Oregon's Measure 11 Sentencing Reform: Implementation and System Impact, RAND, 2003

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Document Title:

Oregon's Measure 11 Sentencing Reform:
Implementation and System Impact

Author(s):

Nancy Merritt ; Terry Fain ; Susan Turner

Document No.:

205507

Date Received:

May 2004

Award Number:

98-CE-VX-0030

This report has not been published by the U.S. Department of Justice.
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Opinions or points of view expressed are those
of the author(s) and do not necessarily reflect
the official position or policies of the U.S.
Department of Justice.

Oregon’s Measure 11
Sentencing Reform:
Implementation and
System Impact
NANCY MERRITT, TERRY FAIN, AND
SUSAN TURNER

WR-100-NIJ
December 2003
Prepared for the National Institute of Justice

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This document is a research report submitted to the U.S. Department of Justice. This report has not been published by
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position or policies of the U.S. Department of Justice.

iii

Preface
In 1994, Oregon voters passed Measure 11, a measure that imposed long
mandatory prison terms for 16 designated violent and sex-related offenses,
prohibited “earned time,” and provided for mandatory waiver of youthful
offenders to adult court. This measure stood in sharp contrast to sentencing
practices at the time, overlaying the state’s existing sentencing guidelines system
for selected offenses, increasing the length of prison terms imposed, and
reducing judicial discretion at the sentencing phase. Proponents of the measure
felt that it would improve public safety by both deterring future criminal
behavior and increasing the length of time that serious felons spend in prison.
Opponents, on the other hand, believed that the measure would adversely affect
criminal justice system operations and reduce system integrity.
In 1998, the Oregon Criminal Justice Commission (OCJC) received funding from
the National Institute of Justice to study the implementation and outcomes of
Measure 11 across the state as a whole, and within three counties: Multnomah,
Lane, and Marion. This study, conducted by RAND under subcontract to the
OCJC, draws upon a number of state level databases and interviews with state
and county stake-holders to answer key questions about how the measure was
developed, its relationship to the existing sentencing practices in the state,
impacts on the types of sentences imposed, admissions to prison, and sentence
lengths imposed, as well as how sentencing practices changed for both adults
and youths. Our original proposal included an analysis of prosecutorial
decisions. Though extensive efforts were made to obtain county prosecutor data
during the study time frame, these data were not available. Further, preliminary
analyses showed the statewide Oregon Judicial Information Network (OJIN)
data to be unsuitable for this type of analysis.
This document is part of RAND's new Working Paper series. This series is
designed for traditional academic working papers. This document has
undergone technical peer review and approval by RAND's Quality Assurance
process.
This research should be of interest to researchers and practitioners who are
involved in sentencing reforms. This report is one in a series of RAND studies
on the impact of truth-in-sentencing and other “get-tough” policies on state and
local corrections. Other reports for interested readers include:

Susan Turner, Terry Fain, Peter W. Greenwood, Elsa Chen, and James Chiesa,
with Stella Bart, Judith Greene, Daniel Krislov, Eric Larson, Nancy Merritt, and
Albert Hyun Yoon (2001), National Evaluation of the Violent Offender
Incarceration/Truth-in-Sentencing Incentive Grant Program, DRU-2634-NIJ, Final
Report to the National Institute of Justice.
Susan Turner, Peter Greenwood, Elsa Chen, and Terry Fain (1999), “The Impact
of Truth-in-Sentencing and Three-Strikes Legislation: Prison Populations, State
Budgets, and Crime Rates,” Stanford Law and Policy Review, Volume 11:1.
Joan Petersilia, Susan Turner, and Terry Fain (1999), Profiling Inmates in Los
Angeles County Jail: Risks, Recidivism, and Release Options, DRU-2394-NIJ, Final
Report to the National Institute of Justice.
Nancy Merritt, Susan Turner, Peter Greenwood, and Terry Fain (1999),
Implementation and Impact of Violent Offender and Truth-in-Sentencing Legislation:
How Counties Respond to the Challenge, DRR-2110-NIJ, Final Report to the National
Institute of Justice.
Susan Turner, Laura J. Hickman, Judith Greene, and Terry Fain (2001), Changing
Prison Management Strategies in Response to VOI/TIS Legislation, DRU-2721-NIJ,
Final Report to the National Institute of Justice.
The research described in this report was supported by grant #98-CE-VX-0030
from the National Institute of Justice. Points of view are those of the authors and
do not necessarily reflect the official position or policies of the National Institute
of Justice.

Contents
Preface ..................................................................................................................... iii
Figures ..................................................................................................................... ix
Tables ..................................................................................................................... xi
Summary ................................................................................................................ xiii
Background ................................................................................................... xiii
Findings .......................................................................................................... xv
Concluding Remarks .................................................................................... xx
Acknowledgments ................................................................................................ xxi
1.

Introduction ......................................................................................................1

Evolution of Sentencing Reform ....................................................................5
Indeterminate Sentencing ...............................................................................5
Structured Sentencing......................................................................................5
“Get-Tough” Sentencing .................................................................................7
Mandatory Minimum Sentencing..................................................................8
Effectiveness of Mandatory Minimums.....................................................8
Effect on Balance of Courtroom Power....................................................12
Importance of Prosecutorial Discretion ...................................................13
Expected Impacts ...........................................................................................14

History of Criminal Sentencing in Oregon .................................................15
Parole Guidelines ...........................................................................................15
Sentencing Guidelines ...................................................................................16
Mandatory Minimum Sentencing—Measure 11........................................17
Support of Measure 11 ...............................................................................20
Opposition to Measure 11..........................................................................21
Passage of Measure 11................................................................................22
Measure 11 Modifications and Subsequent Legislation............................25
Court Challenges.........................................................................................25
Subsequent Measure 11-Related Legislation...........................................26

Methodology...................................................................................................27
Analytic Categories........................................................................................27
Analytical Strategies ......................................................................................28
Data Sources....................................................................................................30
Oregon Criminal Justice Commission (OCJC) Data...............................30
Oregon Department of Corrections (DOC) Data ....................................31
Uniform Crime Reports (UCR) .................................................................32
United States Census Data.........................................................................32
Bureau of Justice Statistics (BJS) Documents...........................................33
Analyses at the County Level .......................................................................33
Multnomah County ....................................................................................33

Lane County ................................................................................................ 33
Marion County............................................................................................ 34
5.

Case Processing Before and After Measure 11........................................... 35
Expectations.................................................................................................... 36
Sentencing and Prison Admissions.......................................................... 36
Demographic Characteristics and Criminal History ............................. 37
Sentence Length .......................................................................................... 37
M11-Eligible and M11-Alternate Cases Sentenced ................................... 38
Disposition Method for M11-Eligible and M11-Alternate Cases ............ 41
Type of Sentence for M11-Eligible and M11-Alternate Cases ................. 45
Type of Prison Admission ......................................................................... 47
Demographic and Case Characteristics of M11-Eligible and M11Alternate Offenders................................................................................ 49
Race, Gender, and Age at Sentencing ...................................................... 49
Case Characteristics.................................................................................... 51
Criminal History......................................................................................... 52
Combined Characteristics of M11-Eligible Offenders ........................... 55
Length of Prison Sentence for M11-Eligible and M11-Alternate
Cases......................................................................................................... 56
Examples of Pre- and Post-Measure 11 Prison Sentences ..................... 58
Passage and Effect of Senate Bill 1049...................................................... 59
Summary of the Changes in Case Processing and Sentencing
Practices ................................................................................................... 60

Case Processing Before and After Measure 11 for Youthful
Offenders in Oregon...................................................................................... 64
Measure 11 and Youthful Felony Offenders .............................................. 64
Disposition Method.................................................................................... 65
Type of Sentence ......................................................................................... 67
Sentence Length .......................................................................................... 70
Summary of the Changes in Case Processing and Sentencing
Practices for Youthful Offenders .......................................................... 70

Case Processing Before and After Measure 11 in Three Oregon
Counties .......................................................................................................... 72
M11-Eligible and M11-Alternate Cases Sentenced ................................... 72
Disposition Method for M11-Eligible and M11-Alternate Cases ......... 73
Type of Sentence for M11-Eligible and M11-Alternate Cases .............. 76
Sentence Length for M11-Eligible and M11-Alternate Cases ............... 76
Youthful Offenders Sentenced as Adults ................................................ 76
Summary of the Changes in Case Processing and Sentencing
Practices in Three Oregon Counties..................................................... 80

Crime Rates Before and After Measure 11 ................................................ 81
UCR Index Crime Rates in Oregon and the U.S. ....................................... 82
Property Crime Rates ................................................................................. 82
Violent Crime Rates.................................................................................... 84
UCR Index Crime Rates in Three Oregon Counties.................................. 84
Property Crime Rates ................................................................................. 85
Violent Crime Rates.................................................................................... 86

vii

Incapacitation Under Measure 11 ................................................................87
Oregon Prison Population in the 1990s .......................................................90
Attributing Impact to Measure 11................................................................91
Summary of Crime in Oregon Before and After Measure 11..................92
9.

Findings and Concluding Remarks .............................................................94
Major Findings................................................................................................94
Case Processing and Sentencing Practices Statewide, 1990-1999 .........94
Case Processing and Sentencing Practices for Youthful Offenders,
1993-1999 .................................................................................................95
Case Processing in Three Oregon Counties, 1993-1999 .........................95
Characteristics of Felony Offenders, 1993-1999 ......................................95
Crime Rates and Prison Population, 1990-1999 ......................................96
Interpreting the Findings ..............................................................................96
Concluding Remarks ...................................................................................100
Suggestions for Further Research ..............................................................101
Prison Time Served ...................................................................................101
Prosecutorial Decisionmaking Under Measure 11 ...............................102
Prison Management Under Measure 11 ................................................102
Community Corrections Under Measure 11 .........................................102
Treatment and Management of Juvenile Offenders.............................103
Assessment of Impact on Crime Rates ...................................................103

Appendix
A.

Text of Measure 11 Legislation...................................................................105
ORS 137.700...................................................................................................105
ORS 137.707...................................................................................................106
137.712 Exceptions to ORS 137.700 and 137.707.......................................110

Subsequent Measure 11-Related Legislation ............................................117
House Bill 3439 ..........................................................................................117
Senate Bill 1145 ..........................................................................................117
Senate Bill 156 and House Bill 3488 ........................................................117
Ballot Measure 40 ......................................................................................117
Senate Bill 1049 ..........................................................................................118
Measure 94 .................................................................................................118
House Bill 2494 ..........................................................................................118
House Bill 2379 ..........................................................................................118

Partial Text of SB 1049 .................................................................................119

Rank Ordering of M11-Eligible Offenses ..................................................124

Study County Characteristics .....................................................................125

References ..............................................................................................................127

Figures
5.1 - Number of M11-Eligible and M11-Alternate Cases Sentenced,
1993-1999 (OCJC) ......................................................................................38
5.2 - All Sentences for M11-Eligible and M11-Alternate Assault, by
Percent M11-Eligible and M11-Alternate, 1990-1999 (DOC) ..............40
5.3 - All Sentences for M11-Eligible and M11-Alternate Robbery, by
Percent M11-Eligible and M11-Alternate, 1990-1999 (DOC) ..............40
5.4 - All Sentences for M11-Eligible and M11-Alternate Sex Abuse, by
Percent M11-Eligible and M11-Alternate, 1991-1999 (DOC) ..............41
5.5 - Disposition Method for M11-Eligible Cases, 1993-1999 (OCJC)...............43
5.6 - Disposition Method for M11-Eligible Cases, 1993-1999 (OCJC)...............44
5.7 - Disposition Method for M11-Alternate Cases, 1993-1999 (OCJC) ...........45
5.8 - Type of Sentence for M11-Eligible Cases, 1993-1999 (OCJC)....................46
5.9 - Type of Sentence for M11-Alternate Cases, 1993-1999 (OCJC).................47
5.10 - Number of New Court Commitments to Prison for M11-Eligible
and M11-Alternate Offenses, 1990-1999 (DOC)....................................48
5.11 - Number of M11-Eligible and M11-Alternate Offenders Revoked to
Prison, 1990-1999 (DOC)..........................................................................48
6.1 - Disposition Method for Youthful Offenders in M11-Eligible Cases,
1993-1999 (OCJC) ......................................................................................67
6.2 - Mean Prison Sentence (in Months) for Youthful Offenders, M11Eligible and M11-Alternate Cases, 1993-1999 (OCJC) .........................70
8.1 - UCR Reported Index Crimes per 100,000 Population, U.S. and
Oregon, 1990-1999 ....................................................................................83
8.2 - UCR Reported Index Property Crimes per 100,000 Population,
U.S. and Oregon, 1990-1999.....................................................................83
8.3 - UCR Reported Index Violent Crimes per 100,000 Population,
U.S. and Oregon, 1990-1999.....................................................................84
8.4 - UCR Index Crime Rates per 100,000 Population for Three Oregon
Counties, 1990-1999 ..................................................................................85
8.5 - UCR Index Property Crime Rates per 100,000 Population for Three
Oregon Counties, 1990-1999....................................................................86
8.6 - UCR Index Violent Crime Rates per 100,000 Population for Three
Oregon Counties, 1990-1999....................................................................87
8.7 - Type of Sentence for M11-Eligible and M11-Alternate Cases
Combined, 1993-1999 (OCJC)..................................................................89
8.8 - Oregon Prison Population with a Sentence of More than One Year,
1993-1999 (BJS) ..........................................................................................90

Tables
S.1 - Offenses Requiring Imposition of Mandatory Minimum Sentences
Under Oregon’s Ballot Measure 11 ...................................................... xiv
3.1 - Oregon Criminal History Categories ...........................................................18
3.2 - The Oregon Sentencing Guidelines Grid.....................................................19
3.3 - Offenses Requiring Imposition of Mandatory Minimum Prison
Sentences Under Oregon’s Ballot Measure 11 ......................................23
4.1 - M11-Alternate Offenses .................................................................................29
4.2 - Research Questions and Data Used for Analyses ......................................31
5.1 - Number of Felony Sentences, by Most Severe Offense,
1993-1999 (OCJC) ......................................................................................39
5.2 - Number of Prison Admissions, by Most Severe M11-Eligible or
M11-Alternate Offense, 1990-1999 (DOC) .............................................50
5.3 - Demographic Characteristics of Felony Offenders, 1993-1999 (OCJC) ...51
5.4 - Case Characteristics of M11-Eligible and M11-Alternate Offenders,
1993-1999 (OCJC) ......................................................................................53
5.5 - Type of Sentence by Criminal History for M11-Eligible and
M11-Alternate Offenders, 1993-1999 (OCJC) ........................................54
5.6 - Case Characteristics of M11-Eligible Offenders in 1996,
by Race (OCJC)..........................................................................................55
5.7 - Mean Sentence Length (in Months) for Prison Admissions, for Cases
that Include an M11-Eligible or M11-Alternate Offense,
1990-1999 (DOC) .......................................................................................57
5.8 - Sentence Type and Prison Sentence Length for Sex Abuse I and
Robbery II Cases, by Criminal History, 1994 and 1996 (OCJC)..........59
5.9 - Prison Sentences Imposed for Second-Degree M11-Eligible Assault,
Robbery, and Kidnapping Cases, 1990-1999 (DOC) ............................61
6.1 - Number of Youthful Offenders Sentenced as Adults for Felony
Offenses, by Felony Type, 1993-1999 (OCJC)........................................64
6.2 - Number of Youthful Offenders Sentenced as Adults for
M11-Eligible Offenses, 1990-1999 (DOC)...............................................66
6.3 - Disposition Method for Youthful Offenders in M11-Eligible and
M11-Alternate Cases, 1993-1999 (OCJC) ...............................................68
6.4 - Type of Sentence for Youthful Offenders, M11-Eligible and
M11-Alternate Cases, 1993-1999 (OCJC) ...............................................69
7.1 - Most Severe Felony Offense, 1993-1999 (OCJC) .........................................73
7.2 - Disposition Method for M11-Eligible Cases, 1993-1999 (OCJC)...............74
7.3 - Disposition Method for M11-Alternate Cases, 1993-1999 (OCJC) ...........75
7.4 - Type of Sentence for M11-Eligible Cases, 1993-1999 (OCJC)....................77
7.5 - Type of Sentence for M11-Alternate Cases, 1993-1999 (OCJC).................78
7.6 - Length of Prison Sentence (in Months) for M11-Eligible and
M11-Alternate Cases, 1990-1999 (DOC).................................................79
7.7 - Number of Youthful Offenders Sentenced as Adults for
M11-Eligible Cases, 1990-1999 (DOC)....................................................80

xiii

Summary
Background
In 1994, Oregon voters passed Measure 11, which imposed long mandatory
prison terms for 16 designated violent and sex-related offenses, prohibited
“earned time,”1 and provided for mandatory waiver of youthful offenders to
adult court. This measure stood in sharp contrast to sentencing practices at the
time, overlaying the state’s existing sentencing guidelines system for selected
offenses, increasing the length of prison terms imposed, and reducing judicial
discretion at the sentencing phase.
In its present form, Measure 11 sentences supersede any lesser existing guideline
sentences for 21 violent and sex offenses—the original 16, plus 5 more added
later (see Table S.1). Sentences range from 70 months for second degree assault,
kidnapping, robbery, and certain sex offenses, to 300 months for murder.
Penalties may not be reduced because of the offender’s prior record—regardless
of whether an offender has a criminal record, or the length of such record,
minimum sentences are the same for all offenders. Thus, some penalties are
actually higher under sentencing guidelines in instances where an offender has
an extensive criminal record. In general, however, Measure 11 penalties are
longer than those imposed under sentencing guidelines. Juveniles aged 15 years
or older are also subject to the measure.
Proponents of the measure believed that these enhanced penalties would
improve public safety by deterring future criminal behavior and increasing the
length of time that felons who commit serious crimes spend in prison.
Opponents, on the other hand, believed that the measure would adversely affect
criminal justice system operations and reduce system integrity. In terms of
system operation, opponents expected the measure to lead to an increase in jury
trials and prison populations, over-burdening both the courts and the
correctional system. At the same time, they anticipated an increase in jail
populations as M11-eligible offenders were held more frequently and for longer
_________________
1 “Earned time” refers to a reduction in prison time due to good behavior, resulting in a
discrepancy between the original sentence and the time actually served. Earned time is also referred
to as “good time” or “gain time.”

xiv

Table S.1
Offenses Requiring Imposition of Mandatory Minimum Sentences Under Oregon’s
Ballot Measure 11

Offense
Murder
Attempt or conspiracy to commit aggravated murder
Attempt or conspiracy to commit murder
Manslaughter in the first degree
Manslaughter in the second degree
Assault in the first degree
Assault in the second degree
Kidnapping in the first degree
Kidnapping in the second degree
Rape in the first degree,
Rape in the second degree
Sodomy in the first degree
Sodomy in the second degree
Unlawful sexual penetration in the first degree
Unlawful sexual penetration in the second degree
Sexual abuse in the first degree
Robbery in the first degree
Robbery in the second degree
Arson in the first degree
Using child in display of sexually explicit conduct
Compelling Prostitution

ORS Code
Section
163.115
163.095
163.115
163.118
163.125
163.185
163.175
163.235
163.225
163.375
163.365
163.405
163.395
163.411
163.408
163.427
164.415
164.405
164.325
163.670
167.017

Minimum
Term
(Months)
300
120
90
120
75
90
70
90
70
100
75
100
75
100
75
75
90
70
90
70
70

Notes: When a person is convicted of the offenses listed in this table and the offense was
committed on or after April 1, 1995 (or after October 4, 1997, for the Measure 11 offenses
added later), the court must impose, and the person must serve, at least the entire term of
imprisonment. The person is not, during the service of the term of imprisonment, eligible for
release on post-prison supervision or any form of temporary leave from custody. The person
is not eligible for any reduction in the sentence for any reason whatsoever under ORS 421.121
or any other statute. The court may impose a greater sentence if otherwise permitted by law,
but may not impose a lower sentence than the sentence specified in this section (ORS 137.700).

periods of time pre-trial, due both to their increased flight risk and to the fact
that a rising number of defendants would choose to await trial rather than accept
a plea bargain. There was also concern that those already convicted of felonies
would be forced to remain in jail as the prisons became too full to accept new
inmates. Opponents believed that mandatory minimum sentencing would
provide prosecutors with undue influence over the sentencing decision. Under
the new measure, there was some concern that a defendant might accept a plea
offer regardless of guilt, simply to avoid the possibility of a long mandatory
penalty. This was of greatest concern in juvenile cases, where defendants as
young as 15 were believed to be particularly susceptible to inappropriate
pressure.

In 1998, the Oregon Criminal Justice Commission (OCJC) received a grant from
the National Institute of Justice to study the implementation and impact of
Measure 11. RAND, under contract to the OCJC, conducted the evaluation.
RAND researchers used a two-part methodology that included interviews and
quantitative data analyses. Over 40 key stakeholder interviews were conducted
with representatives from the district attorneys’ offices, legislature, judiciary,
court administration, defense bar, jails, victim’s rights groups, offender aid
groups, and state agencies, including the Department of Corrections, the Oregon
Youth Authority, the Office of Public Defense Services (formerly the Public
Defender’s Office), and the Department of Justice. These interviews were
designed to provide background information on the history of Oregon
sentencing policy and the evolution of Measure 11, as well as to aid in the
interpretation of quantitative analyses. Efforts were made to identify all policy,
legal, and social changes which occurred during the Measure 11 implementation
period. This information was used to rule out alternate explanations for the
study findings. Historical data from the United States census, the Federal
Bureau of Investigation, the Oregon Department of Corrections, and the Oregon
Criminal Justice Commission were analyzed and used to produce time trend
analyses on case processing, prison admissions, sentence length, and crime rates
for the decade of the 1990s.

Findings
What was the sentencing context into which Measure 11 was implemented? What other
sentencing reforms and major changes had occurred in the state prior to 1994 when the
measure was approved by Oregon voters?
In many respects, Oregon’s experience with sentencing reform over the past
quarter century serves as a microcosm of the national reform movement. During
the 1970s, widespread disenchantment with indeterminate sentencing systems
led to adoption of structured sentencing systems in many states2. The rising
crime rates of the mid-1980s and increased media attention to violent crime gave
rise to the “get-tough” movement of the 1990s and passage of numerous truth-insentencing and mandatory minimum laws. Following these trends, Oregon first
_________________
2 Under indeterminate sentencing schemes, judges work within broad penalty ranges set by the
legislature to determine appropriate sentences, setting minimum and maximum terms for each
defendant on an individual basis. Structured sentencing includes the use of determinate sentencing,
sentencing guidelines, and mandatory minimums penalties—which provide more standardized
sentences for offenses.

xvi

adopted parole guidelines, then sentencing guidelines, and finally mandatory
minimum penalties in the form of Measure 11.
Since passage of Measure 11, there have been numerous attempts to modify and
overturn it. There have also been efforts to limit the potential effects of Measure
11 through subsequent legislation, most notably Senate Bill 1145. This bill was
designed to shift responsibility for all offenders sentenced to prison for one year
or less to the counties, thereby minimizing potential prison overcrowding caused
by passage of Measure 11. Prison admission data indicate that the bill was
successful in this respect, greatly reducing the number of revocations to prison
for serious felony offenses.
Senate Bill 1049, enacted in 1997, added three new offenses to those covered by
Measure 11, and also permitted sentencing below the Measure 11 minimum for
selected cases of Robbery II, Assault II and Kidnapping II. Prior to passage of
Measure 11, the vast majority of these cases were sentenced to less than 70
months incarceration. In 1996, this pattern reversed, with a majority of these
three offenses drawing 70-month sentences. Following the passage of SB 1049 in
1997, the percent sentenced to less than 70 months increased for all three
offenses. House Bill 2379, passed in 2001, added certain non-forcible sex offenses
to ORS 137.712 (the Measure 11 departure statute created by SB 1049), and
allowed up to three days early release for all offenders (to avoid weekend
releases).3
Ballot Measure 94 was designed to overturn Measure 11. Although Measure 94
received sufficient support to be placed on the ballot in 2000, it was ultimately
defeated by a margin of nearly three to one.
How was Measure 11 implemented? Were all Measure 11 eligible offenses sentenced
according to the new measure? Do we see changes in the manner in which offenses are
prosecuted by the district attorney?
__________________
3 Because our data did not go beyond 1999, we were unable to assess the potential impact of
House Bill 2379.

xvii

In order to answer these questions, we analyzed case processing practices for
both M11-eligible and M11-alternate cases4 and conducted interviews with key
system stakeholders. Our findings were in keeping with previous research
(USGAO 1993; Vincent and Hofer 1994; Wicharaya 1995) and indicated that case
processing and prosecution patterns had shifted following implementation of the
measure, minimizing the anticipated impact upon court and correctional
resources.
Like similar “get-tough” legislation adopted nationwide, original impact
projections for Measure 11 were based on the assumption of full implementation,
meaning that every case determined to meet the legal criteria of the measure
would be so prosecuted. Analyses of both sentencing and interview data,
however, indicate that this did not occur under Measure 11. Instead, prosecutors
used their discretion to determine which cases would be fully prosecuted under
the law.
Without exception, prosecutors interviewed for the study acknowledged that the
measure should not be applied in every eligible case, and that the measure, as
written, provides overly long mandatory minimum sentences for many of the
cases falling under its purview. These statements support prior research
(USGAO 1993; Vincent and Hofer 1994; Wicharaya 1995) which shows that
mandatory minimum laws are seldom fully implemented and thus do not
produce the system impacts that would be expected under full implementation.
Instead, through selective charging practices and plea negotiation, the prosecutor
determines the extent and manner in which the law will be applied. While the
discretion afforded prosecutors under mandatory minimum laws is tempered by
the norms of the courtroom community and local legal culture, these laws
generally provide prosecutors with greater authority over criminal case
processing than any other court practitioner.
What impact did Measure 11 have on trial rates? Did the measure inundate the courts
with requests for trials as critics feared?
_________________
4 For purposes of our analyses, a case involving one or more of the Measure 11 offenses as the
most serious offense of conviction is designated an M11-eligible case. We refer to the lesser
counterparts of these offenses as “M11-alternate” offenses. Second-degree assault, for example, is an
M11-eligible offense, while third-degree assault is an M11-alternate offense. Any case that involves at
least one M11-alternate offense—but no M11-eligible offenses—is designated an M11-alternate case.
The term “M11-eligible” is used for analyses both before and after passage of Measure 11 because,
had Measure 11 been in effect in the early 1990s, these offenses would have qualified for the
mandatory minimum sentences imposed by Measure 11.

xviii

The frequency of trials for both M11-eligible and M11-alternate offenses
increased for only a short period following passage of the measure.5 Though this
does not support practitioner predictions or the findings of some previous
studies that showed a long-standing increase in trial rates, it does support the
theory that these rates increase only for the brief period during which “goingrates” are established under the new law. Previous research (USGAO 1993;
Vincent and Hofer 1994; Wicharaya 1995) has shown that although passage of
mandatory minimum legislation has a lasting impact on “going rates” for both
affected offenses and related offenses6—generally increasing sentence length for
both—the increase in trial rates is short-lived (Merritt, et al. 1999). As a result,
any increased burden on court resources caused by the new laws is also
temporary.
What our analysis did show, however, was a lasting shift in plea patterns. While
the majority of M11-eligible offenses were resolved through plea both before and
after passage of the new measure, there has been a change in the frequency with
which certain plea types are utilized. Specifically, the frequency with which
“plea to original charge” and “plea with charges dropped” are used has
decreased, while the frequency of “plea to a lesser included offense” has
increased, indicating an increased tendency to reduce M11-eligible charges to
M11-alternate charges.
What are the characteristics of offenders sentenced under Measure 11? Does the measure
appear to differentially affect minorities and youths?
Interviews with key stakeholders suggested that there was some degree of public
concern that Measure 11 would improperly target minority populations for
prosecution under the measure. Our analysis has not shown this to be the case.
While non-white offenders make up a disproportionate percentage of the M11eligible population, this trend is also reflected in the M11-alternate and other
felony categories. Thus, while non-whites are in fact disproportionately
represented within Oregon’s offender population, there is no evidence that
Measure 11 has exacerbated this disparity.
__________________
5 The substantial difference in mandatory minimum sentence length for an M11-eligible offense
and a presumptive guidelines sentence for an M11-alternate offense creates a substantial disincentive
to go to trial.
6 “Going rates” are the standard sentences offered to offenders in exchange for a guilty plea and
vary according to offense and case circumstances. “Related offenses” are lesser counterparts of
sentences affected by mandatory minimum legislation. For example, if first- and second-degree
assault were affected offenses, third-degree assault would be a related offense.

xix

Our interviews also revealed concerns on the part of some as to the handling of
juveniles under Measure 11. Our analyses indicate that the case processing and
incarceration trends for juveniles closely mirror those of adults. Youthful
offenders make up less than 6% of the M11-eligible and M11-alternate offense
categories, since the vast majority of juveniles are tried in juvenile court. And
while the total number of juveniles sentenced as adults has increased
dramatically since passage of Measure 11,7 the proportion sentenced to prison
for M11-eligible vs. M11-alternate offenses has remained relatively stable.
What impact did the measure have on prison admissions and sentence lengths?
Our analyses support the statements of Oregon prosecutors, as well as earlier
research findings, showing that the proportion of offenders convicted of, and
admitted to prison for, M11-eligible offenses decreased while the proportion of
M11-alternate sentences and admissions increased following implementation of
the measure. At the same time, sentence lengths rose within both offense
categories, providing further evidence that M11-eligible cases deemed
inappropriate for Measure 11 sanctions were being pled down to M11-alternates.
This increase in M11-alternate sentence lengths also suggests that offenders
technically eligible for prosecution under Measure 11, and facing the threat of
long mandatory minimum penalties, increasingly chose to plea to lesser (M11alternate) charges. While higher than the norm imposed prior to Measure 11,
these sentences were less than would have been imposed for an M11-eligible
offense. Thus the findings suggest that passage of Measure 11 affected the
“going rate” for both M11-eligible and M11-alternate offenses. The “going rate”
is also affected by the more serious nature of offenders charged with alternate
offenses. Before mandatory minimums, an offender would have been charged
with the higher offense, and in many cases would have received a sentence
similar to the higher sanction for the alternate offense. Information derived from
our interviews suggests that practitioners believed the Measure 11 penalties to be
too lengthy for many of these cases.
What were the trends in Oregon’s crime rate before and after passage of Measure 11?
Although our original research design did not propose a comprehensive analysis
of crime rates, we were asked to address the impact of Measure 11 on crime rates
in Oregon. Crime rates, particularly for violent crime, declined in Oregon after
1995. While our findings are consistent with the possibility that Measure 11 may
_________________
7 The total number refers to juveniles sentenced to M11-eligible, M11-alternate, and other
felonies. M11-eligible cases accounted for roughly one-third to one-half of the total juvenile cases
sentenced as adults.

have been at least partly responsible for this decline, such findings do not
provide clear evidence of a causal link. An examination of other factors, which is
beyond the scope of the present study, would need to be made before definite
conclusions can be drawn.

