “office.”

Back then, it belonged to University of Oregon Journalism Dean John Hulteng and his wife, B.J., the latter who served as staff adviser — and whose children were on staff.

“The office was in the basement,” Johnson says. “Only the editorial board got to meet upstairs in the kitchen. I remember Pre being interviewed in the basement, leaning up against a support post.”

Credit Kliever, 39, for bringing to light this mimeo­graphed paper that once had a subscription list of 231 people in the area mainly fanning south and east from Hayward Field.

The registrar at the museum, she had recently moved with her family to the Fairmount neighborhood when she mentioned to a neighbor how much she liked the nostalgic feel.

“You want nostalgia,” Sandra Austin said. “You need to see ‘The Grasshopper.’”

Austin pulled out dozens of original copies of a news­paper that a staff of mainly elementary school-age ch­ildren produced between 1966 and 1974.

“Buffy’s Dad Runs for Mayor” headlined the June 3, 1968, front page. It was about Les Anderson, father of a 12-year-old “Grasshopper” whose dad, yep, went on to become mayor.

Beyond politics, the paper reported on violence (“Charlie and another dog had a fight outside the Grasshopper office”); business (“Sunday I had a cool-aid stand”); and editorials (“The Gontrums have a new dog. Drive carefully, please. He likes to stand in the street.”)

It was a blend of “kids will be kids” — spelling and grammar were only fixed if a child asked the adviser about it — and legitimate reporting.

The children interviewed the likes of McCall, Pre (twice) and UO President Robert Clark (“He offered us candy, and we got down to bussiness”).

Sports Illustrated, in its Aug. 1, 1966, issue, wrote three paragraphs about the paper, including “foreign correspondent” Katy Gontrum’s observation that “in Germany none of the children have freckles!”

“If you were under 6 you could dictate your story,” remembers Nancie Fadeley, whose children, Charles and Shira, worked on the staff. “After 6, you had to write the story yourself.”

“What made it so charming was that some of these little kids couldn’t write but the older kids would help them,” says Ellen Platt, then on staff and now, at 54, senior reference librarian at Santa Clara (Calif.) University’s School of Law.

Dozens of kids fanned out each week from January through May to fill the 10 issues.

The distribution staff alone once totaled 41 children who also were responsible for collecting the 25-cent sub­scription fee.

“Mrs. Hulteng was a no-nonsense person,” says Charles Fadeley, now 56 and justice of the peace for Deschutes County. “She was very good at communicating what she expected to get done.”

And took a free-press attitude toward what got printed.

“I remember writing about what kids at (Condon) school wore for Halloween,” Charles Fadeley says. “My last line was: ‘Teachers didn’t wear anything.’”

It ran.

Paul Pierson, now a professor of political science at the University of California at Berkeley and author of a handful of books on politics, worked on the paper. So did Clatsop County District Attorney Josh Marquis, whose op-ed pieces on victims’ rights and capital punishment have appeared in USA Today and other major papers.

“It was part of an idyllic childhood,” he says.

“We were a bunch of UO faculty brats. Our parents were very encouraging of it. My father let me use his Olivetti typewriter, which was no small thing.”

Not that there weren’t challenges. “I still remember a staff meeting where they warned us that kids in the Edison School area were starting a paper and how we needed to squash these ‘upstarts,’” Johnson says.

We’ll never see the likes of “The Grasshopper” again.

“They had a freedom then our children don’t have now,” Kliever says. “Now, we have kids in camps. Everything is so structured. There were a lot more stay-at-home moms then.”

All the more reason, she figures, to preserve this slice of history. Kliever has about three-fourths of the 80 or so issues that were published.

Think you might have saved a few you want to donate? E-mail her at

Follow Welch on Twitter @bob_welch. He can be reached at 541-338-2354 or

Friday, July 12, 2013

Is Wrongful Conviction Rendering Our System Unworkable?

That's the title of my contribution to this year's annual publication by the American Bar Association on criminal justice issues. Here's the takeaway:
As a career prosecutor (who also spent two years as a criminal defense attorney), I can conclusively state that a prosecutor's worse nightmare is not losing -- guilty people get off with some frequency. The worse scenario is an innocent person being convicted. 
That being said the next discussion point must start with the acknowledgment that the justice system is NOT perfect and can be improved. . . . 
We all want to live in, and more importantly as lawyers participate in, a system that is as fair as humanly possible. The only way to absolutely ensure there will never be a wrongful conviction is to place the bar for conviction so high that convictions become as rare as acquittals are in oppressive regimes that only give lip service to the rule of law. 
There are many achievable ways to improve the system. 
(1) Recruit, train and retain good people in defense, prosecution and the bench. (Salaries for judges are becoming so relatively low that it is becoming a bar to many good people taking the bench.) 
(2) Ensure that modern truth-finding techniques (like DNA testing) are readily available to prevent a wrongful arrest from even going to court. 
(3) Remember that in a democratic society the citizens the justice system needs to protect need to BELIEVE in the system. If they think they are being lied to about sentencing (for example), they start treating the whole system with suspicion. This doesn't mean necessarily harsher sentences, just that whatever a judge hands down should bear a close relationship to what the defendant serves. 
. . . 
Read the full chapter of "Is Wrongful Conviction Rendering Our System Unworkable?" (4 pages)

