Held to answer

Like a burglar creeping outside a house testing the windows, Gov. John Kitzhaber has been trying to find a way to get inside the minds of Oregon voters and persuade them to stop locking up criminals.

It costs too much, he says.

In his corner, Kitzhaber has the Commission on Public Safety, which he created at the behest of his predecessor – former Gov. Ted Kulongoski – now a member of that very commission.

Any day now, the commission will release a report with its recommendations after holding four, day-long public hearings “throughout the state” on how to improve Oregon’s sentencing laws. (None of the hearings were held east of the Cascades.)

The commission’s report was due Dec. 15, but it has received at least a one-week extension. Although the commission’s chair, state Supreme Court Justice Paul DeMuniz, could not hide his disdain for Measure 11 throughout the public hearings, there will be no recommendation to have the legislature attempt to overturn it, at least not in 2012.

Measure 11, approved by voters in 1994, requires minimum mandatory prison sentences for certain violent felonies, such as rape and assault. What really rankles Kulongoski, Kitzhaber and DeMuniz is that the law was forced on them by voters.

Kitzhaber’s commission got off to an aggressive and one-sided start with its first public meeting on Sept. 30 in Salem. Speaker after speaker dumped on prosecutors as if they were criminals – just because they wanted to incarcerate violent felons. Numerous studies and statistics were brought out, allegedly proving that “evidence-based” practices and treatments were more successful than incarceration and that judges had lost power in deciding sentences because of laws like Measure 11.

Early on, the commission was given the blessing of The Oregonian’s editorial board. A day before the commission’s second meeting in Ashland, DeMuniz visited the Medford Mail-Tribune, which handed him an editorial he could have written himself.

But the predictable rhetoric of the commission’s first two hearings started to change by the third meeting.

“I would like you to talk to us about where victim’s rights come in and who actually protects the rights of the victims?” Kulongoski asked Judge Roger Warren, president emeritus of the National Center for State Courts.

Kulongoski was probably hoping Warren would say that judges protect victims – not prosecutors or victims’ rights groups.

Warren didn’t oblige.

Doing right by victims is one of the purposes of sentencing, he said. “If people think the only thing that victims are interested in is punishment, they are mistaken. … Victims want to make sure that the offender doesn’t hurt anybody else again.”

Kulongoski asked him if he saw any problem allowing victims to participate with prosecutors and defense attorneys.

“It is the right thing to do,” Warren said.

Kulongoski kept chewing on it, going back and forth about who has the power to decide sentence. Shouldn’t it be the judge, he asked.

“A good criminal justice system does not (hand) discretion to one player …,” Warren said. “If you are trying to get me to say the judge is the only important player, you are not going to get me to say that.”

During the fourth public hearing, Kulongoski was dealt another surprise, this time by Jody L. Sundt, an associate professor in criminology and criminal justice at Portland State University. She was discussing her well-publicized poll on how crime isn’t as bad as people think. This could be useful to the commission as it tries to change the public’s perception about the need for mandatory sentencing laws.

But Sundt also told the commission that, according to her poll, “Virtually everybody has been the victim of a crime.”

Kulongoski looked like he wasn’t sure he had heard right. He repeated it back to her: “Most of the respondents say they have been victims of a crime?”

Yes, and people who have been victimized, particularly in the previous year, are more likely to think that crime has gone up, she said.

“I think the way that we have to talk about this problem is to reassure people that we take crime seriously…,” she continued. “There is some risk here. People are cautious. They don’t want to take risks on their public safety. Personally, I would agree with that. I don’t want to take a big risk on my public safety.”

Sounding like a campaign advisor, Sundt said she didn’t think budget issues alone would persuade the public to turn away from mandatory sentencing.

Again, Kulongoski wanted to make sure he’d heard correctly. “The argument in general … that we are putting more money into corrections and less into education and health care … just in general that is not a good argument to make?” he asked.

“The public probably isn’t going to find that persuasive,”  Sundt repeated.

For now, the commission won’t be tackling Measure 11. Instead, the commission will likely continue to dismantle Measure 57, which increased prison terms for certain drug offenders, burglars and other property thieves (many of whom don’t go to prison).

After voters approved Measure 57 in 2008, the legislature suspended it, saying the state couldn’t afford it. The legislature also weakened it by increasing the amount of earned time prisoners could knock off their sentences from 20 percent to 30 percent. Among those who urged this reduction in prison time was state Sen. Jackie Winters (R-Salem), who is now on the commission and whose late husband was an ex-felon. (See how the Commission on Public Safety was designed to deliver a particular result?)

Measure 57 was supposed to finally take effect next month, but the commission is expected to recommend that it continue to be suspended. The commission will also add more members to the existing seven-member body, including a law enforcement official, a prosecutor and a defense attorney. The group will continue to meet in 2012.

Kitzhaber’s Commission on Public Safety can keep meeting, keep tossing around statistics, keep quoting soft science, but they are forgetting the most important element – criminals.

While Oregon continues to suspend prison sentences for certain property crimes, this story appeared last week in The Oregonian: “More theft rings are roaming store aisles.”

Organized theft, according to the FBI, is the nation’s fastest-growing crime.

– Pamela Fitzsimmons

More about the Commission on Public Safety:

Deep in the Heart of Oregon

Getting Squishy on Crime