Will The Oregon Legislature Actually Do Something That Makes Sense?!?!

I was turned onto an excellent article (see, here) recently by my fabulous law partner that discussed an old, favorite topic of mine - sentencing reform.  It seems that someone introduced a bill recently (HB 3194 - see it here) that addressed the skyrocketing costs of incarceration and the enormous prison budget in Oregon.

As I have mentioned previously, statistics clearly show that the crime rate has not changed drastically in a very long time.  In the US, it steadily rose after World War II and peaked between the 1970's and 1990's.  It has been in a pretty steady decline ever since.  In other words, any recent hype and talk about crime waves, epidemics and the like are just that - talk.  The overall statistics do not support the need for bigger enforcement budgets, tougher sentencing laws, and all of our politicians, legislatures, and cops do not need to "get tough on crime" because no matter what we have done over the last 15 years or so hasn't made a shred of difference!

What has changed though, is our prison population which, both here in Oregon and nationwide, continues to spiral out of control.  What does that mean?  It means we are constantly having to build and fund bigger prisons for the people we stuff inside them though doing so doesn't seem to have any affect on the crime rates.  Does this make sense to anyone?

For decades now, Oregon has been no stranger to this trend especially since the passage of the draconian Measure 11 long ago.  AND, Oregon is no stranger to the overall trend that we have and continue to stuff so many people into our prisons, we can no longer sustain the cost of that.  So, someone commissioned a study and found that this is as insane as it sounds.  And by insane, I mean the old Albert Einstein definition of insane.

As a criminal defense attorney, I saw first-hand how the prosecutors can use and abuse this statute to force people who committed essentially lower-level crimes into pleas by just threatening or charging them as Measure 11 crimes adding a hefty mandatory minimum sentence to any conviction.  And, for some ridiculous reason, people sentenced under this statute get no good time credit and no access to any prison programs.    Working as an attorney in both the criminal and civil worlds obviously gives me a unique perspective on this issue and, maybe, I'm too close to the issue to see big picture though I'm brash enough to say, "I doubt it!"

Regardless, we hope, someone and something is going to be done about this if this billed gets passed.  Alas, the law and order types (and politicians who prosper on fear mongering to these people) will fight this bill hard telling everyone that we are all in grave danger if we reform some of our sentencing laws and empty some people from our prison population - or, allow them access to some program that might actually better themselves and make their time in custody of some benefit to them, and indirectly, society in general.  That position is perfectly espoused in this editorial which is the counter-point to the article that inspired this post.  What do you think?

TIS’ THE SEASON OF DRINKING AND DRIVING

It’s that time of year again:  the holiday season.  The season of a. awkward company Christmas parties; b. aggravating family gatherings; c. serious financial stress

        

          With all of it comes an increase in DUII arrests. 

While everyone has fundamental constitutional right to fight a criminal case and require the state to prove them guilty beyond a reasonable doubt, when it comes to DUII, diversion is often the most sensible resolution. 

Bottom line:  if you are eligible for diversion and you enter and complete the program, your case is dismissed.  The consequences you avoid by successfullycompleting diversion include:

·         Not having your driver’s license suspended for an additional year (on top of the initial DMV suspension that comes with a failed breathalyzer or refusal to blow)

·         Not having to purchase SR 22 insurance or pay for an interlock device installed in your car

·         Not having a DUII conviction on your record

·         And so on, and so on

We are often asked, “If I’m eligible for diversion should I even bother paying for an attorney? Can’t I just do it myself?”

My answer is always the same:  anyone facing a criminal conviction and the consequences that come with such a conviction should retain an experienced lawyer to:

·         Review and evaluate the State’s case

·         Advise on all possible options (including diversion when applicable)

·         When applicable, put on a hearing for the Court arguing to allow diversion entry on those occasions when the  State objects;

·         Assist the client through the process

·         Advocate on behalf of the client and/or

·         Force the state to prove the client guilty beyond a reasonable doubt when trial makes the most sense

In short, yes. Even those who are diversion eligible and want diversion should still retain an attorney.  If my brother/mother/friend was arrested for DUII, my advice would be that they retain counsel regardless of whether or not they are diversion eligible.

And here’s the thing:  even if you’ve never been arrested/convicted/accused of DUII in the past, there is no guarantee you will get into diversion.

Example:  in Oregon, if you possess a Commercial Driver’s License at THE TIME of the incident, you are disqualified from diversion.  It makes no difference whether:

·         You were driving a commercial vehicle at the time

·         You had stopped driving commercially ten years ago and didn’t even need the CDL

I realize it’s counterintuitive to think “hey, I don’t use my CDL anymore and if I get a DUII in the future I won’t be able to do diversion if I still have it, so I’m going to go to the DMV to get a regular driver’s license.”

But that’s exactly what you should do:  if you no longer use your CDL, go to DMV and get yourself a regular driver’s license. 

Here are the basic criteria regarding Diversion entry in Oregon.

