Oregon Supremes throw brush back pitch against M11 sentencing

Carla Axtman

I'm not an attorney and I don't play one on this blog. But it looks to me like the Oregon Supreme Court has just decided that at least in some Measure 11 cases, the punishment is way out of whack proportionate to the crimes, and is unconstitutional.

The court's decision is built from two cases. One is the case of Veronica Rodriguez, found guilty of first degree sexual assault (a Measure 11 crime) for running her hands through a 13-year-old boy’s hair and pulling his head against her covered breasts in the back of a room of 30-50 people at the Boys and Girls Club in Hillsboro. Rodriguez had no criminal history. At the trial court in Washington County, Rodriguez was sentenced to one year and four months in prison. The Court of Appeals said that the trial court couldn't legally impose a sentence less than what Measure 11 requires, and added additional prison time to Ms. Rodriguez's sentence.

Under Measure 11, Rodriguez faced a total of 75 months in prison.

The other case is that of Darryl Anthony Buck of Linn County, who was found guilty of first degree sexual assault for touching a 13-year-old girl's clothing covered butt a number of times during a fishing trip. Buck also had no criminal history. The trial court handed down a 17 month sentence for Buck. The Court of Appeals reached the same conclusion with Buck's case that they reached with Rodriguez: 75 months.

The Supreme Court concluded today that "...the imposition of the mandatory 75-month sentence for first-degree sexual abuse, as applied to the facts of Rodriguez's and Buck's offenses, would violate the constitutional requirement that the penalty be proportioned to the offense".

I spoke earlier today with Peter Gartlan of the Office of Public Defense Services. Gartlan said, "Basically, the Court of Appeals said that that the Measure 11 sentence was too harsh. In exceptional cases a trial court can impose a lesser sentence."

Gartlan explained that the presumption when someone is charged with a Measure 11 crime is that the required sentence is appropriate. The facts of the individual cases must be so dramatically different that judges will see it as exceptional. Even if the conduct is technically within the statute, conduct that fits around the margins can now be considered for lesser sentencing.

This decision is good news for basic civil rights and fairness. But it's also good news for Oregon taxpayers who throw millions down the rabbit hole of the state prison system. These egregiously long sentences for these types of situations are unjust and a burden on an a system already under serious pressure.


Comments

  • mlw (unverified)
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    Do yourselves a favor and don't associate the left with this decision. Being against the voters and for sex abusers will not win us votes.

    The larger issue is whether Oregon sentencing policy is at all rational. Instead of having judges or juries consider the larger picture of how serious the offense is and how bad the criminal's history is, we now have a highly constrained system that, yes, sometimes overpunishes criminals, but more often underpunishes repeat offenders. If you doubt this, look at the substantial majorities of the voters that support M11 and M57. A better system would simple leave sentencing discretionary within the framework of the levels of felonies (A, B, C). That is, after all, what we supposedly elect judges to do. This would mean eliminating M11 and M57, but also the sentencing guidelines.

    It would also mean reinvorating judicial elections so that they could engage in meaningful debate about their sentencing philosophies. Eliminating judicial appointments would be a good start.

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    Do yourselves a favor and don't associate the left with this decision.

    Do you seriously and sincerely believe that putting a boy's head against clothed breasts warrants a 75 MONTH sentence?

    That's ridiculous and frankly, no reasonable person believes this is appropriate.

  • Mlw (unverified)
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    In that case, no, but why is 6 months appropriate for an 11th PCS when 5 years is authorized? The sentencing guidelines set an inappropriately low ceiling in the same way that M11 sets too high a floor in others. It's hypocritical to oppose one and not the other.

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    I don't know what "11th PCS" is. Can you clarify?

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    I'm also wondering why in the world anyone wouldn't want to be associated with bringing about justice in for these two defendants. Whether or not you think sentencing for other stuff is too low--the idea that somehow the Oregon Supremes have decided that rapists and sexual assaulters get a pass is ludicrous.

    Today's decision is a very good thing for justice and for an over-taxed prison system.

  • Mlw (unverified)
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    Possession of a controlled substance conviction= PCS for trial lawyers like me. Drug possession in the common parlance. We routinely see people with 10+ convictions and multiple rehab failures. They don't want to "get better", but there's no real deterrent value in a short jail sentence, which is all they can be.given.

  • Mlw (unverified)
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    Here's the problem - these sentences came out of left field. The prosecution would not have presented all the aggravating facts because the M11 sentence was the presumed sentence and there wouldn't have been any point. So, while you may be correct that there was no history of this you may also be quite mistaken. That's why judges should not go off half cocked, as Judge McCormick is infamous for doing (the judge in Buck). Sentencing should depend on the severity of the crime and the character of the defendant. Both M11 and the guidelines get away from this.

    As for the political side of things, it behooves us to respect the will of the voters. If you don't believe that, then you may be a Democrat, but you're not a democrat.

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    As for the political side of things, it behooves us to respect the will of the voters. If you don't believe that, then you may be a Democrat, but you're not a democrat.

