Packing
Heat:
More Portlanders than ever are carrying legal weapons. Why?
Fighting Dirty: Crime
Victims for Justice is right on the issues but runs a smelly
campaign.
Who's Behind Measures 69-75?
Violent crime in Oregon is down.
Our prisons are full.
The economy is healthy.
Yet Oregonians still seem scared.
Want evidence? One indication is the soaring number of
Portlanders carrying concealed weapons (see "Packing
Heat"). Another is a 1998 survey by the Institute
of Portland Metropolitan Studies, which found that Oregonians
think reducing crime is the second-most important challenge
facing the state. (Funding education was No. 1.)
Need more proof? How about the seven "victims' rights"
measures that the Oregon Legislature has referred to the
November ballot?
The issue of crime,
apparently, is just as emotional as abortion, gay rights
and assisted suicide. As a consequence, it's likely that
voters will support the seven so-called victims' rights
measures.
That's too bad, because none of the measures will do anything
to dramatically reduce crime
in this state. What they will do, however, is erode the
fragile civil rights that protect all of us from abuses
by the state.
Many of these constitutional amendments infringe on the
rights of people who are--in theory, if not in practice--presumed
to be innocent. Others would clutter the constitution with
language that is already offered in statutory law.
If you want to see the danger in mucking with the state
constitution, just look at one of the non-crime-related
measures facing voters: Measure 68, a constitutional amendment
to revise Oregon's prison-work system.
Why does such a routine matter require amending the state's
most important public document? Because the initiative that
put the original prison-work
law on the books was itself a constitutional amendment.
That initiative was so flawed that we need to change the
amendment with another amendment. If this keeps up, the
Department of Corrections will need to change the constitution
every time it wants to change the color of its prison uniforms.
The measures facing voters this fall might lead them to
think Oregon's initiative-and-referral system had outlived
its usefulness.
We prefer to think it's just having a bad year.
Our advice: Hope for more interesting and important offerings
next year. But, in the meantime, take a hard look at the
seven measures dealing with so-called "victims' rights,"
and consider whether they really make Oregon a better place
to live--and whether they belong in the state constitution.
Measure
69 - NO
Victims'
Rights
What It Would Do
The concept is simple: allow crime victims to
be present in court whenever the defendant is in court;
permit victims to be informed about a defendant's criminal
past and his release from prison; and give victims the chance
to be consulted about plea bargains.
Reality Check
We don't have much of a problem with the intent
of this measure. Victims should have access to the
criminal justice system. Have you ever heard the story of
a parent who picks up the paper one morning to learn that
the killer of his child has plea-bargained down to manslaughter?
It may be an apocryphal tale, but if it were to happen just
once, it would be one time too many.
So why do we oppose this measure? Because the 1997 Legislature
changed state law to give crime victims this access. In
other words, all this measure would do is cement into the
state constitution laws that already exist. That symbolic
act may make a few people feel better, but the constitution
is too important a document to mess with for such grandstanding.
Measure 70 - NO
State Right to a Jury Trial
What It Would Do
Oregon's constitution, and those of most other states
(as well as the practice followed in federal courts), gives
criminal defendants the right, with the judge's consent, to
choose between a "bench trial," where only a judge hears the
evidence and makes a ruling, or a "jury trial," where a panel
of the defendant's peers deliberates on the accused's guilt
or innocence. This measure would give prosecutors the right
to demand a jury trial.
Reality Check
Let's face it: Juries are sometimes a bit like pro-wrestling
audiences. They want clearly defined good guys and bad guys.
So it's not hard to figure out why prosecutors always want
to play before this emotionally charged gallery: more convictions.