(1) You have no charge of an offense of DUII or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending on the date you file the petition for a DUII diversion agreement;

(2) You have not been convicted of an offense described in paragraph (1) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(3) You are not participating in a DUII diversion program or in any similar alcohol or drug rehabilitation program, other than a program entered into as a result of the charge for the present offense, in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;

(4) You did not participate in a diversion or rehabilitation program described in paragraph (3), other than a program entered into as a result of the charge for the present offense, within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(5) You have no charge of an offense of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle pending in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;

(6) You have not been convicted of an offense described in paragraph (5) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(7) You did not hold a commercial driver license (CDL) at the time of the offense;

(8) You were not operating a commercial motor vehicle at the time of the offense; and

(9) The present DUII offense did not involve an accident resulting in:

(a) Death of any person; or

(b) Physical injury* to any person other than yourself;

(10) You have not been convicted of a felony DUII in Oregon or elsewhere. 

          You see, all this lawyer talk is confusing, isn’t it?  It’s why you should consult with an

 experienced criminal attorney if charged with DUII or any crime. 

          Happy Holidays, stay safe, don’t drink and drive.

          But if you do, give us a call….we can help.

*physical injury in Oregon means “substantial pain or impairment of physical condition.”  In other words, it’s subjective and arguments CAN be made to the Court proving that physical injury was not caused.  So don’t just give up on diversion if a victim alleges injury.  Discuss it with your attorney. 

WILL THERE BE RIOTS IN DOWNTOWN PORTLAND?

In a few, short hours, the Portland Police Bureau will likely forcibly remove those individuals who have been camping at two parks in downtown Portland for more than a month. If protestors refuse to leave, police officers likely will arrest them on charges such as: criminal trespass, disorderly conduct, interfering with a police officer, resisting arrest and unlawful camping, to name a few. 

If media reports are accurate, some of the protesters intendto stay put and will resist their eviction. We know that several area civil rights attorneys plan on being present downtown when the eviction starts to advocate on behalf of the protestors, advise them of their rights and assist them with representation if necessary. 

As a criminal defense attorney who greatly values fundamental constitutional rights such as the rights to assemble and speak freely, I must confess that I’m torn on this one. 

I definitely support the concept of the Occupy Movement. Like so many others, I too am fed up with an unmanageable student loan debt, crazy-high property taxes, and the requirement that I pay for my daughter’s full-day kindergarten at a PUBLIC ELEMENTARY SCHOOL.

 And the list goes on.

While corporations, banks and big business continue to get break after break, exemption after exemption. 

I get it. 

But I’ve been down to Lownsdale Square and Chapman Square. From a pragmatic standpoint I’m confident that the majority of the people living down there are not representative of my struggles. Frankly, I’m not sure what most of them are protesting.   And because of the poor decisions our city leaders have made over the past month about these sites, the police officers who are there tonight are in anunwinnable situation. 

So here are my questions:

·         If overnight camping in Portland parks is illegal, why has there been an exception here?

• ·         Why did the city publicly sanction these activities by providing services to the campers? 
• ·         Why do the rest of us bear the burden of paying what it will take to repair these beautiful public parks and pay the hundreds of thousands of dollars in overtime to city employees?
• ·         If the campers have been warned and warned for days about the forced eviction,  if representatives from homeless and social service agencies have taken the time to provide the campers with alternative resources, and if the police have taken every possible measure to avoid conflict, and the campers still resist/fight/commit crimes, should I have any empathy?

And no.  I’m not a Republican.  I’m a grown-up.  And yes, there is a difference.  

Mayor Adams Do You Hear Me?

Earlier this month, the Oregonian ran a story stating that due to budget cuts, Multnomah County District Attorney Michael Shrunk has been left with no choice but to stop prosecuting hundreds (if not thousands) of low-level criminal offenses such as drug possession and theft for first- or second-time offenders.

When I read the story my instant reaction was, “this is politically brilliant. The average citizen who reads this story is instantly going to be afraid…they will either put pressure on the legislature to give more money to the DA’s office or vote for whatever tax levy feeds money into the district attorney’s budget.” 

As someone who has worked as a criminal defense attorney in Multnomah County for 11 years (six of those years as a public defender), I’m here to call bullshit. 

If the average taxpayer had any idea just how much money is WASTED in the criminal justice system, I have no doubt that there would be an outright revolt. 

You want examples? Here are just a few (and remember, I could list a dozen more):

1.    Anyone who works in the system will tell you that drug addicts are only going to successfully complete treatment and stay sober if/when they are READY to get sober. You can send an individual to the Betty Ford Clinic or any other super-fancy, cutting-edge treatment program; but if they’re not ready to get clean, it will do no good. Last time I checked, the Multnomah County DA’s office (as well as DA offices in countless other counties) refuses to acknowledge that fact.

I have represented hundreds of addicts who have said, “I’m not ready for treatment, if given probation, I will violate, just get me a straight jail sentence.” What this means is that these defendants know that they will never make it through probation. So they just want to do jail time.

If they could get a straight jail sentence, once it’s up, they are free to go about their business. Nine times out of 10, that is not an option. The DA offers only probation, plus treatment, plus fines/fees, etc. And judges are usually not inclined to impose straight time sentences.