Order the ABA's Criminal Justice 2013 through the ABA website.

Friday, June 28, 2013

The Astoria Music Festival, Community Radio and D-Day

The Astoria Music Festival, now in its third and final week, much of it broadcast by our beloved Coast Community Radio (KCPB 90.9 and KMUN 91.9), brought out my obsession with World War II history.

In 1940 the BBC started broadcasting to occupied France entirely in French. Radio Londres (London Radio) was operated by Free French Forces who had escaped the Germans.

Each nightly program began with the first four notes of Beethoven's Fifth Symphony -- bom-bom-bom-BOM. Three dots and a dash -- Morse code for the letter "V" -- for Victory. And then the words: "Ici Londres ! Les Fran├žais parlent aux Fran├žais..." ("This is London! Frenchmen speaking to the French...")

It was in essence community radio, with amateur hosts injecting personal stories, humor, even fake advertising, along with news and entreaties to join the Resistance, into the programs. The program was wildly popular, a staple of French life.

A man from one of Britain's secret services, the Special Operations Executive, suggested using Radio Londres to broadcast secret messages to the French Resistance. Most of the messages were nonsense:  Jean has a long mustache was frequently repeated. The Germans knew some of the message had meaning, but there were so many it was impossible for them to separate the signal from the noise.

One of the best-known poems in France was Paul Verlaine's "Chanson d'Automne" (Autumn Song). The Resistance had been told to be on alert, that D-Day would begin within two weeks, when they heard the first line:
Les sanglots long des violons de l'automne
The long sobs of the violins of autumn
It was broadcast repeatedly beginning on June 1, 1944.

The next line would signal that D-Day operations would begin within 48 hours and the resistance should begin disruptive operations:
Blessent mon coeur d'une langueur monotone
Wound my heart with monotonous langour
The line was repeatedly broadcast beginning on June 5, 1944. Above, from the wonders of YouTube, is a recording of the original broadcast.

Within 48 hours 100,000 British, Canadian, and American troops and 12,000 airplanes were in France. In two months, over 2 million troops, including my late father.

Lucian Marquis survived the Battle of the Bulge. He went on to become a beloved professor for over 40 years. He died of Parkinson's Disease in 2005.

Thursday, May 30, 2013

The carnival around pretty white girls, sex and murder

Murders are almost always ugly. Never mind the killer's carefully chosen story in the courtroom or last words before execution. What victim hasn’t pled for his life as his life's blood literally drained from him? What family hasn’t suffered after the murder of a loved one, whether that murder was the result of a instantly-killing drive-by shooting or 29 stab wounds?

Jodi Arias may be a liar with a major personality disorder, but there are few if any indicators that she represents a risk to commit future acts of violence. She has no history of sociopathic acts. Her murder of Travis Alexander was senseless and horrible, but it has captured the media’s attention only because she is an attractive, young, whitefemale from an at least arguably middle-class environment. And also because sex sells, and Arias and Alexander had the texts and emails to prove young people like to get it on. So what? Completely irrelevant legally, and nothing new in the universe.

I recorded some of the Arias trial and watched it remote in hand, to blast past the astounding number of commercial interruptions to actual courtroom activity wedged into increasingly shrill and silly shows by Vinnie, Drew, Nancy, Jane and their C-list of “expert” lawyers and psychologists, one of whom bills herself as “the human lie detector.”

We are better served by having unfettered access to the judicial branch of our government. For a time in the 1990s it seemed that might be possible with CourtTV’s gavel-to-gavel coverage helmed by genuine class acts like veteran lawyer and journalist Fred Graham and a slew of serious younger commentators like Terry Moran and Dan Abrams, Roger Cossack, Catherine Crier and Cynthia McFadden. Greta van Susteren and even Nancy Grace (!) were at least somewhat serious then.

But the OJ Simpson trial scared off a lot of judges from allowing cameras in their courtrooms, and soon CourtTV began to supplement its schedule with B-minus cop shows. CourtTV begat TruTV, which morphed into HLN, the white trash version of CNN.

