Implementation of Measure 73

Implementation of Measure 73
By Oregon Anti-Crime Alliance

“Shortly after the voters passed Measure 73 at the November 2, 2010 election, Senior Policy Advisor, Doug Harcleroad, sent a Memorandum explaining the Measure to all Oregon Sheriffs, District Attorneys and Police chiefs. The Memorandum is set out below:”

MEMO TO: All Oregon Sheriffs, District Attorneys and Police Chiefs

FROM: Doug Harcleroad, Senior Policy Advisor, Oregon Anti-Crime Alliance and Retired Lane County District Attorney

SUBJECT: IMPLEMENTATION OF MEASURE 73 setting mandatory minimum sentences for certain repeat sex offenders and certain repeat Intoxicated drivers.
(The actual Measure 73 language is set forth at the end of this memo.)
The Oregon Anti-Crime Alliance advocated strongly for Measure 73. It was authored by Kevin Mannix over two 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. The measure passed in 34 out of 36 counties with Multnomah county ( 46% yes) and Benton county (47% yes) being the only counties where it did not receive a majority of the votes cast. In short, despite the tough economic times, it was popular with the voters. So much for the election, the rest of the memo deals with the implementation of Measure 73.

1. Measure 73 is effective on December 2, 2010. The authority for this is: Oregon Constitution, Article IV, Section 1(4) (d).

2. Measure 73 applies to crimes committed on or after December 2, 2010. The Measure itself is silent on this issue. Thus, it is my opinion the general rule articulated here is the correct one. Anyone with a different opinion please let me know ASAP.

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. FYI–I counted and 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 Oregon Supreme Court proportionality analysis in the Buck/Rodriquez cases may have some application here. FYI—The Criminal Justice Commission estimates that the Major Felony Sex Crime provisions will only apply to about 13 offenders each year.

6. 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 6 on the sentencing guidelines grid. Because of the two prior convictions for DUII, the offender will be a “D” on the grid at the least. Thus, a prison sentence of 13-14 months will be the presumptive sentence for many of these offenders. FYI — 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. Obviously, prosecutors have discretion to negotiate cases to something less than a prison sentence when appropriate, but careful analysis should be done before taking an offender out of the 90 days mandatory minimum sentence if this is even possible. The clear intent of the measure if for third time convicted intoxicated drivers to do 90 days in jail-no ifs ands or buts about it. I have reviewed the third DUII conviction sentencing for Washington, Idaho, Nevada, and California, our surrounding states, and determined that before Measure 73 Oregon had the weakest sentences for these offenders. Below is an article I wrote about the states if anyone is interested.

7. Particularly for the Sheriffs — Starting December 2, 2010 counties are to be“fully reimbursed” for the costs of incarceration, including any pretrial incarceration, for a person sentenced for a third time or more DUII conviction. My suggestion is to figure out a system to identify these offenders before December 2nd and make sure you charge the state the true cost of incarceration. I also suggest you contact the Department of Corrections quickly to get the process started to determine where to send the bills. FYI—I know the intent of the measure is to help counties deal with the cost of their public safety systems.

8. Tim Sylvester authored a more extensive and scholarly memorandum on Measure 73 and has given me permission to print it below for your use. Thanks Tim

Text of Measure 73

Section 1.This Act shall be known as the Oregon Crimefighting Act.

Section 2.a. Any person who is convicted of a major felony sex crime, who has one (or more) previous conviction of a major felony sex crime, shall be imprisoned for a mandatory minimum term of 25 years.
b. “Major felony sex crime” means rape in the first degree (ORS 163.375), sodomy in the first degree (ORS 163.405), unlawful sexual penetration in the first degree (ORS 163.411), or using a child in a display of sexually explicit conduct (ORS 163.670).
c. “Previous conviction” includes a conviction for the statutory counterpart of a major felony sex crime in any jurisdiction, and includes a conviction in the same sentencing proceeding if the conviction is for a separate criminal episode as defined in ORS 131.505.
Section 3.a. Driving under the influence of intoxicants (ORS 813.010) shall be a class C felony if the defendant has been convicted of driving under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction, at least two times in the 10 years prior to the date of the current offense.
b. Once a person has been sentenced for a class C felony under this section, the 10-year time limitation is eliminated and any subsequent episode of driving under the influence of intoxicants shall be a class C felony regardless of the amount of time which intervenes.
c. Upon conviction for a class C felony under this section, the person shall be sentenced to a mandatory minimum term of incarceration of 90 days, without reduction for any reason.
d. The state shall fully reimburse any county for the county’s costs of incarceration, including any pretrial incarceration, for a person sentenced under this section.