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Oregon: The "Texas Model" Under Fire
By Stephen M. Lilienthal
Published: 09/16/2013

Justice aa Right on Crime’s efforts in Oregon illustrate the coalition’s efforts to promote criminal justice reform.

Oregon Gov. John Kitzhaber (D) issued a July 2011 executive order establishing a Commission on Public Safety (CPS) charged with reviewing sentencing policies and recommending reforms. A news release announcing the commission’s members said the state’s “sentencing structure,” determined by legislation and ballot measures, created an “inconsistent” approach to criminal justice in Oregon.

Voters had passed Measure 11 in 1994 that established mandatory minimum sentencing primarily for violent crimes, placing more discretion with prosecutors and removing it from judges. Measure 57’s passage in 2008 set mandatory minimums for non-violent offenders.

Findings from CPS’s December 2011 report include:
  1. Many Oregonians perceive the state’s crime rate to be much higher than it is in reality.

  2. The state Department of Corrections budget was consuming $1.36 billion of Oregon’s 2011-2013 biennium budget. Only 2.5% of its budget concentrated on providing education and programs aimed at easing prisoner reentry.

  3. The state DOC budget had increased 770% from the 1985-87 biennnium budget.

  4. Current sentencing policies, left unchanged, meant “Oregon will need an additional...2,000 prison beds in the next 10 years...Currently, the Oregon Department of Corrections (DOC) estimates that such an expansion would cost $600 million over the next decade.”

Kitzhaber extended CPS’s work into 2012 and its membership expanded to include representatives for law enforcement, DAs, community corrections, and criminal defense lawyers. The exclusion of prosecutors and law enforcement on the 2011 commission had generated criticism.

Next, a legislative battle ensued in 2013 over HB 3194, the bill embodying the CPS’s reform proposals, including relaxing mandatory minimums and placing more emphasis on community corrections.

Enter Right on Crime (ROC). ROC director Marc Levin explains, “Even with the Democrats in control (of Oregon’s governorship and both legislative houses), they want this to be a bipartisan issue.”

Even before the 2012 CPS report was issued, Levin visited Oregon to speak to a private meeting of activists off-the-record.

ROC mounted an aggressive communications effort on behalf of criminal justice reform tailored to conservatives and libertarians.

ROC coalition members, Grover Norquist, president of Americans for Tax Reform, and David Keene, then-president of the National Rifle Association, published op-eds in Oregon newspapers emphasizing the need for toughness on both crime and criminal justice spending.

ROC sponsored radio ads and an online infographic, promoting sentencing reform. “As more of the public safety budget gets spent on costly prison beds, our local crime fighting resources and services for victims are getting squeezed out,” the narrator insists.

ROC’s Levin and Vikant Reddy co-authored a policy paper issued by Oregon’s free-market oriented think tank, the Cascade Policy Institute, citing several state reforms, including Texas’ emphasis on “expanding community-based options,” that Oregon legislators should consider.

Georgia state Rep. Jay Neal, a former church pastor, appeared in mid-March on radio station KMED before offering testimony to Oregon’s state legislature. Claiming his state’s prison-building had morphed into a quasi-economic development program. Neal cited a Georgia commissioner of corrections who insisted upon drawing a distinction between the people who are to be legitimately feared versus people who are “low-level” drug and property offenders who “we’re mad at.” Neal stressed that in Georgia the low-level offenders are still held accountable but in the community, not by taking up “expensive prison beds.”

Pushback developed.

Clackamas County District Attorney John Foote, a CPS member, in his December 2012 “Alternative Report,” asserted the anticipated growth in prison inmates would largely mirror population growth rather than “sentencing policy.”

Foote took dead aim at the “Texas model. CPS had heard experts praise Texas for reducing its incarceration rate from first in the nation in 2008 to fourth. He countered, “It is deceptive to suggest that because other states started out with outrageously high incarceration rates and reduced those rates slightly, Oregon should follow suit...Other states should follow our lead and reduce their incarceration rates to the rates we have always had.”

