The Universe of What’s Possible

Frank Rizzo, tough cop and former Philadelphia mayor, coined a phrase that has become a popular myth: “A conservative is a liberal who’s been mugged the night before.”

No, a liberal who’s been mugged is probably still a liberal – but with an appreciation for what it’s really like to be mugged.

This is a simple truth that Oregon’s Commission on Public Safety should remember as it tries to chip away at one of the state’s most successful crime-fighting tools: Measure 11, a law establishing minimum-mandatory sentences for violent felons. The voter-mandated law won by a 3-1 margin in 1995. In a blue state like Oregon, that’s a lot of liberals.

But Gov. John Kitzhaber, like his predecessor before him, as well as colleagues in the state Legislature, have wondered if voters might soften if they voted today on Measure 11. Particularly since crime rates have gone down. (Never mind that one of the reasons some crimes have gone down is because of laws like Measure 11.)

Last year, Kitzhaber appointed a commission to find ways to save money on prison costs. In his executive order establishing the commission, he noted, “There is a widespread misperception among Oregonians that crime has increased.”

The governor saw an opportunity: Persuade the public that crime has dropped so much that it’s now safe to send fewer felons to prison and save taxpayers’ money.

From the commission’s first meeting last year, which was nearly an all-day attack on Measure 11, to its meeting last week when several commissioners turned against their colleague who represents the District Attorneys, it’s clear that the Commission on Public Safety wants to make life easier for people who hurt other people. It will save money.

Among the recommendations being considered: Measure 11 sentences could be modified for offenders convicted of second-degree robbery, second-degree assault or first-degree sexual abuse. Sentences under Measure 57, approved by voters in 2008 to send serial burglars to prison, could also be modified.

Other options that would be good news to felons: More earned time that could take up to 30 percent off of a prison sentence; transitional leave, in which an offender would be listed as being incarcerated but would actually be living in the community; expanding the alternatives to incarceration program to automatically include more felons.

What are alternatives to incarceration? Things like specialty courts; probation, also referred to as “community corrections” because it involves some kind of cursory supervision by probation officers; house arrest; requirements to attend treatment or classes.

The commission was tossing these and other options around last week, a few days after food cart operators and vandals brawled on a downtown Portland street.

One Portland food cart vendor, who has been operating about four years, told The Oregonian that last week’s fight wasn’t an isolated incident. The only reason it drew attention this time was because six people were arrested. (Five were later released, one was held on a parole violation.)

Ask yourself: Since Oregon doesn’t incarcerate 70 percent of its convicted felons, what does it do with vandals, thieves and muggers?

That brawl was quickly shoved aside on the news by the 11-year-old boy who used his dad’s gun to try and carjack a woman. The father was arrested under a 2-year-old state law making it illegal to leave a firearm unsecured. Why create new laws when the state is loathe to enforce the ones we already have?

It also turned out that the father was a convicted felon and wasn’t legally allowed to own a gun. The law prohibiting ex-felons from having guns is an excellent gun control law. However, the typical punishment is often a year in jail with early release. For some felons, that’s not a deterrent. That’s the price of doing business.

One of the distinctive features of the Commission on Public Safety is that it doesn’t talk about crime except in the abstract. State Supreme Court Justice Paul DeMuniz, who acts as chairman, tries to keep the focus on numbers and dollar signs.

Most of the commission’s meetings are held in a state Capitol hearing room. Many of the meetings have included PowerPoint presentations by analysts from the Pew Center on States in Boston and Washington, D.C. They crunch the numbers and offer their solutions on how Oregon should spend its public safety dollars.

I never fully appreciated the expression “Death by PowerPoint” until I sat through a few of these Pew performances. The lights dim, and the Pew analysts scroll through tables and charts and graphics. Ten minutes into one of these presentations, if you discreetly look around at the 50 or so people in attendance (sometimes more), you will find someone nodding off.

The Pew analysts muse about “the universe of what’s possible,” summing up with  “key takeaways.” They make it all sound so easy – until Commissioner John Foote, who is Clackamas County District Attorney, starts asking questions.