Beth Karas is the only moderate, reasoned and well-seasoned reporter left, and has to share her time with the more sensational Jean Casarez. There are limited number of truly well-known trial lawyers and legal reporters willing to weigh in on national TV, and I never saw any of them on HLN, CNN, or any of the few channels that give ANY airtime to what is a very ordinary murder. (You may want to count Jeffrey Toobin on CNN, but I don’t.)

It all adds up to a sort of voyeuristic non-analysis by people whose main qualification is how loud he can speak on a Jerry Springer-style television show.

Jodi Arias's guilt has never been in doubt. But her penalty should have been and, as it turns out, it was. She will never get out of prison. Sentence Jodi Arias to life and move on to a new case with real issues.

And bring back Fred Graham and CourtTV.

Monday, May 20, 2013

Judgment calls and early jail releases

Alex Pajunas -- Daily Astorian
There has been an unusual burst of violent crime in Clatsop County in the last few months. Family members shooting other family members. Two cases of men returning -- after being jailed and released -- to the place they had burgled, and then being shot -- with legal justification -- by the victims.

The worst case involves Mark Beebout. He was a convicted sex offender (in Shasta County, California) who came to Astoria in 2011 and failed to register as a sex offender, as required by law. Beebout was convicted in Clatsop County of this lower-level felony in 2012. He was put on probation with a 14-month prison sentence hanging over his head if he did things that would cause a judge to revoke his probation.

He did some of those things.

At the first court appearance I asked for and received an "exclusion" from the jail matrix that determines who gets released, so Beebout was put in jail awaiting a late May probation hearing. There was a second court appearance before the probation hearing, during which Beebout was ordered held without bail but was not excluded from the jail matrix.

And then, 8 days before Beebout's scheduled probation hearing, at which time he most likely would have been given 14 months in prison, Beebout was "force matrix released" because there was no jail space to hold him.

Over the next several weeks Beebout murdered two young women, one of them only 15 years of age.

There was justifiable outrage.

Even more recently, Bruce Rogers was shot to death after he tried to force his way into the home of an ex, whom he was threatening to kill. He had recently been charged with a similar crime and had also been force matrix released despite a request by me to exclude him.

I certainly understand why people are incensed.

I have deliberately avoided pointing fingers because as I've said -- and sincerely believe -- this is a systems problem. There are several parts to the system: police officers who arrest offenders (and who have the least say about who stays in jail), probation officers, jail staff, the District Attorneys office, and the judges. Clatsop County used to have a "release officer" who investigated and made recommendations to the court about whether or not somebody was a good risk for release. Release officers are usually employed by the state -- meaning the courts -- but sometimes by the counties. Clatsop County funded the position for a while after the State cut funding for the position, but has since eliminated the position as well.

These are judgment calls. I think I've been pretty good -- or maybe just lucky -- at making the right call in my recommendations. But I have no doubt that one day a felon I have recommended for release is going to go out and commit a really serious violent crime. We use our best judgment, but we are always factoring in the elephant in the room: The Clatsop County jail is capped at 60 beds, no matter what.

Early release of re-offending criminals is a problem that really can't be corrected until Clatsop County has about three times the number of jail beds it has now.

Some online comments to a Daily Astorian story about this issue have accused me of "blaming the voters" for not passing a jail bond. But that's not what I've said. We desperately do need to expand the jail, but those of us "selling" the jail bond issue have clearly failed to make our case to the voters.

The courts are open to the public. I strongly encourage anyone interested in this serious issue to come to the Courthouse at 1:15 pm any weekday. Most days you'll find me there, advising the judge about a defendant's record and making a recommendation as to whether he or she should be released. If I don't have another court appearance, I can hang around and answer your questions. Or you can post them here.

Thursday, May 9, 2013

Senator Johnson opposes the Oregon Public Safety Package

Senator Betsy Johnson, a fearless independent Democrat in the mold of Wayne Morse (my political hero), spoke out in the Sunday Oregonian about the many problems with HB3194, also known as the "Governor's Public Safety Plan." I wish I could claim I helped her write it, but I did not. Senator Johnson makes apt comparisons with so-called "restructuring" in California that has resulted in a lot of crime.

There's no safety invested in the Oregon Public Safety Package: Guest opinion
by Betsy Johnson
May 04, 2013 at 11:00 AM, updated May 04, 2013 at 11:04 AM

One of the hottest investments being sold this legislative session is the Oregon Public Safety Package. Unfortunately, it has nothing to do with investing in public safety.

