Friday, August 14, 2020

How the Oregon legislature betrayed Oregon voters in 2019
                                        (But not Senator Betsy Johnson!)

The vile duplicity headed by Speaker Kotek, abetted by catatonic Uncle Peter and until recently orchestrated by Jennifer Williamson, is truly disturbing. All the worse because the OREGONIAN, OPB and other of the larger news mediums either fail to cover or have adopted such obviously biased, "woke" narratives that it would be funny if it weren't so serious.

A couple of past examples, and greatest hits still coming:
First were massive changes to criminal sentencing very late in the session and all pre-cooked.

Measure 11 was first passed by a citizen-based group that did not even have the endorsement (or opposition) of the state's DAs (I had just been first appointed/then elected that year), It was under constant assault for six years, culminating in Measure 94, led by many major lights who like to call themselves "progressives," (the usual suspects, Floyd Prozanski, Joann Hardesty/Bowman/ Chip Shields, etc. They put together a slick and well,-funded campaign in 2000 to repeal M-11. This time most DAs, myself among the most outspoken, pushed back hard. We even got different reporters and editors (than now) to do a story about how many of the "real scenarios" supposedly showcasing terrible injustice under M11 were in fact either totally made up, or from other states with different laws.

Measure 94 was defeated by a massive 3 to 1 margin - 73-27%, a fact NEVER mentioned in today's stories that seek to tie the measure to as distant a past as possible and assign Kevin Mannix all credit, and blame.

Measure 11 also automatically "remanded" juvenile killers and rapists into adult court, although except for manslaughter in the first degree (10 years) and murder (25 years) all other charges (rape, sexual abuse, kidnapping, Assault 1 and 2) had sentences so that even if the convicted felon were 17 when convicted, they could do their entire sentence at the Oregon Youth Authority and never see the State Prison. The law also went a long way at erasing racial and economic inequities that occurred when white, upper-middle class judges had previously been far more willing to grant probation to someone who looked like their son than the poor Hispanic convicted of the same serious felony. Oh, and crime plummeted under M-11 at rates even higher than other parts of America.

Capital Punishment, while always controversial, was used exceedingly sparingly by prosecutors and even more so by juries.. Oregon's small death row was overwhelmingly white and male (only one woman on it). I  I prosecuted at least 10 potential;l capital murders, only sought death in two cases, and only got death for one defendant (3 times, Randy Guzek).

Now, move to the 2019 session. No more Hardy Myers as AG to advocate for victims, the Oregon Police Chiefs (OACP) and Sheriffs (OSSA) have completely sold out in exchange for big salaries and anti-police union legislation. ODAA "leadership" simply avoids all controversy.

The legislature schedules "Invited Testimony Only" hearings brimmed to packed with the same opponents as 20 years ago to Measure 11, this time concentrating on the juvenile aspect. There was virtually no real debate. I watched every minute of hearings, debate and vote online.

Yet even with late hearings, they needed 2/3rd votes to overturn the change in the Oregon Constitution. So they promised four GOP legislators from rural Oregon various gifts on the infamous Christmas Tree bill, in exchange for the exact number of votes needed to overturn M-11. They did not have all the Democrats, so supposed GOP leader Mike McLane. In a stunning "please don't throw me in the briar batch" speech, McLane was either mentally retarded or more likely deliberately throwing the vote and he gave the vaguest of lip service to "what the ODAA wanted" (a phrase calculated to inflame legislators who loathed DAs). The whole debate was a farce, as Kotek and Williamson and pre-purchased four Republicans (all from districts that had reaffirmed by 4 to 1 or greater the voters' support for Measure 11), put a quick end to the 25 year old reform (yes, it was a REFORM, a leveling of the field, a truth in sentencing measure that gave victims a seat at the table). 

McLane didn't vote FOR the repeal, but he guided the missile in and delivered the coup de grace. By incredible coincidence he was rewarded with a judicial appointments by Brown, was appointed Mclane without him even having to compete with the applicants who actually filed applications and were interviewed.  Just days after delivering the repeal of M-11, Gov. Brown  appointed Mcklane to a vacant spot  as Circuit Judge in Crook and Jefferson Counties. Records show Mclane was exempted from the application process.

Now that M-11 was toast (because a large part of the constitutional amendment had been "broken" by a 2/3rd vote, most legal scholars - myself included - believe that destroying the adult part of Measure 11 (the part that requires rapists actually serve 8 years, child molesters serve 5, and murderers serve 25) can be killed off with simply majority votes in the 2021 session, if not sooner given this legislature zeal to expand one day special sessions to settle old political scores.

