Suggestions for the DeMuniz Commission
by: Jessbarton • August 16, 2011 • no comments
In an article he recently posted, Ryan Scott asked, "[Blog:Main/Do_Sex_Offender_Registries_Reduce_Crime%3F | [D]o sex offender registries reduce crime?]" Particularly because the De Muniz Commission just now is starting work, [1] Ryan's question couldn't have come at a better time.
But not just because of its focus on the efficacy of the state's sex-offender registration law. After describing some of the resources the registration law consumes, and the hardships it imposes, Ryan essentially asks: What's the point of this resource consumption and these hardships if the law has no beneficial (deterrent) effect?
My response is that if the De Muniz Commission is going to accomplish anything meaningful, Ryan's question about the benefits, including the cost effectiveness, of the state's sex-offender registration laws is exactly the sort of thing the commission must consider.
But the commission shouldn't stop at the registration laws. Instead, it should analyze any number of laws and practices the state adopted during the last couple of decades, when, without overtly saying so, it essentially adopted the "broken windows" theory as a primary means of controlling criminal behavior. [2]
For example, various sources have recommended the De Muniz Commission scrutinize the state's "Big Kahuna"-its premiere mandatory-minimum sentencing law, Ballot Measure 11.
But perhaps recognizing that because Ballot Measure 10 would "automatically veto" any Measure 11-reform bill, [3] commission member and former Gov. Ted Kulongoski has cautioned against focusing on Measure 11. That measure, he said, "is something we believe[] would take a considerable amount of time, not just for us to agree but also to bring along the public with us."
Still, a recent, joint-effort report of the Campaign for Youth Justice and the Partnership for Safety & Justice found that "Black youth are 4% of the population but constitute 19% of Measure 11 indictments." Surely the commission could address this 325% race-based charging disparity with at least some confidence that its proposed reform legislation could survive Measure 10's automatic veto.
Speaking of racial disparities, the De Muniz Commission absolutely should address the state's even more shameful disparity-that a black Oregonian is 500% more likely to be living in prison than is a white Oregonian. [4 ]In each session since 2007, the legislature has considered a bill that would require racial-impact statements. These statements would force the legislature to consider the racially disparate effects of proposed, criminal justice-related bills. [5] Over time, these statements should shrink the black-to-white disparity to something less shocking (such as the 67% imprisonment disparity between Native American and white Oregonians). So far the legislature either has either let the bills die outright or let them die because of the "price tag" (of less than $100,000 per year). But maybe the De Muniz Commission could impress upon the legislature that it's high time the state started paying the price of ending its participation in the "New Jim Crow." See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindedness (2010).
Further speaking of racial disparities, a few months back some colleagues and I spoke to the African-American men's club at the Oregon State Penitentiary called Uhuru Sa Sa. About 50 inmates attended, virtually all (but not all) of whom were black. We kept getting questions from men who were under the old parole-matrix system. This was odd, because that system generally applies only to crimes committed before the Felony Sentencing Guidelines took effect on November 1, 1989. By now I would have thought that most pre-guidelines inmates had been "matrixed out" of the prison system. When I asked for a show of hands, about a third of the men reported they were serving parole-matrix sentences. This surprised me until I realized the likely reason. When the men come before the Parole Board for their review hearings, they get "flopped"-i.e., denied parole and required to come back two years later, only to get flopped again. And if they do manage to get paroled, they often get revoked for violations that seem comparatively trivial.
The De Muniz Commission could address all this. It could demand to know the racial characteristics of the state's parole-matrix inmates, the "flop rates" for black versus white inmates, and the parole-revocation rates for black versus white inmates. I've said it before and I'll say it again: I'll bet good money the study would show racial disparities that are reflective of the overall, 500% imprisonment disparity. I'll bet this, because I know in 2009 the Parole Board strenuously (and successfully) resisted inclusion in that session's racial-impact bill.
One last suggestion-this one race neutral. The Department of Corrections's Offender Information and Sentence Calculation unit (OISC) follows crabbed constructions of statutes that regulate time-served credit, and it denies such credit when everyone-and when I say everyone, I mean the prosecution, too-expected the defendants to get the credit. See the Oregon State Bar Bulletin here. These credit denials do not benefit the state in any way. All they do is cost the state who knows how many hundreds of thousands or even millions of dollars per year.[6] The De Muniz Commission could start and maybe even complete the process of reining in the OISC, by forcing it to abandon its crabbed constructions in favor of giving effect to the parties' intentions.
These are just a few suggestions the De Muniz Commission could consider in its effort to "restrain[] the growing cost of Oregon's prison system." Each suggestion would cost the state little or no money, and none of them would pose any discernible risk to public safety.
Certainly there are any number of other policies and practices the commission could consider, in its effort to control the costs of the prison system. But if the De Muniz Commission is going to accomplish anything meaningful, it should examine the cost effectiveness of the myriad laws the state adopted in its slavish adherence to now discredited broken windows theory.
__________________________________________________________________
- Named for its chairman, Chief Justice Paul De Muniz, this is a "blue-ribbon commission" charged with "restraining the growing cost of Oregon's prison system." Peter Wong, Statesman Journal (Aug 15, 2011)
- For information about Broken Windows theory-including serious challenges to its very validity-see this wikipedia article.
- Measure 10 is a state constitutional amendment the voters approved along with Measure 11. Measure 10 requires two-thirds supermajority support for legislative bills that would reduce voter- approved sentences, such as the 16 sentences that Measure 11 created. But Measure 10 does not apply to the various mandatory sentences the legislature added to the original Measure 11 list. With simple majorities, the legislature could reduce or even eliminate any and all of its additions to the original list.
- See my [Amicus Brief in State v Speedis].
- In chronological order, these bills are: House Bill 2933 (2007); House Bill 2352 (2009); and Senate Bill 654 (2011). Interestingly, in 2008 the Iowa Legislature adopted a racial-impact bill modeled on HB 2933.
Excellent examples of legislation that guaranteed racially disparate effects are the bills that created the school-zone penalty enhancer for drug crimes. This type of enhancer is far more likely to affect persons who live in urban areas, where a school almost always is nearby, than persons who live in rural communities, where the nearest school could be miles away. Because the state's black population is so heavily concentrated in Portland's urban neighborhoods, school-zone enhancers are far more likely to affect blacks than whites. In all likelihood, this disparate effect explains why in an April 2003 study, Human Rights Watch found that in Oregon black men were incarcerated for drug crimes at a rate 1,405 times greater than white men.
- Based on a somewhat complicated formula I'm not going to describe here, the annual average per-inmate cost of imprisonment now is $44,167. Other sources state a lower cost. They do so by excluding the costs of capital construction.
