Oregon's Ballot Measure 11

I must apologize for taking so long to write and provide you with further information about Oregon's "prison for profit" scheme and Ballot Measure 11 sentencing. I was placed in DSU [isolation] for 120 days for Extortion I, Disrespect I and False Information to an Employee I.

A certain person (inmate) here was trying to gain favor with the guards (ie. rat), and to do so he implicated several people in a false extortion scam; I was one of them. I was questioned by a Lt. Foote, who right away told me "you're lying, I don't believe you." Well, needless to say, when I told Lt. Foote I was doing no such thing, I got Disrespect I for telling Lt. Foote this was not true and he was incorrect. And then because I explained I know no such thing and am doing no such thing, I got False Information to an Employee.

While in DSU, Officer B. Holt told me that "It doesn't matter what the truth is, it's what the officer perceives it to be." So they (the officers) can make up what they want for their truth and as inmates, we have no recourse. Furthermore, I was found guilty at my hearing, sanctioned to 120 days in DSU and a $100 fine. An excellent money making scam by the state and Snake River Correctional Institution.

I am out now and able to finally send you more information on Ballot Measure 11.

Oregon's Ballot Measure 11 (ORS 137.700) 'mandatory minimum' sentencing scheme creates what is in effect, an upward departure, on certain crimes without a jury consideration (see Blakely v. Washington , case no. 02-1632, decided June 28th, 2004). The 'mandatory minimum' sentence is more than the presumptive sentencing range in the sentencing guidelines, and in some cases more than the 200% or 400 % rule would allow. Add many counts and you can reach up to 800 months!

Ballot Measure 11 violates the United States Constitution's guarantee of due process pursuant to the 6th and 14th Amendments. Ballot Measure 11 offenses and punishments are separate form any other sentencing schemes (ie. the matrix system and sentencing guidelines grid). Ballot Measure 11 MUST be stated or seated in the indictment pursuant to the U.S. Supreme Court's decision in Apprendi v. New Jersey (200) and Ring v. Arizona (2002). Under Apprendi and Ring ANY finding that authorizes an increased maximum punishment must be treated, for constitutional purposes, as the functional equivalent of an element of an offense. As Justice Scalia put it:

"I believe that the fundamental meaning of the Jury-trial guarantee of the 6th Amendment is that all facts essential to imposition of the level of punishment that the defendant receives- whether the statute calls them elements of the offense, sentencing factors, or Mary Jane- must be found by the jury beyond a reasonable doubt."

Ballot Measure 11 is not stated on many indictments and it takes the power away from the jury and gives it to the state.

Punishment authorized by a finding not alleged in the charging instrument (indictment) violates the 14th Amendment of the U.S. Constitution for due process of law. See United States v. Gonzales (2003), which says that facts increasing punishment "must be alleged in the indictment and found by a jury." Ballot Measure 11 automatically increases a defendant's sentence without any jury consideration.

First and second degree crimes are separate in punishment far in excess of any sentencing guidelines grid offense and separate from other guidelines crimes due to the difference in elements. Ballot Measure 11 sentences are not 'mandatory minimum' sentences to ANY sentencing guidelines grid crimes because in most cases the Ballot Measure 11 sentence far exceeds the presumptive sentencing range on the sentencing guidelines grid.

Ballot Measure 11 is in fact a 'mandatory maximum' sentence for most of its enumerated crimes according to the presumptive range in the sentencing guidelines grid. As I referenced earlier in this letter, Ballot Measure 11 in many cases goes beyond the 200% and/or 400% rule. But what is the 200% or 400% rule? It is this: OAR (Oregon Applied Rules) 213-008-003(2) limits a durational departure sentence to twice the presumptive sentence. This equals the 200% rule. OAR 213-008-0007 limits the total of consecutive sentences to no more than twice the maximum sentence permitted for the primary offense. These two provisions create the 400% rule when used together. The consecutive sentence total cannot exceed 400% of the primary offense's presumptive sentence. However, the 400% limitation ONLY applies to offenses sentenced consecutively, which arise out of the same criminal episode.

The enumerated crimes of Ballot Measure 11 have separate punishments based on the elements of the crime(s), not on the basis of a prior criminal conviction, which is contrary to clearly established and current controlling U.S. Supreme Court law! And, Ballot Measure 11 violates the 6th Amendment of the U.S. Constitution because it is an upward departure without ANY jury consideration of elements or aggravating factors.

In the case Blakely v Washington (2004), the U.S. Supreme Court ruled that Washington State's "sentencing guidelines" were unconstitutional because they allow defendants' sentences to be increased by judges not juries. In reaching this conclusion, the majority stated:

"Our commitment to Apprendi in this context reflects not just respect for long-standing precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control on the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See letter XV, but the Federal FArmer (Jan 18th, 1788), reprinted in 2 the Complete Anti-Federalist 315,230 (H. Storing ed. 1981) (describing the jury as "secur[ing] to the people at large, their just and rightful control in the judicial department"); John Adams, Diary Entry (Feb 12th, 1771), reprinted in 2 works of John Adams 252,253 (C. Adams ed. 1850) ("[T]he common people, should have as complete a control... in every judgment of a court of judicature," as in legislature); Letter from Thomas Jefferson to Abbe Arnoux (July 19th 1789), reprinted in 15 papers of Thomas Jefferson 282,283(J. Boyd ed. 1958)("Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative:); Jones v. United State , 526 U.S. 227, 244-248(1999). Apprendi carries out this design by ensuring the judge's authority to sentence derives wholly from the jury's verdict. Without that restriction, the jury would not exercise the control that the framers intended."

Thus, it is wrong and unconstitutional to take power away from the people. Isn't our government for the people, by the people?

- an Oregon Prisoner, August 2005