Held to answer

When did think tanks start doing our thinking for us?

Here in Oregon, Gov. John Kitzhaber and his legislative leaders have hired the Pew Center on the States to tell them what to do about public safety.

The Pew Center on the States has been getting a lot of favorable publicity since it began its Public Safety Performance Project in 2006. It has promoted buzz phrases such as “justice reinvestment” and “getting smart on crime,” now sound bites in the discussion on how to reduce voter-approved sentencing laws.

According to Pew’s website, the project’s purpose is to “help states advance fiscally sound, data-driven policies and practices in sentencing and corrections that protect public safety, hold offenders accountable, and control corrections costs.” (I’d like to have been a fly on the wall when they developed that mission statement – “We have to say something to reassure crime victims.”)

After the last two Pew presentations in front of Oregon’s Commission on Public Safety, maybe it’s time to consider the organization’s motives and methodology.

In a hearing room at the state Capitol recently, Pew’s deep-thinking number-crunchers came face-to-face with two men who deal with flesh-and-blood humans, not statistics: Clackamas County District Attorney John Foote and Portland criminal defense attorney Larry Matasar.

Foote and Matasar were polite to Pew senior associate Felicity Rose, but they did not sit quietly as she tried to reduce Oregon’s criminal justice system to a PowerPoint presentation of charts and line graphs.

Rose got off to a weak start when she tried to portray Oregon as a state that locks up a lot of criminals. While the national prison rate has risen by 5 percent since 2000, she said, Oregon’s has gone up by 18 percent.

But she immediately had to admit, “It is true that Oregon sentences more offenders to probation than prison.” (This was pointed out to her colleague Zoe Towns a month ago, but the lesson apparently didn’t stick.)

Rose displayed a pie chart that showed 18 percent of the inmates admitted in 2011 were because of “technical revocations” rather than new crimes.

Matasar questioned that number. He wanted more detail on exactly what those technical revocations were.

“Are they (former inmates) not reporting? … Are they leaving the state without permission?” Matasar asked. “It’s extremely rare. You don’t get those numbers in Oregon.”

Rose did not have that information.

She turned to the types of offenders being imprisoned in Oregon and stated that inmates admitted in 2011 were there for less serious crimes than those admitted in 2000. The implication was that Oregon is incarcerating people who don’t need to go to prison. (This has been a popular theory with other Pew projects in other states.)

Foote questioned Rose on the offenders behind these numbers. Could she break down the criminal history of each felon?  Criminal history, he noted, “has a lot to do with whether someone goes to prison.”

Rose turned to the charts prepared on recidivism rates but ran into trouble there, too. According to her PowerPoint presentation, two-thirds of Oregon’s 2011 prison admissions were for low- and medium-risk offenders, leaving about a third who were high risk.

The problem was that she used a different definition for a high-risk offender than has been used in the past. Rose said it was an offender who had a 34 percent chance of committing a new felony in three years. Foote said he had always heard that it was someone with a 30 percent chance. Commissioner Collette Peters, who is director of the state Department of Corrections, said she had heard 28 percent.

By changing the definition of “high-risk offender,” the Pew study made it look like Oregon is incarcerating fewer high-risk offenders and more low- and medium-risk inmates. When the discussion turned to the effect of Measure 11, which mandated minimum sentences for certain violent felons and chronic criminals, Oregon state economist Michael Wilson joined Rose. There were more disparities over numbers.

One line graph showed that attempted robberies had skyrocketed after passage of Measure 11. Matasar pointed out that it gave an erroneous impression that all of a sudden robbers were failing in their attempts to rob people.

In fact, after Measure 11 passed and a minimum sentence became certain for robbery, robbers who did, in fact, rob their victims pleaded guilty to attempted robbery so they could receive a lesser sentence.

“It was not more people failing to commit robberies,” Matasar said.

“It’s not truthful then,” said state Sen. Jackie Winters, another member of the Public Safety Commission.

“That happens all the time …,” Foote said. “This is in essence what plea bargaining is, and it is not unique to Measure 11.”

It’s something that Pew does not take into consideration. Numbers do not always represent facts.

With so much of the data having been questioned, it made Pew’s oft-repeated prison forecast of more Oregon inmates even more suspect.

When Rose repeated this still again – that Oregon will have 2,000 more inmates in the next decade – Foote seized on Pew’s methodology. He asked if they had looked at prison forecasting for the past 17 years. The forecasts have always been high and have always been off, he said.

Rose said it was impossible to compare how accurate previous forecasts were because there have been so many changes in the law.

Given past history, Foote predicted that this latest forecast will also be off.

“We have a track record, and it’s tilted one way, and that is to over-forecast the growth,” he said. “When we speak like it is gospel that we are going to have 2,000 (more) inmates, that number is probably wrong, and it is probably high … Forecasting has been bad… We need to recognize that and not speak with so much certainty.”

Rose offered no explanation.

When Minnesota disputed Pew’s findings last year that the state had the highest ex-prisoner recidivism rate in the nation, the organization countered by saying the state had been given plenty of opportunity to discuss the data.

It’s surprising then that the Commission on Public Safety was not provided more time to study Pew’s results in advance of the meeting. For the future, Foote asked if the commission could receive the material a day before the meeting “so we can chew on it.”

Pew is not often challenged and that, too, may be part of the problem. Were it not for Matasar and Foote, it may be that no one on the commission would have questioned Pew’s numbers  and findings.

Last year when Gov. Kitzhaber first appointed the Commission on Public Safety, he included no District Attorneys or criminal defense attorneys or anyone from law enforcement or corrections in the original seven-member group. Instead, it was comprised of legislators, former Gov. Ted Kulongoski, then-state Supreme Court Chief Justice Paul DeMuniz, and a Salem car dealer who served as the public member.

Kitzhaber expected the commission to produce a report that he could forward to the state Legislature to use as a basis for rewriting the sentencing laws. The commission heard virtually no dissent at its first meeting. But by its fourth meeting, speakers appearing before the commission were critical of its intent.

Kitzhaber extended the commission for another year and added new members. The commission will meet several more times before the end of this year and then submit its recommendations to Kitzhaber.

The commission’s public member – auto dealer Dick Withnell – appears to be  anticipating trouble in arriving at those recommendations. When disagreement arose about Pew’s recidivism calculations he said,  “We need to be smart when we come forward to the public with these numbers … We need a number we can all agree on. …”

Looking at commission chairman, state Supreme Court Justice Paul DeMuniz, Withnell added, “With your leadership … we are going to have to bring everybody along … we need PR telling people what we are doing.”

Withnell said that when he talks to the general public, nobody believes that crime is going down. “We have our work cut out for us.”

DeMuniz replied that everybody wants to see the community safer. He is looking ahead to future meetings when they can “get the experts” back, and the statistics reflect quality as well as quantity.

He could be looking for experts in the wrong place.

– Pamela Fitzsimmons

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