Chances for big changes to Oregon’s mandatory prison sentence rules dwindle

With Oregon’s legislative session nearing a close, backers of sweeping changes to Oregon’s criminal sentencing laws are tempering their expectations.

State Sen. Floyd Prozanski, D-Eugene, has been quietly paring down a proposal that would have fundamentally reshaped the state’s system of mandatory sentences for violent crimes, acknowledging he could not find the needed supermajority support. Instead, Prozanski told OPB, he’s now hoping to achieve a portion of what he set out to accomplish in January.

“It’s on life support; I’ll say that,” Prozanski said. “We are getting to the point that a lot of people are shifting their priorities. I’m looking for the votes that are necessary.”

Mandatory minimum sentences — which set a statutory floor for how long a person must spend in prison for certain convictions — are controversial. Supporters point to data saying the laws have standardized sentences for similar types of incidents, reduced violent crime and given victims assurances that perpetrators will face meaningful punishment. Detractors say laws such as Measure 11 aren’t applied equally and give prosecutors too much power, greatly diminishing the role judges play during criminal proceedings.

In its initial form, SB 401 would have made sentences for Measure 11 crimes other than murder presumptive, rather than mandatory, granting judges more discretion. Prozanski’s amended version is far more limited, he said.

Prozanski’s amended bill is designed to scrap Measure 11 sentences for second-degree assault and robbery, no matter what. Those are the only crimes whose mandatory minimum sentences would be scrapped. Convictions currently mandate 70 months — more than five years — in prison.

Addressing sentencing mandates for those two crimes amount to low-hanging fruit in a year when lawmakers have focused on racial equity, Prozanski said.

Under Measure 11, judges and prosecutors can opt out of the mandatory sentence in certain cases. A March report from the state’s Criminal Justice Commission found a greater percentage of Black and Latino men were sentenced to prison for second-degree assault compared to white men, who were more likely to get a sentence of probation.

“Knowing that there’s a disproportional impact for people of color on those two offenses, it may be reason enough to reflect on giving the courts the discretion they lost on Measure 11 back,” Prozanski told OPB.

In general, second-degree robbery is a charge in which the defendant threatened the use of a weapon during a robbery or the robbery was aided by at least one other person, while second-degree assault requires a defendant to have physically injured someone seriously, or to have assaulted a victim with a weapon.

Assault in the second degree, in particular, can be defined broadly. It was, by far, the most commonly brought Measure 11 charge between 2013-2018, according to the Criminal Justice Commission’s report.

The Criminal Justice Commission also found that people of color are charged with Measure 11 crimes at a higher rate than they are represented in the state’s overall population. Specifically, Native American, Latino and Black Oregonians were overrepresented in Assault II and Robbery II charges, compared to people who are identified as white, Asian or Pacific Islander.

“One of my Republican colleagues said that she understood it needed to have a second look — that it was affecting people’s families,” said Rep. Janelle Bynum, D-Clackamas, who chairs the House Judiciary Committee. “People feel like the time should fit the crime.”

Some prosecutors point to other research showing Measure 11 didn’t produce racial disparities, or at least didn’t contribute to them. A 2004 Rand report acknowledged public concern that “Measure 11 would improperly target minority population for prosecution,” but noted their “analysis has not shown this to be the case.” A 2019 report from the Vera Institute of Justice noted Black Oregonians were incarcerated at 4.3 times that of white Oregonian — though since 1990 the “Black incarceration rate has decreased 24 percent.”

Prozanski’s decision to narrow his proposal reflects a reality in Oregon: Many Republican lawmakers and many district attorneys oppose any changes to Measure 11′s sentencing framework. And since it would require a two-thirds vote in both chambers of the state Legislature to alter the measure, SB 401 had no chance in its original form.

Even with the scaled back changes, it’s unclear whether enough Republicans will support the bill. House Minority Leader Christine Drazan, R-Canby, said her caucus is open to changing Measure 11, but she suggested serious work would need to wait until after the current legislative session.

“Republicans are more than willing to be part of the interim conversation on sentencing reform, but the debate must reflect victims’ perspectives and public safety too,” she said in a statement Wednesday. “The only way to change policy is through collaboration, which the current proposals lack.”

Addressing aspects of Measure 11 now could give some Republicans, and some district attorneys, changes they can point to, should they push back against more sweeping reforms in future legislative sessions. Progressives and advocates who are lobbying for a vastly different criminal justice system applaud Prozanski’s plan, but also worry that by passing the least controversial tweaks to Measure 11, Prozanski’s bill takes away any chance of more substantial changes in future sessions.

With potential changes to Measure 11 questionable at this point in the session, Prozanski was hoping for political support for a more narrow approach from the Oregon District Attorneys Association, which has long defended Measure 11 as a way to ensure crime victims get justice.

But the district attorney group says that even a stripped down version SB 401 would still go too far. The group met Wednesday to discuss whether to support Prozanski’s proposal, and afterward issued a statement saying it continues to support Measure 11 “and the certainty in sentencing it provides crime victims and survivors.”

Oregon District Attorneys Association President and Marion County District Attorney Paige Clarkson said any policy shifts must be carried out in a “deliberate and thoughtful manner that does not increase uncertainty about any unintended consequences of those changes.”

“The rushed attempt with the amendment before us doesn’t do that,” Clarkson said in a statement, adding the association was open to future conversations.

Still, there’s a notable divide on Measure 11 among Oregon’s district attorneys.

Voters in Wasco and Multnomah counties elected prosecutors last year who campaigned, in part, on opposition to the law. They joined Deschutes County District Attorney John Hummel, who says he’s opposed Measure 11 and its imposition of mandatory minimum sentences since he moved to Oregon in 1995 to work as a public defender.

“Anything is better than nothing,” Hummel said. “I like that it’s targeted. It gets at the crimes that have the most disparate impacts on communities of color. It’s a surgical solution to one of the problems of people of color being overly represented in the criminal justice system.”

Wasco County District Attorney Matthew Ellis said he, too, prefers some reform rather over the status quo.

“I feel it’s a step in the right direction,” he said. “It’s disappointing that we’re still going to be stuck with mandatory sentences without having the ability to have a judge to decide.”

Privately, some district attorneys have expressed openness to or support for Prozanski’s amended bill, while also noting their concern that changes to Measure 11 could unravel other parts of the law.

In 2019, the Oregon Supreme Court upheld sentencing changes lawmakers made to Measure 57, a 2008 ballot measure creating harsher sentences for property and drug crimes. Because the Legislature had already amended Measure 57 with a two-thirds majority in a previous session, the state Supreme Court said any future amendments could be made with a simple majority.

Backers of Measure 11 say they’re worried that the state Supreme Court ruling sets a precedent that could more easily allow lawmakers to reduce the number of charges that carry mandatory minimums in the future, should Prozanski’s bill pass.

Even if he gathers support from Republicans, and with a handful of district attorneys on board, the biggest obstacle Prozanski faces is time. The legislature must adjourn by June 27.

“It’s not over ‘til it’s over,” Bynum said. “The Legislature is an interesting animal, and I continue to be amazed at what it can and won’t do.”