More on recent Oregon sentencing legislation

Oregon Circuit Court Judge Michael Marcus, who operates this interesting site called Smart Sentencing, recently highlighted on a listserve a number of new Oregon sentencing laws.  He permitted me to reprint his summaries (which enhance my coverage in this prior post on Oregon’s Blakely fix), along with some explanatory commentary:

• SB 528 (available here) adopted a variation of the Kansas approach to post-Blakely enhanced sentencing, affording jury trial rights and bifurcation of offense- and offender- related sentencing issues (the former tried with guilt), dealing with cases on remand, and applying to dangerous offender as well as upward departure enhancement contexts. The statute is written broadly enough to encompass consecutive sentencing (Oregon’s statute is in part particularly susceptible to a Blakely argument) and any other situation in which the constitution requires a jury trial right for a sentencing related fact. [We’re working on appropriately revised jury trial waiver forms and guilty plea petitions, if anyone is interested]

• SB 914 (available here) extends state-wide an innovation in orders for pre-sentence investigations that our county initiated two years ago: such PSIs must now “provide an analysis of what disposition is most likely to reduce the offender’s criminal conduct, explain why that disposition would have that effect and provide an assessment of the availability to the offender of any relevant programs or treatment in or out of custody”

• SB 919 (available here) requires our sentencing commission [the Oregon Criminal Justice Commission] to “conduct a study to determine whether it is possible to incorporate consideration of reducing criminal conduct and the crime rate into the commission’s sentencing guidelines and, if it is possible, the means of doing so.” 

My view of the best (but remote) hope for the impact of Blakely is that it will give us an opportunity to re-examine the value and direction of the guidelines movement.  I see the movement as essentially a well-intended but partially misdirected attempt by those who once supported the medical model of sentencing to recover from the realization later in the 20th century that rehabilitation goals are not achieved merely by proclaiming them (1962 Model Penal Code).  Instead of accepting the challenge of outcome shortfalls, this movement retreated to less significant goals: normalizing sentencing and pretending that blue-ribbon sentencing commissions would actually moderate what it viewed as “punitivism” and the “mass incarceration” trend.  The result is guidelines that have nothing intentionally to do with crime reduction (Virginia’s are the only exception).  The latter two bills represent an attempt to meet the challenge of empty promise with rigorous pursuit of responsible crime reduction.

For more on Judge Marcus’s view of the post-Blakely, post-Booker world, check out his article entitled Blakely, Booker, and the Future of Sentencing to be soon appearing in this forthcoming issue of the Federal Sentencing Reporter.