    I don't believe the "will of the voters" was to lock people up for 6 years under these circumstances. It's ridiculous. And to platitudinously assert that it's somehow otherwise undermines any notion that you bring rationality to the table in this discussion.

    The "aggravating circumstances" in Buck were what, exactly? The judge agreed with the defense that the girl in question was using "histrionics" in a way that influenced the jury inappropriately. And the guy got 17 months so it's not like he was just allowed to walk. That seems like an appropriate sentence for touching her clothed butt a few times on a fishing trip.

  • Eric Parker (unverified)
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    "These egregiously long sentences for these types of situations are unjust and a burden on an a system already under serious pressure."

    That may be. However, these sentneces do the following items very well:

    1. Makes the next person think twice, and, in turn, becomes more aware of thier position in thier life.
    2. Shows that the state means business - no foolin around with knee-jerk plea bargains and reduced sentences based on questionable circumstances.

    Measure 11 took away the abusive grey areas that made the system a joke. Now it is one way or the other - no in-between stuff. Besides, this is only 2 out of many that have been handed down. Griping over a small percentage of precived injustices just reeks of sour grapes.

    It's something we just have to buck up and live with until someone has the balls and money to alter or repeal M11.

  • Mlw (unverified)
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    One example would be a history of doing the same thing. It's an issue of sentencing procedure. My point is that you've assumes that all the facts were before the court. That's probably not a good assumption.

    As for your point about the voters, tell me how many times the voters have reversed themselves lately.

    None. Your position would make us the party that thinks the voters arent smart enough to vote - traditionally a Republican position.

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    MLW: you sincerely believe that voters decided that people who do what these two did should go to jail for six years? That's seriously your contention?

    Eric: So you believe we should be running our system of jurisprudence with the notion that it's perfectly okay if a few people's civil rights are trampled, just so long as we're being hard-nosed to show the bastards that they can't get away with stuff?

  • Douglas K. (unverified)
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    "Being against the voters and for sex abusers will not win us votes."

    The thing is, there was no "sex abuse" in the Rodriguez case, at least not in the act that the Court of Appeals decided warranted a 75 month sentence. She hugged the kid from behind while he was seated in a chair. A standing woman hugs a seated person from behind ... guess where the back of the seated person's head winds up?

    Six years, three months in prison for an inappropriate hug? If the Court of Appeals' outrageous decision had been allowed to stand, the anti-Measure-11 forces would finally have their poster girl.

    I don't question that Ms. Rodriguez behaved unprofessionally based on the allegations, but turning a hug into "sex abuse" is a sick mockery of justice.

  • Mlw (unverified)
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    Carla - the voters ha the chance to repeal M11 and did not. So, yes.

    Eric - the jury disagreed with you. They know more about the case than any of us. We have juries for a reason.

    The Court is wrong on this. While I'm not a fan of M11, they ignored the will of the voters, who are a better gauge of what shocks the moral sense.

    Even if you agree with the Court, consider how this will play with Mannix and company. They will eat us for lunch on the next round of initiatives.

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    Even if you agree with the Court, consider how this will play with Mannix and company. They will eat us for lunch on the next round of initiatives.

    If this had been allowed to stand--the left would have eaten Mannix's lunch.

  • Eric Parker (unverified)
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    "the jury disagreed with you"

    And that is why it went to appeal. Although, in thoery, we are not to question a jury's decision, appealing it says otherwise.

    The sentences may be extreme, but having them there sends a message about the consequences if you are not aware of your actions and surroundings. Innocence in the name of ignorance is not a civil right.

  • Jel-N (unverified)
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    Douglas K- I appreciate your comments, but the Supreme Court all agreed that there was evidence sufficient for a jury to determine there was in fact sexual abuse. The only thing the Supreme Court was divided on was whether or not the Measure 11 mandatory minimum should stand.

    Unfortunately the pre-Measure 11 sentence of 16 to 18 months was all that the judge could do because as MLF points out there is a very weak setencing guideline framework absent Measure 11. Some in our party (Chip Shields) have weakened that guidelines framework further by increasing good time to 30% and limiting probation violations to 1/3rd what they used to be (180 days to 60 days).

  • LT (unverified)
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    MLW, stereotyping really angers some people. Who exactly belongs to "the left"? How many ordinary people would say that the facts of that woman's case (in a public place, no nudity involved) would be the same as rape or abuse of children?

    For years some have said that anyone convicted of a Measure 11 offense deserved to have the toughest possible sentence, regardless of the facts of the case. Sounds like the Supreme Court is saying "not so fast!".

    My grandfather was a lawyer, a county prosecutor who put gangsters behind bars during Prohibition in Michigan, state AG, and a state Supreme Court Justice. From everything I have heard and read, he was not one to say the Supreme Court had not right to oversight of local prosecutors.

    What exactly has Mannix done to rival what my grandfather did? And yet, someone like my grandfather might not have been seen as "tough on crime" by the Mannix crowd whose mantra seems to be "Tough on crime means support of Mannix measures. Period."