Next up was Oregon;'s death penalty. SB 1013 was either the worst bill ever drafted in its extreme confusion, or a brilliantly worded time bomb intended to destroy Oregon;'s death penalty, in existence in its present form since two popular votes, first in 1977, then again in 1984. Led by now politically radioactive Jennifer Williamson (who at the time thought she could have her pick of Secretary of State or Attorney General) Williamson knew she'd never get the 2/3rd votes to overturn the vote of the people. So instead she had a new plan, technically amending, and greatly limiting capital punishment. In theory.

In reality, the goal was to cripple the death penalty, limiting it to circumstances that were unlikely to ever occur. So murdering a judge or juror  was no longer a capital crime, nor was killing four people as part of a family slaughter. The new law allows prosecution for terrorist murders, but only if the terrorists were part of an ORGANIZED group (like Al Qaeda) and they killed two or more people.  Under this new definition the Oklahoma bomber would NOT qualify for capital murder, nor would the man I convicted in 2002 of torturing a woman to death, who had already been convicted of another homicide (Anthony Garner). In fact, of the 34 people on Oregon's death row, only 3 would be eligible under the new rules.

Filed at the last minute, SB 1013 got very little discussion, but concerns that the bill would be retroactive were met with on the record assurances by both Williamson and Solicitor General Ben Gutman that the bill was absolutely not retroactive. The bill didn't reach a vote until ten days before sine die and it passed the House 33 to 26, VOTING NO were --Barker, Barreto, Boles, Bonham, Boshart Davis, Clem, Drazan, Evans, Findley, Hayden, Helt, Leif, Lewis, McKeown, Meek, Mitchell, Nearman, Post, Reschke, Smith DB, Smith G, Sprenger, Wallan, Wilson, Witt, Zika; Then on June 29, just two days before the session ended it passed the Senate by a 17 to 10 vote .
 Senate by a 17 to 10 votes ( NO VOTERS Baertschiger Jr, Bentz, Boles, Hansell, Heard, Johnson, Knopp, Olsen, Thatcher, Thomsen;) 

It was signed gleefully by the Governor in a private, invitation only ceremony, attended by legislators who engineered it and leading opponents of capital punishment.

THEN things started getting interesting. Just a month later the OREGONIAN's Noelle Crombie reported that despite specific assurances from, Gutman. AG Ellen Rosenblum's top lawyer, and assurances from the bill's sponsor, Jennifer Williamson, that it turned out the law, now part of state code, was in fact retroactive, meaning any of the 30-odd people on death row could seek to overturn the death sentence decades after their convictions

Since several of the murderers were convicted before 1991, there was no "life without parole" option, meaning a new hearing could mean immediate release from prison since many, like Randy Guzek, sentenced to death by four different juries, had already served 32 years, and could conceivable walk out of prison. There was great gnashing of teeth and rending of garments  and even the OREGONIAN editorial board, which had switched back after years of supporting capital punishment to opposing it, called for a Special Session

Several prom inent lawmakers wrung their hands In late August Gov. Kate Brown said she would call a Special Session to fix this injustice 

It never happened.

Although Special Sessions are being called almost monthly now, in the midst of a closed Capitol and COVID-19, there just wasn't the time or energy to fix their "little mistake."

Things to look for in the 2021 regular Oregon legislative session:

The coup de grace to the rest of Measure  11.
It will no longer require a 2/3rd legislative vote and the legislature would never refer it back to voters, who would very likely re-affirm it for the third time. 
But unlike the Juvenile portion, already repealed, the rfesty of Measure 11 will be felt quickly as murderers start getting released at the 8-year mark on supposed "life sentences."
Even worse rapists and child molesters could get sentences as low as probation, with no rpskion, amd even those sentenced to prison will likely be turned lose after a couple year at most by Parole Boards, accountable to nobody but the Governor who appoints them, and hearing only information about how well the person is doing in the hyper-structured environment of the Oregon prison system.
likely racial inequities in sentencing will start to rise again as judges, may appointed by Brown, will be sympathetic to young men who are vouched for by their wealthy parents, school leaders, and clergy. Exactly the way the same groups of people rallied to save Randy Guzek, who butchered Rod and Lois Houser in their home at 3 a.m. in the summer of 1987.

But this time, it's likely to be worse than it was when many of us were younger and fired up by these injustices.

Because we are at a dark intersection of political correctness, overwhelming white guilt about racism that somehow translates into hatred of law enforcement and the call to repeal 30 years of true reform that brought justice and even equity to many crime victims, who are far our of proportion to their number are women, children, and people of color.

Joshua Marquis served 7 terms as District Attorney in Astoria from 1994 through 2018. He is past president of the Oregon District Attorneys Association and past Vice President of the National District Attorneys Association.
He can be reached at

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