Does Measure 73 apply to sexting?

By Oregon Anti-Crime Alliance

The topic for this letter is Measure 73, “The Oregon Crime Fighting Act,” which sets mandatory minimum sentences for certain repeat sex offenders and certain repeat intoxicated drivers. The actual language of the measure is at the end of this letter.

The Oregon Anti-Crime Alliance advocated strongly for Measure 73. It was authored by Kevin Mannix over 2 years ago, and approximately 141,000 signatures were collected in the petition drive. The voters passed Measure 73 with a 57% “yes” vote to a 43% “no” vote. In short, despite the tough economic times and the cost of the measure, it was popular with the voters and affirms our belief that Oregonians want to be safe from repeat offenders.

“Sexting” is individuals (particularly juveniles) using cell phone cameras to send sexually explicit pictures to others over the airways. Using a child in a display of sexually explicit conduct (ORS 163.670) already has a legislatively established 70 month mandatory minimum sentence for a first offense. This statute addresses older people taking pictures or video of children engaged in sex acts and was not designed to prosecute people engaged in “sexting.”

1. Measure 73 is effective on December 2, 2010.

2. Measure 73 applies to crimes committed on or after December 2, 2010. When you meet in January, 2011 we believe that police officers will have already arrested intoxicated drivers qualifying for Measure 73 treatment–at least two prior convictions for intoxicated driving within 10 years–and prosecutors will have already charged these arrestees under Measure 73.

3. Prior convictionsfor both the Major Felony Sex Crimes provision and the Intoxicated Driver provision that occurred before December 2,2010, count as previous convictions.

4. The “major felony sex crimes” are Rape I, Sodomy I, Unlawful Sexual Penetration I, and Using a Child in a Display of Sexually-Explicit Conduct. The mandatory minimum sentence is 25 years for a second conviction. There are about 35 sexual offenses under Oregon law, and Measure 73 only applies to 4 of the most serious ones, and only if they are repeat offense(s) in a different criminal episode. See Section 2 of the measure.

5. The Major Felony Sex Crime provision applies to 15, 16, and 17 year olds because Measure 73 does not change prior existing law in this regard. Obviously,prosecutors will be extremely careful in charging youth with a repeat Major Felony Sex Crime. The Criminal Justice Commission estimates that the Major Felony Sex Crime provisions will only apply to about 13 offenders each year.

6. Measure 73 Does Not Create a “Sexting” Problem.

A close review of court records for the last 4 years discloses no “horror stories” about the use of this statute with the “sexting” phenomenon. If there is a “sexting” problem in society today, it is caused by the improper use of technology and the legislature may want to consider how to regulate or criminalize the conduct. We would be pleased to participate in this law creation process if it moves forward. All Measure 73 does is impose a tougher sentence for a second conviction for 4 serious sexual offenses.

7. Measure 73, makes the third intoxicated-driving conviction within 10 years a Class C felony and sets a mandatory minimum sentence of 90 days in jail. Because it is a Class C felony, ORS 813.012 applies and the third conviction within 10 years will be a crime category 6D on the sentencing guidelines grid. A prison sentence of 13-14 months will be the presumptive sentence for many of these offenders. The Criminal Justice Commission estimates about 400-600 third time convicted intoxicated drivers will go to prison when the measure is fully implemented in several years.

Prosecutors have discretion to negotiate cases to something less than a prison sentence but the Measure specifically sets a 90 day mandatory minimum sentence for the third conviction and thereafter. The clear intent of the Measure is for third time convicted intoxicated drivers to complete 90 days in jail without the possibility of early release. Hard core intoxicated drivers severely injure and kill people and they need a significant sanction before the tragedy happens.

We have reviewed the third DUII conviction sentencing laws for Washington, Idaho, Nevada, and California, our surrounding states, and determined that before Measure 73, Oregon had the weakest sentences for these offenders.

3rd DUII OFFENSE

• NEVADA – Prison from 1 to 6 years (within 7 years of previous conviction)
• CALIFORNIA – Jail from 120 days to 1 year (with 10 years of previous conviction)
• WASHINGTON – Jail from 90 days to 1 year, plus a mandatory 120 days electronic home monitoring
• IDAHO – Jail from 30 days up to 5 years and treated as a felony.
• OREGON- Jail from 2 days to 1 year and it is a misdemeanor. (Before Measure 73)

8. Starting December 2, 2010 counties are to be “fully reimbursed” by the State of Oregon for the costs of incarceration, including any pretrial incarceration, for a person sentenced for a third time or more DUII conviction. The intent of the measure is to help counties deal with the cost of their public safety systems.

9. COST OF MEASURE 73

The official state cost estimate indicates there is no cost for the repeat sex offender provisions for the next 7 years.

For the intoxicated driver provision, the measure will require additional state spending of $1.4 million in the first year, $11.4 million to $14.6 million in the second year and it goes up to between $18.1 million and $29.1 million by the fifth year and each year after that.

The measure does not require additional local government spending. The measure directly reduces expenditures for local government by $0.4 million in the first year and $3.2 million to $4.6 million each year after that, primarily by shifting costs to the state.

In short, in the next two years it is estimated to cost $12.8 million to $16 million with the counties being reimbursed an estimated $3.6 million to $5 million. Of course, actual costs will depend on the number of individuals who are convicted under the Measure and sentenced to prison.

We hope the above information is helpful to you. If you have questions or comments and would like to speak with either of us, please call Kevin at 503.364.3909 or Doug at 541.868.6994.