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Oregon’s Criminal Justice Economic Recovery Plan: Keep Digging!

Like every other state, Oregon has been hit hard by the worst economic crisis in recent American history. Yet standing in an ever-deepening fiscal crater, prosecutors and victims’ rights groups keep handing out shovels and Oregonians stubbornly refuse to stop digging. This may not be what President Obama envisioned when he referred to “shovel ready” public works projects.

On February 20, 2009, Oregon economist Tom Potiowsky reported that the state faced an $855 million budget shortfall for the final four months of the current biennium (two-year period) ending June 30, 2009, up $55 million from estimates just three weeks earlier.
When Oregon’s jobless numbers were released on February 27, 2009, the state’s unemployment rate had hit 10 percent – the fifth worst in the nation.

By all accounts, the 2009-2011 biennium will be even worse. “We’re falling basically into a pit,” said Potiowsky. “The perfect storm is here and Oregon is feeling the recession stronger than many other states.”

In December 2008, Oregon Governor Theodore Kulongoski released his proposed 2009-2011 budget and warned of a “budget hole” of “about $1.2 billion” for that biennium, but when Potiowsky issued his report just two months later the hole had more than doubled in size, to a $3 billion void. “I think we’re all just sort of breathless in seeing how rapid this is, how steep and rapid,” said state Rep. Vicki Berger. “The implications are just stunning.” The budget deficit has since increased to almost $4 billion.

“We’re not going to be out of this in a year,” remarked Senate President Peter Courtney.
“It’s just going to get worse and worse.” To balance the 2009-11 budget, at least 25 percent in state spending must be cut, slashing $322 million from public schools, nearly $200 million from human services and $109 million from public safety. “I cannot see how we maintain current services for any agency or state service,” said Courtney.

On February 2, 2009, lawmakers issued a long list of proposed cuts that included the possibility of closing eight minimum-security prisons and granting early release to prisoners. “These are red flags being waved so people can understand how serious a position we find ourselves in,” stated Rep. Peter Buckley, who co-chairs the committee charged with deciding what budget cuts to make.

Even prosecutors have supported early release for up to 2,000 nonviolent offenders as a way to cut costs, which gives some indication of the severity of the state’s budget crisis.
In a decision that angered Buckley and fellow lawmakers, on February 27, 2009, Paul De Muniz, Chief Justice of the Oregon Supreme Court, announced that effective the following month all Oregon state courts would be closed on Fridays, and courts in some of Oregon’s smaller, rural counties may see additional closures. The move, which would affect and delay over 12,000 pending cases, is estimated to slash $3.1 million from the budget shortfall by reducing payroll costs for 1,800 state workers.

“Oregonians will have the unfortunate opportunity to learn how justice delayed means justice denied,” said De Muniz. Worse yet, the plan may cost more than it is designed to save. According to De Muniz, the state would lose about $5 million in revenue because, with fewer days of court, fewer defendants would be ordered to pay fines and fees – and staff will have less time to collect them. “I hope these cuts don’t turn out to be penny-wise but pound-foolish,” De Muniz observed.

The state courts closed for the first time on March 13, 2009, but De Muniz and legislative leaders announced an agreement to move money from other areas so the court closures could be rescinded through the end of the biennium. They warned, however, that it may be necessary to reinstitute the closures during the next budget cycle.

Despite Oregon’s dire economic outlook, on November 4, 2008, Oregon voters had approved Ballot Measure 57, which requires both longer prison time and substance abuse treatment for drug and property offenders. State officials estimate that the law, which became effective January 1, 2009, will add about 1,600 nonviolent offenders to Oregon’s prison system by 2013.

Of course, getting tough on property and drug offenders is outrageously expensive. Measure 57 will cost an estimated $411 million over the first five years it is in effect. Between 2010 and 2017, Oregon will be forced to borrow $314 million to finance prison expansion due to expected increases in the prison population, and will have to repay that money in addition to $203 million in interest over the next 25 years.

