Twenty-one years after Oregon first enacted a harsh mandatory sentencing law, requiring automatic adult prosecution of juveniles as young as 15 years old, prosecutors in Oregon's largest county recently announced a policy of declining to prosecute some juveniles as adults under that law.
Prior to the early 1990s, prosecuting juveniles — under the age of 18 — as adults was a very rare exception, rather than the rule. Yet, American criminal justice policies concerning the way we view and treat juveniles became dramatically harsher, virtually overnight.
That shift was apparently due largely, if not exclusively, to the "Superpredator Myth" coined and promoted by three high ranking officials in the administration of President George H.W. Bush.
The "juvenile superpredator" hoax was first dreamed up by former Bush Drug Czars William Bennett and John Walters. Though Princeton professor and Bush advisor John J. Dilulio, Jr., and Criminologist James Fox, shamelessly promoted the now-repudiated theory in support of new "tough-on-crime" legislation, including the 1994 Clinton Crime Bill, (a.k.a. the "Violent Crime Control and Law Enforcement Act"), which became law on September 13, 1994.
A key provision of that Act, which remains in effect today, is the provision awarding "Truth-in-Sentencing Incentive grants" to States "to build or expand correctional facilities to increase the bed capacity for the confinement of adult and juvenile offenders. See: 42 USC § 13702(a)(1). Another section awards additional "truth-in-sentencing incentive grants" to States that "require persons convicted of a . . . violent crime to serve not less than 85 percent of the sentence imposed." See: 42 USC § 13704(a)(1)(A).
Longtime Oregon Republican lawmaker Kevin Mannix had repeatedly failed to convince his colleagues to pass his "tough-on-crime" legislation proposals. So he turned to Oregon voters.
"Amendo-Mannix," as his fellow lawmakers dubbed him, seized upon the growing "superpredator" rhetoric and resulting public panic. Oregon's largest newspaper had demanded that politicians "Fix the Juvenile Justice System" by enacting laws for "meting out punishment that pay more than lip service to the lives of their victims."
Backed by an out-of-state millionaire businessman, Mannix drafted, introduced and promoted Ballot Measure 11, requiring mandatory minimum sentences — with no possibility of early release — for 16 crimes. The Measure also required automatic remand for adult court prosecution of 15-, 16-, and 17-year old juveniles who were charged with any of the listed offenses. "We MUST make serious juvenile offenders responsible as adults, according to their violent crimes," proponents wrote in the 1994 Voter's Pamphlet. "Do not let the cost of INJUSTICE exceed the cost of JUSTICE."
Just two months after the Clinton Crime Bill became law, 65 percent of Oregon voters passed Ballot Measure 11 on November 8, 1994. Since its enactment, the number of crimes covered by Measure 11 has grown to twenty-six.
Soon thereafter, Dilulio and Fox admitted that their prediction of a juvenile superpredator epidemic was false. But the damage had been done, as nearly every state had enacted legislation requiring adult prosecutions and long sentences in adult prisons for juvenile offenders.
Criticism of Measure 11 has routinely fallen on deaf ears. Oregon lawmakers who fear being voted out of office for appearing "soft on crime" refuse to talk about Measure 11 reform. Even if they wanted to, legislators cannot amend or repeal Measure 11, without an impossible two-thirds "super majority." An initiative effort to repeal the measure was defeated by 64 percent of Oregon voters in 2000.
In 2005, however, the United States Supreme Court first recognized that juveniles should be treated differently than adults, when it imposed a categorical ban against executing teenage killers in Roper v. Simmons, 543 US 551, 125 S.Ct. 1183 (2005). Five years later, the Court extended that categorical ban to life without parole sentences for juveniles who do not personally commit homicides in Graham v. Florida, 560 US 48, 130 SCt 2011 (2010). In so holding, the Court observed that the brain development science that it had relied upon to distinguish juveniles from adults in Roper had only grown more robust and uniform in the ensuing five years. The Court then took two more huge steps forward in distinguishing juveniles from adults in Miller v. Alabama, 567 US , 132 SCt 2455 (2012) and Montgomery v. Louisiana, 577 US, 136 SCt 718 (2016).