But put yourself in the place of an Asian-American teenager
facing weapons charges in Hillsboro before an all-white
audience of Matlock-watching senior citizens. Isn't
it just possible that you might look suspect based upon
your ethnicity alone? Crazy as that might sound, American
history is chock-full of such scenarios, where the full
prosecutorial powers of the state are arrayed against a
lone defendant. Guilty or not, each defendant is supposed
to enjoy the constitutional privilege of a fair trial before
a jury of his peers. Remember the case of the Scottsboro
Boys from your history books, in which nine young African-Americans,
on false testimony, were convicted of raping two white girls
by an all-white jury?
Proponents of the measure say they are only trying to "even
the playing field." Sorry, but being charged with a crime
is not a game. Criminal courtroom procedure is based on
the concept of checks and balances between prosecutors and
defendants. With their teams of lawyers, investigators and
police detectives, prosecutors have a lot of power. Defendants,
who often rely on understaffed, court-appointed criminal-defense
firms, usually don't.
In the 1930s, Oregon gave criminal defendants the right
to opt for trial before a judge. We see no reason to erode
our state's civil rights simply to help prosecutors improve
their batting averages.
MEASURE
71 - NO
Limiting Pretrial Release
What It Would Do
Oregon's bail system isn't technically bail at all,
although everyone calls it that. There aren't any bail-bond
shops dotting our dicier neighborhoods or bounty hunters
tracking down people who jump bail. But it's basically the
same system without the middleman: Oregon courts set a "security
release amount." The accused must pony up 10 percent of
that or sit in jail until the trial.
Current law allows only people who have been accused of
murder, aggravated murder or treason to be held without
bail. All other accused people have a constitutional right
to be offered bail. Measure 71 would change the Oregon Constitution
to allow judges to waive bail and hold in the county lock-up
those who have been accused of violent crimes and who are
deemed a danger to the safety of the victim or the public.
Reality Check
Bail, which ensures that the accused will be in court
to answer charges, used to be simple. The U.S. Constitution
guarantees the right to no "excessive bail" under the 8th
Amendment, and the Oregon Constitution reflected that.
Thanks to the tweakings of Measures 11 and 40, judges are
now allowed to factor in the nature of the crime, the accused's
potential danger to the victim and the public, and the accused's
prior criminal record when setting the amount of bail. For
the past two years, judges have had the ability to set bail
as high as necessary to keep potential threats to the public
behind bars.
A recent example is Brent Leathers, vice president of Leathers
Oil Co., who is currently being held on $3.25 million bail
while facing numerous counts of sexual assault on a teenage
girl.
The fact that the current system allows judges the ability
to keep people in jail hasn't dissuaded proponents of this
measure. They trot out a number of heartbreaking stories
to make the case that bail needs to be revoked. Unfortunately,
these stories are mostly irrelevant.
An example is the tragic case of Robert Allen Holliday,
34, who in 1996 was kidnapped by an 18-year-old friend,
Lee John Knoch. For two weeks Knoch held Holliday in a building
in Newberg and tortured him. His ribs were broken, he was
sprayed in the eyes, nose, mouth and groin with caustic
carburetor fluids, and he was burned with a hot poker.
Knoch was arrested and charged with 24 counts ranging from
kidnapping to assault. Yamhill County Circuit Court Judge
John Collins set a bail of $200,000, on the condition that
Knoch undergo electronic surveillance and be closely supervised
by his father. Knoch's father, a man of modest means, scraped
together $20,000 for his son's release.
Two days before Knoch's trial in March of 1997, he and
his girlfriend, Julie Amanda Walker, picked up Holliday
from his job at Abby's Pizza. They took him into the woods,
hit him over the head with a shovel, cut his wrists, cut
his throat and buried him in the dirt. Knoch was convicted
of aggravated murder in 1997 and is serving a sentence of
life without parole.
Victims' rights advocates are correct: There was a huge
injustice here. But the injustice was caused by the Yamhill
County Court, not the bail system. During the year between
the torture and the murder, Knoch's bail restrictions were
loosened at the request of his attorney. He was never electronically
supervised; moreover, Knoch violated his release agreement
five times before killing Holliday, including being stopped
for reckless driving. In November 1996, Knoch's father even
told the pretrial release officer, Jim VanArsdel, that his
son had gone missing for three days. VanArsdel did not report
it, and Knoch remained free.