House Bill 3194 would move felons from the state's prisons to "community corrections." That's an umbrella term that can include county jail or any number of programs --with varying degrees of supervision.

In community corrections, these offenders would receive services that are supposed to change their behavior, educate or train them for good jobs, and turn them into law-abiding taxpayers. This is called "justice reinvestment."

"If you want a good return on dollars, spend it on prevention," Gov. John Kitzhaber told KOIN (6) in a recent interview.

His idea of prevention is to not sentence certain future felons to mandatory minimums required under the voter-approved Measure 11. The lucky felons who would catch this break would be those convicted of first-degree sexual abuse, second-degree assault and second-degree robbery.

The state's county sheriffs, police chiefs and district attorneys all oppose HB3194 because they don't believe money would be saved and reinvested. Nothing would go toward community corrections. It's the public that would pay the price when more convicted felons hit the street. It's ordinary citizens who would have their homes burglarized, their cars stolen, their physical well-being assaulted by felons who have been given a pass to avoid Measure 11.

So who's in favor of the Oregon Public Safety Package? First and foremost, the Pew Center on the States, a think tank that is trying to change American attitudes toward crime and justice. In Pew's world, prisons cause crime -- not the other way around.

In the past year, Pew's experts have coached Kitzhaber's Commission on Public Safety as it developed the report that led to HB3194. It's curious, then, that at hearings for HB3194, nobody from Pew has uttered a word about California's prison realignment plan. Much of California's prison realignment sounds like Oregon's Public Safety Package. Key similarities: Shifting prison inmates to county jails and more use of alternative sentencing, such as electronic ankle bracelets or home detention.

California's prison realignment has been in effect since October 2011. How's it working?

Not so good. The best that supporters of California's realignment plan can say is that it's still a work in progress. Supporters have tried to reassure residents that parolees don't pose a special risk. They point to a pre-realignment study of four California cities that showed "only 22 percent of total arrests" were for parolees.

But the state's major news media have noted post-realignment property crime increases in various California cities of all sizes. An examination by Los Angeles County found that 26 percent of people released on community supervision between October 2011 and March 2012 were arrested on a new crime within six months.

Any link between prison realignment and victims of violent crime has become a regular feature of news coverage. The Los Angeles Times has also reported on the growing problem of sex offenders cutting off their GPS monitoring bracelets with little or no consequences.

Over at the website for the Pew Center on the States, if you look at public safety news for California you won't find much devoted to prison realignment. One brief gushes about California voters overturning the "notorious 'Three Strikes' law." Among the felonies no longer considered a third strike is being a felon in possession of a firearm. Amazing, isn't it, how many of the same people who favor strict gun laws seem to oppose punishment for those who break gun laws? In Pew's world of white, educated professionals who don't have to live in high-crime neighborhoods, felons deserve multiple times at bat.

Pew's website entry for Oregon praises the state's efforts at public safety reform. There's a quote from former state Supreme Court Chief Justice Paul De Muniz, who chaired the governor's Public Safety Commission: "Our prison population is growing, primarily with lower-risk drug and property offenders, and this growth is threatening our balanced portfolio at the expense of prevention, supervision and rehabilitation."

In Oregon, most felons are not sentenced to prison. Any lower-risk drug or property offender who lands in prison has done something to deserve it. But De Muniz characterizes this as threatening "our balanced portfolio."

Gov. Kitzhaber needs to remember why Oregon residents embraced Measure 11. It has nothing to do with dollar signs in an investment portfolio.

Democrat Betsy Johnson represents Scappoose in the Oregon Senate.

read the piece on the Oregonian site

Friday, May 3, 2013

Clatsop's PSCC "share concerns" about changing mandatory minimum sentences

Many thanks for the thoughtful comments and actions by the Clatsop County Board of Commissioners in backing up the Public Safety Co-ordinating Council (made up of over 15 local citizens and public safety types including the sheriff, police chiefs, judges, mental health professionals and others). They are discussing the so-called "Governor's Public Safety Plan," also known as HB 3194, which is enormously controversial.

Clatsop advisory council objects to loosening jail time
Changing mandatory minimum sentences for Measure 11 offenders raises concerns
Posted: Wednesday, April 24, 2013 10:19 am | Updated: 12:19 pm, Wed Apr 24, 2013.
By TED SHORACK The Daily Astorian

Clatsop County’s advisory council on public safety has weighed in on proposed reforms to Oregon’s prison sentencing.

In a letter sent to the Public Safety Committee in the Oregon Legislature, the Public Safety Coordinating Council expressed concerns about House Bill 3194, that would change mandatory minimum sentences for sex abusers and other violent offenders.

