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A citizens
group is circulating petitions to overturn Measure 11 in
the 2000 election. State Rep. Jo Ann Bowman is part of that
effort.
Frey
works part-time in prison, cleaning floors and emptying
garbage cans. He also attends adult basic-education classes.
When
police showed up to arrest him early the next morning, he
was waiting for them on the front steps.
Cliff Frey has always depended on his mother (above).Cliff
Frey's older brother, Jeff says, "Cliff is being tortured
by inmates, taunted by guards and is picking up 'skills'
from murderers and thieves."
The
governor was given the power to grant clemency by an 1859
law.
About
2,500 people have been incarcerated under Measure 11
since it took effect in 1995. Many more have pled guilty
to lesser charges, but have been given longer sentences
than they would have before the law.
Deputy District Attorney Norm Frink asked Kitzhaber for
a commutation. "This is one of those infrequent cases where
the mandatory sentence is inappropriate," he says.
Jeff Brown, who processes applications for clemency for
the governor, says most appeals his office receives are
opposed by the district attorney.
Gov.
Kitzhaber is opposed to the death penalty, but says he will
not intervene in such cases because Oregon voters have made
it the law. There have been two executions during his tenure.
Henry "Chip" Lazenby says, "I think Frey's case points out
the need to have a neutral person--who in just about every
justice system is called a judge--issuing a sentence based
on the facts of individual cases."
In 1995,
the Legislature passed a law giving some lower-level Measure
11 offenders the chance to get out of prison early. So far,
only about a dozen prisoners have met the stringent requirements.
Cathi
Lawler, of an anti-Measure 11 group, asked the governor's
office for 200 clemency application forms. Her request was
denied. "They said it would back up everything," she says.
Kitzhaber
wouldn't even use his clemency power to free four wrongly
convicted people. The four later won freedom through the
courts.
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This is a story of two men whose lives have become unexpectedly
entangled.
The first, Gov. John Kitzhaber, is the most popular elected
official in the state, a man who will have endless opportunities,
in politics and beyond.
The other man is not a politician, and his future is much
less certain. At age 25, he can't even explain how a bill
becomes a law. With an IQ that is lower than that of 98
percent of the population, he is unable to hold a regular
job, pay his own bills or get a drivers license.
His name is Clifford Frey, and he has spent the past four
years behind bars. Right now, locked up in the Eastern Oregon
Correctional Institution, he is unlike any other prisoner
in this state. That's because the victim who accused him,
the cop who interrogated him, the deputy district attorney
who prosecuted him and the judge who sentenced him all say
that Frey should be set free--even though the type of offense
he committed, a sex crime, carries an emotional charge like
no other.
John Kitzhaber, who has the authority to release Frey,
knows all this. And yet for six months, as Frey's application
for clemency has languished on the governor's desk, he has
failed to act.
Kitzhaber declined to be interviewed for this story. But
a number of people involved suggest that he has failed to
make a decision because there's more at stake here than
Clifford Frey's freedom.
At issue is a simmering debate over Oregon's relatively
new mandatory minimum sentencing law. Add in some old-fashioned
politics and John Kitzhaber's cautious--some might say timid--style,
and you've got a recipe for interminable delay.
"The problem is the governor is in a Catch-22," says Susan
Russell, Frey's attorney. "The question is whether the injustice
is going to be righted or whether Clifford's case is going
to fall prey to the bigger battle that's going on."
To Frey, meanwhile, the battle is about just one thing:
"I could be with my family and stuff, because they really
need me and I really need them."
Few would argue that Clifford Frey committed a serious
crime. On April 14, 1995, after celebrating his 21st birthday,
the Northeast Portlander sexually assaulted a 17-year-old
Wilson High School student near Amalfi's Italian Restaurant.
Around 11:30 pm, Frey was walking with the young woman,
an acquaintance, toward a bus stop. Frey, who was drunk,
wanted to go home. On the way there, they took a detour
toward the restaurant. Kissing led to touching, and the
young woman began to object.
