Youth and Measure 11 in Oregon: Impacts of Mandatory Minimums

2019 update

With the passing of Senate Bill 1008 during the 2019 session of the Oregon Legislature, youth sentencing for serious crimes in Oregon has undergone a significant shift. Oregon will no longer lock up children for life, since life without parole sentences for young people under the age of eighteen are now prohibited. Our state will treat kids as kids by ending the automatic waiver of 15-17-year-olds into adult court when charged with Measure 11 crimes. Young people convicted in adult court will be entitled to a “second look” hearing partway through their sentences where a judge will decide whether it is in the community’s interest to continue to incarcerate them. Finally, some young people who are aging out of youth detention facilities and due to transfer to adult prison will receive a hearing to determine whether they should instead serve the remainder of their sentence in the community under supervision. Our report “Youth and Measure 11 in Oregon: Impacts of Mandatory Minimums” (published February 2018) should be read while keeping in mind that some of the necessary reforms it identifies have now been accomplished. It is important to understand, however, that the changes made by Senate Bill 1008 are not retroactive and therefore will not apply to the cases of people currently incarcerated for Measure 11 offenses, so there is still more work to be done.

The report

For more than twenty years, people convicted under Oregon's Measure 11 law have faced mandatory minimum sentences for serious crimes. Children as young as 15 can be charged under Measure 11 and prosecuted as adults. A new report, published by the Oregon Council on Civil Rights in collaboration with us, takes an in-depth look at the impact of Measure 11 on Oregon's young people and whether the law is out-of-step with legal and scientific developments of recent years.

What's inside

The report looks at Measure 11 and its impact on youth from a variety of perspectives for a thorough review. It includes:

• Brain Science
  While research shows that young people's brains aren't fully developed until their mid-to-late 20s, Measure 11 allows children to be sentenced as though they had the culpability of adults. The report looks at how scientific understanding of development has grown and how the law should respond.

• Legal Developments
  A series of US Supreme Court decisions has prompted an overhaul of youth sentencing laws in light of growing understanding of brain science. More than half of states have changed sentencing laws for youth to respond to the updated Supreme Court decisions, but not Oregon.

• Interviews with Youth
  We spoke to young people who are currently serving sentences following Measure 11 convictions about their experiences in the criminal justice system, their backgrounds, what led up to their offenses and how much they understood during the legal process.

• Data Analysis
  Analysis of data tracked since Measure 11 began in 1995 shows disproportionate impact on Oregon youth of color. Figures from 2012 reveal black youth were 26 times more likely to be indicted for a Measure 11 offense than their white counterparts.

Recommendations

"Youth and Measure 11 in Oregon" recommends four reforms to address problems with Measure 11 and youth sentencing in Oregon:

1. Remove all youth from automatic adult prosecution under Measure 11 and return Oregon to a "discretionary waiver" system."
   This would put much-needed discretion back in the hands of judges, in contrast with the current system that allows prosecutors sweeping authority to decide how to prosecute Oregon youth. This modest reform would still allow judges to levy severe sentences against serious child offenders, but would restore the court’s ability to look at the mitigating circumstances particular to each case.

2. More transparent data collection from prosecutors' offices and law enforcement.
   One critical problem with prosecutors’ vast discretionary power is that: “[their] offices are mostly a black box with little transparency.”3 4 Police officers similarly share a key role as gatekeepers to the criminal justice system. To facilitate smart, data-driven policy-making, counties across the state should provide demographic data on youth referrals to prosecutors’ offices. In addition, they should provide the public with more descriptive information about felony filings to adult court, updated annually.

3. Give all young people the option of a "second-look hearing." Every young person should have the chance to prove to a judge that they can grow and change.
   The U.S. Supreme Court, relying on the most up-to-date cognitive science available, has said clearly that young people have a tremendous capacity for change and positive growth, regardless of the severity of their crimes. Measure 11 has stripped away the opportunity for young people to demonstrate this potential. A second-look hearing not only allows youth to prove their positive change in front of a judge, but also presents a clear incentive for good behavior and a start on the path toward rehabilitation while in custody. This commonsense approach also recognizes the reality that nearly all Measure 11 youth will, at some point, return to society.

4. Addressing root causes.
   Oregon should boost investment in safety net programs that decrease involvement with the criminal justice system. In addition, Oregon should expand access to job training and programs that foster non-violent problem solving so that young people can avoid harsh sentences in the first place. Along with preventative measures, stakeholders throughout the criminal justice system – including judges, prosecutors, public defenders and law enforcement – should be trained in trauma-informed care, cultural responsiveness and brain development.