Concluding Remarks
Findings from this study indicate that passage of Measure 11 has altered
sentencing and case processing practices for those charged with serious person
offenses in the state of Oregon. While some of these were planned system
changes, others were unplanned and are not fully understood.
The measure can be considered a success in that it has accomplished its intended
goal of increasing the length of prison sentences for offenders convicted of M11eligible offenses. However, since passage of the measure, fewer offenders have
been sentenced for these offenses, and a greater proportion have been sentenced
for M11-alternate offenses. Analyses suggest that this shift resulted from the use
of prosecutorial discretion and the downgrading of cases which, though
technically M11-eligible, were not deemed appropriate for the associated
mandatory minimum penalty.
Although the selective use of Measure 11, along with Oregon’s prison
construction program and reduced crime rates, has enabled the state to avoid the
negative consequences of prison overcrowding, the process by which cases are
being chosen for either full or partial prosecution is unclear. Prosecutors
interviewed were confident in their ability to apply the measure appropriately;
however, it is not clear what criteria were used in making their decisions, or
whether these criteria were consistently and equitably applied. Further research
should address how discretion is exercised and charging decisions made under
Measure 11.
Oregon’s Measure 11 introduced bold changes into the sentencing structure of
the state. Our analyses addressed the implementation and impact of the measure
on prosecution, sentencing, and convictions, both statewide and in three separate
counties. As with many policy changes, some of the observed consequences
were expected, others were not. Further research and experience with the
measure will provide more definitive answers to the questions we have posed.

xxi

Acknowledgments
Many individuals and organizations were helpful in the research and
preparation of this report. We would like to thank Phil Lemman, Executive
Director of the Oregon Criminal Justice Commission, and his staff, particularly
Lois Cole, Richard Jones, and Donna Lattin, for their invaluable assistance in
obtaining interviews with key stakeholders, identifying relevant databases,
reviewing interim findings, and assisting in our research efforts.
We are particularly grateful to the many state legislators, judges, and executive
branch staff, as well as county prosecutorial, defense, and administrative
personnel who gave so generously of their time and knowledge for this study.
Finally, we acknowledge the unwavering dedication and assistance of Chris
Innes and Akiva Liberman, project monitors with the National Institute of Justice
for their guidance and support.

1. Introduction
The 1990s ushered in a series of sentencing reforms across the country as states
implemented various forms of “get-tough” legislation. “Get-tough” legislation
took many forms from mandatory minimums, requiring the imposition of set
sentences for specified crimes, to truth-in-sentencing, requiring offenders to
serve at least 85% of their court imposed sentences, as well as two- and threestrikes legislation that enhanced penalties for repeat offenders. Over 43 truth-insentencing laws in 31 states were enacted during this time period (Turner, et al.
2001) and all states had enacted some form of mandatory minimum sentencing
(Parent, et al. 1997). Many of these laws were passed in response to media
attention and public outcry over heinous crimes.
Adoption of the new laws followed a pattern of reform that began in the 1970s.
As crime rates increased, many Americans began to feel that part of the problem
lay in the criminal justice system. They pointed to a series of U.S. Supreme Court
decisions expanding the rights of the accused, and to judicial actions reducing
the frequency of executions. Reformers with these views identified more closely
with the victims of crime than with arrestees, and were not only interested in
clarifying sentences but also in making them longer.
Thus, as states began debating and adopting determinate sentencing and
sentencing guidelines in the early 1980s, they also passed mandatory-sentencing
laws (Tonry 1996). It was not until the early 1990s, however, that the new wave
of “get-tough” legislation was passed. Most of these provisions affected violent
criminals, drug and weapon offenders, or those with prior felony records.
Changes at the state level were encouraged by the federal government. The
passage of the 1994 Crime Act, as amended, provided federal incentive dollars to
states to pass truth-in-sentencing legislation and build more prison beds to
incarcerate violent offenders for longer periods of time. It was hoped that these
measures would reduce violent crime.
Although Oregon, in 1989, was among the first states to adopt truth-insentencing, it was not until 1994 that the state joined the national “get-tough”

movement with passage of Measure 11.8 This measure, initially drafted by an
Oregon legislator, was designed to set mandatory minimum sentences for a
series of 16 violent and sex offenses. When put before the voters in 1994, the
measure passed by an overwhelming margin of 65% of voters.
In its present form, Measure 11 sentences supersede existing lesser guideline
sentences for 21 violent and sex offenses. Guidelines have higher sentences for
cases with extensive criminal records or where judges impose a departure
sentence. Sentences range from 70 months for second-degree assault,
kidnapping, robbery, and certain sex offenses, to 300 months for murder. Except
for assault, robbery and kidnapping in the second degree (as a result of SB 1049),
penalties may not be reduced because of the offender’s prior record.9 Regardless
of whether an offender has a criminal record, or the length of such record,
minimum sentences are the same for all offenders. Thus, some penalties are
actually higher under sentencing guidelines in instances where an offender has
an extensive criminal record. In general, however, Measure 11 penalties are
longer than those imposed under sentencing guidelines. Juveniles aged 15 years
or older are also waived to adult court under the measure.
Proponents of the measure believed that these enhanced penalties would
improve public safety by deterring future criminal behavior and increasing the
length of time that serious felons spend in prison. Opponents, on the other hand,
believed that the measure would adversely affect criminal justice system
operations and reduce system integrity. In terms of system operation, opponents
expected the measure to lead to an increase in jury trials and prison populations,
over-burdening both the courts and correctional system. At the same time, they
anticipated an increase in jail populations as M11-eligible offenders were held
more frequently and for longer periods of time pre-trial, due both to their
increased flight risk and to the fact that a rising number of defendants would
choose to await trial rather than accept a plea bargain. There was also the
concern that those already convicted of felonies would be forced to remain in jail
as the prisons became too full to accept new inmates. Concerns were also raised
regarding the system’s ability to effectively mete out justice under the measure.
Opponents believed that mandatory minimum sentencing would provide
prosecutors with undue influence over the sentencing decision. Under the new
measure, there was some concern that a defendant might accept a plea offer
__________________
8 In its current form, Measure 11 includes two Oregon statutes, ORS 137.700 and ORS 137.707.
For the text of these statutes, see Appendix A, which also includes ORS 137.712, the “Measure 11
exclusions” statute.
9 Other offenses were added to the Measure 11 exclusion statute (ORS 137.712) after our study
period ended. See Appendix A for the text of the current version of ORS 137.712.

regardless of guilt, simply to avoid the possibility of a long mandatory minimum
penalty. This was of greatest concern in juvenile cases, where defendants as
young as 15 were believed to be particularly susceptible to inappropriate
pressure.
No one has yet answered how Measure 11 has been implemented, or its impact
on crime, case processing, sentencing, and the correctional populations. In 1998,
the Oregon Criminal Justice Commission (OCJC) received a grant from the
National Institute of Justice to address these questions. RAND, under contract to
the OCJC, conducted the evaluation. The major questions addressed in the
evaluation and reported in the current document include:
•

What was the sentencing context into which Measure 11 was
implemented? What other sentencing reforms and major changes had
occurred in the state prior to 1994 when the measure was approved by
Oregon voters?

•

How was Measure 11 implemented? Were all Measure 11 eligible
offenses sentenced according to the new measure? Do we see changes in
the manner in which offenses are prosecuted by the district attorney?

•

What impact did Measure 11 have on trial rates? Did the measure
inundate the courts with requests for trials as critics feared?

•

What are the characteristics of offenders sentenced under Measure 11?
Does the measure appear to differentially affect minorities and youths?

•

What impact did the measure have on prison admissions and sentence
lengths?

Additionally, although our original research design did not propose a
comprehensive analysis of crime rates, we were asked to address the impact on
Measure 11 on crime rates in Oregon.
In order to answer these questions, RAND researchers used a two-part
methodology that included interviews and quantitative data analyses. Over 40
key stakeholder interviews were conducted with representatives from the district
attorneys’ offices, legislature, judiciary, court administration, defense bar, jails,
victim’s rights groups, offender aid groups, and state agencies, including the
Department of Corrections, Youth Authority, Criminal Defense Lawyers
Association, and Department of Justice. Historical data from the United States
census, Federal Bureau of Investigation, Oregon Department of Corrections, and
Oregon Criminal Justice Commission were analyzed and used to produce time

trend analyses on case processing, prison admissions, sentence length, and crime
rates for the decade of the 1990s.
Chapter 2 briefly reviews the evolution of sentencing reform nationally, focusing
on recent trends towards the adoption of “get-tough” measures. In Chapter 3 we
discuss the history of sentencing reform in Oregon, with particular emphasis on
the development, passage, and modification of Measure 11. Study methodology
is covered in Chapter 4. Oregon’s adult case processing trends are covered in
Chapter 5; youth trends follow in Chapter 6. Chapter 7 offers a comparison of
case processing trends in three counties, followed by a discussion of Oregon’s
crime rates and prison population in Chapter 8. The final chapter presents the
study’s findings and concluding remarks.

2. Evolution of Sentencing Reform
U.S. sentencing practices changed substantially during the last part of the
twentieth century. The first section of this chapter reviews the evolution of
sentencing reform in the U.S. over the past quarter century, focusing on recent
trends towards the adoption of “get-tough” sanctions. This is followed by a
discussion of mandatory minimum sentencing policies and their implementation
and impact.

Indeterminate Sentencing
Prior to the 1970s, the majority of state-level criminal justice systems in the
United States were based on the rehabilitative model, employing an
indeterminate sentencing scheme. Under indeterminate sentencing schemes,
judges worked within broad penalty ranges set by the legislature to determine
appropriate sentences, setting minimum and maximum terms for each defendant
on an individual basis. The rationale was that this allowed the public, through
the democratically elected legislature, to set a range of acceptable punishments
for a given crime. The judge, with access to detailed information about the
offender and case, could then craft an individualized sentence for each offender
and crime, taking into account both the gravity of the offense and the
rehabilitative needs of the offender. In most states, a parole board was then
responsible for reviewing the progress of each offender and determining
whether, and when, rehabilitation was sufficient to merit release.
However, beginning in the mid- to late-1970s, there was a major shift in both
sentencing structure and philosophy. During this period, states experienced a
gradual move away from the longstanding use of legislatively mandated penal
codes implemented by the judiciary, to a more structured form of sentencing
which included sentencing guidelines and mandatory minimum penalties
(Bureau of Justice Assistance 1996a).

Structured Sentencing
By the mid-1970s, there was growing disenchantment with the rehabilitative
model and indeterminate sentencing systems. Those promoting reform,
however, had disparate motivations for change, including the concerns of some

that indeterminate sentencing leads to unequal treatment, and a desire among
others to achieve greater deterrence and incapacitation through longer sentences.
Central to the arguments of both groups was the concern that too much
discretion was granted the judiciary and parole board under existing
indeterminate sentencing systems (Bureau of Justice Assistance 1996a; Griset
1995; Horton 1997; Tonry and Hatlestad 1997; Wicharaya 1995).
Under the assumption that the goals of rehabilitation could not be met within the
indeterminate sentencing schemes, many states turned towards the “just deserts”
model of sentencing, which, simplified, holds that punishment should be
deserved, that most people agree about the comparative seriousness of crimes,
and that a workable sentencing scheme can be developed by establishing a
ranked ordering of crime seriousness and punishments proportioned to those
rankings. Under such a scheme, individuals convicted of more serious offenses
would receive more severe penalties than those convicted of less serious offenses
(Tonry 1996; von Hirsch 1976; von Hirsch 1993).
The two most commonly adopted “just deserts” sentencing models include
determinate sentencing and sentencing guidelines. These systems, along with
bail and parole release guidelines, were adopted by many states during the late
1970s and early 1980s. Determinate sentencing systems differ from
indeterminate systems in that they require imposition of a set term of
incarceration for a given offense rather than allowing for sanctioning with a
sentencing range. Sentencing guidelines generally allow for sentencing within a
narrow range (though sentencing guidelines can be determinate), but are more
restrictive than indeterminate sentencing structures. Under sentencing
guidelines, the appropriate sentencing range is determined by the characteristics
of the specific case, most commonly the instant offense and prior record.
Guidelines can be either voluntary (a judge can choose whether or not to follow
the sentencing recommendation) or presumptive (the judge is expected to
sentence within the prescribed range or provide written reasons for departure).
Sentencing guidelines are generally developed by a guidelines commission
rather than by the legislature, and departures are subject to appellate review
(Bureau of Justice Assistance 1996b).
In the move away from indeterminate sentencing, some states have adopted
wholly determinate sentencing systems. However, the majority have either
adopted sentencing guidelines or simply overlaid the existing indeterminate

structure with selectively applied mandatory minimum sentences.10 Many also
added mandatory minimum laws, defined as “a minimum sentence that is
specified by statute for all offenders convicted of a particular crime or a
particular crime with special circumstances” (Bureau of Justice Assistance 1996b).
The new wave of structured sentencing reforms appealed to those who sought
increased fairness and equity in sentencing as well as supporters of a system
which emphasized deterrence and incapacitation. Thus, with this widespread
support, the existing indeterminate sentencing structures of most states were
replaced or augmented with a guidelines-based or determinate sentencing
scheme. The specific goals and mechanics of these systems, however, were
frequently only vaguely defined by the legislature, incorporating broad
sentencing ranges and ambiguous rules of application—a conscious effort to gain
the widest support possible. Though this tactic ensured that the reforms were
adopted, it placed much of the responsibility for determining the eventual
impact of the laws in the hands of those implementing the reform (most
frequently prosecutors), rather than with the legislators who developed them
(Griset 1995; Wicharaya 1995). As a result, even within the same state, these laws
were implemented differently across jurisdictions, thereby perpetuating the
disparities of the indeterminate sentencing schemes being replaced.

“Get-Tough” Sentencing
A rising crime rate and intensified media coverage of the issue led to an
increased public awareness of violent crime in the early 1990s. Between 1991 and
1994, CNN coverage of violent crime increased nearly ten-fold, the number of
New York Times articles more than doubled, and network television coverage
more than tripled.11 Fear of crime, in terms of those who were “truly desperate”
about crime, nearly doubled from 1989 to 1994, from 34% to 62% (Davis 1997).
Within this environment, it became increasingly common for legislators to
introduce “get-tough” sentencing legislation.
As with all forms of sentencing, the specifics of “get-tough” legislation vary by
state. In general, the term encompasses both mandatory minimum and truth-insentencing laws. While the mandatory minimum laws of the 1990s increased
_________________
10 As of 1994, 12 states had wholly determinate sentencing systems, 8 had partially determinate
systems, 22 had indeterminate sentencing systems, 7 had partially indeterminate sentencing systems,
16 had sentencing guidelines, and all 50 had mandatory minimum penalties (Bureau of Justice
Assistance 1996b).
11 Source: RAND/Center for Media and Public Affairs analysis of 1991-1994 CNN, New York
Times, ABC, CBS, and NBC reporting trends.

sanctions for specified offenses, truth-in-sentencing laws are designed to ensure
that offenders serve a significant portion of the sentence imposed (generally
85%). Particularly when used in combination, truth-in-sentencing and
mandatory minimum laws ensure that offenders serve longer sentences than had
been the norm under previous systems.
In 1994, the Violent Offender Initiative/Truth-in-Sentencing (VOI/TIS)
legislation was passed, lending federal support to the “get-tough” movement.
This legislation, which provided qualifying states with additional funding for
construction or expansion of existing facilities, has often been cited as a
contributing force behind the “get-tough” reforms of the 1990s. It is important to
note, however, that many states had developed, or were considering, such
legislation prior to passage of VOI/TIS. In his analysis of the movement, Parent
recognizes the state and local level forces behind the reform, characterizing them
as a “visible response to public outcries following heinous or well-publicized
crimes” and a means of conveying the message that “certain crimes are deemed
especially grave and that people who commit them deserve, and may expect,
harsh sanctions” (Parent, et al. 1997).

Mandatory Minimum Sentencing
In keeping with the wave of “get-tough” sentencing, all 50 states had adopted
some form of mandatory minimum sentencing as of 1994 (Parent, et al. 1997).
While mandatory minimums remain part of the arsenal of “get-tough” measures,
there are some notable differences when compared to previous systems. In the
past, mandatory minimum penalties were reserved primarily for a small group
of habitual offenders. In recent years, however, these laws have been applied to
a wider array of criminal circumstances, including first time and non-violent
offenses. Nonetheless, the majority of these laws still target repeat and violent
offenders, imposing lengthy prison terms. Despite variation in the specific
criminal circumstances addressed by mandatory sentencing laws, they all share
in common the dual goals of deterring future criminal behavior and
incapacitating dangerous offenders.

Effectiveness of Mandatory Minimums
Mandatory minimum penalties to deter future crimes and incapacitate convicted
offenders are not new. This form of sentencing has survived indeterminate and
structured sentencing and exists as part of the current “get-tough” movement.
However, while most states maintained mandatory penalties for selected crimes,

these laws have not been found effective in achieving stated goals of reducing
crime through deterrence and incapacitation, and have led to disparate
application of the law (Tonry 1992). The following sections summarize some of
the most relevant evaluations of mandatory minimum sentencing, focusing on
the role of implementation in determining impact and the difficulties associated
with achieving effective deterrence and incapacitation through existing
mandatory minimum sentencing systems, and measuring their impact.
Relationship Between Implementation and Impact. As noted, the majority of
states operated under an indeterminate sentencing structure through the mid1970s. However, most maintained mandatory minimum penalties for selected
offenses. In an effort to determine the efficacy of these laws, numerous
evaluations examining the implementation and impact of mandatory minimums
were conducted during the 1970s. Among the first empirical evaluations of
mandatory minimum sentencing policies, these studies brought to light some of
the problems associated with mandatory minimum legislation as implemented.
Massachusetts’s Bartley-Fox Amendment (BFA), passed in the 1970s, required a
one-year term of incarceration for the carrying of an unlicensed firearm.
Evaluations of the BFA found that its passage altered both arrest and prosecution
patterns. Rossman’s 1979 analysis of the amendment found that gun possession
arrests decreased following passage of the new law, while gun seizures without
arrest increased, indicating a change in arrest behavior in order to avoid the
mandatory sanctions associated with gun possession. Case processing patterns
also changed during this period. Following passage of the BFA, affected cases
were more likely to end in either dismissal or acquittal than had been the norm
prior to passage. And though fewer offenders were convicted of gun-carrying
following passage of BFA, those who were convicted were incarcerated in 100%
of the cases (Rossman, et al. 1979).
The Michigan Felony Firearms Statute (MFFS), enacted in 1977, required a twoyear mandatory term of imprisonment for possession of a firearm during the
commission of a felony. Like the previously discussed laws, the MFFS led to a
marked shift in case processing practices. Evaluations of this law focused on the
mechanism by which these shifts occurred and concluded that the prosecutor
was most influential in determining how, and to what extent, these laws were
implemented. Further, differences in prosecutorial behavior led to variation in
the law’s impact across sites. Although the law required mandatory imposition
of an enhanced penalty following conviction, the prosecutor retained significant
discretion in choosing how to charge a given criminal action (Bynum 1982;
Heumann and Loftin 1979; Loftin and McDowall 1981; Loftin, Heumann, and
McDowall 1983).

The overwhelming finding of these studies was that the new laws, though
mandatory, could not ensure either certainty or severity in sentencing. Instead,
through the circumvention of police and prosecutors, it was quite possible that
they would result in a reduction of convictions and an increase in sentencing
disparity. In other words, it was now the police and prosecutors who had
assumed primary decision-making responsibility for the sentencing decision, in
that they now determined who would be subjected to the mandatory penalty.
Importantly, because these decisions were not being made in open court, it was
unclear what the criteria for selecting an “appropriate” case was, or how
offenders who were fully prosecuted under the law differed from those who
were not.
Evaluations of more recent mandatory minimum laws and their impact have
produced the same general findings as studies conducted in the 1970s and 1980s.
They have, however, provided a clearer understanding of the mechanisms by
which these laws are circumvented. In its 1993 report on prosecutorial practices
under mandatory minimum laws, the U.S. General Accounting Office (USGAO)
identified numerous means by which prosecutors were able to avoid prosecuting
under the legislation. Reportedly, several districts avoided imposition of the
mandatory penalties by charging under alternative statutes or by establishing
prosecutive thresholds. These prosecutive thresholds establish the type, level,
and severity of cases a U.S. Attorney’s office will prosecute or decline to
prosecute. Thresholds are set by individual district offices and can be used to
screen out cases that are potentially eligible for prosecution under mandatory
minimum laws. Additionally, the study found that it was the policy in certain
districts to charge individuals apprehended as drug couriers, though technically
eligible for mandatory minimum prosecution, for lesser offenses. In other
districts, imposition of the mandatory minimums was avoided through a practice
of “limiting proof.” In these instances, prosecutors actively sought to limit the
evidence considered in prosecuting a case in an effort to avoid imposing
mandatory minimums. Other means of avoiding or reducing mandatory
minimum charges included dividing the “load” between codefendants in order
to reduce the criminal exposure of each, dismissing the mandatory minimum
gun count to secure a plea, or refraining from seeking a readily provable
enhancement (USGAO 1993).
Though the USGAO report describes a variety of adaptive responses to the
implementation of mandatory minimum laws, plea negotiation is the most

commonly cited means of circumventing the legislation. Plea negotiation12 can
take the form of either charge bargaining or sentence bargaining. Under
mandatory minimum laws this negotiation generally takes the form of charge
bargaining. While mandatory minimum laws preclude sentence bargaining,
whereby a prosecutor offers the defendant a reduced sentence in exchange for a
plea, it is permissible for the prosecutor to offer the defendant a reduced charge in
exchange for a plea. In such a situation, the prosecuting attorney can negotiate
the charge—including lowering the current charge to a “lesser included offense.”
More importantly, the district attorney retains the authority to decide whether to
file charges in the first place, so the prosecutor can circumvent the mandatory
law by not filing charges or by filing lesser charges, perhaps as part of a plea
bargain agreement. In so doing, the prosecutor is able to avoid taking the case to
trial and is generally able to demand a longer term of incarceration than would
be possible were it not for the “hammer” of threatened prosecution under
mandatory laws. This fact was acknowledged by federal prosecutors in the
United States Sentencing Guidelines Commission report on mandatory
minimums in which “Inducement of Cooperation” and “Inducement of Pleas”
are listed among the primary reasons given in support of mandatory minimum
legislation. In the report, prosecutors stated that
“...the value of a mandatory minimum sentence lies not in its imposition,
but in its value as a bargaining chip to be given away in return for the
resource-saving plea from the defendant to a more leniently sanctioned
charge.” (United States Sentencing Guidelines Commission, 1991)

Indeed, it is this use of mandatory minimum penalties as a “bargaining chip”
during plea negotiations which makes the laws so useful to prosecutors and
leads to another common consequence of the legislation—the “ratcheting up” of
sanctions for related offenses. When a prosecutor offers to accept a defendant’s
plea for a “mandatory alternate offense” (a lesser included offense), he does not
do so without imposing a penalty. In order to reduce the charge from one which
requires imposition of a mandatory term to one which does not, the prosecutor
generally requires the defendant to accept a sentence greater than what would
previously have been the “going rate” for the given offense. The “going rate” is
also affected by the more serious nature of offenders charged with related
offenses. Before mandatory minimums, an offender would have been charged
with the higher offense, and in many cases would have received a sentence
similar to the higher sanction for the related offense.
_________________
12 Plea negotiation is generally defined as negotiation between the defendant, defense attorney,
and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere
in exchange for a reduced charge or sentence.

Deterrence and Incapacitation. “Get-tough” laws such as Oregon’s Measure 11
are primarily designed to incapacitate current offenders and deter future crime
as a means of reducing crime in general. However, the effectiveness of such laws
to achieve these goals is difficult to prove. Although the sanctions associated
with current mandatory minimum laws are severe, it is widely acknowledged
that punishment under the current criminal justice system comes neither quickly
nor assuredly—prerequisites for effective deterrence (Beyleveld 1992). Nor is it
clear that the offenders most likely to commit future crimes are those targeted by
the laws—an essential element of effective incapacitation strategies.
While incapacitation of the most dangerous repeat offenders could be expected
to reduce crime, there is no evidence that current mandatory minimum laws
effectively target these offenders or reduce the length of their offending career.
This argument is based on the fact that most serious offenders tend to end their
criminal careers by their early twenties (Tonry 1996). Because the majority of
“get tough” laws target repeat offenders, by the time an offender qualifies for the
enhanced penalty, he is very likely near the end of his career. As a result,
lengthy confinement would have a very limited preventive effect (Tonry 1996).
However, Measure 11 differs from other mandatory minimum laws, in that it
does not target only repeat offenders. Therefore, Measure 11 might avoid the
critique of other “get tough” laws for targeting offenders only at the end of their
careers, but Measure 11 also imposes lengthy sentences for individuals who may
never actually become high-rate offenders.

Effect on Balance of Courtroom Power
As noted above, the final impact of any sentencing reform depends upon the
manner in which it is implemented. Previous studies examining implementation
of mandatory minimum sentencing policies indicate that the anticipated impact
of such legislation is frequently overestimated, largely because these laws are not
fully implemented (Everingham and Merritt 1998; Everingham, et al. 1999).
Numerous factors, including changes in crime rates and demographic trends, as
well as subsequent court rulings and passage of new legislation, play a part in
determining the final impact of these laws. Of critical importance, however, are
the implementation practices adopted by key criminal justice players (Reitz 1998;
Tonry 1996; USGAO 1993; Vincent and Hofer 1994; Wicharaya 1995).
Traditionally, there has been a system of checks and balances within the
courtroom wherein each of the parties involved in the adjudication process—the
judge, district attorney, and defense—wield a certain amount of power and are
able to exert influence over the outcome of each case. It is widely understood,

however, that adoption of mandatory sentencing policies has shifted this
balance, providing the district attorney’s office with far greater authority over
case outcome than is provided other system actors (McCoy 1998; Misner 1996).

Importance of Prosecutorial Discretion
As discussed previously, the increased authority of the prosecutor under
mandatory minimum sentencing affects case processing in several ways. Under
the new “get-tough” laws, prosecutors retain the authority to determine which
offenders are prosecuted, while judges lose much of their authority over the
sentencing process.13 As a result, “mandatory” minimum penalties are
selectively applied, with the district attorney wielding the greatest authority in
determining which cases will be charged under the new laws (McCoy and
McManimon 2002; Misner 1996; Tonry 1996). This shift has been reported in
nearly every jurisdiction where “get-tough” legislation has been implemented
(Feeley and Kamin 1996; Vincent and Hofer 1994; Wallace 1993), and occurs
because, under the language of the new laws, it is the prosecutor who determines
which cases are “appropriate” for imposition of the most severe sanctions.
This shift in decision-making authority is significant in that, unlike the judge, the
prosecutor is not a neutral party, but rather serves as an advocate of the state.
Moreover, prosecutorial decision-making, unlike that of other courtroom actors,
is rarely subject to review and does not occur in open court. This less public
process potentially allows for the development of charging practices which rely
on extra-legal, as well as legal, case characteristics.
At the same time, the severe sanctions associated with the new laws, and the
district attorney’s right to dismiss the charges, provide prosecutors with
enhanced plea bargaining tools which are unmatched by the defense. This shift
in courtroom influence is acknowledged by all courtroom actors: the judiciary
who feel that the new laws have stripped them of authority and discretion, the
defense who bemoan their inability to bargain for a “fair” settlement, and the
district attorneys who view passage of the laws as a positive development,
providing a valuable tool with which to ensure that severe sanctions are imposed
in appropriate cases (Merritt, et al. 1999).
With the power wielded by the prosecutor, local jurisdictions have substantial
discretion in implementing mandatory “get-tough” policies. While this
_________________
13 In Oregon, some discretion has been returned to the judge through SB 1049 and HB 2379,
which allow sentences less than the Measure 11 mandatory minimum for certain offenses, provided
specific criteria are met.

discretion allows localities to focus criminal justice resources on the crime
problems perceived to be most detrimental to the community, it also has the
potential to allow for differential implementation of the penal code across
communities. Thus, “get-tough” legislation, though intended in part to reduce
variation in the system, can actually be a source of increased disparity.

Expected Impacts
With the passage of “get-tough” laws in the 1990s, practitioners throughout the
criminal justice system anticipated extensive system impact (Merritt, et al. 1999).
These predictions were based on the assumption that the laws would be fully
implemented. As discussed above, however, full implementation rarely occurs.
Instead, system actors generally adapt to the system changes fairly rapidly,
altering their behavior and system processes in response to the new mandates.
In preparing for the implementation of “get-tough” legislation, many
jurisdictions believed that the court, prison, and jail systems would be
overburdened to the point of inoperability. It was assumed that affected
defendants, faced with severe mandatory penalties and no apparent incentive to
enter a guilty plea, would demand jury trials, thereby slowing case processing
and increasing jail backlog. Given the increased case processing times associated
with jury trials, jails would be called upon to house more pre-trial detainees,
holding them for longer periods of time. Under such circumstances, local
facilities would be forced to either house more offenders, shift lesser offenders to
the probation caseload, or release some offenders unsupervised into the
community. As a consequence, felons would comprise a greater proportion of
the local jail population. This, in turn, would necessitate “facility hardening”—
enhancement of facility security through increased staffing, use of weaponry,
and structural alterations.
Similarly, prison admissions were expected to increase under these new laws as
more offenders received mandatory terms of incarceration. Prison populations
would then increase as admissions increased and sentences lengthened. As with
the jails, it was anticipated that prisons would require increased security and
facility enhancements as offenders were admitted with longer terms and no
opportunity for “earned time” reduction in actual time served. Such a policy
change might be tempered, however, by plea bargaining.

3. History of Criminal Sentencing in
Oregon
Oregon, like most states across the nation, maintained an indeterminate criminal
sentencing system through the 1980s. However, as the decade drew to a close,
there was growing concern regarding what were frequently viewed as disparate
and discriminatory sentencing and release practices. As a result of these
concerns, Oregon was among the first states to pursue sentencing reform,
originally through the adoption of parole guidelines, then by development of
sentencing guidelines, and finally through implementation of Measure 11 and
mandatory minimums.
In this chapter, we examine the context within which Oregon adopted Measure
11, the characteristics of the measure, and subsequent related legislation,
answering the following research questions:
•

What was the sentencing context in which Measure 11 was
implemented?