To their credit, Dilulio and Fox filed an Amicus Brief in support of the juveniles in Miller. That brief summarized extensive research demonstrating that "the predictions by the proponents of the juvenile superpredator myth" — themselves and everyone who believed and followed them — were wrong. "Yet," they concluded, "the superpredator myth contributed to the dismantling of transfer restrictions, the lowering of the minimum age for adult prosecution of children, and it threw thousands of children into an ill-suited and excessive punishment regime." They noted that research shows that those new laws, "had no material effect on the subsequent decrease in crime rates."
Opponents of Measure 11 have been making similar arguments for years. Yet, Oregon's elected officials and voters, have routinely turned a blind eye to the evidence. Judges have no authority to remove juveniles from adult prosecution or mandatory sentencing under Measure 11. Prosecutors in Oregon's 36 counties hold all the power, and that is exactly how they want to keep it.
Yet, Multnomah County District Attorney Rod Underhill may be the rarest of exceptions to that rule. On June 8, 2016, Underhill announced that his office would no longer automatically prosecute all 15- to 17-year old criminal defendants under Measure 11. Rather, some of those juveniles will have their cases moved to juvenile court, said Underhill. It would appear that the only way such a move would not violate the law is if prosecutors declined to charge those juveniles with a Measure 11 offense.
"We're going to look at it. We're going to seriously consider it," said Underhill. "We're going to try to do the right thing."
Underhill seems to recognize the Supreme Court's recent mandate that children be treated differently than adults. Echoing the Court, Underhill said his office's change recognizes that juveniles have a greater ability to reform than adults.
Still he does not go as far as the Court has gone. The differences between adults and juveniles recognized by the Supreme Court are based upon characteristics of the juvenile, not the crime. Yet, Underhill continues to give predominant, and in many cases, exclusive, weight to the crime, noting that the change will not affect the most serious crimes including murder and rape in the first degree. He suggests that it could apply to second degree offenses, including robbery, assault, and kidnapping, depending on the circumstances of the crime.
Again, missing the point that the Supreme Court has emphasized four times, the policy requires prosecutors to weigh a long list of factors that have little to do with the juvenile's rehabilitation potential. Those factors include the youth's criminal record and whether anyone was seriously hurt, among many other disqualifiers.
Underhill hopes the plan will help ease the disproportionate number of minority teenagers who are prosecuted as adults for Measure 11 crimes. "In Oregon, youth of color comprise 25% of the youth population but 36% of the youth indicted under Measure 11," according to a 2010 report of the Campaign for Youth Justice. See: Misguided Measures: The Outcomes and Impacts of Measure 11 on Oregon's Youth, (2010).
It is crucial that communities of color have confidence in the criminal justice system, Underhill acknowledges. He says he is particularly concerned by the disparity of who is being sent to prison.
Underhill estimates that approximately 25 defendants a year will be screened under the new policy, but quickly adds that not all of them will qualify for removal from adult prosecution and Measure 11 sentencing.
Bobbin Singh, executive director of the Oregon Justice Resource Center, applauds the move. "People are recognizing that juveniles are different and the justice system should treat them differently," said Singh. "All the science shows that juveniles are still developing and they are likely to rehabilitate."
While Multnomah County's policy is undeniably promising, it is far from clear if its implementation will have a meaningful impact. Even if it does, few of Oregon's other 35 elected prosecutors are likely to follow Underhill's lead. Why would they, given that doing so would likely make them ineligible for the federal "truth-in-sentencing incentive" grants they have eagerly accepted for more than 20 years.
If our political leaders are truly interested in ending, or at least curtailing mass incarceration, as they claim, they could do so quickly and easily. Federal officials could motivate uneasy State lawmakers and recalcitrant prosecutors to change by immediately ending the "Truth-in-Sentencing incentive" grants awarded under 42 USC §§ 13701-13712. Yet, nobody appears to have any interest in doing that.
Sources: The Oregonian/OregonLive, Misguided Measures, The Outcome and Impacts of Measure 11 on Oregon's
Youth (2010), "Longitudinal Study of the Application of Measure 11 and Mandatory Minimums in Oregon," Oregon Criminal Justice Commission (March 2011), www.eji.org/node/893, The New York Times, 1994 Oregon Voter's Pamphlet
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