YOUTH AND MEASURE 11 IN OREGON IMPACTS OF MANDATORY MINIMUMS OREGON COUNCIL ON CIVIL RIGHTS CHAIR: ROBERTA PHILLIP-ROBBINS WITH BEN SCISSORS FEBRUARY 2018 ACKNOWLEDGEMENTS This report was the result of many collaborative hours among various stakeholders. However, the author would like to acknowledge several individuals in particular whose tireless efforts and gracious assistance made this report possible. A special thanks to: Dr. Mark Leymon, Assistant Professor, Criminology and Criminal Justice Department, at Portland State University, who provided deft analytical guidance, especially with highly technical statistical analyses in the report; Tanika Siscoe, a graduate student at Portland State University, who assisted in research, youth interviews and the herculean effort of transcription; and Joseph O’Leary and Sarah Evans of the Oregon Youth Authority who generously facilitated the invaluable in-person interviews with justice-involved youth at MacLaren Youth Correctional Facility. These interviews helped give voice to those who often have none. Sarah Radcliffe, Attorney, Disability Rights Oregon, and Thaddeus Betz, Attorney, for their valuable contributions regarding young people with disabilities and bail, respectively. --Ben Scissors Design and layout by Alice Lundell, Director of Communication, Oregon Justice Resource Center. This report was prepared in collaboration with the Oregon Justice Resource Center, a 501(c)(3) nonprofit organization based in Portland, Oregon. PO Box 5248 Portland Oregon 97208 www.ojrc.info [email protected] 503-944-2270 TABLE OF CONTENTS Executive Summary 1-2 Policy Recommendations 3 Introduction 4-5 Interviews with Youth in Oregon Youth Authority Custody: Part One 6-7 Youth in the Context of their Development and the Criminal Justice 8-16 System Interviews with Youth in Oregon Youth Authority Custody: Part Two 17-18 Understanding Ballot Measure 11 19-21 Interviews with Youth in Oregon Youth Authority Custody: Part Three 22-23 Does Measure 11 Make Sense for Youth? 24-31 Interviews with Youth in Oregon Youth Authority Custody: Part Four 32-33 Collateral Consequences of Measure 11 34-36 Interviews with Youth in Oregon Youth Authority Custody: Part Five 37-38 Recommended Policy Changes for Measure 11 Youth 39-43 Appendix One 45 Bibliography 46-51 References 52-66 EXECUTIVE SUMMARY BACKGROUND Measure 11 sentences at MacLaren Youth Correctional Facility. Oregon’s policy of charging youth as adults under Measure 11 is a harsh and costly practice that stands We used Measure 11 youth data originally collected at odds with a contemporary understanding of and compiled by the Oregon Department of Justice in brain science. While other states have modernized consultation with the Oregon Youth Authority. The their approaches, Oregon has not. Today, Oregon authors then organized and analyzed the research incarcerates young people at a higher rate than with the help of Dr. Mark G. Harmon, a Professor in almost every other state in the country, including the Department of Criminology and Criminal Justice Texas and Louisiana. In fact, Oregon has the second at Portland State University. The research pointed highest rate of youth transfers to adult court in to a clear racial disparity in both the indictment and the nation, with young people - especially youth of conviction of Oregon’s youth of color compared to color - subjected to lifelong consequences as a result. their white peers. The data underscore the racial disparities: in 2012, Oregon convicted black youth of Measure 11 offenses This report also explores a small sampling of the at 17 times the rate of their white counterparts.1 human cost of Oregon’s outdated approach. We conducted five in-depth, semi-structured interviews PURPOSE with youth currently serving Measure 11 sentences at MacLaren Youth Correctional Facility for crimes they Beyond highlighting Measure 11’s stark racial impact, committed when they were 15, 16, or 17 years old. the purpose of this report is to bring together The interviews provide an intimate perspective on components of the juvenile justice policy discussion the hopes of a few Measure 11 youth. They also reveal typically considered only in isolation. In doing so, the the trauma of their upbringings and the fear and report highlights how Measure 11 is an ill-conceived confusion that characterized their experiences with tool for the unique needs and responses appropriate the adult court system. for justice-involved youth. Children have a unique capacity for change and growth and our criminal REPORT OVERVIEW justice policies should reflect this empirical fact. 1. Section 1 (“Introduction”) provides a guide to METHODOLOGY the report as well as recommended additional reading material on juvenile justice and youth brain This report seeks to present a more nuanced and development. comprehensive look at Measure 11 and justice- involved youth by drawing on various types and 2. Section 2 (“Youth in the Context of their sources of information. In addition to academic Development and the Criminal Justice System”) research and