Measure 11 Defense Attorneys

MEASURE 11 SENTENCING REQUIREMENTS – OREGON

General Statement

Measure 11 changed sentencing standards for 21 criminal offenses. Prior to 1994, sentencing guidelines in Oregon left a lot of discretion to judges who could adapt a criminal sentence according to the circumstances. Various factors could be taken into consideration for the possibilities of parole, reduced sentence, and early release. Judges no longer have the ability to adjust sentencing due to the mandatory minimum requirements that Measure 11 instituted. Measure 11 penalties are the same for all offenders and they are much longer. Juveniles aged 15 years or older are also subject to the measure. There are a few very narrow Measure 11 exceptions (see below).

Measure 11 has three aims:

1. To impose long mandatory prison terms for 21 designated violent and sex-related offenses
2. To prohibit earned time (also known as “good time” or “gain time”), which is a reduction in prison time for good behavior resulting less time served
3. To provide for mandatory waiver of youthful offenders to adult court

Mandatory Minimum Sentences Under Oregon’s Ballot Measure 11

Important Points to Consider

• For these 21 offenses the court must impose and you must serve, at least the entire term of imprisonment
• You are not, during the service of the term of imprisonment, eligible for release on post-prison supervision or any form of temporary leave from custody
• You are not eligible for any reduction in the sentence for any reason
• The court may impose a greater sentence, but may not impose a lesser sentence than the sentence specified under Measure 11

Sentencing Time Frames

• 300 months = 25 years
• 120 months = 10 years
• 90 months = 7 years and 6 months
• 75 months = 6 years and 3 months

Exceptions to Measure 11 (ORS 137.712 Exceptions to ORS 137.700 and 137.707

• ORS 137.712 (1)(a) When a person is convicted of:
  • • Manslaughter in the second degree (ORS 163.125)
    • Assault in the second degree (ORS 163.175 (1)(b))
    • Kidnapping the second degree (ORS 163.225)
    • Rape in the second degree (ORS 163.365)
    • Sodomy in the second degree (163.395)
    • Unlawful sexual penetration in the second degree (163.408)
    • Sexual abuse in the first degree (163.427 (1)(a)(A))
    • Robbery in the second degree (163.405)

  The court may impose a lesser sentence if the court finds substantial and compelling reason that justifies the lesser sentence as provided by ORS 412.121.

• ORS 137.712 (1)(b) In order to impose a lesser sentence the court must find:
  • Substantial and compelling reason
  • That a sentence of probation would be more effective than prison in reducing repeat offending
  • That probation will better protect society
• ORS 137.712 (2) For a conviction to be subject to a lesser sentence the court must find beyond a preponderance of the evidence (more likely than not):
  • For manslaughter in the second degree:
    • That you are the mother or father of the victim;
    • That the victim’s death was the result of injury or illness that you did not cause;
    • The you treated the victim by spiritual treatment in accordance with religious beliefs or practices based on good faith that the treatment would result in victim’s recovery;
    • No other person in your care has died or sustained significant physical injury as a result of spiritual treatment; and
    • You do not have a prior conviction * or conviction for criminal mistreatment in the second degree
  • For assault in the second degree:
    • The victim was not physically injured by means of a deadly weapon;
    • The victim did not suffer a significant physical injury¹; and
    • You do not have a prior conviction *
  • For kidnapping in the second degree:
    • The victim was at least 12 years of age at the time of the offense; and
    • You do not have a prior conviction *
  • For robbery in the second degree:
    • The victim did not suffer a significant physical injury
    • If you indicated by words or conduct that you were armed with a dangerous weapon the representation did not reasonably put the victim in fear of imminent physical danger
    • If you indicated by words or conduct that you were armed with a deadly weapon the representation did not reasonably put the victim in fear of imminent physical danger
    • You do not have a prior conviction *
  • For sodomy in the second degree:
    • The victim was at least 12 years of age at the time the offense;
    • You do not have a prior conviction *;
    • You do not have a prior juvenile conviction that would have been a sexual felony had it been committed by an adult;
    • You were not more than 5 years older than the victim at the time of the offense;
    • The offense did not involve sexual contact with any other minor; and
    • The victim’s lack of consent was due solely to due the fact that the victim was a minor (under 18 years of age) and could not legally give consent
  • For unlawful sexual penetration in the second degree:
    • The victim was 12 years or older at the time of offense;
    • You do not have a prior conviction *;
    • You do not have a prior juvenile conviction that would have been a sexual felony had it been committed by an adult;
    • You were not more than 5 years older than the victim at the time of the offense;
    • The offense did not involve sexual contact with any other minor; and
    • The victim’s lack of consent was due solely to due the fact that the victim was a minor (under 18 years of age) and could not legally give consent;
    • The object used to commit the unlawful penetration was your hand or any part of your hand
  • * Prior convictions that can preclude you from lesser sentencing:
    • Measure 11 offenses (ORS 163.700)
    • Juvenile Offense that falls under Measure 11 offenses (ORS 163.707)
    • Escape in the first degree (ORS 162.165)
    • Aggravated murder (ORS 163.095)
    • Criminally negligent homicide (ORS 163.145)
    • Assault in the third degree (ORS 163.165)
    • Criminal mistreatment in the first degree (ORS 163.205 (1)(b)(A))
    • Rape in the third degree (ORS 163.355)
    • Sodomy in the third degree (ORS 163.385)
    • Sexual Abuse in the second degree (ORS 163.425)
    • Stalking (ORS 163.732)
    • Burglary in the first degree (ORS 164.225)
    • Arson in the first degree (ORS 164.325)
    • Robbery in the third degree (ORS 164.395)
    • Intimidation in the first degree (ORS 166.165)
    • Promoting prostitution (ORS 167.012)
    • Attempt or solicitation to commit a Class A or B felony

Special Note: Measure 73 Repeat Offenses

Measure 73 was approved in November of 2010. Measure 73 compounds Measure 11 in some circumstances, substantially increases Measure 11 sentencing requirements, and draws juvenile offenders into adult court. The initiative sets a 25-year mandatory minimum prison sentence for:

• Repeat offenders of 4 felony sex crimes:
  • First degree rape
  • First degree sodomy
  • First degree unlawful sexual penetration
  • Using a child in a sexually explicit display
• Measure 73 mandatory minimum sentences are additional to Measure 11 mandatory minimum sentences. (The sentences are combined, or added to each other)
• The measure imposes a mandatory minimum sentence of 300 months for a person convicted of a major felony sex crime if previously convicted of a major felony sex crime
• Requires 90-day jail term for a third drunk driving conviction (which is also considered a Class C felony if the convictions were within the past 10 years)

If you need a Measure 11 defense attorney call us today!

¹ORS 137.712 (6)(B)(c)(A-D) Significant physical injury means a physically injury that:

• Creates a risk of death that is not a remote risk;
• Cause a serious and temporary disfigurement;
• Cause a protracted disfigurement; or
• Causes a prolonged impairment of health or the function of any bodily organ

²ORS 137.712 (6)(B)(a)(A-B) Conviction includes but is not limited to:

• A juvenile court conviction
• A conviction in another jurisdiction that would fall under the prior conviction list

ORS 173.712 (6)(B)(b) Prior conviction means a conviction that was entered prior to a sentence of the current crime. Does not include a class C felony conviction that is 10 or more years old or a misdemeanor.

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