•

What other sentencing reforms and major changes had occurred in the
state prior to 1994 when the measure was approved by Oregon voters?

Parole Guidelines
The first recent change to Oregon’s sentencing system took the form of parole
guidelines. As with many sentencing reforms, adoption of Oregon’s parole
guidelines system was made possible by a somewhat disparate coalition of
supporters whose goals were often in conflict. Following two widely publicized
violent crimes committed by offenders on release status in the mid-1970s,
support for a more restrictive sentencing system had increased. At the same
time, many community members believed that prison overcrowding had led to
release policies based on space availability rather than offender readiness.
Further, indeterminate sentencing was under attack by those who sought to
enhance the consistency and predictability of sentencing practices. As in many
states, these disparate interests combined to promote modification of what was
increasingly viewed as an arbitrary and unpredictable sentencing system.

By the mid 1970s, reform efforts turned towards prisoner release mechanisms
and the development of parole guidelines. By 1977, a revised parole release
system had been developed and adopted by the legislature. This reform,
however, was limited in that it affected only one aspect of the sentencing
process—parole.

Sentencing Guidelines
In 1987, after more than a decade of increasing prison crowding, several failed
attempts to pass prison construction funding measures, and a federal courtimposed prison population cap, Oregon was prepared to undertake more
comprehensive sentencing reform efforts. That year, a sentencing guidelines
board was established, charged with the development of a new state sentencing
structure. The primary goal of this reform, as expressed in the authorizing
legislation, was “to punish each criminal offender appropriately and insure the
security of the public in person and property.”14 At the same time, the board
was guided by a set of principles emphasizing truth-in-sentencing and the need
to conserve correctional resources, so as to avoid “overrunning” the state’s
institutional capacity to respond appropriately to the problem of crime, as well
as to any violations of post-prison and probation supervision.
In 1989, as a first step towards achieving these goals, the board introduced truthin-sentencing. This was accomplished by abolishing the existing indeterminate
sentencing system, terminating use of the Oregon’s parole-release matrix system,
and providing that prison sentences would henceforth represent the actual time
served, subject only to an authorized “earned time”15 discount (a maximum of 20
percent of the total sentence) to encourage positive behavior among inmates. A
presumptive sentencing scheme was developed to promote consistency in
judicial sentencing practices. This sentencing system was structured within a
guidelines grid with a “just deserts” orientation based on the seriousness of the
crime of conviction and the offender’s criminal history.
Within the framework of sentencing guidelines, Oregon placed strong limits on
the use of jail and other forms of custodial non-prison probation sanctions.
These restrictions were prompted by existing conditions of jail over-crowding,
the result of an over-crowded prison system. By design, these guidelines
__________________
14 Oregon Laws 1987, Chapter 619, Section 2.
15 “Earned time” refers to a reduction in prison time due to good behavior, resulting in a
discrepancy between the original sentence and the time actually served. Earned time is also referred
to as “good time” or “gain time.”

reserved the state prison sanction primarily for crimes of violence, threats to
persons, drug manufacture and delivery, and residential burglary. Most nonviolent property felonies, as well as the majority of drug offenses, were rated
below the dispositional line16 that marks the point of separation between prisonpresumptive and probation-presumptive sentences. Though the guidelines were
designed to reduce sentencing disparity and facility over-crowding, they were
criticized for being too restrictive of judicial behavior, particularly as related to
upward departures and consecutive sentences.
Oregon’s sentencing guidelines use seriousness of the instant offense, along with
an individual’s criminal history, to set presumptive sentences. An offender’s
criminal history is classified on a scale from A through I, with A being the most
serious, and I indicating no juvenile adjudication for a felony and no adult
conviction for a felony or Class A misdemeanor. Criminal history includes all instate convictions and adjudications and, when available, federal and out-of-state
convictions. For a complete description of each category, see Table 3.1. The
sentencing guidelines grid, which specifies the type and length of sentence
imposed, is displayed in Table 3.2. Each block in the grid above the dispositional
line gives a range of months, within which a judge selects a term of
imprisonment.
Though the guidelines curtailed the discretion permitted under the state’s
indeterminate sentencing scheme, which was bound only by maximum statutory
limits, the new system maintained some degree of judicial freedom by permitting
sentencing within a range (rather than prescribing a set sentence length) and by
allowing for sentence modification based upon aggravating and mitigating
factors. As designed, the guidelines called for the imposition of the presumptive
sentence for the “typical” case. Under guidelines, the judge was required to
provide a “substantial and compelling” reason17 for departure on the record.

Mandatory Minimum Sentencing—Measure 11
Despite what many considered the success of sentencing guidelines in reducing
judicial disparity, increasing truth-in-sentencing, and making efficient use of
correctional facilities, pressure to reform the state’s sentencing system resumed
in the early 1990s.
_________________
16 Also known as the “in/out” line.
17 Where “substantial and compelling reasons” support a departure from the presumptive
range, a judge must state these reasons for the record and may impose a sentence outside of the range
(upward to a limit of twice the guideline’s presumptive duration or downward to a shorter prison
term or probation). A sentencing departure is subject to appeal by both the defendant and the state.

Table 3.1
Oregon Criminal History Categories18
Category

Criminal History

Three or more person felonies in any combination of adult convictions or
juvenile adjudications

Two person felonies in any combination of adult convictions or juvenile
adjudications

One adult conviction or juvenile adjudication for a person felony, and one or
more adult conviction or juvenile adjudication for a non-person felony

One adult conviction or juvenile adjudication for a person felony but no adult
conviction or juvenile adjudications for a non-person felony

Four or more adult convictions for non-person felonies but no adult
conviction or juvenile adjudication for a person felony

Two or three adult convictions for non-person felonies but no adult
conviction or juvenile adjudication for a person felony

Four or more adult convictions for Class A misdemeanors; one adult
conviction for a non-person felony; or three or more juvenile adjudications
for non-person felonies, but no adult conviction or juvenile adjudication for a
person felony

No adult felony conviction or juvenile adjudication for a person felony; no
more than two juvenile adjudications for non-person felonies; and no more
than three adult convictions for Class A misdemeanors

No juvenile adjudication for a felony and no adult conviction for a felony or
Class A misdemeanor

The impetus behind this phase of reform has been attributed to a variety of
factors, among them the national trend towards “get-tough” legislation in the
wake of rising crime rates, availability of federal funds to support such
legislation, fear of juvenile crime, and the reported perception among some
voters that sentencing guidelines were too lenient. However, there was no
organized reform movement until 1993, when the cause was taken up by an
Oregon legislator who introduced a bill designed to increase sanctions under
sentencing guidelines and to allow for mandatory remand of juveniles to adult
court if charged with certain first-degree violent crimes. This bill failed to make
it through the legislature, reportedly due to concerns about the associated costs
and severe sanctions.
__________________
18 Oregon Administrative Rule 213-004-0007 defines criminal history categories.

Table 3.2
The Oregon Sentencing Guidelines Grid

Crime Seriousness
11
10
9
8

A
225-269
121-130
66-72
41-45

B
196-224
116-120
61-65
35-40

C
178-194
111-115
56-60
29-34

D
164-177
91-110
51-55
27-28

E
149-163
81-90
46-50
25-26

31-36

25-30

21-24

19-20

16-18

25-30

19-24

15-18

13-14

10-12

15-16

13-14

11-12

9-10

6-8

10-11

8-9

120
60
90
30
90
30

120
60
120
60
90
30
90
30

3
2
1

F
135-148
71-80
41-45
23-24
180
90
180
90
180
90
120
60
120
60
90
30
90
30

G
129-134
66-70
39-40
21-22
180
90
180
90
120
60
120
60
90
30
90
30
90
30

H
122-128
61-65
37-38
19-20
180
90
180
90
120
60
120
60
90
30
90
30
90
30

I
120-121
58-60
34-36
16-18
180
90
180
90
120
60
120
60
90
30
90
30
90
30

Prob.
Term

Max Disp
Depart

PostPrison
Sup.

5 Years
3 Years
3 Years

2 Years

1 1/2
Years

18
Months

12
Months

6 Months

2 Years

1 Year

The presumptive grid block for any felony conviction is the intersection where the crime seriousness ranking and the criminal history classification meet.
Grid blocks in the unshaded area represent the range of presumptive imprisonment and post-prison supervision (PPS). Shaded grid blocks are presumptive
sentences of probation (Prob. Term) with local custodial sanctions (upper number) and maximum jail without a departure (lower number).
The probation term of 5 years applies to levels 9-11, the term of 3 years applies to levels 6-8, 2 years applies to levels 3-5, and 1 ½ years applies to levels 1-2.
The upward dispositional departure maximum sentence (Max Dispositional Depart) for a presumptive probation sentence shall be:
•

Up to six months for offenses classified in Crime Categories 1 and 2, or grid blocks 3-G, 3-H and 3-I

•

Up to twelve months for offenses classified in grid blocks 3-A through 3-F, 4-C through 4-I and 5-G through 5-I

•

Up to eighteen months for offenses classified in grid blocks 5-F, 6-F through 6-I, and 7-F through 7-I

Under certain conditions a probation sentence may be imposed in grid blocks 8-G, 8-H and 8-I without a departure.

Though the legislator failed to win legislative support for the bill, he continued
his efforts, shifting tactics by presenting his reforms to the public in the form of
three ballot measures. Of these, Measure 11 had the potential to most
significantly alter sentencing practice by requiring comparatively long
mandatory minimum sentences for offenders convicted of 16 specific offenses,19
regardless of criminal history. As Measure 11’s author put it:
“Accountability was the key component. The crime itself defined the time
in prison. It would be the minimum necessary for a criminal to be held
accountable. We recognize there likely would be a deterrent effect, but we
preferred—and still prefer—that the critical component for public safety
was incapacitation through incarceration.”20

Under Measure 11, these enhanced sanctions would be applied to juveniles age
15 and older, as well as to adults convicted of the specified offenses.21 A
companion measure, Measure 10, was proposed at the same time. This measure
took the form of a constitutional amendment and required approval of twothirds of the legislature in order to reduce any of the sanctions established under
Measure 11 (Article IV, Section 33). Finally, Measure 17 required that all state
prison inmates either work or participate in job training, education, drug
counseling, or treatment while in Department of Corrections institutions (Article
I, Section 41).

Support of Measure 11
All three of these measures passed in 1994, due in part to the support of a retired
businessman and regular contributor to Oregon political campaigns. Reportedly,
he provided financial backing for the effort and was instrumental in shaping the
final measures as presented to the public, suggesting both the mandatory
sanctioning requirement of Measure 11 and the two-thirds legislative approval
requirement of Measure 10.22 These two changes significantly altered the
potential impact of the new measures in a number of respects. First, by
__________________
19 These include murder, manslaughter in the first degree, manslaughter in the second degree,
assault in the first degree, assault in the second degree, kidnapping in the first degree, kidnapping in
the second degree, rape in the first degree, rape in the second degree, sodomy in the first degree,
sodomy in the second degree, unlawful sexual penetration in the first degree, unlawful sexual
penetration in the second degree, sexual abuse in the first degree, robbery in the first degree, and
robbery in the second degree.
20 Letter from M11’s author to the Executive Director of the Oregon Criminal Justice
Commission, April 14, 2003.
21 ORS 137.700, ORS 137.707.
22 Interview with Measure 11 author, former Oregon state legislator, September 17, 1999. The
Oregonian, “Politics One of Tycoon’s Obsessions,” Sunday, October 8, 2000.

specifying mandatory minimum sanctions, judicial discretion to reduce sentences
was removed from the sentencing process. Further, the requirement that any
change to the measure receive two-thirds legislative approval virtually ensured
that the measures could be changed only through ballot initiative, or that only
changes with substantial consensus could be implemented by the legislature.
According to Measure 11’s author, he was originally willing to propose a version
of Measure 11 which would prescribe a sentence alterable by the judge through
consideration of aggravating or mitigating factors. Further, although he had not
previously planned to propose the two-thirds requirement specified by Measure
10, he was willing to make these changes in order to gain the necessary financial
backing to promote the measures.23
Passage of the measures was aided by the support of one of Oregon’s most
influential victim’s rights groups, Crime Victims United (CVU). Although the
CVU constituency had no role in developing Measure 11, and the directors
actually objected to certain elements of it, they agreed to support the effort when
approached by its author. This support was granted largely because the
directors felt that Measure 11 represented an improvement over sentencing
guidelines. In their opinion, sentencing guidelines had been forced upon the
public by liberal interest groups concerned more with financial issues and the
availability of prison space than with establishing appropriate sanctions.24 With
the financial backing of the retired businessman, and the support of CVU,
enough signatures were gathered to ensure that the measures would be placed
on the 1994 ballot.

Opposition to Measure 11
There was reportedly little organized opposition to Measure 11. Though it is
generally acknowledged by interviewees that the majority of the defense bar, as
well as certain prosecutors, legislators, judges, and political interest groups
opposed passage of the measure, very few of these individuals thought that there
was any real possibility it would be voted into law. Reasons cited for opposing
the measure included concerns regarding its potential cost, inflexibility in
crafting appropriate sentences, failure to provide for judicial discretion, and
potential for abuse in obtaining guilty pleas.25 Opponents, primarily
_________________
23 Interview with Measure 11 author, former Oregon state legislator, September 17, 1999.
24 Interview with former Directors of Crime Victims United, September 13, 2000.
25 Interviews with Criminal Defense Attorney, Juvenile Rights Project, and Criminal Defense
Attorney and Lobbyist, Oregon Criminal Defense Lawyer’s Association, August 17, 1999.

practitioners familiar with the workings of the state criminal justice system,
thought that these concerns would be evident to, and shared by, the general
public.26
What opponents of Measure 11 did not anticipate was the well-funded campaign
in support of the measure. This campaign successfully convinced voters that
lenient sentences were routinely meted out for violent offenses. At the same
time, there was increasing public awareness of the rising violent crime rate and
growing concern about the rise in juvenile crime. With no organized opposition
to the campaign, voters supported the proposed measure, which appeared to
offer a more consistent and appropriate form of sanction than existing
guidelines.27
Once the effect of this campaign became apparent, efforts were made by
members of the Oregon Criminal Defense Lawyers Association and the National
Council of Crime and Delinquency to educate the public about current
sentencing practices and the potential impact of Measure 11. These efforts,
however, were poorly funded—generally taking the form of under-promoted
public presentations or newspaper editorials—and had only minimal impact.

Passage of Measure 11
Ballot Measure 11 was passed by voter initiative in November 1994 and went
into effect on April 1, 1995. The measure, which passed by a margin of 65% to
35% of voters, originally covered 16 offenses but was revised in the next
legislative session to include two additional offenses.28 These changes became
effective on June 30, 1995. Senate Bill 1049, passed in 1997, added three more
offenses29 to the list of those covered by Measure 11, increasing the total number
of Measure 11 offenses to 21. SB 1049 also allowed for sentences less than the
Measure 11 mandatory minimum in Assault II, Kidnapping II, and Robbery II
cases, provided that certain criteria were met. See Table 3.3 for complete listing
of M11-eligible offenses and sanctions.
__________________
26 Interview with Criminal Defense Attorney and Lobbyist, Oregon Criminal Defense Lawyer’s
Association, August 17, 1999.
27 Interview with former Executive Director of the Oregon Criminal Justice Council, August 17,
1999.
28 Offenses added in 1995 included attempt or conspiracy to commit aggravated murder and
attempt or conspiracy to commit murder.
29 Offenses added in 1997 included compelling prostitution, using a child in a display of
sexually explicit conduct, and some first-degree arson offenses (only where the offense represents a
threat of serious physical injury).

Table 3.3
Offenses Requiring Imposition of Mandatory Minimum Prison Sentences Under
Oregon’s Ballot Measure 11

Offense
Murder
Attempt agg. murder
Manslaughter I
Rape I
Sodomy I
Sexual penetration I
Kidnapping I
Arson I
Assault I
Attempted murder
Robbery I
Manslaughter II
Rape II
Sodomy II
Sexual penetration II
Sexual abuse I
Assault II
Kidnapping II
Robbery II
Child display sex act
Compel prostitution

ORS
163.115
163.095X
163.118
163.375
163.405
163.411
163.235
164.325
163.185
163.115X
164.415
163.125
163.365
163.395
163.408
163.427
163.175
163.225
164.405
163.670
167.017

Case Severity
(Sentencing
Guidelines)
11
10
10
10, 9
10, 9
10, 9
10
10
10, 9
9
9
8
8
8
8
8
9
9
9
8
8

M-11 Minimum
Prison Sentence
(in months)
300
120
120
100
100
100
90
90
90
90
90
75
75
75
75
75
70
70
70
70
70

Note: When a person is convicted of the offenses listed in this table and the offense was
committed on or after April 1, 1995 (or after October 4, 1997, for the Measure 11 offenses
added later), the court must impose, and the person must serve, at least the entire term of
imprisonment. The person is not, during the service of the term of imprisonment, eligible for
release on post-prison supervision or any form of temporary leave from custody. The person
is not eligible for any reduction in the sentence for any reason whatsoever under ORS 421.121
or any other statute. The court may impose a greater sentence if otherwise permitted by law,
but may not impose a lower sentence than the sentence specified in this section (ORS 137.700).

Passage of Measure 11 greatly changed Oregon sentencing practices, setting in
place a schedule of comparatively long mandatory minimum prison terms which
override the state’s sentencing guidelines for 21 serious felonies ranging from
murder and manslaughter down to second-degree robbery.30 This schedule
builds upward from a minimum prison term of 70 months for the least serious
offenses covered under Measure 11—these include second-degree assault,
kidnapping, robbery, using a child in a display of sexually explicit conduct, and
compelling prostitution—to 300 months for murder. Because sentencing
guidelines penalties vary depending upon both instant offense and prior record,
whereas Measure 11 minimum sanctions are based on instant offense alone, it is
_________________
30 Presumptive guidelines sentences for some offenses exceed the Measure 11 minimums for
people with more serious criminal histories.

not possible to provide a simple offense-based comparison of the differences in
penalties between the two systems.
Additionally, offenders sentenced under Measure 11 are not eligible for release
on post-prison supervision or any form of temporary leave from custody, nor are
they eligible for a reduction in sentence. The court may impose a greater
sentence if otherwise permitted by law, but it may not impose a lower sentence
than that specified by the measure. Measure 11 also mandates that juveniles
aged 15 years or older be tried as adults if charged with one or more of the 21
enumerated felonies.
To illustrate the differences between sentencing guidelines and Measure 11, we
compare sentences for two commonly sentenced M11-eligible offenses. Under
sentencing guidelines, an offender in criminal history category I (no prior record)
who was convicted of Sex Abuse I could be sentenced to as little as 16 months in
prison. If the same offender were in criminal history A (multiple prior felonies
against persons), the sentence would be 41-45 months. Under Measure 11, this
offender would receive a minimum prison sentence of 75 months, regardless of
criminal history. A second-degree robbery offender in category I would have
been sentenced to 34-36 months in prison under sentencing guidelines, while a
similar offender in category A would receive a 66-72 month sentence. Under
Measure 11, the minimum prison sentence would be 70 months (unless the
offender qualified for a lower sentence under SB 1049, as explained below).
Following passage of the measure, Measure 11’s author and the co-directors of
CVU reportedly tried to persuade the legislature to allow SB 1049-like exceptions
for certain sex crimes. Their concern was that victims would be less likely to
testify in certain consensual or familial sex cases, given the lengthy mandatory
terms required by the measure.31 However, because Measure 11 had been
passed by ballot measure, and Measure 10 required a two-thirds majority vote
for any change made by the legislature, the measure could not be revised
without such a majority.
Passage of Measure 11 was expected to impact not only sentencing practice, but
the use of correctional resources as well.32 Responding to the anticipated impact
of this measure upon state prison populations, the legislature enacted Senate Bill
1145 (SB 1145) in 1995. The bill, which went into effect on January 1, 1997, was
designed to shift responsibility for all offenders with a prison sentence of one
year or less to the counties. This group of offenders consisted primarily of
__________________
31 Willamette Week, “Megalo Mannix,” January 31-February 6, 1996.
32 Interview with former Director of Oregon Department of Corrections, September 12, 2000.

persons revoked from supervision (probation, parole, and post-prison
supervision), or those who were sentenced under guidelines to 12 months or less
in prison.

Measure 11 Modifications and Subsequent Legislation
Previous studies of mandatory minimum sentencing laws have shown that, once
passed, the anticipated impact of these laws are generally altered by a variety of
factors, including implementation practices, reinterpretation and redefinition of
the law, court rulings, and passage of subsequent legislation (Tonry 1996; Parent,
et al. 1997; McCoy and McManimon 2002). This reinterpretation and redefinition
is accomplished differently across jurisdictions, dependent upon the nature of
the law as passed, the local legal culture, and the political environment. In
Oregon, legislation has been the primary formal tool used to modify Measure 11,
whereas implementation practices have served as an informal means of shaping
the measure’s impact. The text of the two statutes (ORS 137.700 and ORS
137.707) that make up the current version of Measure 11 are given in Appendix
A, along with the “Measure 11 exceptions” statute (ORS 137.712), which specifies
conditions under which an otherwise M11-eligible offender may be sentenced to
less than the mandatory prison sentences imposed by Measure 11. Appendix B
gives a brief summary of legislation affecting Measure 11 that has been passed by
the legislature and signed by the governor.

Court Challenges
In many states that have implemented sentencing reform, final interpretation of
the new laws is frequently determined by court rulings raised through legal
challenge. Although Measure 11 has been challenged on a variety of points, no
appeal has been upheld to date.33 This is attributable both to the simplicity of
the measure—which requires little interpretation—and to the fact that it does not
rely upon prior history in determining sentence.
Unlike Oregon’s Sentencing Guidelines and California’s Three Strikes law, both
of which faced numerous successful court challenges and interpretations when
first implemented, Measure 11 requires consideration of only a single factor—
instant offense—in determining sanction. This has greatly reduced the need for
legal interpretation of the measure and significantly limited grounds for
_________________
33 Interviews with Chief Deputy Public Defender, Office of Public Defense Services (formerly
Oregon State Public Defender’s Office), and Attorney in Charge of Criminal Appeals, Appellate
Division, Oregon Department of Justice, August 16, 1999.

appeal.34 This is not to say, however, that Oregon’s Measure 11 has remained
unchanged since passage. In fact, impact of the measure has been altered from
its original form through both modification of the original law and passage of
subsequent legislation.

Subsequent Measure 11-Related Legislation
Attempts to modify Measure 11 or temper its impact began almost immediately
after passage. These efforts have taken the form of both legislation and ballot
measures, and have run the gamut from attempting to increase the number of
offenses covered under the measure, to overturning it completely. To date,
Measure 11 has been successfully altered to include additional offenses and to
allow below-mandatory sentencing for certain second-degree offenses, as well as
for first degree sexual abuse. Senate Bill 1145, designed to ease the anticipated
strain on prison resources caused by the measure, was passed shortly after
implementation of Measure 11. In 1997, Senate Bill 1049 added three new
offenses to those covered by Measure 11, and also exempted Assault II,
Kidnapping II, and Robbery II cases from the Measure 11 mandatory minimums,
provided that certain criteria were met. A partial text of SB 1049 is given in
Appendix C.
In 2000, Measure 94 was placed on the ballot in an effort to overturn Measure 11.
Though Measure 94 was unsuccessful, numerous pieces of legislation designed
to limit the reach of the measure have been introduced. In 2001, House Bill 2379
added additional offenses to the list of exceptions to Measure 11 mandatory
minimum sentences, again provided certain criteria were met. Many of the bills
introduced were never passed by the legislature.
__________________
34 Under other sentencing structures, the inclusion of prior record as a determinant in
establishing penalties has proven to be problematic and led to numerous court challenges and
modifications to the law. The primary objections to the use of prior record in sentencing are that it is
frequently difficult to obtain accurate records, and that available records are open to various
interpretations. Thus, it has been argued that an offender’s final sentence could be affected as much
by record keeping practices and interpretation as by criminal history.

4. Methodology
In the following chapters we assess the impact of Measure 11 and other Oregon
mandatory sentencing laws by examining trends in case processing, sentencing,
and prison admissions during the decade of the 1990s. Interviews were used to
develop a research framework and aid in the interpretation of data. Several data
sources were analyzed at both the state level and for the three most populous
counties for which complete data are available: Lane (Eugene), Marion (Salem),
and Multnomah (Portland).
Prior to undertaking our analyses of the Oregon data, over 40 interviews were
conducted with state and county stakeholders. These interviews were used to
gain an understanding of the context in which Measure 11 was passed, and the
issues of interest to those affecting, or affected by, implementation of the
measure. In addition, the information allowed us to rule out alternate
explanations for the trends observed. Follow-up interviews were conducted
with judges, prosecutors, and defense attorneys to ensure the accuracy of the
preliminary data interpretations. The research questions, listed below, were
used to guide the data analyses.

Analytic Categories
When Measure 11 took effect for crimes committed on or after April 1, 1995, it
originally included 16 offenses: Murder, Manslaughter I, Kidnapping I, Rape I,
Sodomy I, Sexual Penetration I, Assault I, Rape II, Robbery I, Assault II,
Kidnapping II, Robbery II, Manslaughter II, Sodomy II, Sexual Penetration II,
and Sexual Abuse I. Attempted Murder and Attempted Aggravated Murder
became M11-eligible as of June 30, 1995. Senate Bill 1049 added Arson I,35 Using
Child in Display of Sexually Explicit Conduct, and Compelling Prostitution as of
October 4, 1997, bringing the total number of offense codes affected by Measure
11 to 21. We refer to these offenses as “M11-eligible” because had Measure 11
been in effect in the early 1990s, these offenses would have qualified for the
mandatory minimum sentences imposed by Measure 11. For analyses in this
report, a case involving one or more of the M11-eligible offenses as the most
_________________
35 Arson I is an M11-eligible offense only if it represents a threat of serious physical injury.

severe offense in the case is designated an M11-eligible case.36 For cases that
include more than one M11-eligible offense, we determined the most severe
offense by using the rank ordering of M11-eligible offenses in Appendix D.
We refer to the lesser counterparts of these 21 offenses as “M11-alternate”
offenses. A complete list of M11-alternate offenses is provided in Table 4.1. Any
case that involves at least one M11-alternate offense—but no M11-eligible
offenses—is designated an M11-alternate case. We used Oregon’s offense
severity ranking under sentencing guidelines to determine the most severe M11alternate offense in an M11-alternate case. An example of an M11-alternate
offense is Assault III, which, unlike Assault I and Assault II, does not require any
type of mandatory minimum sentence. Very few arson cases are eligible for
prosecution under Measure 11, making analysis of this category difficult and
identification of an M11-alternate grouping potentially misleading. As a result,
we did not include an M11-alternate arson category and do not present M11eligible/M11-alternate comparative analyses for arson in this report.

Analytical Strategies
Our study relies upon several databases and numerous analyses to answer the
research questions. In Chapter 5, we assess statewide case processing and
sentencing trends during the 1990s for M11-eligible cases, as well as trends for
their lesser counterparts (M11-alternate), and for felony cases in general. The
M11-eligible/M11-alternate comparisons are performed in an effort to determine
whether there was a decrease in M11-eligible offenses, and a corresponding
increase in M11-alternate offenses, post-1995 as predicted by previous research.
In addition, we analyzed shifts in disposition method over time. These analyses
were performed to determine whether, as found in previous examinations of
mandatory minimum sentencing, there was an increase in the use of jury trials
post-Measure 11. By examining the data over time, we were able to determine
whether shifts in disposition method were temporary or permanent. These
analyses were also used to track trends in plea bargaining. Additional analyses
of demographic data, criminal history, and sentence length complete the chapter.
__________________
36 M11-eligible cases may, of course, also involve lesser charges in addition to the Measure 11
offenses. A given case is considered M11-eligible if the most serious charge is one of the offenses
specified by Measure 11.

Table 4.1
M11-Alternate Offenses

Offense
Manslaughter II attempt
Manslaughter I attempt
Assault III
Assault II attempt
Assault I attempt
Kidnapping II attempt
Kidnapping I attempt
Rape III
Rape II attempt
Rape I attempt
Sodomy III
Sodomy II attempt
Sodomy I attempt
Sex penetration foreign object II attempt
Sex penetration foreign object I attempt
Sex abuse 3 new
Sex abuse 2 new
Sex abuse 1 new attempt
Use child display sex act attempt
Robbery III
Robbery II attempt
Robbery I attempt
Prostitution compel attempt

ORS Code
Section
163.125X
163.118X
163.165
163.175X
163.185X
163.225X
163.235X
163.355
163.365X
163.375X
163.385
163.395X
163.405X
163.408X
163.411X
163.415
163.425
163.427X
163.670X
164.395
164.405X
164.415X
167.017X

Note: The “X” in the ORS Code Section column indicates attempt.

In Chapter 6, we examine the case processing and sentencing trends of youthful
offenders following passage of Measure 11. Specifically, we look at disposition
method, sentence type, and sentence length—answering the question, “Does the
measure appear to differentially affect minorities and youths?”
In Chapter 7, we look at case processing trends across the three county case
study sites. In this chapter we report on sentencing patterns, disposition
method, sentence type, sentence length, and youthful offender sentencing.
Crime rates and prison population are addressed in Chapter 8.
Our analyses of trend data are descriptive. Our purpose in this report is to
describe crime and its prosecution in Oregon before and after implementation of
Measure 11, not to draw inferences about the likely effects of such measures in
other times or places. Because our analyses and conclusions are limited to
describing this history, we do not offer significance tests for our trend analyses,
since these would imply that observed effects might be generalizable to other
settings.

In addition, we acknowledge that, because the study is primarily a description of
trends pre- and post-Measure 11, the possibility exists that results observed are
due to factors other than Measure 11. For our analysis of dispositional patterns,
case processing, and prison populations we consider this possibility very small.
Our interviews with stakeholders helped us rule out alternative explanations. In
addition, these outcomes are ones that we would expect to be directly impacted
by Measure 11. Our analysis of the impact of Measure 11 on crime rates (see
Chapter 8) discusses the more difficult causal attributions that arise in
addressing this question.

Data Sources
Table 4.2 provides a crosswalk between the research questions and the data
sources used to answer each.

Oregon Criminal Justice Commission (OCJC) Data
The Oregon Criminal Justice Commission (OCJC) maintains data on all sentences
for felony offenses in Oregon. These data are extracted from forms filled out at
the county level upon completion of sentencing. Data are available for 1993
through 1999.37 Variables of interest include criminal history, method of
disposition, county of sentencing, date of sentencing, offense codes, mitigating
and aggravating factors, sentence type and length, and demographic
characteristics. In addition to indicating trends in sentence type and amount
before and after Measure 11, OCJC data allow us to gauge the impact of prior
criminal history on sentencing and to determine method of disposition (plea vs.
trial) before and after passage of Measure 11. We also use OCJC data to examine
the possible effects of Measure 11 on the number of youths sentenced as adults,
and to track changes in disposition patterns.
__________________
37 Data on case disposition are incomplete for 1995, particularly for Multnomah County.