Measure 57 does not include a funding source, so lawmakers must find money, where none exists, to implement it. “I wish we didn’t have to fund it, but I have to,” said Governor Kulongoski. “Now it’s a choice between building prisons, and healthcare and schools. It’s a tough issue but the public has spoken.”

The Governor’s 2009-11 budget, however, provides for only half of the estimated cost of implementing Measure 57, including just $20 million of the $40 million he originally promised for drug and alcohol treatment. Oregon ranks 45th among the states in terms of access to funded substance abuse treatment.

“If they give short shrift to treatment, I think they have seriously violated the trust of the voters,” said Kevin Mannix, an attorney and former state legislator whose much tougher – and much more expensive – Ballot Measure 61 was defeated by the Measure 57 campaign.
“The strongest argument they had was that 57 had a treatment component and 61did not,” argued Mannix. “They’ve got to keep that promise, and that costs money.”

Kulongoski’s Chief Public Safety advisor, Joe O’Leary, said $20 million for treatment “was what we thought was absolutely the best we could do,” given Oregon’s grim economic realities which seem to continually worsen. “The ground is still moving beneath it, and we don’t know when it’s going to end,” admitted O’Leary. Still, in theory lawmakers can’t avoid their obligation to comply with Measure 57.

“We do have a responsibility to start down that road,” said Sen. Courtney. “It’s going to be very hard to do that.” House Speaker Dave Hunt also acknowledged the duty that lawmakers owe voters, but quickly added that drug treatment for property offenders must be balanced against other services competing for the same scarce tax dollars, such as education, health care and public safety.

“The question is did people vote for sending inmates to the front of the line, or did they vote for treatment?” asked Rep. Chip Shields. “I think you can make a case that they voted for drug treatment, and we’re going to do everything we can to fulfill that promise.”

Shields, who co-chairs the Public Safety Subcommittee of the Joint Ways and Means Committee, is forming a group he calls The Promise of Measure 57 Coalition, which will explore ways to expand substance abuse treatment programs for prisoners. “There is a tendency to want to be tough on crime no matter what,” he said. “I think it takes courage to be more critical about what works and what doesn’t in our corrections system.”

Still, Measure 57 presents far thornier problems than treatment availability. Oregon Department of Corrections (ODOC) officials are scrambling to find ways to absorb the expected influx of Measure 57 prisoners. Plans include adding temporary beds to housing units, classrooms, medical units and visiting areas at eleven of ODOC’s 14 prisons; unless, of course, lawmakers make good on their threats to close eight of those facilities.

“People don’t like to use the word ‘crowding’ but that essentially is what it is,” admitted Nathan Allen, ODOC’s planning and budget administrator. ODOC is operating in “a whole new world,” Allen noted, because it is impossible to predict the exact impact of Measure 57 on the prison population. “If we’re wrong, we’re in trouble.”

ODOC Director Max Williams’ assessment was even more blunt. “This is a structural nightmare. This is the box the legislature is in,” he stated. “If we can’t change the size of the box, we are going to be stuck.”

The Oregon District Attorneys Association was a chief proponent of Measure 57, but now the Association’s president, Clackamas County District Attorney John Foote, suggested that prosecutors are willing to work with the legislature – whatever that vague declaration means. He quickly warned, however, that finding a solution won’t be easy. “We know that money is tight but we also know the public has spoken on this in the middle of this [economic] downturn,” said Foote.

There is ample reason, however, to seriously question the prosecutors’ feigned team spirit. The District Attorneys Association is offering to help mitigate a financial nightmare that they helped create by supporting Measure 57. Yet a cursory examination of the Association’s 2009 legislative agenda reveals they are simultaneously pushing needless, feel-good legislation that will cost Oregon voters hundreds of millions of dollars if enacted.

At the request of crime victims’ rights groups, earlier this year the Association introduced House Bill 2335, which targets around 1,600 offenders (11.6% of Oregon’s 13,750 prisoners) who remain under the jurisdiction of the state parole board – a class composed of offenders who have served at least 20 years in prison.

