A law intended to save taxpayers $6 million by lopping time off the sentences of Oregon's nonviolent prisoners has unwittingly opened freedom's door early to hundreds of violent inmates.
PORTLAND — A law intended to save taxpayers $6 million by lopping time off the sentences of Oregon's nonviolent prisoners has unwittingly opened freedom's door early to hundreds of violent inmates.
They include Troy Lee Hischar, who fired a bullet so close to his ex-girlfriend's skull that it clipped off a tuft of hair; Raul Pena-Jimenez, who gave a 16-year-old girl drugs and alcohol before sexually assaulting her; and Joseph Duane Betts, a convicted child molester who exposed himself to two boys.
Nearly 800 of the 2,397 inmates approved for reduced sentences were sent to prison for crimes as serious as robbery, arson and attempted murder or had previous convictions for crimes against people, The Oregonian found in an examination of state corrections data.
The new law, which passed as part of budget cuts by the Legislature, made thieves, drug dealers and other lower-risk prisoners eligible for a 10 percent reduction in their sentences.
But lawmakers acknowledge they left more than a dozen serious crimes off the list of offenses that disqualify inmates from reduced sentences. So prisoners could get extra time off for crimes such as assaulting police officers, sexually abusing children or committing certain kinds of arson or robbery.
"I call it an oversight," says Sen. Floyd Prozanski, D-Eugene. "Just like any major piece of legislation, we have now realized there are some crimes we intended to include that we are going to include."
Dozens of prisoners qualified for early release even though they were accused of crimes committed in prison, such as attacking corrections staffers, possessing dangerous weapons and downloading child pornography on a prison computer.
The law also does not consider inmates' previous histories of violence, and it opens the door to those serving time for multiple offenses during a violent crime. For example, a carjacker who completes a sentence for armed robbery can then win early release on a consecutive sentence for stealing a car.
"They need to repeal this law," says Dean Gushwa, Umatilla County's district attorney. "I can't believe that they ever intended for this law to shave time off sentences for violent offenders."
Key architects of the statute, Prozanski and then-Rep. Chip Shields, D-Portland, say the law has generally played out as expected. The average inmate to win a sentence reduction gets out 59 days early, saving taxpayers $84 a day. However, Shields acknowledges, some of them are hardened criminals.
"There are very few saints in prison," says Shields, now a state senator, "which is why this can't happen in an easy way."
Prosecutors and victims rights advocates say the new law has freed violent criminals, clogged court dockets, reopened wounds for crime victims and appears to be a sneaky way of tampering with mandatory minimum sentencing laws.
Rancor over the new law, which pits tough-on-crime types against those who think mandatory prison terms go too far, is expected to spill into the Legislature's February session. But the issue might take a back seat in Salem if voters repeal two tax measures on the January ballot, leaving lawmakers to confront how to plug a $726 million hole in the 2009-11 state budget.
Prozanski wants to revise the law during the February session to add about 20 crimes to the list of felonies that would disqualify prisoners for the extra time off, a "tweak" that would include such crimes as a assault on a police officer, third-degree robbery and incest.
Doug Harcleroad, an attorney with the Oregon Anti-Crime Alliance, says Prozanski and others pushed a bad law through the Legislature. "It is not," he says, "a 'tweak' issue."
If any case personifies discord over the new law, it is Oregon v Donald G. Richardson.
Nineteen years ago, Richardson fired a .32-caliber slug into his sleeping wife's head, carried her corpse to their bathtub and dismembered her with a meat saw, hiding her parts in potato sacks all over Umatilla County.
A judge sentenced Richardson to life in prison. But he was resentenced on appeal to 25 years for murder, plus an extra year for corpse abuse.
The 63-year-old inmate recently became eligible for early release under the new law. He was close to completing his sentence for murder, having gotten 20 percent off for good behavior under a statute in place at the time of his crime. The Department of Corrections found him eligible for an extra 10 percent off his conviction for corpse abuse, which is not considered a violent crime.
Prosecutor Gushwa fought Richardson's release at one of the special hearings spelled out in the new law. And he found an unlikely ally — Richardson himself.
"I didn't ask for this hearing," Richardson told the court on a phone link from prison. "I don't want no extra time off. I hurt a whole buncha people, and I'm doing my time."