At its last meeting, the advisory council also endorsed a separate letter by the Oregon State Sheriffs’ Association and the Oregon Association Chiefs of Police that stated similar objections to the bill. “Although there are some positive proposals in House Bill 3194, we share the concerns about changing the mandatory minimum sentencing provisions under Measure 11 and 57,” the letter by the PSCC states.

State Sen. Betsy Johnson, D-Scappoose, said she agrees with the PSCC, and stated she has grave concerns about the bill and a lack of transparency that followed its development.

House Bill 3194 would modify sentences imposed for felony marijuana charges and driving while suspended, but would also eliminate mandatory minimum sentences for violent crimes, which were adopted with Measure 11 and 57 by Oregon voters.

As a representative of the PSCC, Clatsop County District Attorney Josh Marquis spoke at the Board of Clatsop County Commissioners’ last meeting, telling them that the bill was ill advised and its rapid development has made it an urgent matter.

The bill is being championed as a way to cut down on the cost of Oregon’s prison system, which will see an estimated increase in the prison population by more than 2,000 inmates in the next 10 years. Proposed reforms are projected to save the state $600 million in the next 10 years, keeping down the inmate population and avoiding the need to build another prison.

In front of the Clatsop County board, Marquis said that parts of the bill make sense, but that the essential “gutting of Measure 11” was not appropriate. “There certainly can be reform in the criminal justice system – it’s a work in progress,” he said.

But Marquis said that the Oregon prison system is among the lowest in overall incarceration rates, as evidenced in a recent article by Nigel Jaquiss in Willamette Week, and reprinted in The Daily Astorian. The article touched on a 2010 Bureau of Justice Statistics study that found Oregon incarcerates the highest percentage of violent offenders among the 33 states that keep that kind of data and the lowest rate of nonviolent offenders.

“The claim that we are on some unsustainable path is simply not true,” Marquis said about the amount of prison beds that are available. “We need not build another prison for at least 10 years,” he said.

Gov. John Kitzhaber’s Public Safety Commission and the Pew Center on the States studied Oregon’s prison data and looked for ways to implement reforms that worked in other states.

House Bill 3194 was one result after looking at the numbers. Another, House Bill 3195, championed by Clackamas County District Attorney John Foote, does not affect Measure 11 while still calling for other reforms.

The letter from Oregon sheriffs and chiefs of police states that changes should not be made based only on state savings or reinvestment, but rather on policies that work.

“Front-end, community-based and evidence-based corrections policies are good for Oregon because they work, not because they are cheaper than a penitentiary,” the letter states. “Public safety reform should be driven by thoughtful policy and not based on cost savings.”

‘We need to shift the focus to what is the real problem’

The PSCC, which is co-chaired by Circuit Court Judge Cindee Matyas and Janet Evans, the Clatsop County juvenile department director, wrote in its letter that if the reform put more pressure on county resources it would be disastrous.

“Dismantling a criminal justice system which, in many respects, is working here in Oregon and placing more supervision responsibility on local county jails without adequate beds, funding or resources is a recipe for disaster,” the advisory council wrote.

At the last commissioners’ meeting, Chairman Peter Huhtala thanked Marquis for presenting the advisory council’s concerns. Commissioner Sarah Nebeker, who is on the advisory council, stated her own concerns about possible reforms. “We need to look at us as a state, as a society. Do we want to fund early childhood education enough so that we have a lower rate of incarceration?” Nebeker asked.

Other societies pay more for education and have lower rates of incarceration, she said.

“It just seems to me that we need to shift the focus to what is the real problem,” Nebeker said. “It isn’t the problem with the prison system or incarceration rates. That’s just a way of getting money for a worthy cause. But that’s maybe not what we want to do.”

She said she believed there was a better solution for saving money than one that would take away from public safety.

The bill is still in committee in the Oregon Legislature. It would take a two-thirds vote in the Oregon Legislature to modify Measure 11. Oregon voters passed Measure 11 in 1994 and upheld the ballot measure in 2000, overwhelmingly defeating a repeal effort.

read the article and comment on the Daily Astorian's website

Friday, January 11, 2013

Giving a voice to victims

Guest column: Giving a voice to victims

For The Daily Astorian | Posted: Tuesday, January 8, 2013 10:26

You’ve probably heard about the 23-year-old medical student who was gang-raped on a city bus in New Delhi, assaulted so badly that she died.

It turns out that New Delhi has one of the highest rates of sex crimes in India, yet most victims remain anonymous and silent.

We know about this one young woman because thousands of people have taken to the streets to protest.

The woman on the New Delhi bus has put a face on a brutal act, even though we don’t know her.

Laws provide legal definitions of a crime. A victim makes it personal.