    "Being against voters"? How many times did voters uphold land use planning before Measure 37 passed? How many voters didn't like the way Measure 37 implementation took place and voted for Measure 49? How many people here were old enough to vote on the unsuccessful attempt to overturn land use planning in the 1982 election? Should Measure 37 never have happened because the voters spoke in 1982?

    Anybody notice the young legislators elected in the 2008 election where there were lots of young voters?

    Are they really going to be attracted to those who say ANY measure passed before they were old enough to vote can never be challenged by those who were not old enough to vote on the measure?

    I noted above that my grandfather was a prosecutor during Prohibition. He was also part of a movement among law enforcement folks for the repeal of Prohibition. Whatever else it did, it created a lot of gangsters who made a profit off illegal liquor. Ever hear of Elliot Ness and the Untouchables? The name came from one of them being tossed a package of money to drop an investigation, and he tossed it back.

    Now if there is a brand of Republicans who say they don't want to increase taxes but strict sentences (regardless of any Supreme Court decisions) should always be imposed and if that means money coming out of education for prisons tough luck, I would remind them of another "voters have spoken" moment.

    Kevin Mannix ran for Gov. in 2002 on the slogan "tough on crime no new taxes". The voters spoke. The voters elected someone else Gov.

    Was everyone who voted for someone other than Kevin Mannix a member of "the left"?

    This is a landmark decision. It says as strongly as the single-subject rule enforcement many years ago that the idea of Kevin Mannix as king, with his views unquestioned, is not what Oregon is about.

  • mlw (unverified)
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    LT and Carla - I can't say much except that the initiative history strongly refutes your point of view. The truth is that Mannix has been overwhelmingly successful with his initiatives.

    In my opinion, that's because we have been unable to come up with a cogent alternative. When we did, with M57, we did defeat him. Now, people like you, Carla, and Chip Shields want to renege on the deal we made with the voters with M57, simply because you disagree with the premise.

    Well, politics is as much about process as substance. If you override the voters through the courts or the legislature, you will pay the price at the polls. You seem to live in this echo chamber where it's all about the future and never about the past; where it's all about preventing the next crime, rather than punishing the one in front of the court. The voters have overwhelmingly rejected this philosophy, and you seem quite willing to play games with the process because you disagree. That will cripple our party over the long run. If you oppose them on substance, then win them over in the same process. Get an initiative out there that supports your vision of sentencing. I doubt it would pass, but it would be more honest.

    Parties win majorities because the party in power becomes separated from the will of the people and play games to get their way. That's what happened to the Rs and that's what will happen to us unless we respect the initiative process.

  • Roy McAvoy (unverified)
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    It seems far more preferable to see the few isolated cases of injustice rectified, than to ever lose M11. I am extremely happy the justices are reviewing these sentences to insure they have been handed out fairly and properly. If 98% of the M11 cases offer a true and just punishment to convicted offenders, and the other 2% are being properly reviewed and reversed, then the system is working fine.

  • Miles (unverified)
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    The Court is wrong on this. While I'm not a fan of M11, they ignored the will of the voters, who are a better gauge of what shocks the moral sense.

    The problem with this statement, MLW, is that voters did not vote on whether first degree sexual abuse should be defined as the actions in these two cases, and they did not vote on whether first degree sexual abuse should be punished by 75 months. They voted very abstractly for "mandatory minimum sentences." That's it. So it's disingenuous to say that this court ruling "goes against the will of the voters." Carla's point is that if you put this specific sentencing question for these two specific crimes up to a vote, the voters would overturn it in a landslide.

    And the guy got 17 months so it's not like he was just allowed to walk. That seems like an appropriate sentence for touching her clothed butt a few times on a fishing trip.

    Carla, I have a real problem with this statement. Do you know how long 17 months in jail is? And you think that's appropriate for touching someone's clothed butt? Really?

    I think the Rodriguez case is more troubling. It wasn't just the hug, it was the emails and the lap-sitting and the cheek-kissing. And she was also charged with letting the boy fondle her breasts, although that resulted in a hung jury. Something else seems to be going on there. I still think 75 months is outrageous and I'm glad it ended up only being 15 months, but I think it's unfair to characterize that case as just a hug-gone-wrong.

  • mlw (unverified)
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    The voters approved M11 knowing what it was about. The jury (in one case and judge in another) found the defendant guilty of the M11 offense. I think the voters know the logical consequences of their actions.

    Besides, you're missing the point. The jurors/judge had the opportunity to decide whether or not these acts were committed with a sexual motive knowing ALL the facts. They found that there was a sexual motive. The voters passed a mandatory minimum for these acts committed with a sexual purpose - M11. There's another statute - sexual harassment - that doesn't require a sexual motive and has no mandatory minimum.