Table 4.2
Research Questions and Data Used for Analyses
Research Question

Data

What was the sentencing context into which Measure 11 was
implemented?

Interviews,
archival analyses

What other sentencing reforms and major changes had occurred
in the state prior to 1994 when the measure was approved by
Oregon voters?

Interviews,
archival analyses

How was Measure 11 implemented?
Were all Measure 11 eligible offenses sentenced according to the
new measure?38

Interviews,
DOC, OCJC
OCJC

Do we see changes in the manner in which offenses are
prosecuted by the district attorney?

DOC, OCJC

What are the characteristics of offenders sentenced under
Measure 11?

DOC, OCJC

Does the measure appear to differentially affect minorities and
youths?

DOC, OCJC

What impact did Measure 11 have on trial rates?

DOC, OCJC

Did the measure inundate the courts with requests for trials as
critics feared?

DOC, OCJC

What impact did the measure have on prison admissions?

DOC

What impact did the measure have on sentence length?

DOC

What were the trends in Oregon’s crime rate before and after
passage of Measure 11?

UCR

Oregon Department of Corrections (DOC) Data
The Oregon Department of Corrections (DOC) maintains data for each felony
case under the department’s supervision, including all cases sentenced to jail,
probation, prison, and local control. Data are available from 1990 through 1999.
Variables include county, offense codes, type of sentence, sentence length, time
actually served, and demographic factors. We used these data to examine trends
in the number of prison admissions for M11-eligible and M11-alternate cases
before and after the passage of Measure 11, as well as trends in sentence length.
At the state level, we examined patterns of charges, sentencing, prison
admissions, type of sentence, and sentence length. Whenever appropriate, we
_________________
38 Of necessity, answers to this research question are inferential. Statewide databases do not
specifically tag cases charged or prosecuted under Measure 11.

performed separate analyses on youthful offenders who have been sentenced as
adults. It has been suggested that passage of Measure 11 and the resultant
increase in sentences would make prison management more difficult. However,
the Oregon DOC does not keep automated incident records that would allow us
to study this aspect of Measure 11’s impact.

Uniform Crime Reports (UCR)
Since 1930, the Federal Bureau of Investigation (FBI) has administered the
Uniform Crime Reporting (UCR) Program, a nationwide cooperative statistical
effort of approximately 17,000 city, county, and state law enforcement agencies
voluntarily reporting data on crimes brought to their attention. To provide for
comparability across states in crime reporting, the UCR uses standardized
offense definitions by which law enforcement agencies submit data without
regard for local statutes. Violent and property crimes are reported; the overall
index crime rate consists of both violent and property crimes. UCR data are
collected at the state level, compiled by the FBI, and are available for national,
state, and county analyses. In Oregon, UCR data are collected and maintained
by the Department of State Police. When combined with U.S. Census estimates
of population (see below), UCR data allow us to determine a per capita rate of
reported criminal activity for a given area. We used UCR data to compare
Oregon’s crime rates with national crime rates, and to compare rates of
individual counties to statewide rates. UCR data are not necessarily a true
reflection of crime and arrests that actually occur. Known limitations include
incomplete reporting by jurisdictions across the country, potentially biased and
incomplete reporting of crimes by citizens to the police; and the extent of
information collected on each event (see Maltz 1999 for a more complete
discussion).

United States Census Data
In addition to the decennial census, the United States Census Bureau publishes
annual population estimates for each county in the country. County population
estimates are created by starting with the most recent decennial census figures
and updating these figures with information on births, deaths, and migration
between the census date and the date of the population estimate. Birth and death
data are obtained through vital statistics, domestic migration is estimated
through the address matching of federal tax returns, and international migration
data are supplied by the Immigration and Naturalization Service. County
estimates are summed to create state-level population estimates.

Bureau of Justice Statistics (BJS) Documents
Beginning in 1993, the Bureau of Justice Statistics (BJS) of the U.S. Department of
Justice has issued annual reports of the number of persons in prison at the end of
the year. These publications include counts for each state, which we used to
determine changes in Oregon prison population between 1993 and 1999.

Analyses at the County Level
In addition to the statewide analyses, we performed similar analyses for the three
selected study counties—Lane, Marion, and Multnomah—to ascertain their
similarities to, and differences from, statewide trends in case processing and
sentencing under Measure 11. The assumption underlying these analyses is that
each county will exhibit different case processing patterns due to differential
implementation of the measure.39 Selected characteristics of each county are
provided below. A detailed comparison of general demographics is provided in
Appendix E.

Multnomah County
With 660,486 residents,40 Multnomah County is the state’s most populous
county. Blacks make up 6.8% of Multnomah County’s population, more than
three times the state average. Multnomah County’s minority population is
concentrated in Portland, the county seat and most populous city in the state.

Lane County
With a population of 322,959,41 Lane County is the fourth most populous county
in the state. Eugene, home of the University of Oregon and county seat, is the
second largest city in the state.42
_________________
39 Counties may also differ in offense patterns, which may influence case processing patterns.
40 Source: U.S. 2000 Census of Population and Housing.
41 Source: U.S. 2000 Census of Population and Housing.
42 In its 2002 population estimate, the Bureau of the Census estimated that Salem had overtaken
Eugene as the second largest city in the state, by a margin of 602 persons.

Marion County
Marion County includes Salem, the state’s capitol and its third largest
metropolitan area. The county has a relatively large Hispanic population (17.1%
of the county’s population in the 2000 U.S. Census) and ranks fifth in total
population (284,834 persons in 2000)43 among all Oregon counties.
__________________
43 Source: U.S. 2000 Census of Population and Housing.

5. Case Processing Before and After
Measure 11
As we noted in Chapter 3, before the passage of Measure 11, an offender
convicted of an M11-eligible offense could be given a non-prison sentence, or a
shorter prison sentence than specified by Oregon’s sentencing guidelines, so long
as the judge justified the lesser sentence for the record. Measure 11 replaced this
sentencing scheme by dictating long mandatory minimum prison sentences for
21 violent and sex-related offenses. In addition, Measure 11 abolished the
previous practice of allowing earned time credit for reducing the amount of time
actually served in prison, and provided for mandatory waiver of youth 15 and
older to adult court for all M11-eligible offenses. The clear intent of Measure 11
was that more offenders would be imprisoned, and for longer periods of time.
In this chapter we address research questions pertaining to case processing and
sentencing practices. Although prosecutorial data would allow us to address
these questions directly, such data were not available for this study. Therefore,
Oregon’s Department of Corrections (DOC) admissions data and Oregon
Criminal Justice Commission (OCJC) sentencing data were used to answer the
questions inferentially. Our DOC analyses span 1990-1999. The OCJC analyses
cover the 1993-1999 time period.44 The analyses were designed to answer the
following research questions:
•

•

What impact did Measure 11 have on trial rates? Did the measure
inundate the courts with requests for trials as critics feared?

•

What are the characteristics of offenders sentenced under Measure 11?
Does the measure appear to differentially affect minorities?

•

Did Measure 11 impact prisons with increasing numbers of violent
offenders, serving longer sentences?

_________________
44 Although OCJC data collection began in 1990, 1993 was the first full year of available data.

Expectations
This chapter analyzes changes in sentencing, prison admission, and sentence
length patterns for M11-eligible and M11-alternate offenders. We also explore
changes in disposition method for M11-eligible offenses, as well as demographics
and criminal history.
Comparative trend analyses were performed for both M11-eligible and M11alternate offenses in order to determine whether there had been a shift in case
processing patterns following passage of the measure. The identification of M11eligible cases allows us to examine trends over time in how these cases have been
prosecuted and sentenced. A parallel examination of trends in M11-alternate
cases permits us to assess the relative frequency of each type of case over time
and to compare trends in prosecution and sentencing for both M11-eligible and
M11-alternate cases to determine whether, and the extent to which, cases were
downgraded to avoid Measure 11 sentences.

Sentencing and Prison Admissions
The findings of earlier mandatory minimum studies and information gathered
from our interviews led us to expect that sentencing and new prison admission
rates for M11-eligible offenses would drop as prosecutors exercised their
discretion in screening out cases deemed inappropriate for the enhanced penalty.
At the same time, we anticipated a rise in M11-alternate sentencing and new
admission rates as offenses were pled down to avoid imposition of the
mandatory penalty. We would also expect to see this trend reflected in our
analysis of disposition method, with an increase in the percentage of M11alternate cases convicted of lesser included charges. At the same time, the
disposition method analysis will allow us to determine whether, as our
practitioner interviews suggest, there was an increased call for jury trials among
M11-eligible offenders immediately following implementation of the measure.
In examining new prison admissions further, we would expect to see different
trends for various offense categories as prosecutors used their discretion to
determine which of the eligible offenses were appropriate for the penalties. We
would also expect a smaller proportion of cases to be processed as M11-eligible.
At the same time, we would expect more M11-alternate offenders to be
sentenced to prison, as offenders who were technically eligible for prosecution
under Measure 11 accepted plea bargains in order to avoid the longer sentences
associated with Measure 11 crimes. Passage of SB 1145 was expected to result in

fewer revocations to prison for M11-eligible and M11-alternate offenses post1996 as responsibility for these offenders was shifted to the counties.

Demographic Characteristics and Criminal History
Our interviews with key stakeholders revealed that some community members
and policymakers expected more minorities and youthful offenders to be
sentenced for M11-eligible offenses following passage of Measure 11.45
However, according to the prosecutors interviewed, efforts have been made to
ensure that this does not occur, both through informal review of charging
decisions and the development of charging guidelines. Interviews indicate that
there is also public concern regarding the role of criminal history in charging and
sentencing decisions for M11-eligible offenders. Because Measure 11 does not
require that an offender have a prior criminal record to qualify for the sanction,
critics suggest that the measure may be applied in cases with only minor prior
records, including those that do not warrant such lengthy sentences. Defenders
of the measure, however, believe that the majority of offenders sentenced under
Measure 11 will be shown to have extensive prior records, despite the fact that it
is not a prerequisite.46 If the latter is true, we would expect that cases sentenced
under Measure 11 to have more extensive criminal records and be convicted of
more serious crimes, in terms of offense degree, than those sentenced for the
same offenses prior to passage of the measure.

Sentence Length
Although we expect that fewer offenders will be sentenced for M11-eligible
offenses following implementation, it is anticipated that those who are sentenced
under Measure 11 will receive longer sentences than in the past. At the same
time, we expect sentence length for M11-alternate offenses to increase, since a
substantial proportion of these offenders would previously have been sentenced
for Measure 11 offenses and have accepted an increased non-Measure 11
sentence in order to avoid the lengthy mandatory penalty. With passage of
Senate Bill 1049, we anticipate a reduction in the percentage of second-degree
robbery, assault, and kidnapping cases sentenced at or above the Measure 11
minimum of 70 months post-1997, and a simultaneous increase in the percentage
of these offenders sentenced within sentencing guidelines range.
_________________
45 Interviews with former Oregon state Representative, House District 19, Multnomah County,
and Multnomah County District Attorney, August 16, 1999.
46 Interview with former Directors of Crime Victims United, September 13, 2000.

M11-Eligible and M11-Alternate Cases Sentenced
Figure 5.1, based on OCJC data, shows the number of M11-eligible and M11alternate cases sentenced from 1993 through 1999. The figure includes all cases
sentenced, regardless of the type of sentence (prison, probation, jail, or some
combination). The figure clearly indicates a decrease in the number of M11eligible cases from 1995 on, while M11-alternate cases increased in number
beginning in 1995. In 1993, 1168 M11-eligible cases were sentenced. By 1999, the
number had fallen to 651, while the number of M11-alternate cases had risen
from a low of 586 in 1994 to a high of 1219 in 1998. From 1993 through 1995,
more M11-eligible cases were sentenced than M11-alternate cases. In 1996 the
number of M11-eligible and M11-alternate cases were virtually identical, and
from 1997 on, M11-alternate cases became more numerous than M11-eligible
cases.

1400
M11-eligible
M11-alternate

1200

1000

800

600

400

200

0
1993

1994

1995

1996

1997

1998

1999

Figure 5.1 - Number of M11-Eligible and M11-Alternate Cases Sentenced, 1993-1999
(OCJC)

In Table 5.1, we look at all cases sentenced to prison or probation for specific
offenses from 1993 through 1999. In this table and others that follow, we have
grouped M11-eligible offenses into 10 categories based on offense type rather
than presenting all affected offenses individually, in order to simplify the
presentation. Crimes for which two different levels of the same offense are listed
in Measure 11 are combined into a single category in this table, e.g., Assault I and

Assault II are combined as “assault.” As the table shows, more offenders were
sentenced for robbery than for any other M11-eligible offense, followed by sex
abuse and assault. Fewer cases were sentenced in every M11-eligible category in
1999 than in 1993.
To ascertain the relative frequency of M11-eligible cases and M11-alternate cases
sentenced, we examined DOC data for the most commonly-sentenced Measure
11 offenses—assault, robbery, and sex abuse. As Figure 5.2 shows, the
percentage of sentences for M11-eligible assaults relative to M11-alternate
assaults decreased throughout the 1990s. The most dramatic shift in sentencing
patterns occurred between 1995 and 1996, when M11-eligible cases fell from 36%
to 21% of all assault cases sentenced. In 1990, M11-alternate assaults accounted
for 49% of all assault sentences; by 1999, they had increased to 81% of the total.
As Figure 5.3 indicates, the pattern for robbery sentences is similar to that of
assaults, in that both show a decrease in the number of M11-eligible sentences,
and consequent increase in M11-alternate sentences, following implementation
of the measure. This change, however, was less dramatic among robbery cases
than among assault cases. While the drop in the number of M11-eligible
sentences in the year immediately following passage of Measure 11 was only
slightly less for robbery offenses than for assaults (a 12% decrease versus a 15%
decrease), the difference between M11-eligible sentences in 1990 versus 1999
differed across offense categories, with a 32% decrease within the assault
category and a 24% decrease within the robbery category.
Table 5.1
Number of Felony Sentences, by Most Severe Offense, 1993-1999 (OCJC)
Crime type
M11-eligible offenses
Homicide
Rape
Sodomy
Sexual penetration
Assault
Kidnapping
Robbery
Other sex offenses
Sex abuse
Non-M11 felonies
Total

1993

1994

1995

1996

1997

1998

1999

86
121
102
34
195
51
288
7
284
11,695
12,863

81
69
94
24
175
42
210
2
222
11,646
12,565

93
82
94
27
190
51
231
2
220
12,663
13,653

87
85
95
34
158
47
204
6
206
12,564
13,486

80
53
62
18
97
35
176
5
152
13,247
13,925

69
59
58
16
115
32
227
9
132
14,531
15,248

72
48
57
17
118
35
164
4
136
13,557
14,208

Note: This table includes offenders sentenced to probation, as well as those sentenced to prison.

90%

M11-eligible
M11-alternate

80%
70%
60%
50%
40%
30%
20%
10%
0%
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 5.2 - All Sentences for M11-Eligible and M11-Alternate Assault, by Percent M11Eligible and M11-Alternate, 1990-1999 (DOC)

80%
M11-eligible
M11-alternate

70%

60%

50%

40%

30%

20%

10%

0%
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 5.3 - All Sentences for M11-Eligible and M11-Alternate Robbery, by Percent
M11-Eligible and M11-Alternate, 1990-1999 (DOC)

Cases sentenced for sex abuse sentences show a pattern similar to that of
robberies, as illustrated by Figure 5.4. However, the point at which the number
of M11-alternate sentences surpassed M11-eligible sentences occurred two years
later for these cases than for robbery cases.

70%

M11-eligible
M11-alternate

60%

50%

40%

30%

20%

10%

0%
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 5.4 - All Sentences for M11-Eligible and M11-Alternate Sex Abuse, by Percent
M11-Eligible and M11-Alternate, 1991-199947 (DOC)

Although the number of M11-eligible cases decreased, and M11-alternate rates
generally increased across all offense categories following passage of the new
measure, the degree of change differed substantially across offense categories.
While M11-eligible sentences as a percentage of all sentences dropped among
both assault and robbery offense groupings over the course of the decade, they
actually rose very slightly (3%) among sex abuse cases.

Disposition Method for M11-Eligible and M11Alternate Cases
Because Measure 11 imposed long mandatory prison sentences, it was widely
anticipated that the measure would result in more trials, possibly overwhelming
_________________
47 The M11-eligible and M11-alternate sex abuse laws were passed in 1991. Very few cases were
sentenced under these new laws until the following year.

the court with an increased caseload as defendants contested their convictions
and mandatory sentences more vigorously. Another possibility was that since
judges had less discretion in deciding on sentences for M11-eligible cases,
discretion would be exercised by prosecutors instead, so that cases involving
M11-eligible offenses could be plea bargained down to less serious charges that
would not trigger the Measure 11 mandatory minimum sentences. Under the
latter scenario, the proportion of M11-eligible cases settled through plea
bargaining would be expected to increase, with a corresponding drop in the
proportion of such cases going to trial. OCJC data allow us to determine
whether a sentence was resolved by trial or through plea bargaining.48
As Figure 5.5 indicates, the proportion of trials for M11-eligible offenses had
been increasing between 1993 and 1995. For the next two years, through 1997,
trials continued to increase relative to plea bargains, from a low of 16% of M11eligible cases in 1993 to a high of 33% of such cases in 1997. The trend then
reversed direction, and beginning in 1998 the proportion of plea bargains for
M11-eligible cases rose relative to the number of trials for such cases.
These findings are in keeping with study expectations and suggest that, although
trial rates increased immediately after implementation of Measure 11, once
“going rates” were re-established, the plea to trial ratio returned to preimplementation levels. This process of establishing new “going rates” is largely
informal and involves all primary members of the courtroom workgroup
including the judge, prosecutor and defense attorney. Through the course of
case negotiation, the various parties work together to establish acceptable
sentencing limits under the new law. These “going rates” set the standard
sentence for particular offenses and case circumstances but vary by case type and
jurisdiction.

__________________
48 Since OCJC data include only cases sentenced, we were unable to trace pre-sentencing
charging patterns.

90%
Trial
Plea

80%
70%
60%
50%
40%
30%
20%
10%
0%
1993

1994

1995

1996

1997

1998

1999

Figure 5.5 - Disposition Method for M11-Eligible Cases, 1993-199949 (OCJC)

Figure 5.6 shows, in more detail, the type of disposition method for M11-eligible
cases, breaking down plea bargained cases into three types: plea with charges
dropped, plea to a lesser included charge, and plea to the original charge.50
Figure 5.7 presents similar data for M11-alternate cases. The most common
disposition method for both M11-eligible and M11-alternate cases throughout the
study period was a plea bargain which involved dropped charges. For M11eligible cases, cases that involved pleas to lesser charges increased after 1994,
while pleas to the original charge decreased from 1993 through 1996 and
increased slightly thereafter. Under Measure 11, we would expect an increase in
the proportion of cases settled through a plea to lesser charges or with charges
dropped since sentence reduction can still be achieved through charge
bargaining. However, since a plea to the original charge would not result in
sentence reduction, we would anticipate a decrease in the proportion of cases
disposed of by this method.
_________________
49 Cases that involve unknown sentencing mechanism have been eliminated from this figure.
Sentencing mechanism is unknown for 28.9% of M11-eligible cases in 1995. Unknowns in other years
range between 2.0% of all M11-eligible cases in 1993 and 6.0% in 1999.
50 Plea bargains can take many forms. A “plea with charges dropped” indicates that the
offender pled guilty to one of the offenses he or she was originally charged with, while other charges
were not pursued. A “plea to lesser included charges” indicates that the defendant pled guilty to a
similar, but lesser, offense than that of the original charge. A “plea to original charge” indicates that
the defendant pled guilty to the charges originally brought before the court.

The percentage of M11-eligible cases resolved by trial increased following
passage of Measure 11 but had returned to pre-Measure 11 levels by the end of
the decade. This pattern is in keeping with study expectations which anticipated
a temporary increase in trial rates followed by a return to pre-reform levels once
the new “going rates” for affected offenses had been established. Once parties in
the adjudication process have determined which cases will be subjected to the
mandatory penalty, which will be pled down, and the specific sanctions
associated with each, there is less incentive for defendants to gamble on a trial
and more incentive to accept a standardized plea. Thus, while the reform may
strain court resources in the short-term, trial and plea rates generally return to
pre-reform levels within a few years of reform implementation. This appears to
have occurred in Oregon.

70%
Trial
Plea with charges dropped
Plea to lesser included
Plea to original charge

60%

50%

40%

30%

20%

10%

0%
1993

1994

1995

1996

1997

1998

1999

Figure 5.6 - Disposition Method for M11-Eligible Cases, 1993-1999 (OCJC)51

__________________
51 Cases that involve unknown sentencing mechanism have been eliminated from this figure.
Sentencing mechanism is unknown for 28.9% of M11-eligible cases in 1995. Unknowns in other years
range between 2.0% of all M11-eligible cases in 1993 and 6.0% in 1999.

70%

Trial
Plea with charges dropped
Plea to lesser included
Plea to original charge

60%

50%

40%

30%

20%

10%

0%
1993

1994

1995

1996

1997

1998

1999

Figure 5.7 - Disposition Method for M11-Alternate Cases, 1993-1999 (OCJC)52

For M11-alternate cases, the proportion of trials in 1999 was less than half the
1993 rate, while pleas to lesser included charges and pleas to original charges
increased after 1994. These findings support the statements of study
interviewees who reported that many of the cases sentenced as M11-alternate
offenses post-1995 were originally charged as M11-eligible offenses and
technically eligible for prosecution as such. However, due to specific offense or
offender characteristics, these cases were deemed inappropriate for the enhanced
sanctions of Measure 11 and allowed to plea to lesser included non-Measure 11
charges.

Type of Sentence for M11-Eligible and M11-Alternate
Cases
One of the stated purposes of Measure 11 was to ensure that individuals
convicted of M11-eligible offenses were sent to prison. As Figure 5.8 shows,
prior to passage of Measure 11, 66% of M11-eligible cases received prison
_________________
52 Cases that involve unknown sentencing mechanism have been eliminated from this figure.
Sentencing mechanism is unknown for 19.8% of M11-alternate cases in 1995. Unknowns in other
years range between 1.6% of all M11-alternate cases in 1993 and 4.0% in 1998.

sentences. By 1998, more than 90% of M11-eligible cases were sentenced to
prison terms.53

100%

Prison
Non-prison

90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
1993

1994

1995

1996

1997

1998

1999

Figure 5.8 - Type of Sentence for M11-Eligible Cases, 1993-1999 (OCJC)

During the same period, the proportion of M11-alternate cases sentenced to
prison nearly doubled, from 25% in 1993 to a high of 47% in 1998, despite the fact
that these cases were not subject to the mandatory penalties of Measure 11 and
also frequently draw probation sentences for offenders in the lower criminal
history categories. These findings (see Figure 5.9) suggest that many of the cases
that would have been sentenced as M11-eligible cases prior to 1995 were being
pled down to lesser, non M11-eligible, offenses. In so doing, offenders accept a
prison term but avoid the long mandatory penalties associated with Measure 11.
This interpretation is supported by the data presented in Figure 5.7, which
indicates a dramatic increase in M11-alternate cases disposed of via “plea to
lesser included” following implementation of Measure 11.
__________________
53 The remaining 10% of cases include those sentenced below the mandatory minimum, as well
as those involving a crime committed before the effective date of the law.

80%
Prison
Non-prison

70%

60%

50%

40%

30%

20%

10%

0%
1993

1994

1995

1996

1997

1998

1999

Figure 5.9 - Type of Sentence for M11-Alternate Cases, 1993-1999 (OCJC)

Type of Prison Admission
Oregon Department of Corrections (DOC) data allow us to perform separate
analyses on the different types of prison admissions (new court commitments
and revocations). Figure 5.10 shows the number of new court commitments to
prison for M11-eligible and M11-alternate cases from 1990 through 1999, based
on DOC data. Despite a dip in 1997, there were more new court commitments to
prison for M11-eligible and M11-alternate cases, combined, at the end of the
decade than in the years before Measure 11 took effect. The increase in new
court commitments for M11-alternate cases was dramatic between 1994 and 1996,
while the number of M11-eligible new commitments showed little variation from
1993 through 1996 and declined somewhat thereafter.
Figure 5.11 shows the number of M11-eligible and M11-alternate offenders
revoked to prison. The precipitous decline in revocations after 1996 was due to
the enactment of SB 1145, which stipulated that parole violators and felons
sentenced to less than one year be assigned to local control rather than sent to
prison. As the figure indicates, relatively few individuals who were on postprison supervision for either M11-eligible or M11-alternate offenses were
revoked to prison at any time during the 1990s, despite a temporary surge
during the first half of the decade.

1200

M11-eligible
M11-alternate

1000

800

600

400

200

0
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 5.10 - Number of New Court Commitments to Prison for M11-Eligible and M11Alternate Offenses, 1990-1999 (DOC)

M11-eligible
M11-alternate

0
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 5.11 - Number of M11-Eligible and M11-Alternate Offenders Revoked to Prison,
1990-1999 (DOC)

Table 5.2 provides a breakdown of the number of persons sentenced to prison for
M11-eligible offenses, by the most serious offense for the case, based on DOC
data for 1990 through 1999.54 While more offenders were admitted to prison for
M11-eligible offenses in 1999 than at the beginning of the decade, there were
significant differences in admission patterns across offense groupings.55 In 1995,
Measure 11 prison admissions reached a peak for all of the M11-eligible offenses
combined. By 1999, admissions for 14 of the 20 offenses56 were the same as, or
lower than, their 1995 levels. Admission for sex abuse ran counter to this trend,
increasing 26% between 1995 and 1999.

Demographic and Case Characteristics of M11-Eligible
and M11-Alternate Offenders
Race, Gender, and Age at Sentencing
Table 5.3 provides demographic information on the characteristics of M11eligible and M11-alternate offenders sentenced in adult court between 1993 and
1999.57 Percentages are based on the number of offenders whose age, race, and
gender are known.58
As Table 5.3 indicates, a larger percentage of M11-eligible and M11-alternate
offenders were under 18 years of age beginning in 1996, reflecting the Measure
11 waiver of youthful offenders to adult courts. The percentage of M11-eligible
and M11-alternate offenders over age 30 remained roughly constant between
1993 and 1999.
_________________
54 Arson I is an M11-eligible offense only if it represents a threat of serious physical injury.
DOC data do not allow us to distinguish between M11-eligible Arson I cases and M11-ineligible
Arson I cases. For this reason, we have not included cases where Arson I is the most severe offense as
M11-eligible cases. See Appendix D for a rank ordering of the severity of the M11-eligible offenses.
55 The increase in prison admissions in the decade of the 1990s was due in part to implementing
the guidelines, which increased the prison rate for violent crimes.
56 We are not considering Arson I an M11-eligible offense in this analysis because DOC data do
not allow us to distinguish M11-eligible Arson I cases from those that are not M11-eligible.
57 Most juvenile offenders are sentenced in juvenile court. Measure 11 requires that juveniles 15
or older who are accused of an M11-eligible offense be tried in adult court.
58 Age at sentencing was unknown for 1.9% of M11-eligible offenders and 1.2% of M11-alternate
offenders. Race was unknown for 8.5% of both M11-eligible and M11-alternate offenders. Gender
was unknown for 0.2% of M11-eligible offenders and 0.1% of M11-alternate offenders.

Table 5.2
Number of Prison Admissions, by Most Severe M11-Eligible or M11-Alternate Offense, 1990-1999 (DOC)
Offense
Murder
Manslaughter I
Rape I
Sodomy I
Sexual penetration I
Kidnapping I
Assault I
Robbery I
Manslaughter II
Rape II
Sodomy II
Sexual penetration II
Sexual abuse I
Assault II
Kidnapping II
Robbery II
Subtotal of 16 M11 offenses
Attempt aggravated murder
Attempt murder
Subtotal of 18 M11 offenses
Use child display sex act
Compel prostitution
Total of all M11 offenses
M11-alternate offenses

1990
12
25
110
95
1
21
40
124
24
14
16
0
0
123
19
97
721
1
14
736
2
4
742

1991
18
27
122
110
4
21
37
156
13
26
21
1
2
123
19
87
787
2
17
806
6
9
821

1992
30
19
116
137
10
9
43
140
18
18
14
0
74
142
12
134
916
1
28
945
2
7
954

1993
38
23
117
99
15
18
49
138
17
29
17
3
130
127
22
138
980
6
25
1011
0
3
1014

1994
43
30
91
94
17
28
40
146
20
25
12
6
158
133
15
105
964
5
20
988
1
6
995

1995
48
27
79
79
24
35
53
153
22
26
20
3
163
137
24
127
1020
5
26
1051
1
2
1054

1996
40
29
76
89
33
15
47
103
17
26
15
8
197
115
33
162
1005
9
17
1031
3
3
1037

1997
17
20
66
67
16
14
42
103
21
30
9
5
197
108
17
110
842
9
14
865
7
1
873

1998
13
23
67
72
14
22
34
99
26
23
14
5
169
109
20
180
890
9
20
919
7
1
927

1999
26
17
68
77
26
16
31
91
35
15
5
3
205
117
24
121
877
9
10
896
4
5
905

236

313

373

323

357

538

771

601

704

683

Notes: When Measure 11 originally took effect, it included only 16 offenses. Attempted murder and attempted aggravated murder
became M11-eligible as of June 30, 1995. Arson I, using child in display of sexually explicit conduct, and compelling prostitution were
added as of October 4, 1997. Arson cases (a total of 395 from 1990 through 1999) are excluded from this table because DOC data do not
allow us to distinguish M11-eligible Arson I cases from those that are not M11-eligible.

