Woodland Hills, CA (PressExposure) October 16, 2009 -- The law firm of James F. O'Rourke, Jr. And Associates, with law offices in Portland, Gresham and Oregon City, Oregon announced today that a recent Oregon Supreme Court decision creates a significant chance for many first time offenders to avoid Oregon Measure 11 sentences. James O'Rourke, Jr. started out as a Portland Criminal Defense Attorney in 1978. Since Measure 11 became law in 1994, Mr. O'Rourke has successfully represented many persons facing Measure 11 charges including those he has represented as an Oregon DUII Attorney. A number of persons who are charged with DUII are also charged with Assault II, which is a Measure 11 crime.
A major focus of Mr. O'Rourke's practice is representing persons at sentencing hearings in Courts throughout the State Of Oregon. "The problem with Measure 11 charges is that the mandatory minimum sentences are so high that many people would rather take a deal for a non-Measure 11 sentence where they have to agree with the District Attorney's prison sentence recommendation rather than risk a higher sentence or consecutive sentences after trial" said Portland Criminal Lawyer O'Rourke. "If the defendant is convicted of the Measure 11 charge, the judge has to give a Measure 11 sentence, except in cases where the Measure 11 Escape Clause applies. "The effect of the mandatory sentence rule is that the District Attorney gets to decide and dictate a prison sentence to persons who make deals for non-Measure 11 Sentences or to avoid consecutive Measure 11 sentences." said Attorney O'Rourke.
"We have had good success in many cases persuading District Attorneys to drop Measure 11 Charges and charge non-Measure 11 crimes with agreements for appropriate sentences. I think it is difficult for anyone to be prosecutor and judge. We have seen many cases where, in my opinion, a Judge would have given a more lenient and appropriate sentence than that given by the District Attorney."
"The ruling by the Oregon supreme Court puts judges back in the business of deciding appropriate sentences in Measure 11 cases involving certain first time offenders" he said.
On September 24, 2009 the Oregon Supreme Court carved out an important exception to Measure 11, Oregon's mandatory minimum sentencing law. The Court ruled in two cases involving persons with no prior criminal record who had engaged in single incidents of sexual touching (outside the clothing) with adolescents of the opposite sex. In each case the sentencing judge balked at imposing the 75 month mandatory minimum sentences and imposed non-Measure 11 sentences of about a year and a half, finding that the lengthy sentence was grossly disproportionate to the conduct.
The state appealed and the Oregon Supreme Court held that a sentencing judge must take into account the nature of the offense, other penalties for similar conduct and the record of the offender and his/her potential for reoffending in fashioning a punishment. These considerations are essential to comply with the Oregon Constitution and its requirement that penalties be proportioned to the offense.
"I have long been an opponent of Measure 11," said Lawyer O'Rourke, Jr. "This ruling gives the defense another sentencing tool in Measure 11 cases, in addition to the 'Escape Clause.' "We can use the proportionality right to free first time offenders from Measure 11 sentences."
"This exception has been a long time coming," said O'Rourke. He noted that other challenges based on cruel and unusual punishment had failed, as the Court set a very high standard in making a showing that the punishment was cruel and unusual. "In my practice I have always looked at my clients as people first and tried to work with the Court and the DA to find a fair result." "This decision gives the defense an extra tool in arguing for Non-Measure 11 sentences and helps us get appropriate sentences for the one class of person who is most abused by Measure 11, the first offenders."
O'Rourke noted that Measure 11 runs contrary to the fundamental principles of the adversarial system: "Measure 11 puts D.A.'s in the position of being both a prosecutor and a judge, since they decide whether or not a case will be subject to a Measure 11 minimum." "Most D.A.'s offices exercise this power in a principled way, but there are exceptions and the better question is whether they should have that power at all." "People should have a right to have the D.A.'s decision reviewed by an independent judge who has the authority to disagree with the D.A." "That is a fundamental right in our system."