Oregon’s practice of automatically trying 15-, 16- and 17-year olds as adults when they’re charged with a crime that carries a mandatory minimum sentence under Measure 11 may be challenged in this year’s legislative session.
It’s one of four broad areas of reform to how Measure 11 is applied to juveniles that is under review by stakeholder workgroups, including state corrections and county prosecutor groups, as well as justice reform advocates. Oregon Sens. Michael Dembrow (D-Portland) and Floyd Prozanski (D-Eugene) are leading the effort.
While the details of the legislation are still being fleshed out, these workgroups are examining opportunities for granting early release to youths serving Measure 11 sentences and giving all people sentenced to life in prison for a crime they committed while they were a juvenile the possibility of parole.
“We’re looking at making sure the court is considering the right factors when they’re looking at a youth and looking at the way their brain has developed,” said Kimberly McCullough, policy director at ACLU of Oregon and member of the legislative workgroups. “A youth at 16 can be, really, a very different person than they are later down the road,” she said.
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Oregon voters passed Measure 11 in 1994, dictating that juveniles age 15 and older be automatically tried in adult court and face a mandatory minimum sentence when charged with any one of 21 Measure 11 crimes. These crimes range from second-degree assault and robbery to rape and murder.
According to a report from the Oregon Council on Civil Rights earlier this year, Oregon has the nation’s second-highest rate of sending youths to adult court, with nearly 4,000 juveniles tried as adults between 1994 and 2012.
The other category of reform under consideration would address the transfer of youth offenders from juvenile detention, run by the Oregon Health Authority, to adult prison, run by the Oregon Department of Corrections. This happens when they turn 25 and still have time left on their sentence. An inmate may only have a few months or a year or two remaining to be served when this happens. It may be good policy to review their case again at that time to see if it’s really necessary to make the transfer, McCullough said.
“When they’re in Oregon Youth Authority facilities, they have really robust programs for teaching those young people life skills and really getting them prepared to be able to leave the facility and be successful, healthy members of our society,” she said. “There is a lot of concern about those youth having all of the progress that they’ve made in an Oregon Youth Authority facility undone when they head to Department of Corrections and they spend time there.”
The League of Women Voters of Portland is kicking off a series of civic education programs with a panel focused on the impacts of Measure 11 on juvenile justice. The panel, at 7 p.m. Sept. 11 at the Multnomah County Building, is free and open to the public.
At the event, McCullough will join Babak Zolfaghari of Community Healing Initiative and attorney DeAnna Horne in sharing stories about how Measure 11 has affected Oregon youths. The panelists will also talk through potential legislative fixes they think would better serve youths in the criminal justice system and then take questions from the audience.
Horne, who co-chairs the Oregon Criminal Defense Lawyers Association’s legislative committee, recently sat down with Street Roots to talk about how she’s seen Measure 11 play out in the courtroom.
A graduate of University of Oregon’s School of Law, Horne has worked at Metropolitan Public Defenders for 15 years.
STREET ROOTS SPECIAL REPORT: Youths branded by Measure 11
Emily Green: When did you first begin to think there was something wrong with the way Measure 11 is applied to youths?
DeAnna Horne: The first time I had a client charged under Ballot Measure 11. The first time that happened, my client was first charged in juvenile court with this series of events that ended up being charged under Ballot Measure 11. In the (juvenile justice) delinquency world, you get to know so much about the family and backgrounds of children and what kind of things led into their behaviors and all that stuff. When it became an adult prosecution, all of those supports for that family were gone.
Teenagers are impulsive. They make bad choices and the story writes itself. A bunch of teenage boys get together and what happens? Generally something stupid. That’s what happened in that particular case, and I was like, this isn’t right.
E.G.: What kinds of supports did they have in juvenile court that they lost being moved into adult court?
D.H.: If you’ve got a youth in detention on juvenile charges, it’s going to be a partnership of people that get together. It’s going to be the juvenile court counselor, and it’s going to be a group of people that supervise youth on release, and the family is going to come in and sit down. There might be workers from the Department of Human Services that come in to support the family. There could be drug and alcohol counselors that come in. It becomes a whole team that really wraps this child up in a supportive way, with the recognition that youth do better outside of detention.
When you move somebody from that juvenile world to the adult world, first of all, you lose a lot of the confidentiality that that teen holds – their name gets published in the newspaper, everybody knows, their families are known, that kind of thing. The other thing that happens is you don’t have that collaborative process with the recognition that kids really change and they really grow and the best way they can change and grow is with support of a community. That community really goes away in the adult system because that system really becomes a punitive system rather than a supportive and growth-oriented system.
E.G.: Do you think the problem is with the law itself, or is the problem with the prosecutorial application of the law?
D.H.: There are lots of places in our law and in our society where we recognize that kids are different than adults, and yet, when you’re 15, 16 or 17 years old in Oregon and you do a particular list of things, and some of them sound pretty familiar to anybody who has been around teenagers – yes they do that. So it’s like we’re going to treat them like adults all of a sudden because of the behavior, because we can describe the behavior in such a way, so I hate that the law exists.
