Sentencing guidelines specifies "presumptive sentences" for each crime. The presumptive sentence depends on the classification of the offender based on his or her prior convictions.
The judge may "depart" from the presumptive sentence under specific circumstances. Departures are rare. In most cases, the offender receives the presumptive sentence.
Under sentencing guidelines, offenders are eligible for a 20% reduction of their prison term for "good time". Thus the actual time served may be 20% less than listed. On average, offenders receive a 17% reduction.
The information in the next two sections comes from the "Oregon Sentencing Guidelines Grid" produced by the Oregon Criminal Defense Lawyers Association in 1998.
|No juvenile felonies or class A misdemeanors||120-121 months *|
|More than three class A misdemeanors or two juvenile non-person felonies||122-128 months *|
|Four class A misdemeanors or one adult non-person felony or 3 juvenile non-person felonies||129-134 months *|
|Two or three adult non-person felonies||135-148 months *|
|Four or more adult non-person felonies||149-163 months *|
|One adult or juvenile person felony and no other felony||164-177 months *|
|One person felony and one or more non-person felonies||178-194 months *|
|Two juvenile or adult person felonies||196-224 months *|
|Three or more juvenile or adult person felonies||225-269 months *|
* Sentences do not reflect 20% "good time" reduction.
The judge can "depart" from the presumptive sentence under specific circumstances. Under specific aggravating circumstances, the judge can go up to twice the presumptive sentence (upward departure). Under specific mitigating circumstances, the judge can order a lower sentence (downward departure). Most offenders receive the presumptive sentence.
1. Victim was an aggressor or participant in criminal conduct.
2. Defendant acted under duress or compulsion.
3. Diminished mental capacity excluding drugs or alcohol.
4. Offense principally accomplished by another and defendant exhibited extreme caution or concern for victim.
5. Offender played a minor or passive role.
6. Offender cooperated with the state.
7. Degree of harm or loss attributed to the current crime of conviction was significantly less than typical.
8. Offender conviction-free for a significant period of time.
1. Deliberate cruelty.
2. Vulnerable victim.
3. Threat of actual violence.
4. Persistent involvement unrelated to current crime.
5. Use of a weapon.
6. Violation of public trust or professional responsibility.
7. Multiple victims or incidents unrelated to current crime.
8. Organized crime operation.
9. Harm or loss significantly greater than typical.
10. Motivated entirely or in part by the race, color, national origin or sexual orientation of the victim.
Opponents of Measure 11 claim that under sentencing guidelines judges had "discretion". They give the impression that the judge could choose any sentence within a wide range that he or she deemed appropriate for the crime. This is false.
Judicial discretion under sentencing guidelines comes in two forms. First is the ability to choose from a narrow range of presumptive sentences. For most crimes, this range is so narrow that this "discretion" amounts to very little.
The second form of discretion is in the area of departures. The judge can not depart just because he or she thinks the criminal is bad. Departures are restricted to very specific circumstances most of which do not apply to the crime of murder. In an overwhelming majority of cases, there is no departure and the criminal receives the presumptive sentence.
As a consequence, there are many murder cases in which the entirety of the judge's discretion boils down to sentencing the murderer to 120 months or to 121 months!
What follows is an analysis of murder sentences based on data received from the Oregon Department of Corrections (DOC) in January of 1998. Crime Victims United requested records about convictions of murderers in DOC custody at that time. Available records covered only those offenders whose sentences began in the years 1992 through 1997.
The records received had a field for the crime date but most of these fields were empty, making it impossible to determine whether the sentences were handed out under sentencing guidelines. Because of this missing crime dates, we at Crime Victims United hope to update this analysis after obtaining more complete data.
581 records covering murder and aggravated murder convictions were received. Of the 581 records, 250 were labeled "aggravated murder" and the rest, 331, were labeled "murder". Since neither sentencing guideline nor Measure 11 cover aggravated murder, those cases are not pertinent for the purposes of examining how sentencing guidelines worked in practice.
Of the 331 labeled murder, only 76 had valid crime dates. The crime date field in the other records was blank. Of these 76 valid records, 21 had sentences such as "life with the possibility of parole". This sentence is neither a sentencing guidelines sentence nor a Measure 11 sentence, from which we conclude that these convictions were actually for aggravated murder. Whatever the reason, they are not pertinent for the purpose of analyzing the sentencing under sentencing guidelines.
Of the 55 useable records, 40 were issued for crime dates in the era of sentencing guidelines and 15 for the Measure 11 era. The 40 sentencing guidelines sentences cover 34 different perpetrators because some were convicted on multiple counts of murder for the same crime.
This graph shows the 34 sentences:
Summary of 34 murder sentences for murders committed between 11/24/1990 and 4/25/1995 and sentenced under sentencing guidelines:
Average sentence: 200 months (16.6 years, 13.3 after "good time")
Minimum sentence: 66 months (5.5 years, 4.4 after "good time")
Maximum sentence: 388 months (32.3 years, 25.8 after "good time")
Number of sentences at or below minimum presumptive sentence: 7 (20%)
Number of prison terms (after "good time") 10 years or less: 14 (41%)
Number of sentences (after "good time") below Measure 11 minimum: 32 (94%)
The data presented demonstrate that it was common under sentencing guidelines for murderers in Oregon to serve prison sentences of 10 years or less. The vast majority of surviving parents, siblings, spouses and friends feel that this is an appalling failure of justice. This is one of the reasons why they support Measure 11.