Criminal Justice: Vote “NO” on Measure 73 (2010)

Ballot Measure 73 is sponsored by Kevin Mannix, who brought us Measure 11 in 1994 which enacted mandatory minimum prison sentencing in Oregon for violent felonies. The ACLU of Oregon opposed Measure 11 because we oppose mandatory minimum sentencing.

Measure 73 would change Oregon law to double and triple mandatory minimum sentences for certain sex crimes for “repeat offenders” bringing it up to 25 years.  It also imposes mandatory minimum sentences for repeat offenders convicted of driving while under the influence of intoxicants (DUII).

Measure 73 is drafted so broadly (and poorly) that it sweeps up juveniles as young as 15 years of age who are before the court for the very first time. Specifically, one of the sex crimes listed in Measure 73 includes what is now commonly referred to as “sexting” (the transmission of a sexual image) between cell phones.  While sexting is inappropriate, the reality is that teenagers act impulsively and use their cell phones and other devices to capture intimate images that would fall under this law.  If a juvenile transmits an image of themselves to more than one other person, they could be charged for multiple violations under the sex crime laws.  And if they are convicted of these multiple charges at one trial, they would be a “repeat offender” during one sentencing hearing.  In other words, the measure is written so broadly that a juvenile as young as 15 could face a 25 year minimum sentence for sexting and, if convicted under Measure 73, there would be no judicial discretion to take mitigating factors into account.

In fact, that’s the main reason the ACLU opposes mandatory minimum sentences – because such sentences eliminate a judge’s ability to evaluate the facts of each case and consider the character and history of the defendant in determining the most appropriate sentence.  Measure 73 only serves to exacerbate that problem.

With a one-size-fits-all approach, the cost to the state cannot be ignored.  Not only has the state prison budget increased dramatically since 1994 but so have the number of state prisons built in Oregon.  By the fourth year of implementation, Measure 73 is estimated to cost the state between $36 and $60 million per biennium according to the state’s Financial Impact Statement. 

For all of these reasons, the ACLU of Oregon urges a NO vote on Measure 73.