    Why do you assume that the voters, jury and judge did not know this or somehow think that the result in inappropriate? The voters think that a mandatory minimum for acting in this manner with a sexual purpose is appropriate. It's not for the Supreme Court to impose their own white, upper class, liberal point of view about "moral sense" over the wishes of the voters. I'm sorry to have to put in in those stark terms, but there it is.

  • LT (unverified)
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    "The truth is that Mannix has been overwhelmingly successful with his initiatives. "

    Including the one which had so many parts the Supreme Court ordered following of the single-subject rule, which would mean one idea per measure. There were originally 8 parts, as I recall, one didn't make it as a legislative referral. The rest were put on the ballot with a campaign of "pass them all".

    Except the voters in their wisdom passed about half of them and turned the others down.

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    It's not for the Supreme Court to impose their own white, upper class, liberal point of view about "moral sense" over the wishes of the voters.

    We can argue about the appropriate labels of the values of the Supreme Court--but it's absolutely for them to impose the law. That's their job. We have a system of checks and balances in this country and in this state.

    Just like it was inappropriate for the people of Arkansas (and make no mistake, it was the wishes of their voters) to block students from attending school after Brown v Board of Education, it's inappropriate for a vote of the people to abridge basic civil liberties and justice for individual citizens. It's the job of the court to interpret the law--which they did today.

  • ward weaver (unverified)
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    Carla, I fully support ending M11. It's wrong, it's cruel and too expensive. Thanks, Ward

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    Hey "Ward"...how about sacking up and talking about civil rights and justice..which is the crux of what this is about?

    I understand that there are people who believe that longer, harsher sentences are the answer to crime. Or at least part of the answer. But where does one draw the line? Do we throw someone in jail for years for throwing trash on the sidewalk? Do we send someone up the river for an extended period for jaywalking? Do we take someone's freedom away for months on end because they can't pay their credit card bills?

    This thread is illustrating (to me) a fundamental inability on the part of many to demonstrate a reasonable perspective on sentencing. So I'm asking...where is the line?

  • Jel-N (unverified)
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    I think it is offensive to compare the marjority of Oregonians of the 1990s who voted for Measure 11 with that of white Arkansans electorate of the 1950s and 60s. Voting to deprive a person of color of the right to a fair education is certainly not the same as voting to deprive a duly convicted criminal of liberty for a felony offense.

  • Michael B (unverified)
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    1. I agree it is suicide to be seen as standing up for sex criminals, regardless of how unjust the sentence. Politics is about priorities, and if this issue is considered important enough to sacrifice majorities or to sacrifice opportunities to make headway on other issues, then go for it. As much as I care about justice, I do not think we should sacrifice our majority for this, and I do think that would be a probable outcome if Dems made a high-profile effort on this front. Voters use M11 and the like to express their visceral disapproval for these crimes and this type of thinking does not allow for nuance, so attempts at arguing nuance are futile. If you want to reign in unreasonable sentences you are soft on crime. Any effort to reverse M11 or significantly weaken it must come from a nonpartisan campaign for a ballot measure. The most I'd advise is for the legislature appoint a special commission to study the issue and recommend reforms, then put whatever they come up with on the ballot. Even that is dangerous though.

    2. There is a good argument to be made that guidelines for judges are appropriate, and perhaps even mandated minimum sentences. Without them, minorities and poor get harsher punishments than whites and middle class people.

  • Mlw (unverified)
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    Rapists and murders are not jaywalkers, Carla. Your comment is extremely offensive to their victims. Victims, I note, that you consistently neglect to mention in your posts on this subject.

  • Michael B (unverified)
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    mlw: You are right that rapists aren't jaywalkers. However, as this story demonstrates, not all who are technically guilty of "first degree sexual assault" are rapists. Your concern for victims is commendable, but methinks in the case of Ms. Rodriguez, the 13yo victim and his family would not be that offended by a sentence somewhat shorter than 6 years. Victims of these lesser sex crimes may not all be as rabid as you imagine.

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    As for the political side of things, it behooves us to respect the will of the voters.

    Respect it, certainly. But the will of the voters is not and never has been a primary premise of our system of justice. If it were then we'd have no use for a "bill of rights" now would we?

    The test is simple: If a majority of voters decided that we should execute you because they don't like you then you'd have to be fine with that.

    Eric - the jury disagreed with you. They know more about the case than any of us. We have juries for a reason.

    The infallibility of juries is a necessary fiction under the very best of circumstances. I don't oppose it because it's better than the alternatives. But to pretend as if the jury in this or any other case is infallible is ludicrous.

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    1. Makes the next person think twice, and, in turn, becomes more aware of thier position in thier life.

    Eric, do you have any data to back up this deterent assertion? I'm deeply skeptical that such data exists but I could easily be wrong about that.

  • mlw (unverified)
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    Michael - You know that the sentence in that case was disproportionate because you sat through the whole trial? And spoke with the victim and other witnesses personally? Perhaps you did a psychosexual evaluation of the defendant? Perhaps not? We trust juries because they hear the evidence and make decisions based on the real facts, not what they read in a newspaper article. They're not infallible, but, having tried dozens of jury trials, I'll tell you that they do a pretty good job. Having practiced in two jury sentencing jurisdictions, I'll tell you that they do a better job of appropriately sentencing defendants based on community values than judges, too.