If you know, for example, the victim of a home-invasion kidnapping and assault, the crime becomes vivid. The injuries are real. You know what the victim went through, how her life has changed forever.

What do you do, then, when a group of people who should know better, shrug it off as if it were a minor incident? When you’re state Sen. Betsy Johnson you call them out on it.

That is what Johnson did when she rejected an attempt to label the men who kidnapped and terrorized Gert Boyle at gunpoint as “low-risk” offenders.

Gert Boyle
“Gert is a friend of mine,” Johnson said.

Were it not for the fact that Boyle is the founder of Columbia Sportswear, the crime against her might not have made front-page news. It may have quietly faded away.

That’s how some members of the Commission on Public Safety would like it, just so the state can save money.

An editorial Dec. 20 in The Daily Astorian chastised Johnson for having a “reflexive” response to the commission because a friend of hers was a crime victim. Reflexive? Johnson has closely studied this commission for almost two years.

She knows that most commission members meekly followed along when policy analysts from the Pew Center on States suggested that Oregon had too many “low-risk” offenders in prison.

Who, exactly, were these “low-risk” offenders? Were it not for Clackamas County District Attorney John Foote, these offenders would have remained anonymous. By extension, so would their victims.

Through Foote’s persistence, many of these roughly 850 “low-risk” offenders were found to be violent felons.

On the list were the men who plotted and schemed and tracked Gert Boyle. Other notable “low-risk” offenders were Bruce Turnidge, who planted a bomb at a Woodburn bank that killed two police officers, and Chris Fitzhugh, who pleaded guilty to murder in the brutal torture death of his long-time girlfriend here in Astoria.

Fitzhugh and Turnidge were among at least 23 other convicted murderers on this list, along with 34 others convicted of homicide or attempted murder. (The list can be accessed at http://www.clackamas. us/da/documents/response.pdf)

You will find convicted felons who have assaulted, robbed, habitually driven drunk and sold drugs near schools on this list. Many of them will serve less than two years, but even that is too much in Pew’s world.

The commission would have readily swallowed Pew’s ideology were it not for Foote. That is why, by design, this commission originally had no district attorney on it when it was established by Gov. John Kitzhaber in 2011.

Only after the commission ran into opposition from victims’ rights groups and the state’s prosecutors, did Kitzhaber appoint a DA to the 2012 commission – and he made it clear to the Oregon District Attorneys Association that he did not want Foote.

To its credit, the ODAA kept its allegiance to the people they represent – not the governor.

The Daily Astorian editorial ended with a claim that I will be a predictable “hard-liner.”

After I read that, I thought about a rape victim I saw in court in the early 1980s when I was a young prosecutor in Eugene. The man who had raped her was being sentenced, and the judge asked him if he wished to say anything first.

The man had his say.

The victim, who was a college student at the University of Oregon, had been sitting quietly in the front row. She stood up and politely said she would like to speak.

The judge told her to sit down and be quiet.

“You have no right to speak here,” he said.

The judge was not being heartless. He was simply following the law at the time.

Oregon voters in 1986, and again in 1999, gave victims like this young woman a voice.

But it doesn’t end there. We, as citizens – and legislators – give victims a voice every time we speak out against crime, every time we remember what has happened to good people.

read the column on the Daily Astorian's website

Tuesday, January 8, 2013

More truths and untruths about sentencing -- Part 2

In my last post I discussed the problems with the Commission on Public Safety's process:
  1. It was largely hand-picked group of like-minded people;
  2. There was no opportunity for public comment or participation;
  3. Judge DeMuniz never allowed a straight "up or down" vote on ANY of the recommendations;
  4. DeMuniz insisted the Commission would merely pass on the report rather than vote to endorse.
Point 4 is important because it is up to the legislature to enact the Commission's recommendations. Without a vote from the commissioners, legislators cannot tell which parts of the report are widely and diversely supported and which are attached to a great deal of controversy, and therefore will require a lot of work to pass or defeat.

An example of the latter is the proposals to dramatically alter Measure 11, which voters passed by a 2 to 1 margin in 1994 and then in 2000 rejected its repeal by a 3 to 1 vote.

Virtually all second-degree Measure 11 charges (including Assault 2, meaning stabbing someone; and Robbery 2, using an unloaded gun to rob a store) can already be treated by a judge as a non-mandatory sentence even if the district attorney disagrees. Even the "tough" Measure 11 sentences for these crimes are roughly 5 to 6 years. The Commission proposes to dramatically reduce the sentences to 3 years as well as to provide the convicted with an array of early-release options, something that Measure 11's truth-in-sentencing specifically attempts to avoid.