Table 5.3
Demographic Characteristics of Felony Offenders, 1993-1999 (OCJC)
Case type
M11-eligible

1993
Age
<18
18-30
31+

1995

1996

1997

1998

1999

21 (1.8%)
576 (50.2%)
551 (48.0%)

20 (2.2%)
467 (51.8%)
415 (46.0%)

34 (3.5%)
469 (48.0%)
474 (48.5%)

73 (8.0%)
400 (44.0%)
437 (48.0%)

43 (6.4%)
314 (47.1%)
310 (46.5%)

69 (10.1%)
282 (41.3%)
331 (48.5%)

45 (7.0%)
290 (45.2%)
307 (47.8%)

1109 (95.0%)
58 (5.0%)

865 (94.6%)
49 (5.4%)

918 (93.0%)
69 (7.0%)

882 (95.8%)
39 (4.2%)

643 (94.8%)
35 (5.2%)

667 (93.0%)
50 (7.0%)

618 (94.9%)
33 (5.1%)

Race
White
Black
Hispanic
Other

819 (73.2%)
163 (14.6%)
103 (9.2%)
34 (3.0%)

623 (72.9%)
122 (14.3%)
84 (9.8%)
26 (3.0%)

641 (71.5%)
129 (14.4%)
97 (10.8%)
30 (3.3%)

598 (71.7%)
84 (10.1%)
121 (14.5%)
31 (3.7%)

456 (73.4%)
74 (11.9%)
76 (12.2%)
15 (2.4%)

441 (72.4%)
79 (13.0%)
71 (11.7%)
18 (3.0%)

436 (73.3%)
84 (14.1%)
59 (9.9%)
16 (2.7%)

Age
<18
18-30
31+

3 (0.4%)
455 (62.6%)
269 (37.0%)

4 (0.7%)
364 (63.1%)
209 (36.2%)

17 (2.9%)
339 (57.6%)
233 (39.6%)

63 (7.2%)
509 (58.6%)
297 (34.2%)

77 (6.9%)
649 (58.3%)
387 (34.8%)

82 (6.9%)
663 (55.7%)
446 (37.4%)

81 (7.3%)
627 (56.5%)
402 (36.2%)

Gender
Male
Female

670 (90.2%)
73 (9.8%)

531 (90.6%)
55 (9.4%)

520 (88.1%)
70 (11.9%)

793 (91.0%)
78 (9.0%)

1007 (90.1%)
111 (9.9%)

1079 (88.5%)
140 (11.5%)

993 (88.9%)
124 (11.1%)

Race
White
Black
Hispanic
Other

527 (73.5%)
99 (13.8%)
68 (9.5%)
23 (3.2%)

373 (69.9%)
76 (14.2%)
63 (11.8%)
22 (4.1%)

384 (71.6%)
72 (13.4%)
61 (11.4%)
19 (3.5%)

570 (70.4%)
89 (11.0%)
124 (15.3%)
27 (3.3%)

764 (73.0%)
113 (10.8%)
141 (13.5%)
29 (2.8%)

793 (74.4%)
121 (11.4%)
115 (10.8%)
37 (3.5%)

763 (75.6%)
109 (10.8%)
95 (9.4%)
42 (4.2%)

Gender
Male
Female

M11-alternate

1994

Notes: Age is based on time of sentencing. Percentages are based on the number of cases with non-missing data.

The racial composition of M11-elligible and M11-alternate offenders also
remained fairly constant in the latter years of the decade as compared to the preMeasure 11 years. The data suggest that the implementation of Measure 11 did
not introduce bias toward minority offenders. Throughout the decade of the
1990s, a large majority of both M11-eligible and M11-alternate offenders were
white males.

Case Characteristics
Table 5.4 shows the case characteristics of M11-eligible and M11-alternate cases
between 1993 and 1999. Among M11-eligible cases, a slightly lower percentage
had a single conviction later in the decade as compared to the years before M11,
and slightly more were convicted of second-degree offenses, particularly in 1998
and 1999. M11-alternate cases followed a different pattern, with a higher
percentage of M11-alternate offenders convicted of multiple offenses in the later
years than in the years before the passage of Measure 11. Even so, a substantial
majority of M11-alternate cases involved only a single conviction, whereas
roughly half of M11-eligible cases included two or more convictions.

Criminal History
As we noted in Chapter 3, Oregon’s sentencing guidelines use seriousness of the
instant offense, along with an individual’s criminal history, to set presumptive
sentences (see Table 3.1). OCJC data include a criminal history code for every
felony case sentenced from 1993 through 1999 and reported to the commission.
In Table 5.5, we show the criminal history classification of M11-eligible and M11alternate offenders for those years. In this table we have grouped criminal
history categories into felonies against persons (categories A, B, C, and D), other
felonies (E, F, and G), misdemeanors (H), and no criminal history (I).
As the table shows, M11-eligible offenders with a history of felonies against
persons were sentenced to prison in the vast majority of cases throughout the
period. Before 1996, a majority of M11-eligible offenders with no criminal
background were given probation sentences, but by the end of the decade 85% of
M11-eligible offenders with no criminal history were sentenced to prison.

Table 5.4
Case Characteristics of M11-Eligible and M11-Alternate Offenders, 1993-1999 (OCJC)
Case type
M11-eligible

M11-alternate

1993
Current convictions
1
646 (55.3%)
>1
522 (44.7%)

1994

1995

1996

1997

1998

1999

527 (57.3%)
392 (42.7%)

521 (57.6%)
383 (42.4%)

477 (51.7%)
445 (48.3%)

255 (49.9%)
256 (50.1%)

350 (48.9%)
366 (51.1%)

339 (52.1%)
312 (47.9%)

Degree of current conviction
1st degree
755 (64.6%)
2nd degree
413 (35.4%)

612 (66.6%)
307 (33.4%)

676 (68.3%)
314 (31.7%)

643 (69.7%)
279 (30.3%)

455 (67.1%)
223 (32.9%)

418 (58.3%)
299 (41.7%)

400 (61.4%)
251 (38.6%)

Current convictions
1
620 (83.3%)
>1
124 (16.7%)

490 (83.6%)
(9616.4%)

413 (79.7%)
105 (20.3%)

673 (77.0%)
201 (23.0%)

557 (73.6%)
200 (26.4%)

874 (71.7%)
345 (28.3%)

797 (71.4%)
320 (28.6%)

Notes: Seven first degree offenses—murder, attempted murder, attempted aggravated murder, arson, sex abuse, using child in display of sexually explicit
conduct, and compelling prostitution—do not have a second-degree counterpart among M11-eligible offenses. By definition, M11-alternate offenders cannot be
convicted of either a 1st or 2nd degree M11-eligible offense. Percentages in this table are based on non-missing data. Number of convictions was unknown for
4.2% of M11-eligible offenders and 7.0% of M11-alternate offenders.

Table 5.5
Type of Sentence by Criminal History for M11-Eligible and M11-Alternate Offenders, 1993-1999 (OCJC)
Offense type
M11-eligible

Criminal history Sentence
Person felonies Prison
Non-prison

1993
293 (90.7%)
30 (9.3%)

1994
258 (94.9%)
14 (5.1%)

1995
254 (90.1%)
28 (9.9%)

1996
306 (94.2%)
19 (5.8%)

1997
210 (94.2%)
13 (5.8%)

1998
223 (97.8%)
5 (2.2%)

1999
215 (96.8%)
7 (3.2%)

Other felonies

Prison
Non-prison

158 (68.7%)
72 (31.3%)

136 (73.1%)
50 (26.9%)

141 (71.2%)
57 (28.8%)

120 (80.0%)
30 (20.0%)

112 (90.3%)
12 (9.7%)

108 (93.9%)
7 (6.1%)

96 (94.1%)
6 (5.9%)

Misdemeanors

Prison
Non-prison

105 (60.7%)
68 (39.3%)

70 (51.5%)
66 (48.5%)

81 (58.3%)
58 (41.7%)

66 (69.5%)
29 (30.5%)

77 (91.7%)
7 (8.3%)

87 (89.7%)
10 (10.3%)

64 (87.7%)
9 (12.3%)

None

Prison
Non-prison

175 (45.9%)
206 (54.1%)

148 (47.6%)
163 (52.4%)

153 (44.9%)
188 (55.1%)

224 (71.6%)
89 (28.4%)

171 (81.0%)
40 (19.0%)

211 (83.7%)
41 (16.3%)

209 (85.3%)
36 (14.7%)

M11-alternate Person felonies Prison
Non-prison

116 (76.8%)
35 (23.2%)

94 (76.4%)
29 (23.6%)

104 (77.0%)
31 (23.0%)

142 (72.4%)
54 (27.6%)

207 (85.5%)
35 (14.5%)

249 (79.8%)
63 (20.2%)

212 (77.9%)
60 (22.1%)

Other felonies

Prison
Non-prison

42 (22.7%)
143 (77.3%)

46 (29.1%)
112 (70.9%)

61 (34.7%)
115 (65.3%)

94 (43.1%)
124 (56.9%)

105 (41.3%)
149 (58.7%)

136 (46.1%)
159 (53.9%)

94 (40.5%)
138 (59.5%)

Misdemeanors

Prison
Non-prison

6 (5.4%)
106 (94.6%)

4 (4.8%)
79 (95.2%)

17 (18.3%)
76 (81.7%)

33 (25.8%)
95 (74.2%)

55 (32.2%)
116 (67.8%)

46 (27.9%)
119 (72.1%)

43 (30.7%)
97 (69.3%)

None

Prison
Non-prison

18 (6.2%)
272 (93.8%)

7 (3.2%)
211 (96.8%)

20 (11.8%)
150 (88.2%)

83 (25.9%)
237 (74.1%)

139 (32.3%)
292 (67.7%)

143 (32.1%)
302 (67.9%)

138 (29.2%)
334 (70.8%)

Notes: A criminal history of “person felonies” corresponds to criminal history categories A, B, C, and D. “Other felonies” are categories E, F, and G. “Misdemeanors”
are category H and may include juvenile non-person felonies, but no adult felonies. “None” is category I. For a complete description of criminal history categories, please
see Table 5.3 above. Percentages in this table are based on non-missing data. Either criminal history or sentence type was unknown for 3.6% of M11-eligible offenders and
1.0% of M11-alternate offenders.

As with M11-eligible offenders, the majority of M11-alternate offenders with a history of felonies
against persons were sentenced to prison throughout the time period. Before Measure 11, nearly
all M11-alternate offenders with no criminal history, or a history of misdemeanors only, were
sentenced to probation. Although a majority of these offenders continued to draw probation
sentences even after Measure 11, by 1999, 30% of them were sentenced to prison.

Combined Characteristics of M11-Eligible Offenders
In order to better understand the effect of offender and case characteristics upon sentencing
outcome for M11-eligible offenders, we performed additional bivariate analyses examining the
combined effect of race, criminal history, total number of convictions, and offense seriousness.
As Table 5.6 indicates, a larger percentage of black M11-eligible offenders in 1996 had a history of
felonies against persons, and a larger percentage of Hispanics had no criminal history, when
compared to M11-eligible offenders in other races. Offenders of all races were more likely to be
convicted of first degree offenses rather than second-degree offenses. Slightly more than half of
white offenders were convicted of two or more offenses, while a majority of blacks, Hispanics,
and others had only a single conviction.
Table 5.6
Case Characteristics of M11-Eligible Offenders in 1996, by Race (OCJC)
White
Criminal history
Person felonies*
213 (36.7%)
Other felonies
110 (19.0%)
Misdemeanors
56 (9.7%)
None*
201 (34.7%)
Total current convictions
One
297 (49.7%)
More than one
301 (50.3%)
Degree of current conviction
1st degree
423 (70.7%)
2nd degree
175 (29.3%)

Black

Hispanic

Other

45 (56.3%)
9 (11.3%)
8 (10.0%)
18 (22.5%)

29 (25.2%)
12 (10.4%)
16 (13.9%)
58 (50.4%)

9 (31.0%)
5 (17.2%)
5 (17.2%)
10 (34.5%)

43 (51.2%)
41 (48.8%)

75 (62.0%)
46 (38.0%)

19 (61.3%)
12 (38.7%)

52 (61.9%)
32 (38.1%)

84 (69.4%)
37 (30.6%)

19 (61.3%)
12 (38.7%)

* Seven first degree offenses—murder, attempted murder, attempted aggravated murder, arson, sex abuse,
using child in display of sexually explicit conduct, and compelling prostitution—do not have a second-degree
counterpart among M11-eligible offenses.

Length of Prison Sentence for M11-Eligible and M11-Alternate
Cases
Measure 11 not only attempted to ensure that serious offenders would be sent to prison, but also
specified mandatory minimum sentence lengths for each of the M11-eligible offenses. As
indicated in Table 5.7, which lists the mean prison sentence in months for Measure 11 offenses,59
sentence length for M11-eligible offenses generally increased after 1995.
Within one year of Measure 11 implementation, the average sentence length for M11-eligible
cases increased from 77 to 105 months. Average sentence lengths continued to rise through the
end of the decade, peaking at 118 months in 1999. Except for the relatively rare crimes of
attempted aggravated murder and using a child in a display of sexually explicit conduct,60 M11eligible offenses drew longer prison sentences in 1999 than in 1994.
The specific effect of the measure on average sentence length varied considerably, however, by
offense. Erratic year-to-year variations in mean sentence length for certain crimes (e.g.,
attempted aggravated murder) are due to the small number of such cases sentenced within a
given year. The most often-sentenced M11-eligible offenses—robbery, assault, and sexual
abuse—provide the most reliable indication of the changes in sentence length.
As shown in Table 5.7, average sentence length increased among each of these three offense
categories following passage of Measure 11. However, while average sentence length for sexual
abuse cases increased steadily post-Measure 11, surpassing the required 75 month minimum
term in 1999, sentence lengths for Robbery II decreased after reaching the mandatory 70 month
mark in 1997, and average sentence length for Assault II cases never reached the required
minimum term. In contrast, Robbery I and Assault I sentence lengths increased immediately
after passage of the measure and have remained consistently higher than the required 90 month
minimum in every subsequent year.
_________________
59 Arson cases are excluded from this table because DOC data do not allow us to distinguish M11-eligible Arson I
cases from those that are not M11-eligible.
60 Between 1990 and 1999, there were only 54 cases where attempted aggravated murder was the most severe
offense, and 33 where using a child in a display of sexually explicit conduct was the most severe offense.

Table 5.7
Mean Sentence Length (in Months) for Prison Admissions, for Cases that Include an M11-Eligible or M11-Alternate Offense,
1990-1999 (DOC)
Offense
Murder
Manslaughter I
Rape I
Sodomy I
Sexual penetration I
Kidnapping I
Assault I
Robbery I
Manslaughter II
Rape II
Sodomy II
Sexual penetration II
Sexual abuse I
Assault II
Kidnapping II
Robbery II
Mean of 16 M11 offenses
Attempt aggravated murder
Attempt murder
Mean of 18 M11 offenses
Use child display sex act
Compel prostitution
Mean of all M11 offenses
M11-alternate offenses

1990
176
133
209
177
714
141
102
95
79
100
90
N/A
N/A
56
67
68
117
353
115
117
189
147
118
64

1991
158
179
153
114
73
142
84
80
38
50
59
36
22
44
50
49
91
83
75
91
73
54
90
36

1992
198
87
128
125
86
109
83
61
44
24
65
N/A
30
34
46
27
74
842
65
74
266
42
75
30

1993
213
62
158
105
69
172
68
57
34
40
63
38
32
33
45
26
72
281
48
73
N/A
15
72
24

1994
201
86
155
130
103
154
60
62
41
50
57
32
36
34
53
30
76
353
93
78
67
88
78

1995
181
97
166
130
93
118
93
72
41
35
71
75
36
37
46
39
77
188
60
77
57
37
77

1996
239
162
188
181
129
146
114
99
61
77
52
54
60
58
85
55
102
592
74
105
119
31
105

1997
273
151
222
164
117
182
134
109
77
65
102
93
63
66
86
70
105
201
120
106
117
11
106

1998
297
143
250
133
120
216
120
116
78
61
95
102
70
64
66
66
104
250
93
105
40
113
105

1999
331
177
244
178
148
190
127
131
79
96
105
121
79
61
63
66
117
204
108
118
66
98
118

Notes: Sentence length is based on all charges in a given case. Arson cases are excluded from this table because DOC data do not allow us to
distinguish M11-eligible Arson I cases from those that are not M11-eligible. When Measure 11 originally took effect, it included only 16 offenses.
Attempted murder and attempted aggravated murder became M11-eligible as of June 30, 1995. Arson I, using child in display of sexually explicit
conduct, and compelling prostitution were added as of October 4, 1997. Under sentencing guidelines, offenders were eligible for earned time of up
to 20% of their sentence. Measure 11 prohibited earned time.

As anticipated, average sentence length for M11-alternate cases increased along
with M11-eligible cases, reflecting the fact that more offenders who were
technically eligible for prosecution under Measure 11 were in fact being
sentenced as M11-alternate offenders. The result was a change in the nature of
the M11-alternate cohort. Before Measure 11, an offender would have been
charged with the higher M11-eligible offense, and in many cases would have
received a sentence similar to the higher sanction for the M11-alternate offense.
After Measure 11, the same offender might receive the same sentence, but for an
M11-alternate rather than for an M11-eligible offense.

Examples of Pre- and Post-Measure 11 Prison Sentences
Under sentencing guidelines, offenders with no prior criminal history were often
sentenced to probation rather than prison. Table 5.8 illustrates the differences
between pre-Measure 11 and post-Measure 11 sentencing practices. This table
compares sentence types and length of prison sentence for cases where the most
severe offense was Sex Abuse I or Robbery II for those cases with no prior
criminal history (criminal history category I) vs. those with the most severe
history (category A). In 1994, almost all of these offenders who were in category
A were sentenced to lengthy prison terms, while those in category I were given
probation or relatively short prison sentences. By 1996, following the passage of
Measure 11, an offender’s criminal history had less effect on the type and length
of sentence. For example, only 1 (6.2%) of the 16 offenders in category I who
were charged with Robbery II in 1994 was sentenced to prison, with a sentence of
six months. By 1996, 28 (82.4%) of 34 such offenders would draw a prison
sentence, and the mean sentence length had jumped to 68.9 months.

Table 5.8
Sentence Type and Prison Sentence Length for Sex Abuse I and Robbery II Cases, by
Criminal History, 1994 and 1996 (OCJC)
1994
Sex Abuse I, CH=A
Probation
Prison
Mean sentence
Sex Abuse I, CH=I
Probation
Prison
Mean sentence
Robbery II, CH=A
Probation
Prison
Mean sentence
Robbery II, CH=I
Probation
Prison
Mean sentence

1 (16.7%)
5 (83.3%)
75.2
83 (78.3%)
23 (21.7%)
19.3
0 (0.0%)
9 (100.0%)
37.0
15 (93.8%)
1 (6.2%)
6.0

1996
0 (0.0%)
9 (100.0%)
59.2
45 (51.7%)
42 (48.3%)
60.2
0 (0.0%)
14 (100.0%)
83.6
6 (17.6%)
28 (82.4%)
68.9

Passage and Effect of Senate Bill 1049
The disparate sentencing patterns of first- and second-degree robbery and
assault cases discussed above reflect the views expressed in Oregon shortly after
implementation of Measure 11. Reportedly, there was widespread concern
among practitioners that the mandatory minimum penalty prescribed for these
second-degree offenses was inappropriately long for certain less severe cases.
These concerns contributed to the enactment of Senate Bill 1049 (SB 1049) in 1997.
Among other things, the bill modified Measure 11 by allowing judges to sentence
certain offenders convicted of second-degree assault, kidnapping, or robbery
under the provisions of sentencing guidelines rather than under the terms of
Measure 11.61
Table 5.9 shows the percentage of these cases sentenced below the mandatory
minimum prescribed by Measure 11 (<70 months), as well as the percentage
sentenced at or above the minimum (70+ months), between 1990 and 1999. Prior
to passage of Measure 11, the vast majority of these cases were sentenced to less
than 70 months incarceration—with kidnapping cases sentenced to 70+ months
at a slightly higher rate than robberies or assaults. In 1996, this pattern reversed,
with a majority of these three offenses drawing 70-month sentences. The highest
_________________
61 Not all second-degree assault, kidnapping, and robbery cases were eligible for shorter
sentences under SB 1049. Appendix C gives the portion of SB 1049 that specifies the circumstances
under which a case may qualify for a shorter sentence.

percentage were sentenced to 70+ months in 1997. Following the passage of SB
1049, the percent sentenced to less than 70 months increased for all three
offenses.

Summary of the Changes in Case Processing and
Sentencing Practices
Case processing and sentencing practices changed significantly in Oregon
between 1990 and 1999. For the most part, these changes were in keeping with
expectations. As anticipated, there was substantial evidence supporting the
contention that district attorneys used their discretion to prosecute some cases as
M11-eligible, allowing others to be pled down as M11-alternate cases. Sentence
length increased for those convicted of either M11-eligible or M11-alternate
offenses. Following passage of SB 1145, revocation trends changed significantly,
indicating that the bill was successful in altering prison admission trends.
The number of M11-eligible cases sentenced declined during the period under
study while the number of cases sentenced for M11-alternate offenses increased.
The same pattern is reflected by new court commitments to prison, which show
that admissions for M11-alternate offenses increased significantly from 1994 to
1996 and remained at roughly the 1996 level for the remainder of the decade.
The proportion of sentences for M11-alternate offenses exceeded those for M11eligible charges for several Measure 11 offenses beginning in 1995 or 1996 and
continuing through the remainder of the decade, indicating that a substantial
proportion of M11-eligible cases were pled down and processed as M11-alternate
cases.
As anticipated, the percentage of M11-eligible cases sentenced by trial increased
immediately following imposition of Measure 11 and decreased thereafter,
suggesting that once “going rates” for Measure 11 offenses had been established
under the measure, previous disposition patterns returned. The pattern for M11alternate cases was somewhat different, with trial rates declining throughout the
decade and plea rates, particularly for pleas to a lesser included charge,
increasing. Again, this finding is in keeping with expectations that many of the
cases processed as M11-alternate may have been technically eligible for, and
originally charged as, M11-eligible offenses.

Table 5.9
Prison Sentences Imposed for Second-Degree M11-Eligible Assault, Robbery, and Kidnapping Cases, 1990-1999 (DOC)
Offense

Sentence

Assault II

<70 months
70+ months

Kidnapping II

<70 months
70+ months

Robbery II

<70 months
70+ months

1990
91
(76.5%)

1991
111
(93.3%)

1992
133
(93.7%)

1993
121
(97.6%)

1994
128
(97.7%)

1995
111
(84.7%)

1996
37
(33.3%)

1997
26
(24.8%)

1998
34
(32.7%)

1999
42
(36.5%)

28
(23.5%)
17
(85.0%)

8
(6.7%)
18
(90.0%)

9
(6.3%)
12
(85.7%)

3
(2.4%)
18
(85.7%)

3
(2.3%)
15
(93.8%)

20
(15.3%)
18
(75.0%)

74
(66.7%)
5
(17.9%)

79
(75.2%)
3
(20.0%)

70
(67.3%)
5
(29.4%)

73
(63.5%)
11
(47.8%)

3
(15.0%)
67
(69.8%)

2
(10.0%)
79
(89.8%)

2
(14.3%)
119
(93.7%)

3
(14.3%)
137
(98.6%)

1
(6.3%)
95
(94.1%)

6
(25.0%)
89
(71.2%)

23
(82.1%)
56
(34.1%)

12
(80.0%)
8
(6.9%)

12
(70.6%)
58
(30.9%)

12
(52.2%)
34
(27.4%)

29
(30.2%)

9
(10.2%)

8
(6.3%)

2
(1.4%)

6
(5.9%)

36
(28.8%)

108
(65.9%)

108
(93.1%)

130
(69.1%)

90
(72.6%)

Note: This table includes only cases where second-degree M11-eligible assault, robbery, or kidnapping was the most severe offense. Sentence lengths in
this table are based on the prison term assigned by judges for these three specific offenses. A given case may have also included lesser offenses, for which the
offender may have been given additional sentences to be served either consecutive with, or concurrent to, the sentence for these three crimes. These possible
lesser offenses, and their corresponding sentences, have not been taken into account in this table. Sentence length in this table also does not take into account
credit for time served while awaiting sentence. Only the first applicable case per offender was counted in a given year.

Given the mandatory nature of Measure 11, we expected that those convicted of
eligible offenses would receive prison sentences at a higher rate than previously.
For those offenders eligible under the measure, prison admissions did indeed
increase by nearly 30% between 1993 and 1999. Robbery, assault, and sex abuse
were the most frequently sentenced M11-eligible crimes.
Though not subject to the mandatory minimum penalty, M11-alternate cases
were also more likely to be sentenced to prison by the end of the decade. This
was expected, based on the assumption that many of these cases may have been
technically eligible for prosecution under Measure 11, but offenders were
permitted to plea to a lesser included offense in order to avoid the uncertainties
of trial and the possibility of a lengthy mandatory term of incarceration. As
noted previously, this interpretation is supported by case disposition data which
indicate that the proportion of M11-alternate cases disposed of via “plea to a
lesser included offense” rose sharply following passage of the measure (see
figure 5.7).
M11-eligible offenders had more serious criminal records as a group than did
either M11-alternate or other felony offenders. However, over 35% of M11eligible offenders had no prior record and the majority had a history of one or
fewer property felonies and no person felonies. M11-eligible cases were more
likely to include more than one current offense. This may indicate that total
number of convictions was one of the factors used to determine which M11eligible cases were most appropriate for full prosecution under the measure, with
those involving only a single offense more likely to be pled down.
Mean prison sentences decreased in length for M11-eligible offenses until 1995,
followed by an increase in 1996 to a level that held more or less constant for the
remainder of the decade.62 Prison sentences for M11-alternate offenses increased
immediately following implementation of Measure 11 and continued to increase
steadily for the remainder of the decade. These findings were expected based on
previous research, which found that sentences generally increased for related
offenses following imposition of mandatory penalties.63 In general, M11-eligible
offenders were older than either M11-alternate offenders or other felons. Almost
three fourths of M11-eligible offenders were white, and more than nine of ten
were male.
__________________
62 Sentence length changed in part because during the decade, Oregon went from parole
guidelines to sentencing guidelines to Measure 11.
63 We did not examine the issue of time served because our data did not extend far enough into
the future after Measure 11 took effect. Most M11-eligible offenders sentenced after Measure 11 took
effect were still in prison in 1999.

The effects of SB 1145 were evident in our analysis of M11-eligible and M11alternate revocations to prison. As expected, there was a sharp drop-off in the
number of offenders revoked to prison following imposition of the bill, as
responsibility for this group was shifted to the counties.
There is some evidence that SB 1049 may have also altered sentencing patterns as
expected. Prior to passage of Measure 11, the vast majority of Assault II,
Kidnapping II, and Robbery II cases were sentenced to less than 70 months
incarceration. In 1996, this pattern reversed, with a majority of these three
offenses drawing 70-month sentences. The percentage of these offenders
sentenced to 70+ months peaked in 1997. Following the passage of SB 1049, the
percent sentenced to less than 70 months increased for all three offenses.

6. Case Processing Before and After
Measure 11 for Youthful Offenders in
Oregon
In addition to requiring mandatory minimum sentences for serious offenses,
Measure 11 also mandated that youthful offenders (aged 15 years or more) be
prosecuted as adults for Measure 11 offenses. All other factors being equal, we
might expect this change to increase the number of youthful offenders sent to
prison as adults in the years after Measure 11 became effective. As with adult
offenders, we would expect to see more youthful offenders sentenced to prison,
longer sentences, and an upsurge in trial rates among M11-eligible offenders,
along with an increase in pleas to a lesser charge among M11-alternate offenders.
This chapter includes analyses of data only for youthful offenders sentenced as
adults. It does not analyze adjudications for youthful offenders in juvenile court.
The primary disposition for youthful offenders—before and after Measure 11—
was adjudication as a juvenile in juvenile court, not conviction as an adult in
criminal court.

Measure 11 and Youthful Felony Offenders
Using OCJC data from 1993 through 1999, we examined trends in the number of
youths sentenced for M11-eligible offenses, M11-alternate offenses, and other
felonies. The results are shown in Table 6.1. Overall, more youthful offenders
were sentenced as adults for felony offenses as the 1990s wore on.
Table 6.1
Number of Youthful Offenders Sentenced as Adults for Felony Offenses, by Felony
Type, 1993-1999 (OCJC)
Type of case
M11-eligible
M11-alternate
Other felony
Total

1993
26
5
16
47

1994
26
4
33
63

1995
40
14
42
96

1996
76
39
31
146

1997
46
43
28
117

1998
89
59
67
215

1999
40
41
44
125

Table 6.2 shows the number of youthful offenders sentenced for M11-eligible
offenses from 1990 through 1999, based on DOC data.64 As with adults, youths
were most likely to be sentenced for assault, robbery, and sex abuse.65 Adult
sentencing data indicate that waiver of youthful offenders to the adult system
was rare prior to passage of Measure 11. Table 6.2 shows that in the four years
after passage of Measure 11, roughly ten times more youth were sentenced as
adults for M11-eligible offenses as in the four years prior to Measure 11.

Disposition Method
As Figure 6.1 indicates, disposition method for youthful offenders in M11eligible cases followed somewhat the same pattern in the 1990s as we saw for
adults in Chapter 5. At the beginning of the decade, plea bargaining determined
the sentence for more than 90% of all M11-eligible cases involving youthful
offenders. But by 1996, coinciding with the full implementation of Measure 11,
over one-third of such cases went to trial. Thereafter, the proportion of youth
cases settled through pleas again increased. By 1999, plea bargaining for
youthful offenders in M11-eligible cases was almost as common as in 1993.
In Table 6.3, we break down plea bargain cases into three sub-categories, and
also present data on disposition method for M11-alternate, as well as M11eligible, cases involving youthful offenders. For M11-eligible cases involving
youthful offenders, there was a sudden and dramatic increase in trials following
imposition of Measure 11. The pattern differs from that of adult disposition
trends in that trial rates increased only briefly, then quickly returned to preMeasure 11 levels. Differences between youth and adult patterns of disposition
are difficult to interpret, however, due to the small number of cases involving
youthful offenders. For M11-alternate cases involving youthful offenders, trials
were relatively rare for the entire decade and did not increase following passage
of Measure 11. In earlier years, the majority of M11-alternate cases were
sentenced through pleas with charges dropped. Following passage of Measure
11, more M11-alternate cases were sentenced through pleas to lesser included
charges or pleas to original charges, suggesting that a proportion of the cases
might have been pled down from M11-eligible charges.
_________________
64 Arson cases are excluded from this table because DOC data do not allow us to distinguish
M11-eligible Arson I cases from those that are not M11-eligible.
65 Discrepancies between OCJC and DOC data may be due to incomplete reporting of OCJC
data or to different criteria for including a given case in the OCJC data set vs. including the same case
in DOC data.