    As for the gravity of the offense and M11, I did not say that I agree with the sentence personally, but, unlike other commenters here, and apparently the Oregon Supreme Court, I do not pretend that my personal beliefs are the law. That is really the issue, after all - whether or not judges should be override the law passed by the voters based on their personal preferences, rather than any strong legal reason. The decision boils down to, "We disagree with the law because of our personal feelings about the issue." The legal analysis is a joke, and was specifically rejected by the US Supreme Court in a similar issue (except regarding the death penalty).

    Kevin - You're taking it to an illogical extreme. The law does not mandate death for being unpopular. M11 is not a law that I agree with in particular, but it is well within the bounds of the kind of decisions we let voters make in our society. The people of Oregon apparently don't appreciate it when adults sexually touch 13 year olds. I can't say that I blame them.

    As for your argument about deterrence, if there is no deterrent value to criminal punishments, then there's no reason not to simply lock criminals up indefinitely. M11 has indisputably lowered the violent crime rate by warehousing criminals. That's really not the issue.

  • LT (unverified)
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    So, the Oregon Supreme Court is pretending their personal beliefs are the law?

    Please read their written opinion and report back to us which lines in that court opinion reflect "personal beliefs" and not the judicial branch using their power to determine what happens to a law.

    Or maybe you don't believe in Marbury v. Madison either? "A law repugnant to the Constitution is void" comes from that 1803 US Supreme Court decision establishing the right of judicial review of laws.

    If you have a problem with judicial review coming out with a different opinion than yours, tough luck.

  • Douglas K. (unverified)
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    M11 has indisputably lowered the violent crime rate by warehousing criminals. That's really not the issue.

    The effect of Measure 11 is very much in dispute. The rate of violent crime was dropping before M11 was passed and continued to drop afterward. It continued to drop after M11 was passed but before the longer sentences really "took effect" by keeping convicted felons in prison longer than they would have been otherwise.

    And states that didn't buy into this "mandatory minimum sentence" stupidity saw drops in crime as well, over the same period.

    So, no, any supposed beneficial effects of M11 are not "indisputable." Violent crime has been on a downward trend (both locally and nationally) for over two decades, and would have dropped with or without Measure 11.

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    I think it is offensive to compare the marjority of Oregonians of the 1990s who voted for Measure 11 with that of white Arkansans electorate of the 1950s and 60s. Voting to deprive a person of color of the right to a fair education is certainly not the same as voting to deprive a duly convicted criminal of liberty for a felony offense.

    It's vastly more offensive to be copacetic with denying basic civil rights and appropriate jurisprudence with the excuse of teaching people lessons or giving them pause. We're supposed to be a nation of laws built on reasonable doubt and reasonable sentencing. To drop this basic foundation because it somehow doesn't fit into some notion of the need to be "tough on crime" is simply crap.

    Mlw: I'm not saying that jaywalkers are rapists and murderers...so the reasons you say you take offense don't exist. Please address the question I asked: where do you draw the line with these types of long, arduous sentences? If embracing the back of a child's head to clothed breasts is worthy of six years in prison...then where is the line to say...three years? Or one? Where is the threshold between actions that warrant long sentences and those that don't?

    You also should address Kevin's real point, and not the one you assigned him. It's not about mandating death for being unpopular. It's about the fact that it's the job of the courts to uphold and interpret the law. Even if the majority of voters decide to abridge your rights...your right to life, for example...it is the job of the courts to make sure that your right to life is upheld.

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    Kevin - You're taking it to an illogical extreme. The law does not mandate death for being unpopular.

    It's not illogical because it's not about mandating death - That was just an example. It's about your "will of the people" argument versus the constitutional basis for this Oregon Supreme Court ruling.

    The constitution, not democracy, is quite literally the bedrock upon which the entire system of justice is built. To argue against it as you have done here is to argue against the very premise, our raison d'être as a free people.

  • mlw (unverified)
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    THERE'S NOTHING TO INTERPRET! The voters said that they wanted this (twice). I don't necessarily agree with the outcome in this particular case, but that's not my job, nor is it the job of the court to put their personal opinions in the place of the voters. The opinion is a joke - a legal facade over the justices personal preferences about sentencing.

    We've been through this before. When M11 passed, opponents referred it back, saying "You didn't really mean this, did you?" The voters said yes, we did, soundly rejecting Measure 94. This decision (which I have read) is basically the same thing - that the Courts don't believe that the voters meant it. Yes, the Oregon Constitution says that the punishment should be proportionate to the crime, but, when the voters have said that twice already, then the court should give them some deference on the issue. That's what democracy is about. The judiciary is a co-equal branch, not the primary branch of government.

    The larger point is still this - either you believe that judges should have discretion in sentencing or you don't. I actually agree that they should, but that means eliminating sentencing guidelines that underpunish as well as M11, which sometimes overpunishes. It's inconsistent to support one and not the other.