"I began to scream, and I pulled back and broke free,"
she testified at trial, in September 1995. "Then he caught
me and pulled me against the wall again, and he put his
hand back underneath my shirt, and I was telling him not
to."
At one point, the girl said, Frey picked her up by the
legs and inserted his penis briefly into her vagina--a charge
Frey disputes. He admits penetrating her with his fingers.
In any case, the girl testified that she kept saying no
and pushing him away. The incident ended when she gave Frey
a hard elbow to the ribs, knocking him out.
When police were called, it appeared to be a simple case
of forcible sexual assault. It turned out, however, that
there were aspects of the case that made it a bit more complicated.
For one thing, the girl and Frey had a consensual sexual
relationship dating back to New Year's Eve in 1993. Russell
believes that on the night of the assault, Frey was receiving
"mixed signals" from the girl, and that the tenor of their
encounter changed quickly and dramatically before Frey realized
it. She says the whole incident near Amalfi's lasted less
than two minutes.
Frey's own circumstances also made the case less black-and-white.
He had no prior criminal record and didn't have a history
of being physically aggressive. Even his response to the
incident was unusual. When police showed up to arrest him
early the next morning, he was waiting for them on the front
steps. He knew he had done something wrong, although he
didn't know exactly what would happen next.
In fact, Frey would never fully understand everything that
was swirling around him. Frey has an IQ of 69, well below
the average IQ of 100 but at the high end of the mentally
retarded range.
In 1993, he graduated from Grant High School with what's
known as a "modified diploma," a degree for special-education
students that shows he completed school, although he wasn't
required to meet the normal standards. After his graduation,
the armed forces and the Job Corps turned Frey down. The
federal government has deemed him unemployable, and he collects
$458 a month in Social Security.
When Frey was 19, his parents allowed him to move into
an apartment down the street--just so he could feel like
an adult, even if he really wasn't living on his own. Frey's
mother cooked his meals, did his laundry and paid his bills.
"I took practically complete care of him," Donna Frey says.
Frey does a good job masking his impairment. "People who
are in the upper end of the mentally retarded range become
good at not showing their limitations," Dr. Robert Basham,
a clinical psychologist, testified at Frey's trial. "[To]
a lot of people who would talk with him, his deficits would
not be real obvious. It's only when you really talk in more
length you can see that."
The timing of Frey's offense couldn't have been much worse.
Just two weeks earlier, Oregon had enacted Measure 11, a
ballot initiative that drastically changed the state's criminal
justice system by requiring tough minimum sentences for
certain crimes. The voter-approved law was similar to tough-on-crime
laws passed in other states but covered broader categories
of crime--and was less flexible--than elsewhere.
To Frey, a conviction under Measure 11 meant he would face
the possibility of a long sentence, with no chance of early
release. It didn't matter that it was his first offense,
that he was developmentally disabled, that two psychologists
had determined there was little chance of his committing
another sexual offense--all factors that would have been
considered under prior law.
Frey's first hope was with prosecutors, who have tremendous
leeway, even under Measure 11, in the way they deal with
defendants. He had been charged with rape and sex abuse,
crimes that under Measure 11 carried mandatory sentences
of 100 months and 75 months, respectively. As is typical,
the Multnomah County District Attorney's office offered
him a deal: He could plead guilty to a lesser crime if he
agreed to spend three years behind bars.
Frey and his attorney declined the offer. They then placed
their faith in a favorable outcome at trial, hoping either
that the jury would acquit or that the judge would disobey
the law and refuse to impose a Measure 11 sentence, as several
other judges around the state had done. There was also hope
that Measure 11 would be overturned, something the state
Supreme Court later considered but refused to do.
Russell says that rejecting the plea bargain was a tough
call but still maintains they made the best decision they
could at the time. Today, she believes, the DA would have
offered something less than three years. "At that time they
had a pretty strong view of Measure 11," she said. "It was
the voters' voice, and they felt pretty bound by that."
After a three-day trial in September 1995, the jury acquitted
Frey of rape, the most serious charge, but convicted him
of sex abuse.
The charge carried a sentence of 75 months (six years and
three months), a long time, made even tougher given Frey's
circumstances.