Table 6.2
Number of Youthful Offenders Sentenced as Adults for M11-Eligible Offenses, 1990-1999 (DOC)
Offense
Murder
Manslaughter I
Rape I
Sodomy I
Kidnapping I
Sexual Penetration I
Assault I
Robbery I
Manslaughter II
Rape II
Sodomy II
Sexual penetration II
Sexual abuse I
Assault II
Kidnapping II
Robbery II
Subtotal of 16 M11 offenses
Attempt aggravated murder
Attempt murder
Subtotal of 18 M11 offenses
Use child display sex act
Compel prostitution
Total of all M11 offenses

1990
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
1
1
0
1
2
0
0
2

1991
1
1
0
0
0
0
0
1
0
0
0
0
0
0
0
0
3
0
1
4
0
0
4

1992
2
0
0
0
0
0
1
2
0
0
0
0
0
1
0
1
7
0
0
7
0
0
7

1993
2
0
1
1
0
0
0
3
1
0
1
0
0
0
1
1
11
0
0
11
0
0
11

1994
1
1
0
0
0
0
3
0
0
0
0
0
0
0
0
1
6
1
1
8
0
0
8

1995
3
1
1
1
0
0
2
2
0
0
0
0
2
2
0
5
19
0
1
20
0
0
20

1996
3
2
2
3
2
0
2
7
0
1
1
1
11
9
1
15
60
1
1
62
0
0
62

1997
3
0
4
5
0
0
7
14
1
5
0
1
12
17
2
19
90
0
2
92
0
1
93

1998
2
1
2
5
2
0
5
13
2
5
2
1
19
15
1
35
110
2
2
114
0
0
114

1999
4
3
1
3
1
0
2
11
4
0
0
0
13
19
0
18
79
1
0
80
0
1
81

Notes: Arson cases are excluded from this table because DOC data do not allow us to distinguish M11-eligible Arson I
cases from those that are not M11-eligible. When Measure 11 originally took effect, it included only 16 offenses. Attempted
murder and attempted aggravated murder became M11-eligible as of June 30, 1995. Arson I, using child in display of sexually
explicit conduct, and compelling prostitution were added as of October 4, 1997.

100%
Trial
Plea

90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
1993

1994

1995

1996

1997

1998

1999

Figure 6.1 - Disposition Method for Youthful Offenders in M11-Eligible Cases,
1993-199966 (OCJC)

Type of Sentence
As Table 6.4 shows, youthful offenders sentenced for M11-eligible offenses were
very likely to be given prison sentences, even earlier in the decade when
probation sentences were more common for adults. This may reflect the
seriousness of the crimes for which the youths were sentenced. A majority of
youths sentenced for M11-alternate offenses also went to prison in every year
after 1993.
_________________
66 Cases that involve unknown sentencing mechanism have been eliminated from this figure. In
1995, 34.6% of M11-eligible youths had unknown disposition method, as did 13.0% in 1999 and 10.0%
in 1998. In other years, disposition method is unknown for fewer than 6.5% of M11-eligible youths.

Table 6.3
Disposition Method for Youthful Offenders in M11-Eligible and M11-Alternate Cases, 1993-1999 (OCJC)

Disposition method
Trial
Plea with charges dropped
Plea to lesser included offense
Plea to original charge
Trial
Plea with charges dropped
Plea to lesser included offense
Plea to original charge

1993
1994
M11-eligible Cases
3 (10.7%)
2 (6.9%)
18 (62.1%) 18 (64.3%)
0 (0.0%)
3 (10.3%)
7 (25.0%)
6 (20.7%)
M11-alternate Cases
0 (0.0%)
1 (14.3%)
5 (45.5%)
4 (57.1%)
1 (9.1%)
0 (0.0%)
5 (45.5%)
2 (28.6%)

1995

1996

1997

1998

1999

4 (11.8%)
12 (35.3%)
7 (20.6%)
11 (32.4%)

28 (35.9%)
31 (39.7%)
6 (7.7%)
13 (16.7%)

9 (19.6%)
26 (56.5%)
3 (6.5%)
8 (17.4%)

10 (11.1%)
51 (56.7%)
9 (10.0%)
20 (22.2%)

4 (10.0%)
19 (47.5%)
7 (17.5%)
10 (25.0%)

1 (6.7%)
8 (53.3%)
4 (26.7%)
2 (13.3%)

1 (1.6%)
37 (57.8%)
11 (17.2%)
15 (23.4%)

2 (3.0%)
18 (26.9%)
26 (38.8%)
21 (31.3%)

3 (3.1%)
38 (38.8%)
33 (33.7%)
24 (24.5%)

0 (0.0%)
18 (24.3%)
40 (54.1%)
16 (21.6%)

Notes: Cases that involve unknown disposition method have been eliminated from this table. In 1995, 34.6% of M11-eligible cases, and 34.8% of M11alternate cases, that involved youthful offenders had unknown disposition method. In other years, disposition method is unknown for fewer than 13% of
M11-eligible cases (in 1999) and fewer than 11% of M11-alternate cases (in 1997).

Table 6.4
Type of Sentence for Youthful Offenders, M11-Eligible and M11-Alternate Cases, 1993-1999 (OCJC)
1993

1994

Probation
Prison
Both

4 (12.9%)
26 (83.9%)
1 (3.2%)

3 (10.3%)
26 (89.7%)
0 (0.0%)

Probation
Prison
Both

6 (50.0%)
5 (41.7%)
1 (8.3%)

3 (42.9%)
4 (57.1%)
0 (0.0%)

1995

1996
1997
M11-eligible Cases
12 (23.1%)
5 (6.1%)
1 (2.1%)
40 (76.9%) 76 (92.7%) 46 (97.9%)
0 (0.0%)
1 (1.2%)
0 (0.0%)
M11-alternate Cases
9 (39.1%) 25 (36.8%) 31 (41.3%)
14 (60.9%) 39 (57.4%) 43 (57.3%)
0 (0.0%)
4 (5.9%)
1 (1.3%)

1998

1999

11 (11.0%)
89 (89.0%)
0 (0.0%)

6 (13.0%)
40 (87.0%)
0 (0.0%)

41 (41.0%)
59 (59.0%)
0 (0.0%)

33 (44.6%)
41 (55.4%)
0 (0.0%)

Sentence Length
Because of the small number of youths sentenced in M11-eligible and M11alternate cases, mean sentence lengths for individual crimes can vary widely
from year to year. In Figure 6.2, we present the mean prison sentence for youths
in M11-eligible and M11-alternate categories from 1993 through 1999. For M11eligible cases, sentences for youthful offenders showed little change during the
decade, despite some year-to-year variation for M11-eligible cases. For M11alternate cases, prison sentence length doubled between 1993 and 1996 and
remained high thereafter.

M11-eligible
M11-alternate

100
90
80
70
60
50
40
30
20
10
0
1993

1994

1995

1996

1997

1998

1999

Figure 6.2 - Mean Prison Sentence (in Months) for Youthful Offenders, M11-Eligible
and M11-Alternate Cases, 1993-1999 (OCJC)

Summary of the Changes in Case Processing and
Sentencing Practices for Youthful Offenders
In the early 1990s, few youthful offenders were sentenced as adults for M11eligible or M11-alternate offenses. Plea bargaining was the predominant
disposition method for youths in such cases during these years. In 1996,
coinciding with the full implementation of Measure 11, the number of youths
sentenced for both M11-eligible and M11-alternate offenses increased

dramatically, and remained higher for the remainder of the decade than in the
earlier years. Also in 1996, a much higher percentage of youthful M11-eligible
cases went to trial than in earlier years of the decade. This trend, however, was
short-lived, and by 1999 the ratio of trials-to-pleas was virtually identical to that
of 1993 for youths in M11-eligible cases.
Youths who were sentenced in M11-eligible cases were very likely to go to prison
even before the passage of Measure 11. While the number of youths sentenced to
prison increased simultaneously with the implementation of Measure 11, we see
no corresponding increase in the percent of youths sent to prison in such cases.
Youthful offenders in M11-alternate cases, on the other hand, were most often
sentenced through plea bargaining, and usually to probation terms. Prison
sentence lengths for youths in M11-eligible cases showed some year-to-year
variation, but no significant increase or decrease in sentence length occurred in
either M11-eligible or M11-alternate cases involving youthful offenders.

7. Case Processing Before and After
Measure 11 in Three Oregon Counties
To ascertain the effects of Measure 11 at the county level, we performed analyses
for three Oregon counties—Lane, Marion, and Multnomah—similar to the
analyses we performed for the entire state. We examined changes within each
county in case processing, disposition method, sentence type, and sentence
length before and after the implementation of Measure 11, using OCJC and DOC
data. We would expect to see trends similar to those reflected in the statewide
analyses, with variation across counties as a result of differences in
implementation practices and case mix patterns. Because nearly 35% of felony
cases are sentenced in Multnomah County, we would expect this county’s
sentencing, disposition, and admission trends to be similar to those of the state as
a whole.

M11-Eligible and M11-Alternate Cases Sentenced
Table 7.1 shows the most serious felony offense in cases sentenced within each of
the three counties from 1993 through 1999. In all three counties, the number of
M11-eligible cases declined over that time, particularly from 1996 on.
Meanwhile, the number of M11-alternate cases generally increased, also most
notably from 1996 through the end of the decade. Sentences for other felony
cases also increased between 1993 and 1999 in all three counties. By 1999,
Multnomah County had barely more than half the number of M11-eligible cases
in 1993. All three counties saw an increase in M11-alternate and other felony
cases after 1995.

Table 7.1
Most Severe Felony Offense, 1993-1999 (OCJC)
1993

1994

1995

Lane
Marion
Multnomah

121
157
388

77
111
324

80
123
345

Lane
Marion
Multnomah

58
72
251

52
42
203

50
28
209

Lane
Marion
Multnomah

1092
674
3737

1093
755
3680

1095
842
4108

County

1996
1997
M11-eligible

1998

1999

62
107
174

89
103
186

75
97
201

113
83
364

141
86
391

93
95
387

1077
977
4134

1138
1113
4926

1326
1147
4921

86
123
274
M11-alternate

93
69
261
Other Felony

1138
878
3892

Note: The type of most severe offense was unknown for 4.2% of Multnomah County cases
and 1.5% of Marion County cases in 1995. Unknown offenses accounted for fewer than 1% of
all cases in all other counties except in 1995.

Disposition Method for M11-Eligible and M11-Alternate Cases
Table 7.2 shows the breakdown by percent of M11-eligible cases sentenced via
trial vs. plea bargaining from 1993 through 1999. As at the state level, most M11eligible cases were sentenced through pleas. In each of the three counties, the
percentage of trials increased dramatically at one point—in 1995 for Lane
County, 1996 for Marion County, and 1997 for Multnomah County. Thereafter,
in all three counties, the proportion of trials declined relative to plea bargained
cases. Even so, in 1999 both Lane and Multnomah Counties had proportionally
more cases sentenced via trial than in 1993. Marion County’s 1993 and 1999
proportions were virtually identical.
Table 7.3 shows a similar breakdown for M11-alternate cases, the vast majority of
which were sentenced by pleas. Percent of M11-alternate cases sentenced
through trial varied from year to year in all counties, with no obvious pattern.
However, by 1999, all three counties had lower rates of sentencing M11-alternate
cases through trial than in 1993.

Table 7.2
Disposition Method for M11-Eligible Cases, 1993-1999 (OCJC)
1993

1994

1995

1996
Trial

1997

1998

1999

Lane
Marion
Multnomah

21 (17.9%)
38 (24.8%)
27 (7.0%)

12 (16.2%)
24 (22.9%)
53 (16.4%)

23 (31.9%)
17 (15.7%)
30 (21.3%)

21 (25.6%)
38 (32.2%)
74 (27.9%)

18 (30.0%)
24 (23.3%)
64 (36.8%)

23 (26.7%)
21 (20.8%)
50 (27.0%)

18 (24.7%)
20 (21.5%)
36 (18.1%)

Lane
Marion
Multnomah

96 (82.1%)
115 (75.2%)
361 (93.0%)

62 (83.8%)
81 (77.1%)
271 (83.6%)

49 (68.1%)
91 (84.3%)
111 (78.7%)

61 (74.4%)
80 (67.8%)
191 (72.1%)

42 (70.0%)
79 (76.7%)
110 (63.2%)

63 (73.3%)
80 (79.2%)
135 (73.0%)

55 (75.3%)
73 (78.5%)
163 (81.9%)

County

Plea

Notes: Cases that involve unknown sentencing method have been eliminated from this table. In 1995, 59.1% of Multnomah County M11-eligible cases
had unknown disposition method, as did 10.0% of Lane County and 12.2% of Marion County M11-eligible cases that year. In other years, all counties had
fewer than 6% of M11-eligible cases with unknown disposition method.

Table 7.3
Disposition Method for M11-Alternate Cases, 1993-1999 (OCJC)
County

1993

1994

Lane
Marion
Multnomah

5 (8.6%)
5 (7.5%)
25 (10.0%)

9 (18.4%)
4 (10.0%)
7 (3.4%)

Lane
Marion
Multnomah

53 (91.4%)
62 (92.5%)
225 (90.0%)

40 (81.6%)
36 (90.0%)
196 (96.6%)

1995
1 (2.2%)
2 (7.7%)
8 (9.0%)
45 (97.8%)
24 (92.3%)
81 (91.0%)

1996
Trial
8 (9.6%)
4 (6.1%)
21 (8.2%)
Plea
75 (90.4%)
62 (93.9%)
235 (91.8%)

1997

1998

1999

6 (5.7%)
6 (7.7%)
22 (6.0%)

6 (4.6%)
5 (6.0%)
28 (7.2%)

6 (6.9%)
3 (3.3%)
17 (4.4%)

100 (94.3%)
72 (92.3%)
342 (94.0%)

124 (95.4%)
79 (94.0%)
362 (92.8%)

81 (93.1%)
88 (96.7%)
370 (95.6%)

Notes: Cases that involve unknown sentencing mechanism have been eliminated from this table. In 1995, 57.4% of M11-alternate cases in
Multnomah County had unknown disposition method, as did 10.8% of Lane County M11-alternate cases in 1996. In all other years, unknown
disposition method accounted for no more than 8% of M11-alternate cases in any of the three counties.

Type of Sentence for M11-Eligible and M11-Alternate Cases
Table 7.4 shows the type of sentence imposed for M11-eligible cases between
1993 and 1999. Throughout these years, there was a clear trend toward more
prison sentences and fewer probation sentences in all three counties. Combined
prison and probation sentences, as well as jail only sentences, had completely
disappeared by 1998.
Table 7.5 gives the breakdown of sentence types for M11-alternate cases in the
three counties. All three counties sentenced a higher proportion of M11-alternate
offenders to prison over the course of the decade, with a corresponding drop in
the percentages sentenced to probation.

Sentence Length for M11-Eligible and M11-Alternate Cases
Table 7.6 shows mean length of prison sentence, in months, for M11-eligible and
M11-alternate cases from 1990 through 1999 in the three study counties.
Sentence length for M11-eligible cases increased in Lane County beginning in
1992, and by 1999 was more than double its 1992 low. Multnomah County
showed a similar pattern, while Marion County had little net change in mean
sentence for M11-eligible cases between 1993 and 1999. Multnomah County
more than doubled sentence length for M11-alternate cases between 1995 and
1999. Lane County’s sentence length also increased during the same years,
though not as much.

Youthful Offenders Sentenced as Adults
In Table 7.7, we present DOC data for the number of youthful offenders
sentenced for M11-eligible cases between 1990 and 1999 in Lane, Marion, and
Multnomah Counties. In all three counties, very few youthful offenders were
sentenced for M11-eligible offenses before 1995. The numbers increased
considerably beginning in 1996, although fewer youthful offenders were
sentenced for M11-eligible offenses in 1999 than in 1998 in all three counties. In
the years prior to Measure 11, these three counties accounted for more than 70%
of youth waived to adult court in Oregon (see Table 6.2). Following the passage
of Measure 11, they had only about 45% of youth waivers.

Table 7.4
Type of Sentence for M11-Eligible Cases, 1993-1999 (OCJC)
1993

1994

1995

Lane
Marion
Multnomah

41 (34.2%)
44 (28.6%)
133 (36.9%)

23 (29.9%)
27 (24.3%)
106 (32.8%)

29 (36.3%)
33 (26.8%)
125 (36.2%)

Lane
Marion
Multnomah

67 (55.8%)
103 (66.9%)
217 (60.3%)

47 (61.0%)
78 (70.3%)
208 (64.4%)

51 (63.8%)
90 (73.2%)
220 (63.8%)

Lane
Marion
Multnomah

12 (10.0%)
7 (4.5%)
10 (2.8%)

7 (9.1%)
6 (5.4%)
9 (2.8%)

0 (0.0%)
0 (0.0%)
170 (0.0%)

Lane
Marion
Multnomah

0 (0.0%)
0 (0.0%)
0 (0.0%)

County

1996
Probation
18 (20.9%)
25 (20.3%)
29 (10.6%)
Prison
65 (75.6%)
94 (76.4%)
227 (82.8%)
Both
3 (3.5%)
4 (3.3%)
7 (6.2%)
Jail only
0 (0.0%)
0 (0.0%)
1 (0.4%)

1997

1998

1999

6 (9.7%)
23 (21.5%)
15 (8.6%)

4 (4.5%)
13 (12.6%)
10 (5.4%)

6 (8.0%)
6 (6.2%)
17 (8.5%)

54 (87.1%)
84 (78.5%)
152 (87.4%)

85 (95.5%)
90 (87.4%)
176 (94.6%)

69 (92.0%)
91 (93.8%)
184 (91.5%)

2 (3.2%)
0 (0.0%)
7 (4.0%)

0 (0.0%)
0 (0.0%)
0 (0.0%)

Notes: Cases that involved unknown sentence type have been eliminated from this table. In 1993, 7.2% of Multnomah County M11eligible cases had unknown sentence type, as did 1.9% of Marion County and 0.8% of Lane County M11-eligible cases. Except for 0.3% of
Multnomah County cases in 1994, there were no other M11-eligible cases with unknown sentence type in the three counties.

Table 7.5
Type of Sentence for M11-Alternate Cases, 1993-1999 (OCJC)
1993

1994

1995

Lane
Marion
Multnomah

47 (82.5%)
53 (73.6%)
177 (71.1%)

40 (76.9%)
31 (73.8%)
141 (69.5%)

26 (52.0%)
20 (71.4%)
115 (55.0%)

Lane
Marion
Multnomah

9 (15.8%)
18 (25.0%)
67 (26.9%)

11 (21.2%)
10 (23.8%)
61 (30.0%)

24 (48.0%)
8 (28.6%)
94 (45.0%)

Lane
Marion
Multnomah

1 (1.8%)
1 (1.4%)
5 (2.0%)

1 (1.9%)
1 (2.4%)
1 (0.5%)

0 (0.0%)
0 (0.0%)
0 (0.0%)

Lane
Marion
Multnomah

0 (0.0%)
0 (0.0%)
0 (0.0%)

County

1996
Probation
59 (63.4%)
42 (60.9%)
114 (43.7%)
Prison
31 (33.3%)
27 (39.1%)
138 (52.9%)
Both
2 (2.2%)
0 (0.0%)
9 (3.4%)
Jail only
1 (1.1%)
0 (0.0%)
0 (0.0%)

1997

1998

1999

66 (58.4%)
41 (49.4%)
134 (36.8%)

73 (51.8%)
54 (62.8%)
162 (41.4%)

57 (61.3%)
58 (61.1%)
182 (47.0%)

37 (32.7%)
39 (47.0%)
222 (61.0%)

68 (48.2%)
32 (37.2%)
229 (58.6%)

36 (38.7%)
37 (38.9%)
205 (53.0%)

8 (7.1%)
3 (3.6%)
7 (1.9%)

0 (0.0%)
0 (0.0%)
0 (0.0%)

2 (1.8%)
0 (0.0%)
1 (0.3%)

0 (0.0%)
0 (0.0%)
0 (0.0%)

Notes: Cases with unknown sentence type have been eliminated from this table. Only 1.7% of Lane County M11-alternate cases and 0.8%
of Multnomah County M11-alternate cases in 1993 had unknown sentence type.

Table 7.6
Length of Prison Sentence (in Months) for M11-Eligible and M11-Alternate Cases, 1990-1999 (DOC)
1990

1991

1992

1993

Lane
Marion
Multnomah

128
124
113

95
96
88

68
86
75

79
93
65

Lane
Marion
Multnomah

42
51
68

42
43
38

39
32
28

19
40
20

County

1994
1995
M11-eligible Cases
82
93
92
95
77
82
M11-alternate Cases
26
21
27
17
22
21

1996

1997

1998

1999

105
104
109

105
94
105

120
95
105

148
98
121

21
26
29

37
36
39

33
30
35

32
35
45

Table 7.7
Number of Youthful Offenders Sentenced as Adults for M11-Eligible Cases, 1990-1999
(DOC)
County
Lane
Marion
Multnomah

1990
0
0
1

1991
0
0
3

1992
0
2
3

1993
3
1
5

1994
0
1
5

1995
4
2
10

1996
5
7
25

1997
6
11
23

1998
12
18
23

1999
3
15
19

Summary of the Changes in Case Processing and
Sentencing Practices in Three Oregon Counties
Case processing trends before and after passage of Measure 11 were similar
across all three counties and the state. In all instances, the number of M11eligible cases processed declined following passage of the measure while the
number of M11-alternate cases increased. Each county experienced an increase
in jury trials for M11-eligible cases following passage of the measure. However,
this shift was experienced at a different time for each county.
In all three counties there was a substantial increase in the percentage of M11eligible cases sentenced to prison following passage of the measure. Sentence
length for these cases increased immediately following passage of Measure 11,
falling to pre-Measure 11 levels or lower shortly thereafter. Sentence length for
Multnomah County cases have continued to increase steadily following passage
of Measure 11. M11-alternate cases followed a similar pattern in all three
counties.
The number of youthful offenders convicted of Measure 11 offenses increased
following passage of the measure in all three counties. Nonetheless, youthful
offenders remain a very small proportion of all M11-eligible cases.

8. Crime Rates Before and After
Measure 11
Although our original research design did not propose a comprehensive analysis
of crime rates, we were asked to address the impact on Measure 11 on crime
rates in Oregon. In this chapter, we discuss historical trends and possible
impacts Measure 11 might have had on this measure. Our analyses are limited to
observations of trend data and review of what other research has shown
regarding the impact of factors on the crime rate. Under the scope of the current
project, we were unable to conduct comprehensive quantitative analysis of the
impact of Measure 11 on the crime rate. More definitive work (described later in
this chapter) would be required before firm conclusions could be drawn
regarding these impacts.
Measure 11 could reduce crimes through deterrence and/or incapacitation. If
Measure 11 serves as a deterrent, individuals will be dissuaded from committing
crimes, and we would expect a reduction in the crime rate. Such deterrence
effects should be seen in crime rates shortly after implementation, or even before
implementation if there was increased awareness of the Measure by media and
press. If Measure 11 incapacitates offenders who would otherwise commit
crimes while free in the community, we would also expect to see a drop in crime,
other things held constant. And, if Measure 11 keeps offenders who would have
previously gone to prison, in prison for longer periods of time, we would see an
incapacitation effect in falling crime rates at the point at which extended
sentences come into play. Both of these would lead to increased prison
populations.
In our study, we had no direct measures of the deterrent effect of Measure 11
because we did not interview offenders. We were, however, able to measure
some aspects of potential incapacitation. First, we examined the prison vs. nonprison decision for offenders sentenced for M11-eligible offenses. If offenders
convicted of M11-eligible crimes in the past received non-prison sentences and
subsequent to Measure 11 similar offenders received prison sentences, falling
crime rates would be consistent with an incapacitation effect. The potential
incapacitation effect due to longer prison sentences is unlikely to be observed
during the first few years after implementation of Measure 11 because many of
these offenders will not yet have reached that point in their term where the

Measure 11 enhancement takes effect. We did not attempt to measure this last
potential incapacitation effect.
We begin with an examination of crime rates and ask whether they changed after
Measure 11. We then examine evidence for incapacitation as a potential
explanation for changes observed. Our data for crime are the annual Uniform
Crime Reports (UCR) compiled by the Federal Bureau of Investigation (FBI). The
UCR provides information on both national and state-level crime trends. The
FBI obtains these data from designated reporting agencies within each state. In
Oregon, the Department of State Police is responsible for collecting and reporting
UCR statistics to the FBI. When combined with the U.S. Census’s annual
estimates of population, UCR data allow us to compare per capita crime rates in
Oregon with those in the U.S. as a whole, as well as differences between Oregon
counties. The UCR includes number of crimes reported for selected violent and
property crimes. UCR index violent crimes are willful murder, forcible rape,
robbery, and aggravated assault. Index property crimes are burglary, larceny,
motor vehicle theft, and arson. The overall number of index crimes is the sum of
these eight crimes.
To adjust for differing population densities, we use population estimates to
compute the index crime rates per 100,000 population. Using these index crime
rates, we address the following questions:
•

How did Oregon’s crime rate compare to the national rate during the
1990s? How did Oregon county crime rates differ from the state and
national rates?

•

What were the trends in Oregon’s prison population before and after the
passage of Measure 11?

UCR Index Crime Rates in Oregon and the U.S.
As Figure 8.1 indicates, Oregon reported a higher rate of UCR index crimes than
the national average from 1992 through 1999. While UCR index crimes have
been falling in the U.S. since 1991, they continued to rise in Oregon throughout
the early 1990s, peaking in 1995 and again in 1997 before dropping thereafter.

Property Crime Rates
Most UCR index crimes reported are for property offenses. As Figure 8.2 shows,
Oregon’s rate of property crime was substantially higher than the U.S. average

throughout the decade of the 1990s and was undoubtedly the driving force
behind Oregon’s relatively high overall crime rate.
7000

U.S.
Oregon

6000

5000

4000

3000

2000

1000

0
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 8.1 - UCR Reported Index Crimes per 100,000 Population, U.S. and Oregon,
1990-1999

7000

U.S.
Oregon

6000

5000

4000

3000

2000

1000

0
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 8.2 - UCR Reported Index Property Crimes per 100,000 Population, U.S. and
Oregon, 1990-1999

Violent Crime Rates
The story is quite different when we look at UCR violent crimes. Throughout the
decade of the 1990s, Oregon reported fewer violent crimes per 100,000
population than the national average, as Figure 8.3 indicates.
800

U.S.
Oregon

700

600

500

400

300

200

100

0
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 8.3 - UCR Reported Index Violent Crimes per 100,000 Population, U.S. and
Oregon, 1990-1999

In fact, historically, Oregon’s statewide violent crime is different from the
national average. As crime rates for the nation rose dramatically in the last half
of the 1980s, Oregon’s violent crime rate remained relatively flat, with a small
decline in the last few years of the decade. Oregon’s decline in violent crime
began after 1995, whereas the national violent crime rate had started falling in
1992 (Oregon Office of Economic Analysis 2003a). Measure 11 applied to
offenses committed on or after April 1, 1995; Oregon violent crime rates declined
11% from 1995 to 1999. Oregon violent crime rates in 1999 were lower than at
any time since 1975, having declined by 27% between 1995 and 1999, about 3%
more than the national decline over the same period.

UCR Index Crime Rates in Three Oregon Counties
Crime rates in the 1990s were not uniform across all Oregon counties, however.
Among our three study counties, UCR index crime rates were higher for

Multnomah County throughout the decade than for Lane or Marion County, as
Figure 5.4 shows. During the same time period, Lane County saw an increase in
index crimes, in contrast to both national and state trends. Rates of index crime
in Lane County were higher in 1999 than in 1990, despite some decrease over the
last years of the decade. Marion County experienced a rise in index crimes
during the first part of the decade, followed by a decrease near the end. Rates in
1999 were slightly lower in Marion County than in 1990. Except for Lane County
before 1994, all three counties had a higher rate of index crime than the
corresponding statewide rates.
Lane
Marion
Multnomah
Oregon

12,000

10,000

8,000

6,000

4,000

2,000

0
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 8.4 - UCR Index Crime Rates per 100,000 Population for Three Oregon Counties,
1990-1999

Property Crime Rates
As noted above, property crimes comprise the majority of UCR index crimes.
Thus it is not surprising to see patterns in the index property crime rates for our
three study counties that are similar to the patterns in the overall UCR index
crime rate, as Figure 8.5 shows. As with the UCR index crime rate, only Lane
County before 1994 had a lower index property crime rate than that of the state
as a whole. Index property crime fell in Multnomah County in the 1990s,
especially near the end of the decade. Lane and Marion Counties saw marked
increase in index property crime rates after 1993 before dropping during the last

several years of the decade. Even so, index property crime rates for Lane County
were higher in 1999 than in 1990.
Lane
Marion
Multnomah
Oregon

10,000
9,000
8,000
7,000
6,000
5,000
4,000
3,000
2,000
1,000
0
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 8.5 - UCR Index Property Crime Rates per 100,000 Population for Three Oregon
Counties, 1990-1999

Violent Crime Rates
Figure 8.6 shows the index violent crime rates per 100,000 population for the
three study counties and statewide from 1990 through 1999. Throughout the
1990s, Multnomah County had a much higher rate of index violent crime than
either Lane or Marion County—roughly three times as high as the statewide
violent crime rate—even though index violent crimes decreased rather
dramatically in Multnomah County after 1995. Marion County witnessed a
steady fall in index violent crime rates beginning in 1991, with 1999 rates roughly
half those in 1990. Lane County, by contrast, had higher index violent crime
rates in 1999 than in 1990, despite the fact that rates had fallen from their high
point in 1996.

Lane
Marion
Multnomah
Oregon

1800
1600
1400
1200
1000
800
600
400
200
0
1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Figure 8.6 - UCR Index Violent Crime Rates per 100,000 Population for Three Oregon
Counties, 1990-1999

If Measure 11 were responsible for reducing index crime rates, we would expect
to see decreases in the index crime rates after 1995, and we might expect these
decreases to be greater than those observed in the nation as a whole because not
all states implemented similar measures to increase imprisonment and sentence
lengths. In fact, we do observe this pattern in the statewide rates for index
violent crimes. However, the pattern is not consistent in our three study
counties. In Multnomah, the index violent crime rate declined from early 1990
rates of 1459 to 1304 in 1996 and 1088 in 1999. In Lane County, index violent
crime rates rose or stayed roughly the same between 1995 and 1997, and rates
were higher in 1999 than in 1990. In Marion County, index violent crime rates
have been falling since 1991, well before the passage of Measure 11, with the
single exception of an increase in 1994 over the 1993 level.

