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.