Circuit Judge Garry L. Reynolds granted Richardson's wish and denied him the extra time off.
The new law forbids inmates from getting out early for such crimes as murder, rape or kidnapping, which come with mandatory minimum sentences under Measure 11. But prison officials have considered at least 16 men convicted of murder, attempted murder or solicitation of murder because they had served their time for those crimes and were working off sentences for lesser offenses such as unlawful use of a weapon. After further scrutiny, only one of the 16 was granted early release.
Prosecutors and crime victims advocates say its outrageous that murderers would be considered for early release under a law that was billed as a means of clearing nonviolent offenders out of prison. But Prozanski says the denials show that the new law works.
So far, the state has denied 362 inmates for early release.
Prison officials notified Washington County prosecutors in September that 25-year-old Raul E. Pena-Jimenez was eligible for a reduced sentence.
Three years ago, Pena-Jimenez plied a 16-year-old Aloha girl with alcohol and marijuana and sexually assaulted her several times, court records show. He later pleaded guilty to giving drugs to a minor and second-degree sex abuse in exchange for a 2-year, 7-month prison term.
Despite prosecutors' objections, Circuit Judge Thomas Kohl approved Pena-Jimenez for an extra 18 days off under the new law, leaving the victim's grandmother dismayed.
"That's an A-1 scumbag," she says. "When a sentence is made, it should be kept that way."
Dozens of corrections staffers identify inmates eligible for release under the new law and notify prosecutors. District attorneys' offices in the Portland area, where the bulk of the cases originated, fight between 40 percent and 80 percent of the proposed sentence reductions.
Prosecutors say they are spending too much time digging through old case files, notifying crime victims and writing objections instead of prosecuting criminals.
It's a common practice for prosecutors to drop serious charges against accused criminals in exchange for guilty pleas of lesser crimes, which carry shorter sentences. Now, some of them say, they often find themselves arguing against sentence reductions for some of the inmates they cut deals with.
Harcleroad, the crime victims advocate, says all this could have been avoided had lawmakers drawn up a more extensive list of serious crimes that disqualify inmates from early release. He has compiled a list of more than 40 such offenses, including the sale of children, corpse abuse and assault on police officers.
Many prosecutors also say they are frustrated that the new law forbids them from mentioning inmates' bad behavior in prison at release hearings. Lawmakers say that provision, drafted in consultation with the judiciary, was intended to prevent simple proceedings from becoming expensive productions that defeat the purpose of the cost-cutting measure.
That provision strikes Judge Kohl as absurd.
"If you're going to let someone out early," he says, "don't you want to know whether they're taking programs, behaving themselves, doing something good for another inmate?" "
For example, John A. Brown drew a two-year prison sentence for a downtown Portland robbery 18 months ago. At the prison intake center, prosecutors allege, he sharpened a toothbrush into a weapon and held a corrections counselor hostage for 90 minutes. Later in prison, prosecutors allege, Brown tussled with guards and was caught with homemade daggers.
But on Oct. 1, he was freed 22 days early on his third-degree robbery conviction. He is still in custody, however, awaiting trial on the prison hostage incident.
Supporters of the new law describe it as a stopgap measure to prevent financial disaster. The choice is simple, they say: Free a few thousand inmates early or cut the budgets that keep Oregonians safe.
Besides maintaining round-the-clock highway coverage by state troopers, the bill prevented closure of a juvenile detention center in Burns and preserved financing for domestic and sexual violence services.
Oregon isn't alone in tackling prison spending. States across the nation, faced with rising prison budgets, have closed prisons or diverted low-level inmates to work camps and drug treatment.
Crime victims groups and the Oregon District Attorneys' Association suggested freeing low- and medium-risk prisoners within six months of release. Inmates serving time for crimes under Measure 11 mandatory minimum sentencing and several other violent crimes would not be eligible.
Lawmakers instead delayed portions of a voter-approved measure to increase prison terms for criminals who repeatedly steal property or break drug laws. Measure 57 took effect last January, but the Legislature voted to suspend it from February 2010 to January 2012 to save about $60 million over two years.
Now, the Legislature may have to grapple with a bigger shortfall if voters reject the tax increases on next month's ballot.
"The reality is, we're in dire times," Prozanski says.