    This is why we get labelled as the party that coddles criminals - we always support low prison terms, instead of having a logical theory about sentencing. I absolutely think that we should have a rationale sentencing policy. However, I think we should get there through the initiative process, since that's how we got here in the first part.

    Measure 57 was one such effort, but, now that M61 is no longer a threat, we're all about repudiating it. It's insanity. We need to stick by our commitments and honor the wishes of the voters.

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    THERE'S NOTHING TO INTERPRET! The voters said that they wanted this (twice). I don't necessarily agree with the outcome in this particular case, but that's not my job, nor is it the job of the court to put their personal opinions in the place of the voters. The opinion is a joke - a legal facade over the justices personal preferences about sentencing.

    Yes, there is something to interpret: the law. The will of the voters is checked by the courts. That's why the voters can't vote to end your life or abridge your civil liberties. That's the nature of our system.

    We have a system of checks and balances for a reason.

    Now...could you please answer what I've been asking?

  • LT (unverified)
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    "The voters said that they wanted this (twice). "

    So, MLW, if someone tried to overturn Oregon's Death with Dignity, you would say the same thing?

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    M11 has indisputably lowered the violent crime rate by warehousing criminals.

    I'm guessing that the irony of that assertion went right over your head. Neither of these two cases cited by the Oregon Supreme Court involved violence of any sort. Indeed, both defendants were given longer sentences, per M11, than they would have received for Assault II - an inherently violent crime.

    As an aside, while it is indisputable that crime rates dropped after the passage of M11 1n 1994, so too is the fact that the economy was on the upswing and grew strongly in those same years. That is until 2001 when the economy soured and crime rates in Oregon reversed course and went up - apparently in open defiance of M11. So I would have to say that your assertion above is... well... disputable.

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    The opinion is a joke - a legal facade over the justices personal preferences about sentencing.

    Hmmm....

    Oregon Supreme Court justices with their extensive legal resumes?

    Or...

    Some person posting opinions under the handle "mlw" on a blog and claiming the ability to read the Justice's minds?

    LOL - no offense dude but it's really not even close.

  • Jel-N (unverified)
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    Nobody is saying that there should not be judicial oversight, but Measure 11 was consistently litigated for over a decade and never was it overturned until now in a time where mandatory sentencing is unpopular among lawyers (although not with the people as a whole). Then 4 out of 7 justices decided to do it in late 2009.

    Why? Who really knows? The author of the opinion Thomas Balmer is trying to get an appointment as a federal judge, so that may be one reason. A lawyer can probably find some justification for anything that fits their beliefs and/or ambitions.

  • Lee (unverified)
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    I am so relieved to see that such a beautiful young woman, guilty of no more than over-affection for her pupils, will not have to spend 6 more years in prison. Seriously, does a one minute hug against her chest, in a room of 50 people, equal rape or even manslaughter? I don't think so. I never voted for anything of that kind. I pray that she will be able to regain her life. The law has mistreated her to a far greater degree than anything she could be accused of.....

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    Aside from the substance of the decision, it is fascinating from the perspective of judicial politics. For one thing, the majority decision was authored by Justice Tom Balmer, who is widely considered the favorite to be appointed to one of the two vacant U.S. District Court positions in Oregon. From that perspective alone, its a gutsy decision whether you agree with it or not.

    In addition, the three dissenting judges were DeMuniz, Gillette and Walters. While it is probably not surprising that DeMuniz and Gillette took a hard line in a criminal case, it's more surprising to see Walters join them. Perhaps the fact that this case involves charges of child sexual abuse influenced her vote.

  • Boats (unverified)
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    If you don't think your Oregon Supreme Court Justices are politicians with Juris Doctorates, you're naive. A former one is your current governor.

    Judges, particularly at the appellate levels, only usually pay lip service to the facts of the case when, as here, equity was the apparent issue.

    The narrow majority of justices iin these cases abstracted what happened to make their point. This is the same character flaw Carla exhibited.

    "Isn't it awful? Her covered breasts touched a boy on the back of the head. His fingers only caressed her clothed buttocks."

    Poppycock! No mention of the other behaviors and statements made by the defendants that also sealed their fates before squishy justice prevailed. No mention made of the innocence of children stolen. I'll take the one that angers me more.

    From the underlying case of State v. Buck, where the Court of Appeals did not find the six year and three month sentence demanded by Measure 11 would be facially disproportionate:

    At the sentencing hearing, the court also heard statements from several other people, including the victim's guardian. (3) According to the guardian, after the abuse occurred, the victim began acting out sexually at school, made a suicide pact with a friend, attempted suicide, cut herself, and did poorly academically. She added that the trial, presentencing investigation, and sentencing caused the victim to "relive the details of that day," with the result that "we seem to fall back five steps in the progress we have fought so hard to make."