At the sentencing hearing, Multnomah County Circuit Judge
Anna Brown told Frey her hands were tied; she had no choice
but to sentence him to 75 months behind bars. If Frey had
committed the crime just two weeks earlier, he could conceivably
have been sentenced to probation.
"It was such an obvious wrong," Russell said. "Nobody who
was there in that courtroom could walk away from that and
not feel that an injustice was taking place."
The decision clearly pained Judge Brown. "It is at times
like this when the weight of the responsibility is particularly
heavy," she said at sentencing. "You all have presented
to me a compelling case....I don't find it comforting to
know that I have no discretion in these circumstances."
Detective Sheridan Grippen, the veteran Portland Police
officer who investigated the case and testified at the trial,
also felt terrible. "He struck me as extremely naive," Grippen
told WW. "He should have done probation or some counseling.
But it was a slam-dunk case. I had a confession. What could
I do? It was a travesty."
Even Deputy District Attorney Norm Frink--considered by
many to be among the toughest prosecutors in the state--says
75 months seemed like a long time, considering the mitigating
factors. "From the beginning, I think we all recognized
the Measure 11 sentence was too long," he told WW.
"I think most people would view three years, with time off
for good behavior, as an appropriate sentence."
Prison hasn't been easy for Frey. He called home, frightened,
after being transferred to Arizona in the middle of the
night. According to his family, he has been manipulated
and used by conniving inmates who he thinks, in his naiveté,
are great guys. At one point, Frey was unable to even carry
on a conversation because the prison doctors briefly placed
him on a depressant drug, even though his longtime doctors
had prescribed Ritalin, a drug that does the opposite, for
years.
Unlike most inmates convicted of sex crimes, Frey doesn't
keep his offense a secret. "I try to explain them to the
fullest what happened," he told WW in a phone interview.
"I really don't want to lie because if I come out with the
truth, they're going to accept me more." In some cases,
that's led to altercations with other inmates who rank sex
offenders on the lowest rung in prison.
Frey suffered a broken nose and has lost the ability to
focus his right eye, according to his brother, Jeff Frey.
In January 1997, he was put in a cell with an older, rougher
inmate. According to the State Police, the man threatened
him, demanded money, then raped him on two consecutive nights.
Since then, he has been separated from his assailant and
placed in a dorm setting, which his family believes is safer
than a shared cell.
"God forgive me for saying this, but I would prefer him
being locked in a box," Jeff Frey says.
Cliff Frey has two years left on his sentence.
From the beginning, Frey's case "stuck out like a sore
thumb," says Frink--so much so that within a year after
Frey was sentenced, Frink approached Russell to talk about
reducing the sentence. Russell's first plan was to pursue
the case in the appellate courts. When that failed, Russell
and Frink decided to turn to the one man with the power
to do something: John Kitzhaber.
Oregon governors have a powerful tool at their disposal
in righting what they see as wrongs in the criminal justice
system: It's called clemency, and lawyer Jeff Brown, who
processes these petitions for Kitzhaber, says Oregon is
one of only five states where the governor has "pretty much
unfettered clemency powers."
Clemency can take two forms: a pardon or a commutation.
In a pardon, the record of the crime is erased, so that
it appears as if it was never committed in the first place.
In a commutation, the time behind bars is simply reduced,
but the criminal conviction still stands.
Brown estimates Kitzhaber has received 50-70 clemency petitions
a year for the four and a half years he has been in office.
He hasn't granted a single one.
"The governor doesn't want to use this lightly," explains
Henry "Chip" Lazenby, Kitzhaber's chief legal counsel. That's
an understatement.
Barbara Roberts, for example, granted clemency to 15 people
during her 4-year tenure. Neil Goldschmidt granted seven
clemency petitions, and Vic Atiyeh granted 37.
"Times have changed," explained Bob Oliver, legal counsel
to both Atiyeh and Tom McCall. "I think a governor would
feel far more vulnerable to criticism for being soft on
crime if he commuted a sentence today than back then. Someone
is going to criticize him, regardless of the facts."