In a 2012 Bend Bulletin oped attached as an appendix to his comments, Foote charged Oregon’s imprisonment rate for non-violent offenders was lower than Texas’. Texas’ prisons were privatized, he charged, resulting in lawsuits over “mistreatment” of inmates.

Adam Gelb, director of the Pew Charitable Trust’s Public Safety Performance Project, defends use of the Texas model. Pew, considered to be more left-leaning but often working in consonance with Right on Crime, had played a prominent role in advising the CPS.

Gelb argues that Texas matters in that its law-and-order reputation is “impeccable” yet it has been reforming its policies.

ROC’s Levin says Texas did have some private prisons but most are “government-run.” He insists privatization represents no "substitute for reforming [the] policies that led to an overreliance on incarceration of non-violent offenders”

ROC, he adds, supports performance measures to ensure accountability from private and non-profit providers of prisons, alternatives to incarceration, and treatment programs, that are tied to outcomes such as curbing recidivism and increased employment upon leaving prison.

What the CPS discovered, says Levin, is that in Oregon the cost of imprisoning more non-violent offenders for longer periods was causing the community corrections system to erode.

The meat-grinding of the legislative process saw a compromise fashioned that drew, according to a fact sheet on the Oregon Department of Corrections webpage, “involvement and support” not just from criminal justice reform advocates but also representatives of law enforcement, DAs, and crime victims.

The fact sheet claims Oregon will save $326 million over a decade by "holding the [state’s] prison population flat" over the next five years.

Changes in sentencing policy involved Measure 57, including removal of mandatory minimums on repeat drug offenders. Probation was expanded for people convicted on charges of driving- while-suspended and marijuana offenders.

One county sheriff is quoted in the online Central Oregonian story, “Striking a Balance for Public Safety,” that the changes to Measure 57 represented “the bitter pill we must swallow” to ensure Measure 11 remained intact.

The emphasis on community corrections was maintained.

Assessing ROC’s work, Cascade Policy Institute senior policy analyst Steve Buckstein calls it “useful and effective” in promoting criminal justice reform. He adds HB 3194 did not prove as satisfying as reform advocates had wished. But Buckstein says the opposition of DAs such as Foote had posted an insurmountable roadblock to passage of the “more advanced parts of HB 3194 from passing.”

Gelb asserts that HB 3194‘s final passage drew wide support from forces representing law enforcement to business leaders to victims advocates. “Right on Crime provided another example of that diversity of support and I think national conservatives like Grover Norquist and David Keene were powerful messengers for reforms in Oregon,” says Gelb.

Kitzhaber signed HB 3194 into law even though the Central Oregonian story noted, had to agree to a moratorium on further reforms aimed at reducing sentencing.

PEW SIDEBAR

ROC’s “Texas model” was not the only target of HB 3194 critics. The Pew Center on the States had played a prominent role in advising the CPS.

State Senator Betsy Johnson (D) insisted in an OregonLive.com commentary that there were similarities between California’s prison realignment and HB 3194. Chastising Pew for ignoring the Golden State’s problems, Johnson charged that between October 2011 and March 2012 over one-quarter of parolees on community supervision in Los Angeles County had been rearrested on new charges within six months. Sex offenders were turning off their GPS monitoring devices and facing little consequence.

Pew’s Adam Gelb argues Johnson mixes “apples and chickens,” noting that Oregon’s reform was “pro-active” by forestalling additional beds, freeing up resources to invest in community corrections and public safety programs with presumably better planning and management.

California’s reforms resulted from a May 2011 US Supreme Court decision ordering the state to reduce its prison population because the crowded conditions fell “below the standard of decency."

Stephen M. Lilienthal is a freelance writer who lives in Washington, DC. He is the author of “Prison and Libraries: Public Service Inside and Out” which was published in Library Journal earlier this year.

Other articles by Lilienthal



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