Proponents of HB 2335 have recently concluded that it’s just too distressing for crime victims to attend parole hearings every two years, which is the current deferral period. One victim who attends the hearings called the process “bi-annual hell.” As such, the initial legislative proposal was to require all parole-eligible prisoners to serve a mandatory five years between parole hearings.

According to the ODOC website, the daily incarceration cost for a single offender is $77.78, or $28,389.70 per year. At that rate, a single two-year parole deferral under current law results in an incarceration cost of $56,779.40. The proposed five-year deferral results in an incarceration cost of $141,948.50 – an increase of $85,169.10 – for each prisoner who is deferred.

Assuming all 1,600 parole-eligible offenders are deferred just once under HB 2335’s five-year proposal, the cost of making victims feel a little more comfortable – more than 20 years after the offense – is an increase of $136.3 million over the current cost for two-year deferrals. If just half (800) of those offenders are deferred only once, the five-year proposal would still resulted in an increased cost of $68.1 million. Even if only 100 offenders were each to receive one five-year deferral, HB 2335 would cost $8.5 million more.

Worse yet, the Board of Parole did not like that HB 2335 removed the Board’s discretion, so the prosecutors and the Board reached a compromise. Instead of five-year mandatory deferrals, the Board will retain discretion to defer parole hearings anywhere from two to ten years. Of course there is no indication why one prisoner would receive a 2-year deferral but another would get a 10-year deferral – except, of course, that one has opposition from vocal victims and prosecutors while the other does not.

There is nothing that would prevent the Board from deferring all parole eligible offenders 10 years at a time, to the tune of $272.6 million in increased incarceration costs. Given that the Board may defer release only upon finding that a prisoner suffers from an emotional condition but no treatment is available to treat that condition within the prison system, multiple deferrals and the associated endless costs are almost a certainty.

HB 2335 passed in the House but failed to pass in the state Senate before the end of the legislative session. Ironically, Crime Victims United voiced opposition to the bill, because in its amended form it would have suspended implementation of Measure 57 until 2012, and increased to 30% the amount of “earned time” that certain classes of prisoners can receive off their sentences.

The Oregon Business Administration, in an effort to protect school funding, also proposed suspending Measure 57 to save money. “If we want to set a floor for education funding, then we have to be willing to take on issues such as Measure 57,” said Ryan Deckert, president of the business association and a former state lawmaker.

As Oregon residents find themselves at what they desperately hope is the bottom of a massive economic crater, wondering how they are going to get out, the solution proposed by Mr. Foote and his fellow prosecutors was to hand out bigger shovels and urge them to “keep digging!”

On June 27, 2009, Oregon lawmakers reached a compromise and passed House Bill 3508, introduced just nine days earlier, which suspended most provisions of Measure 57 for 18 months, effective February 2010. Which is interesting considering that the Oregon legislature had put Measure 57 on the ballot in the first place. HB 3508 also increased the maximum amount of earned time for nonviolent prisoners from 20% to 30%.

These provisions are expected to save the state about $32 million. The bill further reduces the amount of prison time that some probation violators have to serve, and allows probationers who comply with supervision terms to reduce their time on probation. Those provisions will save another $14.8 million.

“In many ways, this deal is historic because it’s very rare that the legislature chooses to be smart on crime rather than just tough on crime,” said Rep. Shields.

But in a nod to victims’ rights groups and prosecutors, HB 3508 also incorporated the two to ten-year discretionary parole deferrals from HB 2335. Thus, the potential savings from suspending Measure 57 and increasing earned time for nonviolent prisoners may be offset – or even exceeded – by expanded incarceration costs caused by longer deferrals of parole-eligible prisoners by the Board of Paroles.

“Much of this bill is an acknowledgement that there are smarter ways to address crime and public safety than Oregon’s status quo,” said David Rogers, director of the Partnership for Safety and Justice, a statewide advocacy group. Whether HB 3508 will be a successful stop-gap solution to Oregon’s criminal justice budget crisis, however, remains to be seen.

Sources: The Oregonian, Statesman Journal, House Bills 2335 and 3508 (2009), ODOC website, ODOC Issue Brief 2008, The Register-Guard

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