Incapacitation Under Measure 11
Measure 11 requires mandatory minimum prison sentences for offenders for
specified offenses. If Measure 11 places offenders in prison who would have
been placed on probation prior to the measure, crimes that the offenders might
have committed in the community would be prevented. Generally,
incapacitation provides the most impact if policies target the highest rate
offenders; incarcerating low-rate offenders is less efficient use of expensive

prison space for less potential crime prevention (Zimring and Hawkins 1995;
Greenwood and Abrahamse 1982).
We examined the potential incapacitation impact by looking at changes in the
percent and numbers incarcerated and given non-prison sentences before and
after Measure 11.67 If larger numbers and/or percentages of offenders were
going to prison post Measure 11 and crime rates dropped, this would provide
support for Measure 11’s incapacitation effect. Ideally, one would start with all
offenders arrested for felony offenses and track them through prosecution and
sentencing. In this way we could document the outcomes of all felony arrestees.
We did not have access to such data; instead our analyses use data on all felonies
sentenced. For this reason, changes in prosecution that affect early decisions are
not taken into account (e.g., if Measure 11 results in higher dismissal rates for
certain offenses).
When we examined sentences for M11-eligible offenses between 1993 and 1999,
we found that the number of non-prison sentences fell from 340 in 1995 to fewer
than 60 in 1999. Prison sentences for M11-eligible offenses rose from 650 in 1995
to 747 in 1996, but declined to 593 in 1999. Prison sentences for M11-alternate
offenses rose from 208 in 1995 to 576 in 1998; non-prison sentences for M11alternate offenses also rose—from 383 in 1995 to 643 in 1998. When we combine
both M11-eligible and M11-alternate offenses, we find that non-prison sentences
dipped slightly between 1994 and 1997, increasing slightly in 1998 and 1999.
Prison sentences have increased with the reduction in the crime rate, consistent
with an incapacitation effect (see Figure 8.7). The total number of offenders
sentenced has gone from 1581 in the year before Measure 11 to 1768 in 1999.
As we saw earlier in Chapter 5, the characteristics of offenders sentenced to
prison vs. non-prison sentences have also changed. In 1994, 24% of M11-eligible
offenders sentenced to prison had no criminal history as defined by the
guidelines criminal history score. This percentage increased to 36% in 1999. In
1994, the percent of M11-eligible offenders sentenced to prison who had prior
person offenses was 42%; this fell to 37% in 1999.
In 1994, 5% of M11-alternate offenders sentenced to prison had no prior offenses.
In 1999, this had increased to 28%. For both M11-eligible and M11-alternate
offenses, greater percentages of those imprisoned had no prior record after
__________________
67 The vast majority of non-prison sentences were for probation. A very few were jail only
sentences. A few offenders were also sentenced to a combination of prison and probation; we have
included these as prison sentences.

Measure 11 took effect. In 1994, the percent of M11-alternate offenders with a
prior person offense was 62%; in 1999, this percent had decreased to 44%.

1400
Prison
Non-prison
1200

1000

800

600

400

200

0
1993

1994

1995

1996

1997

1998

1999

Figure 8.7 - Type of Sentence for M11-Eligible and M11-Alternate Cases Combined,
1993-1999 (OCJC)

Non-prison offender prior record profiles also changed, but not as much. In
1994, 56% of non-prison Measure 11 offenders had no prior record. In 1999, it
was 62%. At the same time, the percent of non-prison M11-eligible offenders
with prior person offenses increased from 5% to 12%. The percent of non-prison
M11-alternate offenders who had no prior record went from 49% in 1994 to 53%
in 1999. The percent of non-prison M11-alternate offenses with prior person
offenses went from 7% to 10%.
Taken together, these findings show that more offenders are going to prison than
in the past, but larger numbers (and larger percentages) of these offenders have
no prior records. This is consistent with Measure 11 policy, in that even firsttime offenders are to receive prison sentences for the specified offenses. To the
extent that prior history score reflects criminal behavior, potential incapacitation
impacts may be diluted by lower-rate offenders being incarcerated.

Oregon Prison Population in the 1990s
As we have seen, Measure 11 increased both the percent of M11-eligible
offenders that were sentenced to prison and the length of their corresponding
prison sentences. Even though by the end of the decade fewer offenders were
being sentenced to prison for M11-eligible offenses than in previous years,
nonetheless the decade saw a steady increase in Oregon’s standing prison
population, as shown in Figure 8.8. Between 1993 and 1999, the number of
Oregon prisoners with sentences of more than one year increased by 92.5%.
Our data do not allow us to determine what percentage of the Oregon standing
prison population consists of M11-eligible or M11-alternate offenders at any
given time. The Oregon Office of Economic Analysis estimates that
approximately one-third of the total prison population currently consists of
Measure 11 cases, and the percentage is growing each year (Oregon Office of
Economic Analysis, 2003b). This is consistent with our finding that over 2500
offenders were sentenced to prison for M11-eligible offenses between 1996 and
1999 (see Figure 5.1).

12,000

10,000

8,000

6,000

4,000

2,000

0
1993

1994

1995

1996

1997

1998

1999

Figure 8.8 - Oregon Prison Population with a Sentence of More than One Year,
1993-1999 (BJS)68

__________________
68 Based on Bureau of Justice Statistics publications giving the year-end counts of prison
population by state.

Attributing Impact to Measure 11
These analyses show a declining crime rate after 1995 in Oregon, increased
numbers of offenders going to prison who would have had non-prison sentences
in the past, along with an increase in the prison population. One way to
interpret these findings is to attribute reductions in the crime rate to the
increased incapacitation and greater prison populations brought about by
Measure 11. However, while the findings are consistent with this explanation,
such correlational findings do not provide firm causal links. We turn now to a
short discussion of research on recent explanations for declining crime rates and
conclude with several suggestions for future research.
The drop in violent crime in the 1990s has been the subject of much debate, and
the causes are not clear. For the nation as a whole, this decline followed a sharp
increase in the late 1980s. The rise of violent crime in the 1980s has been
attributed to the introduction of crack cocaine, recruitment of minority youth to
sell drugs in street markets, arming of drug sellers for self-protection, diffusion
of guns to peers; and irresponsible and excessively casual use of guns by young
people (Blumstein 2000). The reduction in crime in the 1990s has been explained
by a decay in the crack markets (Johnson, Golub, and Dunlap 2000), efforts to
control crime guns (Wintemute 2000), growth in the economy (Grogger 2000),
and changes in demographics (Fox 2000). According to Spellman, the prison
buildup was responsible for about one-fourth of the violent crime drop; the
violent crime rates would have been 27% smaller than they actually were
without the prison expansion (Spellman 2000, p. 123). Although targeted
policing can reduce violent crime, most of the claims about police contribution to
crime reduction are overstated (Eck and Maguire 2000). Overall, it is difficult to
isolate the independent contributions of these factors.
We did not examine the extent to which these explanations are applicable to
Oregon’s reduction in crime rates. Oregon did not experience the national
increase in violent crimes in the late 1980s; thus explanations that reflect the
undoing of the causes for the national trends may not be applicable.69 However,
prior research has shown that many factors may impact reductions in crime and
that both the crime problem and solution are multifaceted. For this reason, we
suggest that more extensive research be conducted before firm conclusions of
Measure 11 impacts on the crime rate can be made.
_________________
69 Oregon did see an increase in the violent crime rate in the early 1990s, but it was shorter,
came later, and was of a lesser degree than the national increase.

For example, changes in Oregon’s crime rate could be contrasted with another
jurisdiction. If we compare national crime rates with Oregon, we find that the
national rates declined as well, suggesting that the same forces were at work (i.e.,
not just Measure 11). But as we noted above, Oregon did not experience the rise
in violent crime in the 1980s and thus different mechanisms may be operating for
the decline in Oregon than in the nation as a whole. Although we have not
examined the crime rates for all states, it might be possible to identify a state
similar to Oregon that did not implement “get tough” legislation and compare
crime trends after 1995. A logical extension of this approach would be to
contrast implementation practices in different Oregon counties and examine the
resulting impact on crime rates.
In order to gauge the impact of increased incapacitation on crime rates, one could
utilize econometric methods and aggregate data on crime rates, prison
populations, and other possible causes of crime. These models can estimate the
percent of change in the crime rate for a 1% increase in the prison population. A
strength of these models is they separate out the effects of prisons on crime and
the effects of crime on prisons, as well as controlling for economic indicators and
the age structure of the population (Spellman 2000). Although recent modeling
work has been done using all states, individual state differences can be included.
Additionally, one should address more completely the incapacitation effects of
Measure 11 by estimating the impacts of longer sentences on crimes averted.
This would require estimating the crime rates of offenders, their increased time
in prison beyond what they would have served prior to Measure 11, and the
resulting crimes averted.
Estimating the impact of policies on crime rates is difficult. The use of
techniques described above will provide us with more definitive answers than
we have been able to address in the scope of the current study. However,
causation will always be tentative without a controlled experiment of a new
policy. In the absence of controlled experiments, one can never be sure whether
it is some other related factor or the policy of study that has caused the observed
outcomes.

Summary of Crime in Oregon Before and After
Measure 11
Measure 11 could potentially reduce crime through deterrence and/or
incapacitation. If Measure 11 serves as a deterrent, individuals will be dissuaded
from committing crimes and we would expect a reduction in the crime rate. If

Measure 11 incapacitates more offenders, crimes that offenders might have
committed in the community are averted.
We were unable to conduct comprehensive analyses of the impact of Measure 11
on crime rates within the scope of our project. However, analyses we did
conduct showed a declining crime rate after 1995 in Oregon, increased numbers
of offenders going to prison who would have had non-prison sentences prior to
Measure 11, along with increases in the prison population. One way to interpret
these findings is to attribute reductions in the crime rate to the increased
deterrence and incapacitation brought about by Measure 11. However, while the
findings are consistent with this explanation, such correlational findings do not
provide clear causal links, and other factors need to be examined before more
definite conclusions can be drawn.
In order to provide more definitive answers on the impact of Measure 11 on
crime rate, further research should be conducted that systematically compares
Oregon’s crime rates with those of similar jurisdictions that did not implement
an Measure 11-type policy, further examines other potential reasons for the
decline in crime, and obtains more comprehensive estimates of the incapacitation
effects. Estimating the impact of policies on crime rates is difficult. However,
causation will always be tentative without a controlled experiment of a new
policy. In the absence of controlled experiments, one can never be sure whether
it is some other related factor or the policy of study that has caused the observed
outcomes.

9. Findings and Concluding Remarks
Major Findings
In this chapter, we review the major findings of the study and respond to the
research questions used to guide the analyses.

Case Processing and Sentencing Practices Statewide, 1990-1999
•

Following passage of Measure 11, the number of M11-eligible cases
sentenced declined, while the number of M11-alternate cases increased,
indicating that a substantial proportion of M11-eligible cases were pled
down and processed as M11-alternate cases.

•

The percentage of M11-eligible cases sentenced by trial increased
immediately following imposition of Measure 11 and decreased
thereafter, suggesting that once “going rates” for Measure 11 offenses
had been established under the measure, previous disposition patterns
returned.

•

Of M11-eligible offenders convicted, a greater proportion were
sentenced to prison following imposition of Measure 11. By 1999,
probation sentences for M11-eligible offenses had decreased to 9%, down
from 34% in 1993.

•

The number of prison sentences for M11-eligible crimes rose in the first
half of the 1990s and declined only slightly after peaking in 1995.

•

Prison length for offenders convicted of both M11-eligible and M11alternate offenses increased following passage of Measure 11.

•

The number of offenders revoked to prison following imposition of SB
1145 decreased significantly as responsibility for this group was shifted
to the counties.

Case Processing and Sentencing Practices for Youthful Offenders,
1993-1999
•

Plea bargaining was the predominant sentencing mechanism for youths
sentenced for either M11-eligible or M11-alternate offenses.

•

In 1996, coinciding with the full implementation of Measure 11, the
number of youths sentenced for both M11-eligible and M11-alternate
offenses increased dramatically, and remained higher for the remainder
of the decade than in the earlier years.

Case Processing in Three Oregon Counties, 1993-1999
•

County case processing trends both before and after passage of Measure
11 followed the same pattern as statewide trends. In all instances, the
number of M11-eligible cases processed declined following passage of
the measure, while the number of M11-alternate cases increased.

•

Each county experienced an increase in jury trials for M11-eligible cases
following passage of the measure. However, this shift was experienced
at different times in different counties.

•

All three counties experienced substantial increases in the percentage of
M11-eligible cases sentenced to prison following passage of the measure.
Sentence length for these cases increased immediately following passage
of Measure 11.

Characteristics of Felony Offenders, 1993-1999
•

Whites made up the majority of offenders sentenced for felony crimes in
Oregon. Almost three-fourths of M11-eligible offenders were white, and
the proportion of whites remained steady throughout the 1990s.

•

Less than 6% of M11-eligible offenders were under age 18.

•

Males made up more than 94% of all offenders sentenced for M11eligible offenses.

•

M11-eligible offenders had more serious criminal records as a group
than did either M11-alternate or other felony offenders. However,
roughly one-third of M11-eligible offenders had no prior record, and the
majority had a history of one or fewer property felonies and no person
felonies.

Crime Rates and Prison Population, 1990-1999
•

We were unable to conduct comprehensive analyses of the impact of
Measure 11 on crime rates within the scope of our project. Crime rates
declined in Oregon after 1995, and more offenders were incapacitated.
While our findings are consistent with the possibility that Measure 11
may have been at least partly responsible for this decline, such
correlational findings do not provide clear causal links, and other factors
need to be examined before more definite conclusions can be drawn.

•

Between 1993 and 1999, the number of Oregon prisoners with sentences
of more than one year increased by 92.5%.

Interpreting the Findings
In this section, we respond to the study research questions using the information
gained through our analyses.
What was the sentencing context into which Measure 11 was implemented? What other
sentencing reforms and major changes had occurred in the state prior to 1994 when the
measure was approved by Oregon voters?
In many respects, Oregon’s experience with sentencing reform over the past
quarter century serves as a microcosm of the national reform movement. During
the 1970s, widespread disenchantment with indeterminate sentencing systems
led to adoption of structured sentencing systems in many states. The rising
crime rates of the mid-1980s and increased media attention to violent crime gave
rise to the “get-tough” movement of the 1990s and passage of numerous truth-insentencing and mandatory minimum laws. Following these trends, Oregon first
adopted parole guidelines, then sentencing guidelines, and finally mandatory
minimum penalties in the form of Measure 11.
Since passage of the measure, there have been numerous attempts to modify and
overturn it. There have also been efforts to limit the costs of the measure through
subsequent legislation, most notably Senate Bill 1145. This bill was designed to
shift responsibility for all offenders sentenced to one year or less to the counties,
thereby minimizing potential prison overcrowding caused by passage of
Measure 11. Prison admission data indicate that the bill was successful in this
respect, greatly reducing the number of revocations to prison for serious felony
offenses.

Senate Bill 1049, enacted in 1997, added three new offenses to those covered by
Measure 11, and also permitted sentencing below the Measure 11 minimum for
selected cases of Robbery II, Assault II and Kidnapping II. Prior to passage of
Measure 11, the vast majority of these cases were sentenced to less than 70
months incarceration. In 1996, this pattern reversed, with a majority of these
three offenses drawing 70-month sentences. Following the passage of SB 1049 in
1997, the percent sentenced to less than 70 months increased for all three
offenses. House Bill 2379, passed in 2001, added certain non-forcible sex offenses
to ORS 137.712 (the Measure 11 departure statute created by SB 1049), and
allowed up to three days early release for all offenders (to avoid weekend
releases).
Ballot Measure 94 was designed to overturn Measure 11. Although Measure 94
received sufficient support to be placed on the ballot in 2000, it was ultimately
defeated by a margin of nearly three to one.
How was Measure 11 implemented? Were all Measure 11 eligible offenses sentenced
according to the new measure? Do we see changes in the manner in which offenses are
prosecuted by the district attorney?
Like similar “get-tough” legislation adopted nationwide, impact projections for
Measure 11 were based on the assumption of full implementation, meaning that
every case determined to meet the legal criteria of the measure would be so
prosecuted. Our findings indicate, however, that the system level impact of
Measure 11 was far less than anticipated.
This finding is in keeping with past research and with our interviews with
county prosecutors. Without exception, these prosecutors acknowledged that
the measure should not be applied in every eligible case, and that the measure as
written provides overly long mandatory minimum sentences for many of the
cases falling under its purview. These statements support prior research which
shows that mandatory minimum measures are seldom fully implemented and
thus do not produce the system impacts that would be expected under full
implementation. Instead, through selective charging practices and plea
negotiation, the prosecutor determines the extent and manner in which the
measure will be applied.
Evidence of these shifting prosecutorial patterns is provided by our analyses of
case processing practices. Following implementation of the measure, the
proportion of offenders convicted of, and admitted to prison for, M11-eligible
offenses decreased substantially. At the same time, the proportion of convictions
and prison admissions for M11-alternate offenses increased, indicating that M11-

eligible cases deemed inappropriate for Measure 11 sanctions were being pled
down. However, because available data do not allow us to track cases from
initial charge through to disposition, these findings are inferential rather than
definitive.
Sentence length of both M11-eligible and M11-alternate offenses increased
during this period, although M11-alternate cases were not subject to increased
sanctions. This suggests that prosecutors were able to use the threat of a
mandatory penalty to encourage M11-eligible offenders to plead guilty to an
M11-alternate offense. In the case of offenders convicted of M11-eligible
offenses, the increased sentence length reflects the mandatory minimum terms of
imprisonment required by the measure. The increase in M11-alternate sentence
lengths suggests that offenders technically eligible for prosecution under
Measure 11, and facing the threat of long mandatory penalties, increasingly
chose to plea to lesser (M11-alternate) offenses. Thus, the findings suggest that
passage of Measure 11 affected the “going rate” for both M11-eligible and M11alternate offenses. The “going rate” is also affected by the more serious nature of
offenders charged with alternative offenses. Before mandatory minimums, an
offender would have been charged with the higher offenses, and in many cases
would have received a sentence similar to the higher sanction for the alternative
offense.
What impact did Measure 11 have on trial rates? Did the measure inundate the courts
with requests for trials as critics feared?
The frequency of trials for both M11-eligible and M11-alternate offenses
increased for only a short period following passage of the measure. Though this
does not support practitioner predictions or the findings of some previous
studies that showed a long-standing increase in trial rates, it does support the
theory that these rates increase only for the brief period during which “goingrates” are established under the new law. These rates are the standard sentences
offered to offenders in exchange for a guilty plea and vary according to offense
and case circumstances. Previous research (USGAO 1993; Vincent and Hofer
1994; Wicharaya 1995) has shown that although passage of mandatory minimum
legislation has a lasting impact on going rates for both affected offenses and
related offenses—generally increasing sentence length for both—the increase in
trial rates is short-lived. As a result, any increased burden on court resources
caused by the new laws is also temporary.
What our analysis did show, however, was a lasting shift in plea patterns. While
the majority of M11-eligible offenses were resolved through plea both before and
after passage of the new measure, there has been a change in the frequency with

which certain plea types are utilized. Specifically, the frequency with which
“plea to original charge” and “plea with charges dropped” are used has
decreased, while the frequency of “plea to a lesser included offense” has
increased, suggesting an increased tendency to reduce M11-eligible charges to
M11-alternate charges.
What are the characteristics of offenders sentenced under Measure 11? Does the measure
appear to differentially affect minorities and youths?
Interviews with key stakeholders suggested that there was some degree of public
concern that Measure 11 would improperly target minority populations for
prosecution under the measure. Our analysis has not shown this to be the case.
While non-white offenders make up a disproportionate percentage of the M11eligible population, this trend is also reflected in the M11-alternate and other
felony categories. Thus while non-whites are in fact disproportionately
represented within Oregon’s offender population, there is no evidence that
Measure 11 has exacerbated this disparity.
Our interviews also revealed concerns on the part of some as to the handling of
juveniles under Measure 11. Our analyses indicate that the case processing and
incarceration trends for juveniles closely mirror those of adults. Youthful
offenders make up less than 6% of the M11-eligible and M11-alternate offense
categories, since the vast majority of juveniles are tried in juvenile court. While
the total number of juveniles sentenced as adults has increased dramatically
since passage of Measure 11, the proportion sentenced to prison for M11-eligible
vs. M11-alternate offenses has remained relatively stable.
What impact did the measure have on prison admissions and sentence lengths?
Our analyses support the statements of Oregon prosecutors, as well as earlier
research findings, showing that the proportion of offenders convicted of, and
admitted to prison for, M11-eligible offenses decreased while the proportion of
M11-alternate sentences and admissions increased following implementation of
the measure. At the same time, sentence lengths rose within both offense
categories, providing further evidence that M11-eligible cases deemed
inappropriate for Measure 11 sanctions were being pled down to M11-alternates.
This increase in M11-alternate sentence lengths also suggests that offenders
technically eligible for prosecution under Measure 11, and facing the threat of
long mandatory minimum penalties, increasingly chose to plea to lesser (M11alternate) charges. While higher than the norm imposed prior to Measure 11,
these sentences were less than would have been imposed for an M11-eligible
offense. Thus the findings suggest that passage of Measure 11 affected the

100

“going rate” for both M11-eligible and M11-alternate offenses.70 The “going
rate” is also affected by the more serious nature of offenders charged with
alternate offenses. Before mandatory minimums, an offender would have been
charged with the higher offense, and in many cases would have received a
sentence similar to the higher sanction for the alternate offense. Information
derived from our interviews suggests that practitioners believed the Measure 11
penalties to be too lengthy for many of these cases.
What were the trends in Oregon’s crime rate before and after passage of Measure 11?
Although our original research design did not propose a comprehensive analysis
of crime rates, we were asked to address the impact of Measure 11 on crime rates
in Oregon. Crime rates, particularly for violent crime, declined in Oregon after
1995. While our findings are consistent with the possibility that Measure 11 may
have been at least partly responsible for this decline, such findings do not
provide clear evidence of a causal link. An examination of other factors, which is
beyond the scope of the present study, would need to be made before definite
conclusions can be drawn.

101

partial prosecution is unclear. Prosecutors interviewed were confident in their
ability to apply the measure appropriately; however, it is not clear what criteria
were used in making their decisions, or whether these criteria were consistently
and equitably applied. Further research should address how discretion is
exercised and charging decisions made under Measure 11.
In shifting authority from the judge to the prosecutor, Measure 11 has altered
courtroom dynamics significantly, so that primary responsibility for sentencing
decisions now rests with the prosecutor, an advocate for the state, rather than the
judge, a neutral arbiter of justice.
The policy implications of these findings are significant. Although Measure 11
has altered sentencing practices, existing data systems do not permit the type of
analyses that would provide us with a complete understanding of the factors
involved in prosecutorial decision-making. While it is clear that prosecutors are
using their discretion to selectively apply the new measure, it is not readily
apparent how these decisions are being made.

Suggestions for Further Research
While this study offers significant insight into the implementation and impact of
Measure 11, it has also raised numerous issues worthy of further investigation.
Though beyond the scope of this study, these issues are discussed briefly below
and offered as suggestions for future research.

Prison Time Served
Our analysis of the impact of Measure 11 on sentences was limited to the length
of sentences imposed. This analysis showed that sentences for M11-eligible and
M11-alternate offenses increased after 1995. We were unable to examine the
impact on the length of time actually served, however, during the course of our
study. This is because the vast majority of the M11-eligible offenders sentenced
after Measure 11 went into effect were still serving their terms in 1999, the last
year of data available for the present study. Only offenders sentenced under SB
1049 to less than three years would have had a chance to complete their sentence.
Anyone else sentenced under M11, which became effective in April 1995, would
have had a prison sentence of at least 70 months and so would not be eligible for
release until 2002.
Future research should examine changes in the actual length of time served after
Measure 11 was implemented. We would expect even larger differences

102

between pre-Measure 11 and post-Measure 11 time served than we observed in
sentences imposed, due to the elimination of earned time by Measure 11. Senate
Bill 1049 and House Bill 2379, however, may attenuate the magnitude of the
differences by allowing shorter sentences for some M11-eligible offenses under
certain circumstances.

Prosecutorial Decisionmaking Under Measure 11
As discussed previously, prosecutorial discretion is the force that drives the
implementation and, as a consequence, the impact of mandatory minimum
sentencing policy. Key to forecasting the effect of these policies, therefore, is an
understanding of how this discretion is exercised and how charging decisions
are made. Our analyses uncover cross-county differences in reform
implementation and impact. Previous research (Eisenstein 1977) suggests that
patterns of reform implementation, and the influence of prosecutorial discretion,
may be affected by courtroom workgroup characteristics. As these
characteristics vary across jurisdictions, it is important to understand their
influence on the implementation process and the extent to which they contribute
to a reduction, or increase, in cross-county sentencing disparity following
passage of mandatory sentencing laws.

Prison Management Under Measure 11
Interviews with key decision-makers indicate a concern regarding the impact of
Measure 11 on prison management. Specifically, concerns were raised as to
whether the lengthy sentences and lack of earned time associated with the
measure would create management problems for offenders convicted under
Measure 11. At such time as the data required to address this issue are made
available, analyses should be conducted to assess changes in prison assaults,
misconduct reports, and injuries following implementation of the reform.

Community Corrections Under Measure 11
Though passage of SB 1145 offset some of the potential impact of Measure 11 on
state prison populations, it is unclear how the measure affected community
corrections and local jails. Future studies should address the impact of the
measure on jail populations, jail management, community corrections caseloads,
and county budgets.

103

Treatment and Management of Juvenile Offenders
Although it is widely acknowledged that the treatment and programming needs
of juveniles differ from adults, our study does not address the adequacy of
services provided to juveniles sentenced under Measure 11. Because youthful
Measure 11 offenders can be housed in adult facilities, it is particularly critical
that studies be undertaken to determine whether the safety, educational, and
health needs of these juveniles are being met.

Assessment of Impact on Crime Rates
As we have indicated, this study was not able to conduct comprehensive
analyses of the impact of Measure 11 on crime rates in the state. Future research
should examine this question, analyzing factors in addition to the observed
correlation of crime rates and passage of Measure 11.

Oregon’s Measure 11 introduced bold changes into the sentencing structure of
the state. Our analyses addressed the implementation and impact of Measure 11
on prosecution, sentencing, and convictions, both statewide and in three separate
counties. As with many policy changes, some of the observed consequences
were expected, others were not. Further research and experience with the
measure will provide more definitive answers to the questions we have posed.

105

APPENDIX

A. Text of Measure 11 Legislation
ORS 137.700
Offenses requiring imposition of mandatory minimum sentences. (1) When a
person is convicted of one of the offenses listed in subsection (2)(a) of this section
and the offense was committed on or after April 1, 1995, or of one of the offenses
listed in subsection (2)(b) of this section and the offense was committed on or
after October 4, 1997, the court shall impose, and the person shall serve, at least
the entire term of imprisonment listed in subsection (2) of this section. The
person is not, during the service of the term of imprisonment, eligible for release
on post-prison supervision or any form of temporary leave from custody. The
person is not eligible for any reduction in, or based on, the minimum sentence for
any reason whatsoever under ORS 421.121 or any other statute. The court may
impose a greater sentence if otherwise permitted by law, but may not impose a
lower sentence than the sentence specified in subsection (2) of this section.
(2) The offenses to which subsection (1) of this section applies and the applicable
mandatory minimum sentences are:
(a)(A) Murder, as defined in ORS 163.115. 300 months
(B) Attempt or conspiracy to commit aggravated murder, as defined in ORS
163.095. 120 months
(C) Attempt or conspiracy to commit murder, as defined in ORS 163.115. 90
months
(D) Manslaughter in the first degree, as defined in ORS 163.118. 120 months
(E) Manslaughter in the second degree, as defined in ORS 163.125. 75 months
(F) Assault in the first degree, as defined in ORS 163.185. 90 months
(G) Assault in the second degree, as defined in ORS 163.175. 70 months
(H) Kidnapping in the first degree, as defined in ORS 163.235. 90 months

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(I) Kidnapping in the second degree, as defined in ORS 163.225. 70 months
(J) Rape in the first degree, as defined in ORS 163.375. 100 months
(K) Rape in the second degree, as defined in ORS 163.365. 75 months
(L) Sodomy in the first degree, as defined in ORS 163.405. 100 months
(M) Sodomy in the second degree, as defined in ORS 163.395. 75 months
(N) Unlawful sexual penetration in the first degree, as defined in ORS 163.411.
100 months
(O) Unlawful sexual penetration in the second degree, as defined in ORS 163.408.
75 months
(P) Sexual abuse in the first degree, as defined in ORS 163.427. 75 months
(Q) Robbery in the first degree, as defined in ORS 164.415. 90 months
(R) Robbery in the second degree, as defined in ORS 164.405. 70 months
(b)(A) Arson in the first degree, as defined in ORS 164.325, when the offense
represented a threat of serious physical injury. 90 months
(B) Using a child in a display of sexually explicit conduct, as defined in ORS
163.670. 70 months
(C) Compelling prostitution, as defined in ORS 167.017. 70 months
[1995 c.2 §1; 1995 c.421 §1; 1995 c.422 §47; 1997 c.852 §2]

ORS 137.707
Adult prosecution of 15-, 16- or 17-year-old offenders; mandatory minimum
sentences; lesser included offenses; transfer to juvenile court. (1)(a)
Notwithstanding any other provision of law, when a person charged with
aggravated murder, as defined in ORS 163.095, or an offense listed in subsection
(4)(a) of this section is 15, 16 or 17 years of age at the time the offense is
committed, and the offense is committed on or after April 1, 1995, or when a
person charged with an offense listed in subsection (4)(b) of this section is 15, 16
or 17 years of age at the time the offense is committed, and the offense is
committed on or after October 4, 1997, the person shall be prosecuted as an adult
in criminal court.

