We’ve seen a lot of debate lately about the “tyranny” of Measure 11 and mandatory minimum sentences. The argument goes that mandatory minimums violate equal rights and disproportionately punish offenders for some minor crimes. Before looking toward the future, I think it bears reviewing the history of how all this came about.

Prior to 1990, Oregon sentencing law was pretty simple. The judge could pretty much sentence a defendant anywhere in the statutory range permissible for the crime. In the late 1980’s and early 1990’s, “truth in sentencing” and sentencing guidelines to reduce racial disparities in sentencing became popular themes. Put simply, people didn’t like prisoners serving only a small portion of the adjudged sentence because of prison crowding, and felt that sentencing guidelines would prevent minority defendants from getting longer sentences than non-minority defendants.

The feds pioneered both of these. “Parole” as such was eliminated in favor of “post-prison supervision”. The federal sentencing guidelines imposed uniform, but harsh, sentences. Oregon did things a little smarter, ending up with sentencing guidelines that basically ensured that the prison population would stay at the level funded by the legislature. The guidelines only apply to felonies, not misdemeanors. For better or worse, people uniformly felt that these guidelines (which apply only to felonies) insufficiently punished violent crime, and supported Measure 11 as a way to ensure that people convicted of serious crimes of violence served relatively long terms. (I say relatively, because even M11 sentences are low compared with comparable punishments in other states.) Repeal efforts for M11 failed. The legislature also passed increased penalties for repeat property offenders in the late 1990’s.

The way the system works now is that a judge first looks to the sentencing guidelines in a felony case. The “grid” applies a criminal history score for the defendant and a crime severity score, yielding a fairly narrow sentence range. The court then looks at whether any aggravating or mitigating factors have been proven (to a jury) that would allow for a departure from the guidelines. After that, the court reviews whether the defendant has been convicted of a M11, repeat property offense or other statutory minimum (like use of a firearm). If he has, then the court imposes the sentence required under the particular statute involved.

While I don’t intend this to cover all eventualities, that’s generally how things work. Contrary to popular belief, the central tension in Oregon correctional politics is not what an appropriate sentence is for the offense, but rather the conflict between Oregonians’ desire for strong sentences for serious crime versus their inherent stinginess when it comes to paying for government services (like corrections). See the recent release of the motorcycle gang member who menaced a cop one day after his sentencing for a good example of how Lane County voters have starved local corrections for misdemeanants. The voters pass “tough on crime” bills that end up devoting more money to incarceration, depleting the budget for rehabilitative and re-entry programs. Conservatives have had terrific success with tough on crime measures because, let’s face it, in the abstract, who doesn’t want an armed robber to go away for a long time? Progressives haven’t had as much luck because voters don’t necessarily see that longer sentences mean more tax dollars and less rehabilitation, leading to more crime in the long run.

Historically, progressives have lost on crime and punishment issues because most of voters don’t have brothers in the can for armed robbery and most of us don’t know beans about the smart way to spend corrections dollars. We tend to beat our heads against the wall, thinking that people will just come around to our way of thinking because M11 sentences are “cruel and unusual”. Well, folks, I hate to be the bearer of bad news, but they just aren’t. The voters don’t think so, and neither do the courts.

So, what can we do to move in a more positive direction? First, we should put the decisions in the hands of people who either know what they’re doing or represent us. That means that, rather than have sentences decided by relatively arbitrary criteria established in the statutes, we return to a system where either judges or juries have the authority to decide an appropriate sentence without so many constraints, but with appropriate information about what works in sentencing.

Second, we should provide the means to educate the sentencing authority. If we stick with judges, we should make the guidelines advisory, as well as the other provisions for mandatory minimums. We should also then invest in pre-sentence investigations for most, if not all offenders. A pre-sentence investigation means that a corrections expert, like a probation officer, gathers evidence and makes a recommendation to the court. Contrary to popular belief, most judges are not trained in corrections. Law school doesn’t usually teach anyone about what works in the correctional environment. It’s about how to get people there or get them out. It’s law, not sociology or psychology.

Third, we should stress the importance of good science in corrections. While no science can absolutely predict which prisoner will commit another crime, the science does a reasonably good job in predicting future dangerousness. People stopped trusting parole because it was manifestly evident that the Department of Corrections released people largely based on how many beds were available, not whether the offender had reformed in any way. We should also accept that, while the court’s sentence has an important role in expressing society’s outrage at the crime, it’s not the end of the story. Giving DoC more leeway to parole offenders for meritorious conduct in prison and lack of future dangerousness, while prohibiting the consideration of prison population in making a release decision, would put the science back in corrections.

What does this mean for us? We should stop pounding our heads against the wall and get smart about our proposals to the legislature and the voters. Instead of repeating the “people are too stupid to be allowed to vote on sentencing” mantra, we should bill our efforts as “power and safety to the people.” This means swallowing the bullet and adequately funding corrections, promoting good science in corrections by requiring evidence based release decisions, pointing out how guideline sentences are too SHORT in some cases, and looking at jury sentencing as a way of empowering the people. The anti-M11 horse died long ago. It’s time to get on a new one and move on. We should accept the right of the people to express their outrage at crime through the courts and promote efforts that hold public safety as the ultimate goal.

The views expressed here are those of the author and not necessarily those of his employer (who shall remain anonymous!).