Throughout the almost year-long Commission process the well-known Pew Foundation's Center on the States, which works to "reform" sentencing policy across America, provided much of the research support.

Early in the process the staff of the Commission adopted a Pew report claiming that as many as 26 percent of the approximately 14,000 men and women in prison in Oregon are in fact "low risk" inmates who probably don't even need to be in prison. The sole district attorney on the Commission, John Foote, asked for and was provided a list of their names.

Here is the list of every one of the almost 900 inmates, along with their crime, criminal history, and sentence.

Twelve on the list were convicted from Clatsop County. As did all the other district attorneys with their own lists, I pulled each defendant's file. Pew's "low risk" inmates include a man who pled guilty to murder and is doing 30 years, another who was convicted of manslaughter in thefirst degree and is doing 12 years, and a bunch of repeat drunk drivers and repeat felon property offenders.

I've listed all 12 below, with brief descriptions.

The bottom line remains:
You have to work really hard to get into prison in Oregon. We have a balanced judicial system that doesn't need the overhaul of the Commission on Public Safety.


The document linked above is a 74-page report that begins with with a three-page cover letter from Clackamas County DA John Foote follwed by 69 pages that provide the specifics each defendant, arranged alphabetically by county. Here are the 12 from Clatsop County that Pew's Center on the States considers "low risk."

1.            Christopher Fitzhugh – SID #18578382 – Risk Estimate 12.5%  Case # 10-1228. Convicted of Murder and Assault 2 – Sentence 30 years Measure 11, 25 + 5 years of the 70 months for Assault 2 consecutive with murder – Sentencing 9/13/11. Defendant brutally beat if not tortured long term domestic associate to death and while no actual convictions multiple prior arrest in Gulf Coast as he had been beating women since he was 15.

2.            Kenneth Middleton – SID #7060306–  Risk Estimate 12.8% Case No. #10-910. Convicted of Manslaughter 1, Assault 2, Recklessly Endangering x3, Reckless Driving and DUII. Sentence, Measure 11,  13 years – 10 years on Manslaughter 1 (after jury trial) 3 years of Assault 2 consecutive, remainder concurrent despite our requests. Defendant killed a motorcyclist and badly injured his daughter with a BAC of .22. His record included 2 misdo Assaults in Alaska  in 1996, 4 Contempt of Court convictions, one DUII diversion in 1996 and a DUII conviction in ’98.

3.            Jerry Miller  – SID #17571972 Risk Estimate 17.2%  – Case No. 11-1063 – Defendant pled guilty to level 8 DCS – Substantial Quantity of meth (1/4 pound of meth found)  Defendant stipulated to 6-A on grid. Received on 4/8/11 28 months DOC (likely eligible for AIP) Previous convictions include DCS/Meth in 2011, 3 felony PCS from (all in 2006, 2 Theft 1s, Assault 4 x 2, Felony Attempt to Elude and Hit and Run, False info to Police Officer and 2 counts Malicious Mischief (WA state)

4.            Brian Smith -  SID 18412055 – Risk Estimate 14/1%  - Case #10-1191. Convicted by plea to Felony DUII – Sentenced on 1/18/11 to 14 months DOC. Defendant admitted about 12 beers refused everything. Blood test .13 about 90 minutes after driving. Previous convictions include, Theft 2 x 2, Burg 2, and 4 prior DUIIS from 2006-2009.

5.            David Schmidt  SID #18485787, Risk Estimate .17%  - Case # 10-1192. Convicted by plea to Felony DUII – Sentenced on 3/8/11 to 13 months DOC. Defendant did not realize he was driving wrong way on Highway 30 and blows .16. Previous convictions include so-called “Negligent Driving” In WA in 2001 and 3 DUIIs from 2001-2009

6.            Jennifer Ames – SID #19239268, Risk Estimate 8.3% - Case # 11-1197. Convicted by plea of Theft 1 as Repeat Property Offender, 2-E on grid. Sentenced on 12/16/11 to 13 months DOC concurrent to WA state state prison time currently being served. Defendant and co-def had written dozens of bad checks totaling over $2000. Prior Convictions included Theft 2 x5, Theft 3 x 2, Escape 1, Unlawful Issuance of Bank Draft x3, (WA),  and felony Theft with Intent to Resell (WA)

7.            Jason Graham  - SID # 13561974, Risk Estimate 11.6% Case # 10-1138. Convicted by plea of Theft 1 as 3-E, Defendant was Repeat Property Offender, Sentenced on 2/25/11 to 13 months DOC. Previous convictions include Theft 3 x 3, Theft 2, Theft 1, Bail Jumping x 2, Possession of Firearm (WA felony), and PCS x 3.