    Here is the Oregon Supreme Court majority's summation of the facts in Buck:

    Buck and a friend, Schamp, took a 13-year-old girl and her 15-year-old sister, children of a friend of Schamp's, on a camping trip. Buck previously had told the girls that he thought that they were smart and beautiful; although he knew their ages, he thought that they looked much older. While Schamp and the older girl collected firewood near the campsite, the 13-year-old was fishing off a river bank. Buck sat down next to her and, to keep himself from sliding down the sloped river bank, placed his hands on the rock at his sides. His right hand was on the rock directly behind the victim. When the girl leaned back to cast her fishing line, the top part of her clothed buttocks came into contact with the back of Buck's hand.

    The majority's summation of the sentencing hearing is all about Buck and the trial judge, nothing about the impact on the victim.

    The trial judge in the case was quoted as saying that the sentence mandated under M11 was, "so disproportionate as to shock the moral sense of all reasonable persons as to what a right and proper sentence should be."

    Wrong. It is entirely reasonable to take a 36 year old guy with no prior record, who was entrusted with the weekend care of fifteen and thirteen year old girls, who didn't make it ten minutes into their camping trip before violating the 13 year old, who was asked to stop and still brushed off her buttocks, and slam him into the penal system for 75 months.

    Is that unreasonable? The Court of Appeals took my position that the trial judge was wrong. They actually took into account that the victim was adversely impacted by a crime. How non-judicial of them. They actually related to a commoner.

    The defendant made the girl sexually act out and get suicidal. Had she been my daughter, Buck would be looking at six years plus in a prison as a godsend, because I'd be inclined to cut his manhood off with a dulled knife and stuff it into his screaming mouth.

    And that impulse, the retributive one, is a perfectly reasonable systemic response captured by Measure 11 and reserved for the state's virtual monopoly on societally sanctioned violence. SIx years for violating a girl's innocence to the point of messing up her young life so profoundly still seems light.

    That is until some bleeding hearts get all worked up over the pervert "deserving" only 17 months.

    You apologists for sex offenders richly earn all of the opprobrium you get.

  • jaybeat (unverified)
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    mlw: Nothing to interpret? Then I suppose the OSC should just close up shop and go home. Seriously?

    The voters can pass any dumb law they want, as many times as they want. If it violates the Constitution, it violates the Constitution. Period. End of story. The Judiciary has the final say in this area, and doesn't have to defer to squat.

    If the Legislature (or the Mob-U-lature, aka, the initiative process) doesn't like it, they can CHANGE THE CONSTITUTION. If they don't like the OSC throwing its weight around, they can even get rid of it all together, by changing the Constitution! How's that for having the last word, eh?

    The Judiciary is NOT and should not have to answer to the so-called "will of the people" because as we have seen so often in our history, when the will of the people becomes the tyranny of the majority (or the tyranny of a tiny minority with enough money to hoodwink the majority), heads roll, necks snap and basic human rights go up in flames.

    We can fight all day and all night about M11, and we should. That's what the political arena is for. But Judges are supposed to sit above that, so they can interpret the laws and protect ourselves from the worst the political arena can generate.

    And if it weren't for Judges courageous enough to do just that, the parents of our President would have been thrown in jail for getting married.

    Oh, but the "will of the people" circa 1961 would have been "respected." Great. Swell. Would the Holocaust have been A-OK if it reflected the will of the German people at the time?

  • Boats (unverified)
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    Hyperbole much?

    Hawaii never had miscegenation laws. Invoking the Holocaust is absurd, but Korematsu bravely outlawed the "Japanese Internment Camps" after World War 2.

    Rather than going all Chuck Norris on strawman's ass, you still have to explain the societal interest served here in Oregon by a pervert spending five fewer years behind bars than he otherwise should.

  • mlw (unverified)
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    Carla - The line should be drawn where the people drew it, by passing M11 in 1994 and by rejecting M94 in 2000.

    As for your assertion that they "just interpreted the law", it's clear that Balmer engaged in judicial activism. The decision boils down to "we don't like putting the line here, so we're going to say it's disproportionate." Read the dissent - it's much more in line with traditional legal analysis. Consider the case cited there where a guy got 790 years for theft - and it was considered a fair sentence by the OSC. Now the majority is saying that 75 months is too much for the sexual abuse of a child, after affirming that the elements of the crime were met?

    Consider also that the Legislature was unwilling to go against the people on this one. Steve Doell and Oregon Victims United, major proponents of M11, have stated that they're fine with adding exceptions for cases like this, but the Leg was unwilling to add them. If the people and the Leg won't do it, the Court should give those decisions more deference.

    The point is not that I'm a huge fan of mandatory minimums - I'm not - but rather that if we use inappropriate means to get the ends we want, we're no better than the other guys. So, my question to you is how this is any different than the paper thin legal reasoning judges and lawyers used after 9-11 to indefinitely detain people for having the wrong religion or national origin? To me, it only looks different in that we like the outcome here.

  • BOHICA (unverified)
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    The Rodriguez case was bogus to begin with.