So you know what happens? That’s right: The person takes the deal, gets out of jail, and starts using the minute they step foot on the outside. You know what happens next? A warrant is issued for their arrest. Tax payers then pay for law enforcement officers to find these individuals and once they do, they go back to jail, and usually spend a week or so locked-up before a Judge finds they violated their probation for not doing the treatment they said they were not going to do in the first place. Repeat the scenario two to three times per drug defendant.

Oh, there’s more. Once a judge finally decides, “Okay, clearly this isn’t going to work. I’m going to revoke your probation and GIVE YOU JAIL TIME,” that individual ends up spending the time in jail they would have spent had they just been given the “straight time sentence” in the first place.

Now I don’t have the exact figure of the average daily amount spent to house the average Multnomah County defendant – but it’s a lot. I promise you that. In fact, I’m willing to bet that if we just allowed these people to serve their straight time sentences, there would be more than enough money to prosecute all crimes in the county. 

Einstein said, “The definition of insanity is doing the same thing over and over again and expecting different results.”

Well, yeah.

The thing that gets me more pissed off than anything? Yeah, the $58 million Wapato Jail, which has been EMPTY since it was built because there is no money to staff it. Oh, the irony.

BUT WHERE IS THE OUTCRY? We spent $58 million dollars of tax payers’ money to build a jail that has never been used. Sam Adams, are you listening? Oh right, you’re at your bike meeting with bike people about special bike things. Sorry to interrupt. 

2.    Prostitution “stings”: There’s a reason people say that prostitution is the oldest profession. Men always have and always will buy sex, and there will continue to be women (mostly) to provide it.

I’m happy to have a conversation about the fact that it is often the weakest, most vulnerable women who end up as prostitutes. I agree. But again, that’s an entirely different conversation, which requires a meaningful dialogue about sexism, bad parenting, self-esteem, drugs, etc.

In the meantime, I will tell you that police departments around the country spend hundreds of thousands of public money setting up stings. They put female police officers on street corners pretending to be prostitutes. Once they engage in the legally required exchange, “If you give me your money, I will give you my vagina.” The men they encounter are arrested.

At times, the reverse happens. But does it help things? No. Has prostitution gone away? No.

For every man who is arrested and shamed into not repeating his behavior, there are countless other men who will go out and seek prostitutes. But remember, we’re spending hundreds of thousands, if not millions of dollars on such police stings. Don’t the police have better things to do with their time and OUR MONEY?

You’ll read stories in the newspaper telling you that, due to budget cuts, our streets aren’t safe.

Violent predators will be let loose.

Lock your doors.

Don’t let your children play outside.

But think about the waste. 

There’s no politician in the world who’s willing to step up and tell the truth. These are not popular topics. No one wants to admit that drug addicts will continue to be drug addicts until THEY are ready to get clean.

No one’s willing to admit that men from all socio-economic levels will continue to pay for sex. 

But that’s our reality, and I challenge anyone who’s worked in the system to say differently.

And yes, I call bullshit. 

DRG case in the paper!

This popped up on line today. 

“You have the right to remain silent.” For the love of god, REMAIN SILENT!

So here’s the thing: Police officers are very good at making you feel like they are your friend because they are trained to make you feel like they are your friend. And nine times out of ten, they get convictions because they convince people, like you, that they are their friend. They’re not. I don’t care how nice/sweet/innocent you are or how much money you have. Agreeing to give a statement to a police officer without an experienced criminal attorney present is the best chance you have of getting convicted of a crime.

Forget Law and Order. Forget Cold Case. Police officers and district attorneys get convictions as a result of statements made by defendants. It pains me to think of the number of cases I’ve handled where, without a defendant’s statement, the state would never have had enough evidence to convict.

When a police officer tells you that you have the right to remain silent and the right to an attorney, they are doing so because the law requires them to do so. Not because they really want you to remain silent and/or call a defense attorney.

But I get it…it’s human nature to want to cooperate, be nice and go with the program. And when someone wearing a uniform and carrying a gun says something like “I’m sure once I hear your story, everything will be fine and you’ll get to go home,” your first reaction will be to just tell them your story.

DON’T TELL THEM YOUR STORY!

What 99% of the country doesn’t know is that years ago, the United States Supreme Court ruled that the police can legally be deceptive when questioning suspects. In other words, police officers are lawfully allowed to lie in order to get a confession.

Examples:

“Your friend just gave you up” (untrue).

“You might as well come clean. We have evidence linking you to the crime” (untrue).

“I’m sure if you just tell me what happened things will go easier for you” (untrue).

The bottom line is that it is NEVER in your interest to give statements to the police. Even if you’re completely innocent. The right to an attorney is there for a reason. Use it. And yes, police officers will often say that if you just give them a statement you’ll most likely get to go home. Almost always not the case. If anything, giving a statement will lead to an indictment.

If you tell a cop that you want a lawyer, they must stop interrogating you. Regardless of circumstances, please, please, please take advantage of your constitutional rights and tell said cop that you want a lawyer and DON’T SAY ANYTHING until you’re criminal attorney arrives. In almost every instance, a good criminal attorney will tell you to say nothing.

And odds are, it will save your life.