8.            Nancy Merritt SID # 8461946, Risk Estimate 14.8%, Case # 11-1089. Convicted by Plea to Felony DUII Defendant was 6-C on grid.  Search warrant reveals a .13 BAC.  Sentenced on 7/29/11 to 15 months DOC. Previous convictions include PCS and 4 DUIIs, 3 from ’08-‘08

9.            Jose Alfaro-Arciga,  SID # 6335784, Risk Estimate 9%, Case # 11-1137. Convicted of Attempted Assault 2 as LIO of charged Assault 2 for stabbing room-mate, Sentence grid 10-F,  Defendant sentenced to 24 months DOCC with 50 more months DOC if revoked. Previous record includes Theft 3, Illegal Entry into US, DUII x 4, Reckless Driving, Burglary 1, and Felony Poss of Forged Instrument x 2

10.          Kelly Knispel (female)  SID # 6234824, Risk Estimate 8.4%, Case # 10-1058. Convicted by plea to Burg1 (level 8 occupied dwelling) 9-G on grid. Sentenced on 4/20/11 to 30 months DOC ( we were advised by DOC she was to be released LESS than 12 months later on 4/5/12). Previous convictions include Assault 4, DUII x 3, Felony DWS, and Improper Use of 911.

11.          Derrick Baker  SID# 5999874, Risk Estimate 17.8%, Case # 11-1048. Convicted by plea to Felony DWS. Defendant is stopped and tells off duty OSP trooper who knows him “ I know I am VERY suspended.”  Defendant is correct. He has 16 pending suspensions, most for MV crimes. Sentenced on 7/29/11 as 6-A on grid to 25 months DOC. Previous convictions include DUII x 4, (including Felony DUII in ’06), D CS, PCS,  Public Indecency x 3 , Assault 4 x 2, Assault on Public Safety Officer, False Info to Police, Criminal Mistreatment 2,  Resisting Arrest, Harassment x 3, and Burglary 1.

12.          Dana Elorriga, SID# 4642136, Risk Estimate 14%, Case # 09-1374. Convicted of Felony DUII as 6-A on grid. Defenad nt ignored lights and siren, drove home, refused all tests. Search warrant BA was .18$. Sentenced on 2/18/11 to 13 months DOC. Previous record includes DUII X 4 (plus DUII diversion) and Harrassment.

Sunday, January 6, 2013

More truths (and untruths) about sentencing -- Part 1

Among Oregon's justice and public safety watchers there has been a lot of controversy and discussion about the report of the Commission on Public Safety. There will be even more during the coming legislative session. Here are some of the issues:

The group was appointed by the Governor and had orders to save money by reducing the number of people sent to prison. There was only one dissident voice on the commission, that of Clackamas County District Attorney John Foote. No public comment was allowed on the report.

The chair of the commission, now-retired Chief Justice Paul DeMuniz, gave assurances that there would be no attempt to overturn voter-approved truth-in-sentencing provisions such as Measure 11. Yet the final report calls for the systematic dismantling of many Measure 11 provisions and would effectively repeal Measure 57, which gives judges the power, but not the requirement, to send repeat property offenders to prison.

Judge DeMuniz did not allow an up or down vote on ANY of the specific proposals.The report was merely "passed on" en bloc by the Commission, so it is very hard to tell who supported what and whether the Commission itself even recommends any of the proposals.

There is an "Alternate Report, authored primarily by John Foote, endorsed by the rest of Oregon's district attorneys and approved by three other commissioners.

It calls for completely eliminating sentences for felons convicted of the sale or delivery of marijuana and for felony driving while suspended. These are cost-saving steps that would reduce prison beds.

The Alternate Report further proposes an expansion of probation programs to mirror Hawaii's highly successful HOPE program, providing for intense judicial supervision and zero tolerance for violations. Violations would result in micro-sanctions, such as jail sentences ranging from 1 to 5 days.

There is a great deal of urban mythology around Oregon's sentencing laws. Here are some facts:

  • It is impossible to be sentenced to prison for mere possession of marijuana.
  • Fewer than 25 percent of convicted felons are given a prison sentence AT ALL.
  • The average prison sentence is less than 4 years.
  • At 22 percent, Oregon has the LOWEST rate in the United States of "non-violent offenders" in prison.

Many of those "non-violent offenders" are in prison for selling meth to kids or for home burglaries where the homeowners were absent.

The Commission's staff claimed a quarter of Oregon's prison inmates are "low risk" and don't need to be in prison. I'll tell you why that isn't true and provide a link to the list that identifies the felons, their convictions, their sentences and their criminal record.