In Salem, lawmakers are discussing a bill that would allow juries to know the punishment a defendant is likely to receive if convicted of a Measure 11 offense.
The proposed law, Senate Bill 296, would instruct judges to tell juries the mandatory minimum sentences that could result from a guilty verdict.
Since their inception across the country, mandatory minimum sentencing structures have increased the amount of power wielded by a prosecuting attorney. In Oregon, once someone is convicted of a Measure 11 crime – a variety of offenses as defined in the ORS 137.700 to 137.707 that include robbery, murder, and some sexual offenses – they face mandatory sentencing punishments that a judge has little power to change to fit the circumstances of the individual crime or defendant's criminal history.
"What it does is provide public information to a jury that a jury is entitled to know," said Susan Elizabeth Reese, a defense attorney speaking in favor of the bill at hearing in Salem. "It doesn't tell the jury what to do with this information. It tells them these are the facts."
State Rep. Chip Shields, D-Portland, said the jury instructions would help lend checks and balances to trials that are heavily impacted by the prosecutor.
"It would give deputy district attorneys discretion so they charge a case in response to the severity of the crime," he said. "Knowing, at the end of the day, they would have to look 12 jurors in the eye, and say that in this case, the sentence really does fit the crime."
Supporters of this bill say cases like that of Veronica Rodriguez and Justin Thorp illustrate the need for reform.
Rodriguez was sentenced to six years for allegedly grabbing the back of a 13-year-old's head and pushing it into her clothed bosom, a gesture that took place in a crowded room.
Thorp was sentenced to six years in prison at age 16 for having consensual sex with his then-13-year-old girlfriend. Thorp was three days older than the three-year age limit that triggered the Measure 11 response.
Steve Doell, the president of Crime Victims United, a supporter of mandatory minimum sentences, says juries should not know the punishment a defendant will receive as a result of their verdict.
"The proposal is a fundamental shift in criminal justice policy," he told The Skanner. "Right now jurors are specifically informed that they should not consider the possible sentence, as well as an array of other factors. I am confident this policy, which spans hundreds of years, is intended to ensure that the accused receive a fair and impartial trial."
Some jurors see it differently. Testifying in support of the bill, Pamela Nunley sat on the jury that convicted then-16-year-old Thorp.
"I was devastated when I found out what the sentence was," she said. "I honestly feel that this boy's life was basically ruined, because if we would have had this information, it would have gone a different way."
It can be said that Thorp's case makes a poor poster boy for reform of Measure 11. The prosecutor in the case, Janie Burcart, wrote The Oregonian in 2000 to say Thorp was a wanna-be gang member who had a "deplorable" juvenile record and who resumed the relationship with the girl when he was awaiting trial, despite a judge's orders to have no contact.
But criminal history is not a point of consideration for the jury to take into account when considering guilt or innocence for a specified crime. Historically, the judge would take criminal history, community support and other factors into consideration when reaching a sentence – mandatory minimums essentially stripped that power.
There have been several reforms to Measure 11 since its passage in 1994 – judges now have power to exempt certain offenders from mandatory sentencing if they meet certain criteria. Thorp's case – and similar "Romeo and Juliet" consensual rape cases – give judge's the authority to refer back to the Sentencing Guidelines. Similar downgrade charges can be granted by the judge in Robbery II and Kidnapping II cases, so long as no one was injured and it was a first-time offense, among other factors.
"When a judge tells jury sentencing is for me not you, it's not true in M11 cases," said Marc Blackman, a criminal defense attorney. "The judge instructing the jury as to what the law is. That is a neutral statement."
Doell said the current system is fair and the amount of leeway given to judges is enough to offset special circumstances. He also said the power given to prosecutors is justified.
"Prosecutors don't downgrade charges," Doell said. "they engage in plea negotiations, which was a common practice prior to Measure 11. Granted they have more leverage with Measure 11."