He has drilled them on their repeated insistence that Oregon, unless it cuts prison sentences, will have to add 2,000 prison beds in the next 10 years at a cost of $650 million. Foote, who has also worked for the state Department of Corrections, said Oregon’s prison forecasts have always erred on the high side.

DeMuniz eventually invited Multnomah County Judge Julie Frantz of the Prison Population Forecast Advisory Committee to the September meeting to explain prison forecasting. She ultimately acknowledged that Foote was right.

“I accept your analyses. … There are so many variables that come into play,” she said.

Nevertheless, at every subsequent meeting (including last week’s), Pew analysts have continued to quote the 2,000 figure as if it were absolute fact.

Foote also has challenged Pew and his fellow commissioners to remember what happened in the 1980’s when Oregon had one of the nation’s highest crime rates. This came after two decades of letting offenders out of prison and sending them to various treatment and behavioral programs that were popular at the time. The state’s crime rate stayed in the Top 10 until it did what other states were doing – enacted tougher sentencing laws.

But the biggest hole Foote ripped in Pew’s research was when he and the state’s District Attorneys found that 850 inmates Pew labeled as “low-risk” were some of the most violent offenders.

In August, Foote presented the commission with a 70-page spreadsheet to rival anything Pew has produced, only instead of numbers it provided names and criminal histories.

While DeMuniz ends every meeting thanking “our friends at Pew,” and even occasionally gushing – “Your ability to hold the data together … has been very impressive” – his praise for Foote’s spreadsheet was subdued.

In the four months since Foote presented his 70-page spreadsheet detailing the truth about Pew’s “low-risk” offenders, I have heard no commissioner at the monthly meetings offer Foote a pat on the back for the District Attorneys’ research. I have heard no one from Pew offer an apology for its staff’s inaccuracies.

Now that the commission is winding down towards what may be its final meeting on Dec. 17, DeMuniz is trying to steer the group to a consensus. Everyone seems to be on board except Foote.

Even he has offered concessions on behalf of the District Attorneys. For example, giving offenders caught driving while suspended probation instead of jail. (If you think driving while suspended is a minor crime, please note that some drivers have their licenses suspended because they have committed vehicular manslaughter.)

Foote noted that, for the most part, the options the commission is considering were developed by Pew.

“A lot of things have been decided and then presented to us… ,” Foote said. He felt that he had been excluded from the process in a meaningful way.

“You have occupied more air space than most commissioners,” DeMuniz replied.

State Sen. Floyd Prozanski objected that Foote “thinks he is the only one who represents public safety.”

Prozanski’s day job is a part-time municipal prosecutor in Florence, Ore., handling mostly infractions. He likes to call himself a prosecutor and coat-tail on the credibility of District Attorneys when it suits his purposes.

“It is very short-sighted for you to come in here and blast (us),” he told Foote.

State Sen. Jackie Winters joined in.

“There’s a reason why you have two ears and one mouth… We change every day. Life is about changes. It is the same with government and policies … I needed to put that out there.” (Winters’ late husband, Ted Winters, was an ex-felon who later worked for Gov. Tom McCall.)

Salem car dealer Dick Withnell, who serves as the community member on the commission, tried to lighten the mood.

“I was going to tell John I voted for Goldwater,” he said, as if Foote must surely be an arch conservative.

Last year, Withnell also made reference to his support for Goldwater. He wants people to know that although he is a conservative, he also has two young former offenders who work at his auto dealership, and they are going to college.

But crime isn’t a liberal-conservative, Democrat-Republican issue. The 10,000 or so shoppers inside Clackamas Town Center on Tuesday probably represented the political spectrum. Does it really matter what political party – if any – the gunman who shot at them belonged to?

Sure, an Oregon politician quickly jumped in and offered to create still another gun law to fight crime. What good is any law if there is no punishment? Who is going to enforce this new law if it passes?

Somebody like John Foote, which might explain his frustration.

– Pamela Fitzsimmons


The Stats on Pew’s Credibility

Spinning the Numbers on Public Safety


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