But Frey's clemency request, which was filed in December,
is different. Among other things, Frey has support in all
the right places.
Frink, for example, is a strong supporter of Measure 11.
He is also closely tied with Crime Victims United, Oregon's
chief tough-on-crime lobbying group and the organization
that would shout the loudest if Kitzhaber freed someone
who didn't deserve it. According to Lazenby, Frink has pursued
Frey's commutation "rather strenuously," calling, writing
and personally visiting the governor's office to discuss
the case.
Judge Anna Brown also has a reputation as a law-and-order
type. She has been nominated by President Clinton for an
appointment to the federal bench, but still hasn't been
through Senate confirmation hearings. Although her federal
appointment could be jeopardized by any perception that's
she's soft on crime, she's in favor of commutation.
Even the victim supports commutation, according to Frink.
(She has since moved out of state, and WW was unable
to contact her.)
"That's as much cover as you can get," notes Jim Moore,
a political analyst and University of Portland professor.
"It doesn't get much better than that."
While Lazenby says that Kitzhaber is seriously considering
the application--the first time he has done so--he is apparently
taking his time. He let the six-month deadline for a decision
lapse on June 11, saying the file was incomplete because
it didn't contain a letter signed by the victim stating
her position. (Instead, he had a letter from Frink conveying
the victim's support of commutation.)
The deadline has been pushed back another six months.
"I'm surprised that the decision couldn't have been made
during the time frame that was available," said State Rep.
Kevin Mannix, a co-sponsor of Measure 11, speculating that
"Governor Kitzhaber has routinely had a soft position as
to policy on crime, and I think that has made him more averse
to the occasional situation where a pardon or clemency might
be appropriate."
What's the holdup? For one thing, Kitzhaber isn't in any
rush to come to the rescue when Measure 11 causes problems.
He is frustrated because sentencing discretion was taken
out of the hands of judges.
Lazenby says that judges, not governors, are supposed to
administer justice. "Under most normal types of law, the
judge would be able to look at Mr. Frey and fashion a sentence
that fits his crime and who he is," he says. "Since district
attorneys are the only ones left with the discretion, they
could have prevented this at the front end. It is not the
governor's proper spot to be the backstop for this." Lazenby
points out that the Legislature has the power to fix flaws
in the law. "I certainly think this case has all of the
elements that show why Measure 11 is poor public policy."
Kevin Mannix counters that this is exactly the way he thought
Measure 11 should work. All along, he has told critics that
the governor is Measure 11's release valve.
"With the tougher sentences of Measure 11, I always said
that one of the offshoots would be that the governor, from
time to time, would need to exercise clemency power," Mannix
said. "Maybe the governor doesn't want to grant clemency
because he'd be doing exactly what I said should be done
on occasion."
Does the Frey case give pause to people like Frink, who
is one of Measure 11's most vocal supporters? He doesn't
see a contradiction between Measure 11 and his position
on the Frey case.
"Contrary to all the stuff put out by Measure 11 opponents,
there are not a large number of people who get convicted
under the measure and don't deserve it," Frink says. "The
message here is, we have four years of Measure 11 and we've
got just one case where the penalty is not, in our view,
appropriate. Let's contrast that with the hundreds of cases
we had prior to Measure 11 where the punishment was inappropriately
lenient. It's really the exception that proves the rule."
Donna Frey, who has joined the effort to overturn Measure
11, disagrees with Frink, saying she's met many other people
who feel their loved ones received sentences that were too
harsh. "It's getting to where there are so many people you
know that are in prison under Measure 11, and they're middle-class
people. We never expected it to come so close to home."
As for Russell, her main focus is her client.
"The worry is that Clifford's case is going to become just
a political pawn in a bigger debate that has nothing to
do with him," she says.
"There are these two contrasting views that are strongly
held by both sides," she adds. "And in between is this individual
little person that's getting trampled, despite the fact
that everybody agrees the mandatory sentence was too long.
It's basically kind of punishing the DA, but directly it's
punishing Clifford."
Meanwhile, Frey is just waiting for an answer.
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Willamette Week | originally
published July 7, 1999
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