As queasy as stories like this one make us, they do not
justify a constitutional sea change. What about the presumption
of innocence? What about the stories of men who are arrested
for domestic abuse only to be found not guilty? Locking
these men up without bail--which can cost them their livelihoods--is
of no value to society or their families.
Creating a lock-and-load no-bail rule would turn on its
head the bedrock concept that people are innocent until
proven guilty. And while it's true that judges would retain
discretion over whether to deny bail, we fear that the political
pressure to do so (remember, judges are elected) would create
the potential for abuse.
An absolutist system of preventive detention would be right
at home in theocracies like Iran and dictatorships like
Myanmar (Burma). This measure has no place in our constitution.
MEASURE
72 - NO
11-1 Guilty Verdict
What It Would Do
Currently, in Oregon, you can be convicted of a felony
in a jury trial by a 10-to-2 vote. The two exceptions are
for murder and aggravated murder, both of which require
unanimous guilty verdicts. This measure would allow defendants
charged with murder to be found guilty by an 11-to-1 jury
verdict.
The measure would not apply to aggravated murder--murder
while committing another crime--which carries a sentence
of either life without parole or the death penalty.
Reality Check
The kerosene on the flames of this measure comes courtesy
of Steve Doell, whose daughter was run over in 1992 by a
car driven by Andrew Whitaker. In spite of his clear intent
to kill Doell's daughter, Whitaker was convicted of manslaughter
(and received a dramatically shorter sentence) because one
juror wouldn't agree with the other 11 on a murder verdict.
Despite the apparent injustice of that story, we remain
unconvinced that Oregon should join Louisiana as the only
state in the nation to lower the standard for proving that
someone is guilty of murder. True, this measure would not
affect very many cases; Multnomah County averages three
murder trials a year. And yet, in our conversations with
judges, this was the measure that they thought most jeopardized
the fundamental civil rights of defendants. This is one
place where Oregon should not be a trend-setter.
MEASURE
73 - NO
Limited Immunity
What It Would Do
This measure would change the immunity granted to witnesses
in criminal trials to the much narrower federal version
of immunity.
Think of it this way: A woman is murdered in a drug deal
that goes sour. Police arrest two men in connection with
the crime. Prosecutors suspect that one of the men, whom
they think is a drug dealer, killed the woman. But because
they don't have enough physical evidence to make the case,
they offer the second man immunity in exchange for his testimony.
Under current Oregon immunity law, known as "transactional
immunity," if during his testimony the witness fingers the
first man for murder, but also testifies that he was the
one dealing heroin, he cannot later be prosecuted for drug
trafficking.
This measure would change Oregon's constitution to the
federal standard of "use immunity"--the same one followed
by almost 40 other states--so that the witness would retain
his immunity in relation to the murder, but could be prosecuted
on heroin charges, as long as prosecutors are able to develop
evidence independent of his testimony.
Reality Check
Our eyes glazed over when we first read this one: transactional
immunity v. use immunity? What's that got to do with crime
victims? And then there's the campaign literature on both
sides that trots out bogeymen such as Lt.Col. Oliver North
and Kenneth Starr, as well as everyone's favorite bogeywomen,
Monica Lewinsky and Linda Tripp.
We got the feeling that this was one of those matters where
we could be spun like a stripped bolt. So we made lots of
phone calls to jurists, defense lawyers, prosecutors and
legal experts, and after that we still had the feeling that
this issue would baffle Perry Mason.
But if Perry were still around he'd start by referring
to the Fifth Amendment to the U.S. Constitution--specifically,
the clause that says the accused have the right not to incriminate
themselves. He'd know that part of the reason the U.S. Supreme
Court lets the feds offer weaker immunity is because the
federal Constitution is supposed to set the floor on rights
enjoyed by Americans. Beyond that, it's up to states to
decide if they want to offer stronger rights.
