The November 2, 1999, election in Oregon will decide whether or not criminal prosecutors are allowed increased powers in their wheeling and dealing with criminal defendants. The current ballot includes seven proposed amendments to the Oregon Constitution which have been referred to the public by the legislature. These "tough on crime" measures were formerly combined as Measure 40, which voters unwisely passed in 1996; the law was later declared unconstitutional by the Oregon Supreme Court. Now prosecutors want to hang these wish-list amendments on the Oregon Constitution, like ornaments on a Christmas tree, by calling them "crime victims' rights" measures. However, many crime victims reject these measures as a power grab by prosecutors. Crime Victims for Justice is one such group. Their views on M69-75 are included in the online Oregon Voters' Pamphlet.
Criminal prosecutors in Oregon are politically elected officials; their assistants are political appointees. The career success of these people depends upon the public perception of their personal effectiveness, and this is primarily their record of convictions as reported in the media. Few if any prosecutors ever get credit for letting an innocent person go in the interests of justice. Victims' rights groups and their statements of support are among the prosecutors' best means of presenting themselves to the media as tough on crime. For this purpose many prosecutors resort to exploiting crime victims -- manipulating their grief to focus on personal revenge, rather than on what makes good public policy and results in rehabilitation and not recidivism by criminals.
In general, criminal prosecutors are among the most powerful officials of our government - especially under mandatory sentencing laws (such as Oregon's Measure 11), which transfer power from judges, the judiciary branch, to prosecutors, the administrative branch. DA's decide which suspects to charge and which to let go, which to indict and which to submit to the grand jury. The local DA wields great influence over his or her grand jury and has total authority over what their jury hears and sees and what it does not. Whether a defendant faces one charge or a dozen or more is in the hands of the DA, and the DA's recommendations regarding sentencing carry great weight with the court.
Some of the most powerful options open to the DA's derive from their behind-the-scenes deal-making with suspects. It is routine for DA's to agree to reduce charges against one defendant in exchange for testimony against another. Just this past year, the Tenth US Circuit Court of Appeals declared this practice to be bribery of witnesses and unconstitutional . The decision was later thrown out by a larger panel of the court and the practice continues. Measure 73 on the current Oregon ballot is an expansion of prosecutorial power to cut ever finer deals by granting only partial immunity; the more incriminating the testimony, the lighter the charge.
The reason for Measures 69 - 75 being presented as constitutional amendments, instead of as ordinary statutes, is that several of them are in substantial conflict with the Oregon Constitution - as it is presently written. In fact, the 1997 Legislature, anticipating the high court's rejection of M-40, passed these various proposals as SB 936 which became law as ORS Chapter 313. They are already law! But their constitutionality has not been tested. Anticipating these extreme laws again being declared illigitimate and in conflict with the constitution, the law and order enthusiasts who support weakening the Bill of Rights have referred them to the people as constitutional amendments M69 - 75. Only now they include specific provisions that in case there are conflicts with existing constitutional provisions, M69 - M75 prevail. Thus, no matter how much of the Oregon Bill of Rights is at stake, the prosecutor's bill of powers overrides.
The proposed Measure 69 gives prosecutors the exclusive power to identify crime victims. Such identification shields these persons from the defendant's evidence-gathering. In addition, no defendant can be identified as a victim; this would appear to rule out the "battered woman defense." Prosecutors can declare the "state" to be the victim - attempting to demonstrate a rational justification for prosecuting what are otherwise victimless crimes.
Measure 70 would override the accused's constitutional right to choose between a jury trial or trial before a judge by giving prosecutors the power to veto the defendant's choice of trial before a judge. In cases where the defendant is likely to be unpopular, a minority, or where the alleged crime may arouse strong emotion in a jury, the defendant might get a more objective verdict from a judge. In such cases the prosecutor could demand a jury trial under M70.
Measure 71 would require a more restrictive bail hearing which would give more power to prosecutors to object to bail for people accused - but who are presumed innocent. Even now, most prisoners in county jails are not yet convicted or sentenced; they are there because they cannot raise bail. M71 would increase this number and further overcrowd jails and result in convicted prisoners being released. The costs for more jail space due to M71 have not been estimated.
Measure 72 would allow convictions for non-capital murder based on an 11 to one verdict. Even though M72 does not directly involve death penalty cases, statistics on death penalth reversals are relevant to the issue of wrongful convictions. The Death Penalty Information Center located in Washington D.C. lists 82 people who have been convicted and sentenced to death in US courts since 1973, but whose convictions have been subsequently reversed. By lowering the standard for conviction below a unanimous verdict, Oregon would greatly increase the risk of wrongful convictions.
Measure 73, as stated above would give DA's more discretion to bargain and coerce testimony from defendants. Much of the testimony obtained under these circumstances is false and is tailored to benefit the prosecutor's case against other defendants. This practice has recently been condemned in one Federal Circuit Court as bribing witnesses.
The current high costs of prisons would increase under Measure 74. M74 would prohibit early release from prison for good behavior; it would also restrict corrections officials from using alternative control methods such as work release, electronic monitoring and other cost-saving aternatives currently being used. M74 would especially impact Oregon taxpayers as larger numbers of inmates serving long sentences become geriatric and are prone to serious and terminal illnesses. Hospice, home detention and other alternatives would not be available. In addition, prisons would become far more dangerous, both to guards and inmates, since good behavior no longer would be rewarded.
Measure 75 would reject people for jury duty who have ever been convicted of "dishonest" misdemeanors. No one really knows what this restriction means but DA's could be in a position to challenge jurors for no other reason than a full criminal background check had not been completed. Running such checks for all impaneled jurors would cost taxpayers dearly.
Prosecutorial power has been vastly increased in recent years by Measure 11 - which allows district attorneys to independently determine which defendants will be charged with M-11 crimes that carry stiff mandatory penalties, and which defendants will be allowed to plead guilty to lesser crimes with lighter sentences. Already this power is resulting in defendants threatened with M-11 charges choosing to give DA's easy victories by pleading guilty to lesser crimes which they did not commit. Defendants plead guilty when threatened with M-11 charges because they have a weak attorney, an unverified alibi, or some other weakness in their case, rather than risking a trial and possibly being found guilty of an M-11 crime.
Measures 69 -75 are an unjustified increase of the power of Oregon prosecutors, who already have a conviction rate over 90%. Neither the Oregon Bill of Rights nor the Oregon taxpayer can afford to give prosecutors what they are seeking with these constitutional amendments