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(b) A district attorney, the Attorney General or a juvenile department counselor
may not file in juvenile court a petition alleging that a person has committed an
act that, if committed by an adult, would constitute aggravated murder or an
offense listed in subsection (4) of this section if the person was 15, 16 or 17 years
of age at the time the act was committed.
(2) When a person charged under this section is convicted of an offense listed in
subsection (4) of this section, the court shall impose at least the presumptive term
of imprisonment provided for the offense in subsection (4) of this section. The
court may impose a greater presumptive term if otherwise permitted by law, but
may not impose a lesser term. The person is not, during the service of the term of
imprisonment, eligible for release on post-prison supervision or any form of
temporary leave from custody. The person is not eligible for any reduction in, or
based on, the minimum sentence for any reason under ORS 421.121 or any other
provision of law. ORS 138.012, 163.105 and 163.150 apply to sentencing a person
prosecuted under this section and convicted of aggravated murder under ORS
163.095 except that a person who was under 18 years of age at the time the
offense was committed is not subject to a sentence of death.
(3) The court shall commit the person to the legal and physical custody of the
Department of Corrections.
(4) The offenses to which this section applies and the presumptive sentences are:
(a)(A) Murder, as defined in ORS 163.115 300 months
(B) Attempt or conspiracy to commit aggravated murder, as defined in ORS
163.095 120 months
(C) Attempt or conspiracy to commit murder, as defined in ORS 163.115 90
months
(D) Manslaughter in the first degree, as defined in ORS 163.118 120 months
(E) Manslaughter in the second degree, as defined in ORS 163.125 75 months
(F) Assault in the first degree, as defined in ORS 163.185 90 months
(G) Assault in the second degree, as defined in ORS 163.175 70 months
(H) Kidnapping in the first degree, as defined in ORS 163.235 90 months
(I) Kidnapping in the second degree, as defined in ORS 163.225 70 months
(J) Rape in the first degree, as defined in ORS 163.375 100 months

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(K) Rape in the second degree, as defined in ORS 163.365 75 months
(L) Sodomy in the first degree, as defined in ORS 163.405 100 months
(M) Sodomy in the second degree, as defined in ORS 163.395 75 months
(N) Unlawful sexual penetration in the first degree, as defined in ORS 163.411
100 months
(O) Unlawful sexual penetration in the second degree, as defined in ORS 163.408
75 months
(P) Sexual abuse in the first degree, as defined in ORS 163.427 75 months
(Q) Robbery in the first degree, as defined in ORS 164.415 90 months
(R) Robbery in the second degree, as defined in ORS 164.405 70 months
(b)(A) Arson in the first degree, as defined in ORS 164.325, when the offense
represented a threat of serious physical injury. 90 months
(B) Using a child in a display of sexually explicit conduct, as defined in ORS
163.670. 70 months
(C) Compelling prostitution, as defined in ORS 167.017. 70 months
(5) If a person charged with an offense under this section is found guilty of a
lesser included offense and the lesser included offense is:
(a) An offense listed in subsection (4) of this section, the court shall sentence the
person as provided in subsection (2) of this section.
(b) Not an offense listed in subsection (4) of this section:
(A) But constitutes an offense for which waiver is authorized under ORS
419C.349, the court, upon motion of the district attorney, shall hold a hearing to
determine whether to retain jurisdiction or to transfer the case to juvenile court
for disposition. In determining whether to retain jurisdiction, the court shall
consider the criteria for waiver in ORS 419C.349. If the court retains jurisdiction,
the court shall sentence the person as an adult under sentencing guidelines. If the
court does not retain jurisdiction, the court shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and recommendations that the
court deems appropriate; and

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(iii) Enter an order transferring the case to the juvenile court for disposition
under ORS 419C.067 and 419C.411.
(B) And is not an offense for which waiver is authorized under ORS 419C.349,
the court may not sentence the person. The court shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and recommendations that the
court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile court for disposition
under ORS 419C.067 and 419C.411.
(6) When a person is charged under this section, other offenses based on the
same act or transaction shall be charged as separate counts in the same
accusatory instrument and consolidated for trial, whether or not the other
offenses are aggravated murder or offenses listed in subsection (4) of this section.
If it appears, upon motion, that the state or the person charged is prejudiced by
the joinder and consolidation of offenses, the court may order an election or
separate trials of counts or provide whatever other relief justice requires.
(7)(a) If a person charged and tried as provided in subsection (6) of this section is
found guilty of aggravated murder or an offense listed in subsection (4) of this
section and one or more other offenses, the court shall impose the sentence for
aggravated murder or the offense listed in subsection (4) of this section as
provided in subsection (2) of this section and shall impose sentences for the other
offenses as otherwise provided by law.
(b) If a person charged and tried as provided in subsection (6) of this section is
not found guilty of aggravated murder or an offense listed in subsection (4) of
this section, but is found guilty of one of the other charges that constitutes an
offense for which waiver is authorized under ORS 419C.349, the court, upon
motion of the district attorney, shall hold a hearing to determine whether to
retain jurisdiction or to transfer the case to juvenile court for disposition. In
determining whether to retain jurisdiction, the court shall consider the criteria for
waiver in ORS 419C.349. If the court retains jurisdiction, the court shall sentence
the person as an adult under sentencing guidelines. If the court does not retain
jurisdiction, the court shall:
(A) Order that a presentence report be prepared;
(B) Set forth in a memorandum any observations and recommendations that the
court deems appropriate; and

110

(C) Enter an order transferring the case to the juvenile court for disposition under
ORS 419C.067 and 419C.411. [1995 c.422 §49; 1995 c.421 §4; 1997 c.852 §3; 1999
c.1055 §12]
Note: See note under 137.700.

137.712 Exceptions to ORS 137.700 and 137.707.
(1)(a) Notwithstanding ORS 137.700 and 137.707, when a person is convicted of
manslaughter in the second degree as defined in ORS 163.125, assault in the
second degree as defined in ORS 163.175 (1)(b), kidnapping in the second degree
as defined in ORS 163.225, rape in the second degree as defined in ORS 163.365,
sodomy in the second degree as defined in ORS 163.395, unlawful sexual
penetration in the second degree as defined in ORS 163.408, sexual abuse in the
first degree as defined in ORS 163.427 (1)(a)(A) or robbery in the second degree
as defined in ORS 164.405, the court may impose a sentence according to the
rules of the Oregon Criminal Justice Commission that is less than the minimum
sentence that otherwise may be required by ORS 137.700 or 137.707 if the court,
on the record at sentencing, makes the findings set forth in subsection (2) of this
section and finds that a substantial and compelling reason under the rules of the
Oregon Criminal Justice Commission justifies the lesser sentence. When the court
imposes a sentence under this subsection, the person is eligible for a reduction in
the sentence as provided in ORS 421.121 and any other statute.
(b) In order to make a dispositional departure under this section, the court must
make the following additional findings on the record:
(A) There exists a substantial and compelling reason not relied upon in
paragraph (a) of this subsection;
(B) A sentence of probation will be more effective than a prison term in reducing
the risk of offender recidivism; and
(C) A sentence of probation will better serve to protect society.
(2) A conviction is subject to subsection (1) of this section only if the sentencing
court finds on the record by a preponderance of the evidence:
(a) If the conviction is for manslaughter in the second degree:
(A) That the defendant is the mother or father of the victim;
(B) That the death of the victim was the result of an injury or illness that was not
caused by the defendant;

111

(C) That the defendant treated the injury or illness solely by spiritual treatment
in accordance with the religious beliefs or practices of the defendant and based
on a good faith belief that spiritual treatment would bring about the victim’s
recovery from the injury or illness;
(D) That no other person previously under the defendant’s care has died or
sustained significant physical injury as a result of or despite the use of spiritual
treatment, regardless of whether the spiritual treatment was used alone or in
conjunction with medical care; and
(E) That the defendant does not have a previous conviction for a crime listed in
subsection (4) of this section or for criminal mistreatment in the second degree.
(b) If the conviction is for assault in the second degree:
(A) That the victim was not physically injured by means of a deadly weapon;
(B) That the victim did not suffer a significant physical injury; and
(C) That the defendant does not have a previous conviction for a crime listed in
subsection (4) of this section.
(c) If the conviction is for kidnapping in the second degree:
(A) That the victim was at least 12 years of age at the time the crime was
committed; and
(B) That the defendant does not have a previous conviction for a crime listed in
subsection (4) of this section.
(d) If the conviction is for robbery in the second degree:
(A) That the victim did not suffer a significant physical injury;
(B) That, if the defendant represented by words or conduct that the defendant
was armed with a dangerous weapon, the representation did not reasonably put
the victim in fear of imminent significant physical injury;
(C) That, if the defendant represented by words or conduct that the defendant
was armed with a deadly weapon, the representation did not reasonably put the
victim in fear of imminent physical injury; and
(D) That the defendant does not have a previous conviction for a crime listed in
subsection (4) of this section.

112

(e) If the conviction is for rape in the second degree, sodomy in the second
degree or sexual abuse in the first degree:
(A) That the victim was at least 12 years of age, but under 14 years of age, at the
time of the offense;
(B) That the defendant does not have a prior conviction for a crime listed in
subsection (4) of this section;
(C) That the defendant has not been previously found to be within the
jurisdiction of a juvenile court for an act that would have been a felony sexual
offense if the act had been committed by an adult;
(D) That the defendant was no more than five years older than the victim at the
time of the offense;
(E) That the offense did not involve sexual contact with any minor other than the
victim; and
(F) That the victim’s lack of consent was due solely to incapacity to consent by
reason of being under 18 years of age at the time of the offense.
(f) If the conviction is for unlawful sexual penetration in the second degree:
(A) That the victim was 12 years of age or older at the time of the offense;
(B) That the defendant does not have a prior conviction for a crime listed in
subsection (4) of this section;
(C) That the defendant has not been previously found to be within the
jurisdiction of a juvenile court for an act that would have been a felony sexual
offense if the act had been committed by an adult;
(D) That the defendant was no more than five years older than the victim at the
time of the offense;
(E) That the offense did not involve sexual contact with any minor other than the
victim;
(F) That the victim’s lack of consent was due solely to incapacity to consent by
reason of being under 18 years of age at the time of the offense; and
(G) That the object used to commit the unlawful sexual penetration was the hand
or any part thereof of the defendant.

113

(3) In making the findings required by subsections (1) and (2) of this section, the
court may consider any evidence presented at trial and may receive and consider
any additional relevant information offered by either party at sentencing.
(4) The crimes to which subsection (2)(a)(E), (b)(C), (c)(B), (d)(D), (e)(B) and (f)(B)
of this section refer are:
(a) A crime listed in ORS 137.700 (2) or 137.707 (4);
(b) Escape in the first degree, as defined in ORS 162.165;
(c) Aggravated murder, as defined in ORS 163.095;
(d) Criminally negligent homicide, as defined in ORS 163.145;
(e) Assault in the third degree, as defined in ORS 163.165;
(f) Criminal mistreatment in the first degree, as defined in ORS 163.205 (1)(b)(A);
(g) Rape in the third degree, as defined in ORS 163.355;
(h) Sodomy in the third degree, as defined in ORS 163.385;
(i) Sexual abuse in the second degree, as defined in ORS 163.425;
(j) Stalking, as defined in ORS 163.732;
(k) Burglary in the first degree, as defined in ORS 164.225, when it is classified as
a person felony under the rules of the Oregon Criminal Justice Commission;
(L) Arson in the first degree, as defined in ORS 164.325;
(m) Robbery in the third degree, as defined in ORS 164.395;
(n) Intimidation in the first degree, as defined in ORS 166.165;
(o) Promoting prostitution, as defined in ORS 167.012; and
(p) An attempt or solicitation to commit any Class A or B felony listed in
paragraphs (a) to (L) of this subsection.
(5) Notwithstanding ORS 137.545 (5)(b), if a person sentenced to probation under
this section violates a condition of probation by committing a new crime, the
court shall revoke the probation and impose the presumptive sentence of
imprisonment under the rules of the Oregon Criminal Justice Commission.
(6) As used in this section:

114

(a) "Conviction" includes, but is not limited to:
(A) A juvenile court adjudication finding a person within the court’s jurisdiction
under ORS 419C.005, if the person was at least 15 years of age at the time the
person committed the offense that brought the person within the jurisdiction of
the juvenile court.
(B) A conviction in another jurisdiction for a crime that if committed in this state
would constitute a crime listed in subsection (4) of this section.
(b) "Previous conviction" means a conviction that was entered prior to imposing
sentence on the current crime provided that the prior conviction is based on a
crime committed in a separate criminal episode. "Previous conviction" does not
include a conviction for a Class C felony, including an attempt or solicitation to
commit a Class B felony, or a misdemeanor, unless the conviction was entered
within the 10-year period immediately preceding the date on which the current
crime was committed.
(c) "Significant physical injury" means a physical injury that:
(A) Creates a risk of death that is not a remote risk;
(B) Causes a serious and temporary disfigurement;
(C) Causes a protracted disfigurement; or
(D) Causes a prolonged impairment of health or the function of any bodily
organ. [1997 c.852 §1; 1999 c.614 §3; 1999 c.954 §2; 2001 c.851 §5]
Note: 137.712 was enacted into law by the Legislative Assembly but was not
added to or made a part of ORS chapter 137 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
(Temporary provisions relating to sentencing persons under ORS 137.700 and
137.707)
Note: Sections 5 to 7a, chapter 852, Oregon Laws 1997, provide:
Sec. 5. (1) This section applies to prosecutions for assault in the second degree as
defined in ORS 163.175 (1)(b), kidnapping in the second degree as defined in
ORS 163.225 or robbery in the second degree as defined in ORS 164.405 if:
(a) The offense was committed on or after April 1, 1995, but before the effective
date of this Act [October 4, 1997]; and
(b) A sentence has been imposed before the effective date of this Act.

115

(2) Only upon joint written consent of the sentenced defendant and the state, as
represented by the district attorney of the county of conviction, the court of
conviction may entertain, in accordance with section 1 of this Act [137.712], a
petition for a resentencing hearing. The petition must allege facts sufficient to
establish a basis under section 1 of this Act for imposition of a sentence less than
the minimum sentence. The district attorney may file a response either in
support of or in opposition to the petition.
(3) When a petition is filed under subsection (2) of this section, the sentencing
court shall determine, based on the defendant’s petition and the response, if any,
filed by the district attorney, whether the defendant is eligible under section 1 of
this Act for a sentence less than the minimum sentence and whether a lesser
sentence may be appropriate. If the court determines that the defendant is
eligible and that a lesser sentence may be appropriate, the court may order a
resentencing hearing, otherwise the court shall enter an order denying the
defendant’s petition.
(4) If the court orders a resentencing hearing, the court shall determine at the
hearing, in accordance with section 1 of this Act, whether imposition of a lesser
sentence is warranted. If the court determines that a lesser sentence is warranted,
it shall state on the record the substantial and compelling reasons in support of
the lesser sentence, vacate the judgment, impose the lesser sentence and enter an
amended judgment. If the court determines that a lesser sentence is not
warranted, it shall enter an order denying the defendant’s petition. [1997 c.852
§5]
Sec. 6. (1) This section applies to prosecutions for assault in the second degree as
defined in ORS 163.175 (1)(b), kidnapping in the second degree as defined in
ORS 163.225 or robbery in the second degree as defined in ORS 164.405 if:
(a) The offense was committed on or after April 1, 1995, but before the effective
date of this Act [October 4, 1997]; and
(b) A sentence has not been imposed before the effective date of this Act.
(2) Only upon joint written consent of the convicted defendant and the state, the
court in which the prosecution of an offense described in subsection (1) of this
section is pending may entertain a motion requesting that the defendant be
sentenced under section 1 of this Act [137.712]. The district attorney may file a
response either in support of or in opposition to the motion.
(3) When a motion is filed under subsection (2) of this section, the court shall
determine whether the defendant is eligible under section 1 of this Act for a

116

sentence less than the minimum sentence and whether a lesser sentence may be
appropriate. If the court determines that the defendant is eligible and that a
lesser sentence may be appropriate, the court may impose sentence as provided
in section 1 of this Act. Otherwise the court shall enter an order denying the
motion. [1997 c.852 §6]
Sec. 7. The sentencing court retains authority, irrespective of any notice of appeal
after entry of judgment of conviction, to modify its judgment and sentence to
reflect the results of a resentencing hearing ordered under section 5 of this Act. If
a sentencing court enters an amended judgment under section 5 of this Act, the
court shall immediately forward a copy of the amended judgment to the
appellate court. Any modification of the appeal necessitated by the amended
judgment shall be pursuant to an appropriate order by the appellate court. [1997
c.852 §7]
Sec. 7a. If any court holds that the requirement of joint written consent by the
state and defendant required for the court to entertain a petition for resentencing
or a motion for alternate sentencing under section 5 or 6 of this Act is invalid, it is
the intent of the Legislative Assembly that the joint written consent requirement
is nonseverable from the other portions of sections 5, 6 and 7 of this Act and
sections 5, 6 and 7 of this Act shall be entirely invalidated but the rest of this Act
shall stand. [1997 c.852 §7a]

117

B. Subsequent Measure 11-Related
Legislation
House Bill 3439
HB 3439, passed in June, 1995, added attempted murder and attempted
aggravated murder to the original list of 16 M11-eligible offenses.

Senate Bill 1145
SB 1145, which became effective January 1, 1997, provided that parole violators
and felons sentenced to less than one year be assigned to local control rather than
sent to prison, and increased community corrections funding.

Senate Bill 156 and House Bill 3488
SB 156, passed during the 1997 regular session, specified that counties are
responsible for management of parole violators serving less than a one-year
term—a point that had been in question since passage of SB 1145. House Bill
3488, passed during a special session in 1996, applied presumptive prison
sentences of either 13 or 19 months to repeat property offenders with new
convictions.

Ballot Measure 40
Ballot Measure 40, adopted as a constitutional amendment in 1996, prohibited
pre-trial release of persons arrested for an Measure 11 offense unless a court
determined by clear and convincing evidence that the individual would not
commit a new crime while on release, and provided that time served could not
be reduced by any mechanism short of a pardon or rescission of conviction.
Measure 40 was found to be unconstitutional and was overturned by the Oregon
Supreme Court prior to its effective date. Many provisions of the measure were
codified in 1997 by SB 936.

118

Senate Bill 1049
SB 1049, enacted in July 1997,modified Measure 11 by allowing judges to
sentence offenders convicted of second degree assault, kidnapping, or robbery
under the guidelines (instead of under the Measure 11 mandatory terms) if
certain criteria were met, and added three offenses (arson in the first degree
when the offense “represented a threat of serious physical injury,” using a child
in a display of sexually explicit conduct, and compelling prostitution) to the list
of crimes carrying mandatory penalties under Measure 11.71

Measure 94
M94, which appeared on the November 2000 ballot, would have required that all
persons sentenced under Measure 11 be re-sentenced in accordance with Oregon
sentencing laws in place as of March 31, 1995. Additionally, any individual aged
15-17 who had been tried as an adult under Measure 11 would be subject to resentencing by the juvenile court and eligible for release from supervision at age
21. The measure was defeated by a nearly three to one margin.

House Bill 2494
HB 2494, passed in the 1999 legislative session, added Manslaughter II offenses
related to spiritual treatment to ORS 137.712 (the Measure 11 departure statute).

House Bill 2379
HB 2379, passed in 2001, added certain offenses to ORS 137.712 (the Measure 11
departure statute), and allowed up to three days early release for all offenders (to
avoid weekend releases). The offenses affected were second degree rape,
sodomy, and sexual penetration, as well as first-degree sexual abuse.
__________________
71 In 1999, HB 2494 was passed addressing/clarifying the criminal consequences of faith
healing. One provision was to add 1049 treatment of Manslaughter 2 cases involving spiritual
treatment (See 137.712 (2)(a)).

119

C. Partial Text of SB 1049
69th OREGON LEGISLATIVE ASSEMBLY—1997 Regular Session72
Note: Matter within { + braces and plus signs + } in an amended section is new.
Matter within { - braces and minus signs - } is existing law to be omitted. New
sections are within { + braces and plus signs + } .
LC 4177
B-Engrossed
Senate Bill 1049
Ordered by the House June 23
Including Senate Amendments dated April 11 and House Amendments
dated June 23
Sponsored by Senators KINTIGH, STULL; Senators DERFLER, TARNO,
TIMMS, Representatives CORCORAN, JENSON, MINNIS, WELSH
SUMMARY
The following summary is not prepared by the sponsors of the measure and is
not a part of the body thereof subject to consideration by the Legislative
Assembly. It is an editor's brief statement of the essential features of the measure.
Changes directive that case proceeds as violation unless district attorney states
otherwise to directive that case proceeds as misdemeanor. Specifies that term
district attorney includes, under certain circumstances, city attorney, county
counsel and Attorney General. { + Allows court to impose less than mandatory
minimum sentence for conviction of certain Ballot Measure 11 (1994) crimes.
_________________
72 Source: http://landru.leg.state.or.us/97reg/measures/sb1000.dir/sb1049.b.html

120

Specifies that court may sentence according to rules of Oregon Criminal Justice
Commission. Requires certain findings. + }
A BILL FOR AN ACT
Relating to criminal procedure; creating new provisions; amending
ORS 137.700, 137.707, 138.060, 138.222 and 161.565; and
providing for criminal sentence reduction that requires
approval by a two-thirds majority.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1)(a) Notwithstanding ORS 137.700 and 137.707, when a
person is convicted of assault in the second degree as defined in ORS 163.175
(1)(b), kidnapping in the second degree as defined in ORS 163.225 or robbery in
the second degree as defined in ORS 164.405, the court may impose a sentence
according to the rules of the Oregon Criminal Justice Commission that is less
than the minimum sentence that otherwise may be required by ORS 137.700 or
137.707 if the court, on the record at sentencing, makes the findings set forth in
subsection (2) of this section and finds that a substantial and compelling reason
under the rules of the Oregon Criminal Justice Commission justifies the lesser
sentence. When the court imposes a sentence under this subsection, the person is
eligible for a reduction in the sentence as provided in ORS 421.121 and any other
statute.
(b) In order to make a dispositional departure under this section, the court
must make the following additional findings on the record:
(A) There exists a substantial and compelling reason not relied upon in
paragraph (a) of this subsection; (B) A sentence of probation will be more
effective than a prison term in reducing the risk of offender recidivism; and
(C) A sentence of probation will better serve to protect society.
(2) A conviction is subject to subsection (1) of this section only if the sentencing
court finds on the record by a preponderance of the evidence:
(a) If the conviction is for assault in the second degree:
(A) That the victim was not physically injured by means of a deadly weapon;
(B) That the victim did not suffer a significant physical injury; and
(C) That the defendant does not have a previous conviction for a crime listed in
subsection (4) of this section.
(b) If the conviction is for kidnapping in the second degree:
(A) That the victim was at least 12 years of age at the time the crime was
committed; and

121

(B) That the defendant does not have a previous conviction for a crime listed in
subsection (4) of this section.
(c) If the conviction is for robbery in the second degree:
(A) That the victim did not suffer a significant physical injury;
(B) That, if the defendant represented by words or conduct that the defendant
was armed with a dangerous weapon, the representation did not reasonably put
the victim in fear of imminent significant physical injury;
(C) That, if the defendant represented by words or conduct that the defendant
was armed with a deadly weapon, the representation did not reasonably put the
victim in fear of imminent physical injury; and
(D) That the defendant does not have a previous conviction for a crime listed in
subsection (4) of this section.
(3) In making the findings required by subsections (1) and (2) of this section, the
court may consider any evidence presented at trial and may receive and consider
any additional relevant information offered by either party at sentencing.
(4) The crimes to which subsection (2)(a)(C), (b)(B) and (c)(D) of this section refer
are:
(a) A crime listed in ORS 137.700 (2) or 137.707 (4);
(b) Escape in the first degree, as defined in ORS 162.165;
(c) Aggravated murder, as defined in ORS 163.095;
(d) Criminally negligent homicide, as defined in ORS 163.145;
(e) Assault in the third degree, as defined in ORS 163.165;
(f) Criminal mistreatment in the first degree, as defined in ORS 163.205 (1)(b)(A);
(g) Rape in the third degree, as defined in ORS 163.355;
(h) Sodomy in the third degree, as defined in ORS 163.385;
(i) Sexual abuse in the second degree, as defined in ORS 163.425;
(j) Stalking, as defined in ORS 163.732;
(k) Burglary in the first degree, as defined in ORS 164.225, when it is classified as
a person felony under the rules of the Oregon Criminal Justice Commission;
(L) Arson in the first degree, as defined in ORS 164.325;
(m) Robbery in the third degree, as defined in ORS 164.395;
(n) Intimidation in the first degree, as defined in ORS 166.165;
(o) Promoting prostitution, as defined in ORS 167.012; and
(p) An attempt or solicitation to commit any Class A or B felony listed in
paragraphs (a) to (L) of this subsection.
(5) Notwithstanding ORS 137.550 (4)(b), if a person sentenced to probation under
this section violates a condition of probation by committing a new crime, the

122

court shall revoke the probation and impose the presumptive sentence of
imprisonment under the rules of the Oregon Criminal Justice Commission.
(6) As used in this section:
(a) 'Conviction' includes, but is not limited to:
(A) A juvenile court adjudication finding a person within the court's jurisdiction
under ORS 419C.005, if the person was at least 15 years of age at the time the
person committed the offense that brought the person within the jurisdiction of
the juvenile court.
(B) A conviction in another jurisdiction for a crime that if committed in this state
would constitute a crime listed in subsection (4) of this section.
(b) 'Previous conviction' means a conviction that was entered prior to imposing
sentence on the current crime provided that the prior conviction is based on a
crime committed in a separate criminal episode. 'Previous conviction' does not
include a conviction for a Class C felony, including an attempt or solicitation to
commit a Class B felony, or a misdemeanor, unless the conviction was entered
within the 10-year period immediately preceding the date on which the current
crime was committed.
(c) 'Significant physical injury' means a physical injury that:
(A) Creates a risk of death that is not a remote risk;
(B) Causes a serious and temporary disfigurement;
(C) Causes a protracted disfigurement; or
(D) Causes a prolonged impairment of health or the function of any bodily
organ. + }
SECTION 4. { + (1) Section 1 of this Act applies to all criminal actions in which a
person is charged with assault in the second degree as defined in ORS 163.175
(1)(b), kidnapping in the second degree as defined in ORS 163.225 or robbery in
the second degree as defined in ORS 164.405 and the offense was committed on
or after the effective date of this Act.
(2) The amendments to ORS 137.700 and 137.707 by sections 2 and 3 of this Act
relating to the reduction of sentence under ORS 421.121 or any other provision of
law apply to persons sentenced under ORS 137.700 or 137.707 for offenses
committed on or after April 1, 1995. + }
SECTION 5. { + (1) This section applies to prosecutions for assault in the second
degree as defined in ORS 163.175 (1)(b), kidnapping in the second degree as
defined in ORS 163.225 or robbery in the second degree as defined in ORS
164.405 if:
(a) The offense was committed on or after April 1, 1995, but before the effective
date of this Act; and
(b) A sentence has been imposed before the effective date of this Act.

123

(2) Only upon joint written consent of the sentenced defendant and the state, as
represented by the district attorney of the county of conviction, the court of
conviction may entertain, in accordance with section 1 of this Act, a petition for a
resentencing hearing. The petition must allege facts sufficient to establish a basis
under section 1 of this Act for imposition of a sentence less than the minimum
sentence. The district attorney may file a response either in support of or in
opposition to the petition.
(3) When a petition is filed under subsection (2) of this section, the sentencing
court shall determine, based on the defendant's petition and the response, if any,
filed by the district attorney, whether the defendant is eligible under section 1 of
this Act for a sentence less than the minimum sentence and whether a lesser
sentence may be appropriate. If the court determines that the defendant is
eligible and that a lesser sentence may be appropriate, the court may order a
resentencing hearing, otherwise the court shall enter an order denying the
defendant's petition.
(4) If the court orders a resentencing hearing, the court shall determine at the
hearing, in accordance with section 1 of this Act, whether imposition of a lesser
sentence is warranted. If the court determines that a lesser sentence is warranted,
it shall state on the record the substantial and compelling reasons in support of
the lesser sentence, vacate the judgment, impose the lesser sentence and enter an
amended judgment. If the court determines that a lesser sentence is not
warranted, it shall enter an order denying the defendant's petition. + }
SECTION 6. { + (1) This section applies to prosecutions for assault in the second
degree as defined in ORS 163.175 (1)(b), kidnapping in the second degree as
defined in ORS 163.225 or robbery in the second degree as defined in ORS
164.405 if:
(a) The offense was committed on or after April 1, 1995, but before the effective
date of this Act; and
(b) A sentence has not been imposed before the effective date of this Act.
(2) Only upon joint written consent of the convicted defendant and the state, the
court in which the prosecution of an offense described in subsection (1) of this
section is pending may entertain a motion requesting that the defendant be
sentenced under section 1 of this Act. The district attorney may file a response
either in support of or in opposition to the motion.
(3) When a motion is filed under subsection (2) of this section, the court shall
determine whether the defendant is eligible under section 1 of this Act for a
sentence less than the minimum sentence and whether a lesser sentence may be
appropriate. If the court determines that the defendant is eligible and that a
lesser sentence may be appropriate, the court may impose sentence as provided
in section 1 of this Act. Otherwise the court shall enter an order denying the
motion. + }

124

D. Rank Ordering of M11-Eligible Offenses
Offense
Murder
Attempt agg. murder
Manslaughter I
Rape I
Sodomy I
Sexual penetration I
Kidnapping I
Arson I
Assault I
Attempted murder
Robbery I
Manslaughter II
Rape II
Sodomy II
Sexual penetration II
Sexual abuse I
Assault II
Kidnapping II
Robbery II
Child display sex act
Compel prostitution

ORS
163.115
163.095X
163.118
163.375
163.405
163.411
163.235
164.325
163.185
163.115X
164.415
163.125
163.365
163.395
163.408
163.427
163.175
163.225
164.405
163.670
167.017

M-11 Minimum
Case Severity (Sentencing Prison Sentence
(in months)
Guidelines)
11
10
10
10, 9
10, 9
10, 9
10
10
10, 9
9
9
8
8
8
8
8
9
9
9
8
8

300
120
120
100
100
100
90
90
90
90
90
75
75
75
75
75
70
70
70
70
70

Rank
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Note: This rank ordering was provided by the Oregon Criminal Justice Commission.

125

E. Study County Characteristics
Multnomah
(Portland)
666,350
1,517.6

Marion
(Salem)
288,452
240.6

Lane
(Eugene)
325,910
70.9

Oregon
(Total)
3,471,793
35.6

186,659
93,419
87,025
16,812
383,915

51,268
57,579
28,695
3,072
140,614

80,431
60,262
42,894
6,738
190,325

769,195
699,179
428,406
57,226
1,954,006

Age, 2000
Under 18 years old
65 years old and over

22.3%
11.1%

27.4%
12.4%

22.9%
13.3%

24.7%
12.8%

Race, 2000
White, not Hispanic/Latino origin
Black or African American
American Indian/Alaska Native
Asian
Pacific Islander
Hispanic or Latino origin
Other race73

76.5%
5.7%
1.0%
5.7%
0.4%
7.5%
4.0%

76.5%
0.9%
1.4%
1.8%
0.4%
17.1%
10.6%

88.6%
0.8%
1.1%
2.0%
0.2%
4.6%
1.9%

83.5%
1.6%
1.3%
3.0%
0.2%
8.0%
4.2%

Economy, 1999
Median household money income
Per capita money income
Persons below poverty
Unemployment rate

$41,278
$22,606
12.7%
5.2%

$40,314
$18,408
13.5%
6.2%

$36,942
$19,681
14.4%
5.5%

$40,916
$20,940
11.6%
5.7%

Characteristics
Population, 2001
Persons per square mile, 2000
Political Affiliation
Democratic
Republican
No affiliation
Other
Total

Source: 2001-2002 Oregon Blue Book, Oregon Secretary of State, Oregon Archives

_________________
73 Includes all persons who reported any other race.

127

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