In 1984 then-Appellate Judge Michael Gillette (now an Oregon
Supreme Court justice) found that Oregon needed to afford
witnesses strong protection from prosecution excess. His
reason? It is unreasonable to expect prosecutors not to
use witness testimony improperly, no matter how many safeguards
they might build into the process.
His logic was later affirmed by the state supreme court
and still makes sense today.
Although we don't buy the opponents' claim that this measure
will turn Oregon's district attorneys into mini-Starrs,
we're also unconvinced that prosecutors really need this
new power.
Oregon prosecutors rarely offer grants of immunity and
admit that this measure would apply to a very small universe
of cases. They offer grants of immunity very carefully,
usually only when they can't make the case stick any other
way.
But in those cases where they might offer immunity, we
don't savor the prospect of potential abuse.
MEASURE
74 - NO
Terms of Imprisonment
What It Would Do
When Measure 11 became law in 1995, it set fixed sentences
for 21 types of violent crime. Judges no longer have discretion
when sentencing someone who had been convicted of these
offenses. Prisoners, however, can still have a portion of
their sentence trimmed at the discretion of Department of
Corrections officials, depending upon how well a particular
inmate behaves behind bars.
Measure 74, a.k.a. "Truth in Sentencing," would require
prison sentences imposed by a judge in court to be fully
served, and would set it in Oregon's constitution.
Reality Check
When we opposed Measure 11 in 1994, it was because it
took discretion away from trial judges.
Similarly, we think this measure chips away at the discretion
that the Department of Corrections should have when working
with inmates.
In our eagerness to demonize criminals, we sometimes forget
that they are people who, to a limited degree, can be managed.
Ask prison superintendents and they'll tell you that, without
being some form of incentive for good behavior, such as
earned time, prisoners are less likely to participate in
rehabilitation programs and more apt to cause disruptions.
Actually, the wording of this measure is a bit confusing
in that it does seem to have a loophole--it would allow
a judge to ask that a convicted felon receive consideration
for his behavior in prison. But a combination of the broadness
of this language, the possibility that a judge would forget
to ask for this consideration, and the objections to this
measure that we've heard from Department of Corrections
officials, convince us that this measure should not pass.
MEASURE
75 - NO
Juror Qualifications
What It Would Do
Oregon law prevents people convicted of felonies from serving
on juries for 15 years. This measure would extend that idea
to impose a five-year jury-duty ban on anyone convicted
of a misdemeanor that involved violence or dishonesty; the
measure would also carve both provisions into the state
constitution.
Reality Check
We don't even have to address the matter of felons not serving
on juries: It's already Oregon law.
But to extend this restriction to include people convicted
of misdemeanors is excessive. Some Oregon prosecutors, off
the record, told us they agree.
It's unclear which misdemeanors would be covered under
this measure. It could apply to shoplifters who've been
caught snatching a Snickers bar. If misdemeanor convictions
are to become the litmus test for jury participation, soon
enough jury pools will become so limited that the only people
qualified to serve will be those who've never stepped outside
their houses.
Measure 75, like many of these measures, seems to be a
solution in search of a problem. Proponents couldn't provide
any proof that the use of jurors who have been convicted
of a misdemeanor have somehow resulted in any miscarriage
of justice.
MEASURE
76 - NO
Highway
cost proportionality
What It Would Do
Here's a tip: Next time you get cornered with a boor
at a party, bring the conversation around to the debate
over Oregon's weight-mile tax. Once his eyes glaze over,
you'll be free to slip away.
Currently in Oregon, truckers are taxed based on a complicated
calculation of freight weight and miles driven. For years,
truckers have complained that the system is a complex nightmare
of paperwork. As a result, the Legislature has proposed
scrapping the hated weight-mile tax in favor of a straight
diesel fuel tax and an increase in the registration fees
for trucks. But that's not what we're voting on in Measure
76. Instead, this measure would amend the constitution to
require that the cost of fixing and building roads be equitably
shared by trucker and car owner alike.