Now the question about whether or not there is a prosecutorial choice, we don’t know. One of the things that happens in our criminal justice system is that prosecutors decide things in a vacuum – they decide them in a black box. As members of society, we don’t get to understand what thought processes go into whether you charge a particular child under Ballot Measure 11.
Like why are you going to charge the Assault III, which would be charged in juvenile court, or are you going to charge the Assault II, which is Ballot Measure 11, and now you’re charged in adult court. What decisions does a prosecutor make at that point when making that charging decision? We don’t know.
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Mr. Underhill (Multnomah County District Attorney Rod Underhill) has recognized that some of the kids charged under Ballot Measure 11, that start off in adult court, really do belong in juvenile court. Underhill looks at every single one of the cases that his office returns from adult court into juvenile court under Ballot Measure 11. So it’s really on the defense attorney to convince the prosecuting attorney and Rod Underhill that your client is a kid and belongs in juvenile court.
That system was really in response to their realization that here in Multnomah County, we’re treating children of color as adults more often than white kids.
I applaud Multnomah County District Attorney’s Office for recognizing that this is an issue and moving to address it on the back end, but on the front end, there’s really no check on how they’re charging. Are they making that Ballot Measure 11 choice for kids of color more often than they are for white kids? I suspect I know the answer to that because I very rarely represent a white kid charged under Ballot Measure 11.
E.G.: So they might stay in adult court even though they are no longer being charged under Ballot Measure 11?
D.H.: Yes, that has happened. It used to happen with significant frequency – we never got kids returned to juvenile court – that in order to make a plea deal, your client had to agree to adult jurisdiction. And so what would happen then is that you’ve got a kid who is has just made admissions to a crime that would have been a juvenile court jurisdiction, but they’re being supervised by adult probation officers and being offered the services that they offer to adults in the Department of Community Justice and not offered things available in juvenile court, like Project Payback, which is a way that they can do community service and earn money to pay their restitution. Really appropriate mentorships for youth, or a real one-on-one relationship with a juvenile court counselor that specializes with youth and not supervising adults. It’s a little troubling.
E.G.: Street Roots examined a case out of Grant High School a couple of years ago, where four teenagers surrounded a classmate and demanded his money, and one of the kids pulled out a pocket knife. They were all charged under Measure 11, second-degree robbery, which carries a mandatory minimum sentence of five years 10 months. Of the four kids, none had any criminal history. How common is it for you to see a Measure 11 case against youth where the crime seems worse on paper than the reality of the situation actually is?
D.H.: All the time. The most frequent Measure 11 charges that I get for youth are robbery in the second degree, which can be completed in one of two ways. One is being armed with something that’s not a deadly weapon – like a knife or a BB gun. Or it can be committed by being aided by another person. So, like a group of people ganging up on another person.
And Assault II, which is also not a deadly-weapon situation, but if you get whole gang of people beating someone up, it’s particularly frightening for the victim in the case, and I understand that, I really do. But the stories kind of write themselves, right? Generally, a bunch of teenage boys decide together that a really good idea is to take somebody’s cellphone out of their hand. And they all – you can picture it, right – they all swoop in and somebody punches somebody and somebody takes the phone and goes “woohoo” and runs away. Those stories are so full of that youthful, impulsivity and bad choice making that make teenagers so particularly teenager-y, and make them special and adorable and frustrating and all those things that teenagers are, all at the same time. It sounds pretty awful when somebody held a fake gun to somebody’s head and somebody else came in and snatched the cellphone – that is terrifying for the person who’s on the receiving end – but when you start looking at it from the point of view of the offenders, it is kind of like, of course something happened. There’s five boys running around and someone’s got a BB gun; something bad is going to happen.
E.G.: Have you had Measure 11 cases where the weapon was a BB gun or a fake gun?
D.H.: Oh yeah. Both adults and juveniles, actually. For second-degree robbery, it can also be pretending to have a weapon. So like sticking your hand in your pocket and being like, “I have a gun.” And it’s really just your finger. But that really doesn’t make it any less terrifying for the person who is on the pointy end of your finger.
E.G.: Do you think it is ever appropriate to charge a youth as an adult?
D.H.: I don’t. Kids are different, and the brain science continues to prove it over and over again. Most of us don’t have fully formed frontal lobes with good executive functioning and really good decision making until we’re 25. Some of us even take longer – I might have taken longer with my 12 years to finish an undergrad degree, you know, but we’ve put this arbitrary mark at 18 and said, “now you’re responsible” and it’s probably that that number itself is too low, but can we at least be consistent and stay at 18?
Email Senior Staff Reporter Emily Green at emily@streetroots.org. Follow her on Twitter @greenwrites.
If you go
What: Panel on the impacts of Measure 11 on juvenile justice, hosted by the League of Women Voters of Portland
When: 7 p.m. Sept. 11, 2018
Where: Multnomah County Building, 501 SE Hawthorne Blvd., Portland
Cost: Free
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