media coverage, this report incorporates describes how youth has been characterized and 1 data on Measure 11 referrals and several in-depth defined by the U.S. Supreme Court in recognition interviews with young people currently serving of emerging youth cognitive development research. Due to their still-developing brain structures, young them and their family is significant, as the conviction people are particularly susceptible to risky behaviors may impede their ability to obtain work, housing, and and peer pressure, but also possess a unique capacity often higher education. These effects are not confined for change and growth. The Court has recognized to the youth, however: Oregon taxpayers bear a their special vulnerabilities and concluded that they significant burden for youth incarceration. Measure are inherently less culpable than adults for their 11 offenders require close custody, the most expensive actions as a a result. form of state confinement, which can result in costs of as much as $263 per day and $95,995 per year, per 3. Section 3 (“Understanding Ballot Measure 11”) juvenile. deconstructs Ballot Measure 11 into its constituent elements: its basic components, formation and 6. Section 6 (“Recommended Policy Changes evolution. One key insight is the heightened fear for Measure 11 Youth”) proposes key policy around youth crime - particularly black youth crime recommendations designed to support the - that pervaded the minds of voters when Measure 11 rehabilitation of young people. At the most was passed in the 1990s. Measure 11 restructured the fundamental level, Oregon should adopt policies criminal justice system to be less rehabilitative and designed for young people, instead of trying to more punitive, particularly for young people. impose on them policies designed for adults. 4. Section 4 (“Does Measure 11 Make Sense for Youth?”) tackles the question of efficacy and discusses Measure 11’s impact on Oregon. Measure 11 has had no clear benefit to public safety as measured by deterrence or recidivism. In fact, most research suggests that interactions with the adult criminal justice system at such a young age increase recidivism and reduce public safety. Measure 11 has significantly expanded the number of young people put in state custody and tried as adults. The lifelong consequences of an adult record can be devastating to young people and their families and costly for communities and taxpayers. Measure 11 is a blunt instrument that has largely stripped judges of their discretionary power to take into consideration the particular mitigating factors of a young person’s case through mandatory sentences applied to children as young as 15 as though they were adults. This one-size-fits-all policy disproportionately hurts youth of color. a. Key statistics on race: i. Black youth account for 15.5% of Measure 11 indictments but only 1.8% of the general population in Oregon (resulting in an over- representation of around 8.6 times.) ii. The average relative rate of disparity (measure by the relative rate index or RRI2) between black and white youth for the five most common Measure 11 crimes is 15.26. The overall RRI for all crimes covered in this study was 13.6. 5. Section 5 (“Collateral Consequences of Measure 11”) discusses the drastic, and often overlooked, impact 2 of an adult conviction that stays with a young person well after they have served their term. The impact on POLICY RECOMMENDATIONS To address the impact of Measure 11 on Oregon youth 1. REMOVE ALL YOUTH FROM AUTOMATIC ADULT PROSECUTION UNDER MEASURE 11 AND RETURN OREGON TO A “DISCRETIONARY WAIVER” SYSTEM. This would put much-needed discretion back in the hands of judges, in contrast with the current system that allows prosecutors sweeping authority to decide how to prosecute Oregon youth. This modest reform would still allow judges to levy severe sentences against serious child offenders, but would restore the court’s ability to look at the mitigating circumstances particular to each case. 2. MORE TRANSPARENT DATA COLLECTION FROM PROSECUTORS’ OFFICES AND LAW ENFORCEMENT. One critical problem with prosecutors’ vast discretionary power is that: “[their] offices are mostly a black box with little transparency.”3 4 Police officers similarly share a key role as gatekeepers to the criminal justice system. To facilitate smart, data-driven policymaking, counties across the state should provide demographic data on youth referrals to prosecutors’ offices. In addition, they should provide the public with more descriptive information about felony filings to adult court, updated annually. 3. GIVE ALL YOUNG PEOPLE THE OPTION OF A “SECOND-LOOK HEARING.” EVERY YOUNG PERSON SHOULD HAVE THE CHANCE TO PROVE TO A JUDGE THAT THEY CAN GROW AND CHANGE. The U.S. Supreme Court, relying on the most up-to-date cognitive science available, has said clearly that young people have a tremendous capacity for change and positive growth, regardless of the severity of their crimes. Measure 11 has stripped away the opportunity for young people to demonstrate this potential.