Reality Check
Consider this referral the "pre-gas tax measure" measure.
The gas tax increase that lawmakers passed in the last
session sent AAA into a spasm because it was tied to an
elimination of the weight-mile tax. The automobile association
argues that the change will shift the burden of taxing vehicles
off of trucks and onto cars. AAA gathered enough signatures
to put a repeal of the tax on the May 2000 ballot.
Measure 76 was referred by the Legislature in response
to the AAA criticism and even critics of the complex method
agree it fairly distributes road costs between cars and
trucks. Gov. John Kitzhaber said he wouldn't sign the gas-tax
bill unless it would be guaranteed that the cost responsibility
would continue to be shared under any changes to truck taxation.
So, on the last day of the session, lawmakers passed this
measure.
This measure, which amends the constitution with vague
pronouncements of equity, is very poor lawmaking. Fact is,
such a provision is already written into the gas-tax bill.
The only reason to embed it in the constitution is that
it gives the Truckers Association and Associated Oregon
Industries a campaign advantage because they could defuse
AAA's charges of unfairness.
That might make for good politics, but it makes for a lousy
constitution.
MEASURE
68 -YES
Prison-Work
Program
What It Would Do
Under 1994's Measure 17, all Oregon prisoners are required
to work, and the work program is overseen by a prison industry
board made up of the governor, secretary of state and treasurer.
This measure would loosen the requirements somewhat and
dissolve the board, giving the responsibility to the director
of the Department of Corrections.
Reality Check
In 1994, we endorsed Measure 17, even though we didn't
think it belonged in the state constitution. So we're not
thrilled with having to tinker with it this year via another
constitutional amendment. Still, we support this measure.
The big problem with Measure 17 was the difficulty the state
had in enacting it. Either the prison board could not find
enough work for inmates to do, or inmates were reluctant
to work. (They do get paid a very small amount for the work
they do under this program.) The state has had more success
recently, which has meant some griping, particularly from
unions who don't think their members, who are trying to
earn a living wage, should have to compete with inmates
making 25 cents an hour. (That's what happened in Eugene
when a commercial laundry laid off 12 employees after losing
part of its business to the Oregon State Penitentiary's
commercial laundry.) This measure would allow the state
to take these kinds of considerations into account when
taking on work; it also dismantles the prison industry board,
a needless tier of bureaucracy. This referendum has received
no formal opposition and enjoys bipartisan support. It deserves
a yes vote.
Who's
Behind Measures 69-75?
Measures 69 to 75 were all part of 1996's Measure 40, which
was approved by 58.8 percent of Oregon's voters. The measure
was declared unconstitutional by the state Supreme Court in
1997; the court ruled that one ballot measure could not affect
so many areas of the state constitution in one sweep. Before
the court acted, however, the measure's author, state Rep.
Kevin Mannix (R-Salem), shepherded Senate Bill 936 through
the 1997 Legislature; the bill placed Measure 40's constitutional
aspects into statutory law.
In the waning days of the 1999 Legislature, Mannix persuaded
lawmakers to refer the current measures to voters for the
November ballot. The campaign for these measures is being
spearheaded by Mannix's political action committee, Justice
for All; Steve Doell of Crime Victims United; and prosecutors
such as district attorney Joshua Marquis of Clatsop County
and Norm Frink, chief deputy district attorney for Multnomah
County.
Justice for All is primarily funded by conservative millionaires
Loren Parks and Mark Hemstreet. Its media campaign is run
by Gregg Clapper, head of a new political action committee
called This Is About Crime Victims, which is not required
to file a financial statement with the secretary of state
until Oct. 28.
Mannix told WW that he expects his side to spend
as much as $200,000 on the campaign.
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Willamette Week | originally
published October 20,
1999
|