  • BOHICA (unverified)
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    And another thing, if it pisses off Kevin Mannix, it can't be all bad.

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    The defendant made the girl sexually act out and get suicidal.

    No, I don't buy that argument at all. The alleged cause does not fit the alleged effect.

    When my youngest daughter was 13 a 17 year old friend of her older sister accosted her. He shoved his hand up her shirt and fondled her breasts through her bra while kissing her... against her will. She didn't say anything to anybody until a year later when she ran into the same boy at a local church's after-school program. She freaked out, the youth pastor called the cops and me and she finally told us all what had happened.

    That's much more egregious, IMHO, than fondling a 13 yo's clothed buttocks. My daughter didn't get suicidal or act out as this girl is alleged to have.

    Had she been my daughter, Buck would be looking at six years plus in a prison as a godsend, because I'd be inclined to cut his manhood off with a dulled knife and stuff it into his screaming mouth.

    She's very, very lucky that you're not her father. I can't imagine a more effective way to thoroughly fuck up a young girls life than for her father to be sent to prison for murder under that scenario, and that's exactly what would happen. She'd be twice victimized. First by the alleged molestation and second by the knowledge that if only she'd found some way to be somewhere else then her father wouldn't be imprisoned - which is exactly how an immature teenage mind would process it. All the moreso because she's on record as exhibiting grossly immature thinking patterns since the incident. Your arrogantly selfish reaction would likely push her over the top into perhaps actually committing suicide.

    A parent who truly loves their child would consider the emotional well-being of their child first and foremost.

  • Boats (unverified)
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    Way to miss the point of what I wrote.

    Had she been my daughter, Buck would be looking at six years plus in a prison as a godsend, because I'd be inclined to cut his manhood off with a dulled knife and stuff it into his screaming mouth.

    I said I'd be inclined, not that I'd do it. My sentiment is authentic to what many crime victims feel. Sometimes the offender actually gets killed, which is why deterrence, incapacitation, and rehabilitative penal theories aside, societally mandated retribution is a valid school of thought regarding the ultimate purpose of the criminal justice system. A tough sentence can prevent crime victims and their concerned others from turning to vigilantism.

    However, retribution is not in vogue here. Never has been and never will be. Most here want to walk a mile in the offender's shoes.

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    However, retribution is not in vogue here. Never has been and never will be. Most here want to walk a mile in the offender's shoes.

    WRONG.

    It's about a deep and fundamental respect for the Constitution (state and federal) and for civil rights. To excuse the undercutting of the Constitutions and civil rights with the "victim" argument is weak, at best.

    We have a system in place which protects the rights of the individual for a reason. We have the Bill of Rights on purpose..and to erode them to satisfy retribution, blood lust or "victims rights" is wrong.

  • LT (unverified)
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    Boats, if you believe that retribution solves problems, so be it. There are others who feel differently. Don't forget, the Pope forgave the man who shot him.

    It is not just about the Constitution, either. It is also a matter of philosophy and religion.

    There are 2 different views of this issue in the Bible (and in many other works of philosophy and religion) exemplified by these quotes.

    Exodus 21:24 eye for eye, tooth for tooth, hand for hand, foot for foot,

    Luke 6: 29 And unto him that smiteth thee on the one cheek offer also the other; and him that taketh away thy cloak forbid not to take thy coat also.

    Boats, if you want to say that all good people see the world from the point of view in Exodus, that is your right.

    But the origin of the saying that Jesus Christ was the first nonviolent revolutionary comes from the New Testament verses like the one from Luke.

  • LT (unverified)
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    Can someone fix the italics?

  • Boats (unverified)
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    Job number one of a government is to provide for the physical safety of its citizenry.

    In a representative republic with citizen lawmaking powers, it is incumbent upon the judiciary to respect the policy choices of the law makers. DeMuniz is correct in his dissent that the majority has usurped lawmaking powers from both the legislature and the people in the case at hand.

    ORS 137.712, enacted by the legislature, provides for legal downward departures from M11 in cases that result in conviction for First Degree Sexual Abuse. Among the factors taken into consideration are whether the offender is five years older or less than the victim and whether there were multiple victims. Neither judge in the Rodriguez or Buck cases made an adequate record following the law that allows for downward departures, skipping directly to some miasma of disproportionality.

    There is a downward departure in the same statute for kidnapping if there was no harm to the victim. Had the legislature seen fit to make "no harm no foul" a mitigating factor in a first degree sexual abuse case, it certainly could have. Without evidence as to why the legislature has not provided a downward departure for the circumstances reviewed in the current cases, it is incumbent upon the Court to not insert itself into the policy discussion except for in dicta as guidance to future lawmaking efforts. Properly, they are to follow the law as written.

    Four activist judges just usurped lawmaking powers. There is the news story in the legal case you are admiring.

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    Job number one of a government is to provide for the physical safety of its citizenry.

    Wrong again.

    The number one job of a government is to protect the rights of citizens. That's why Jefferson insisted on the Bill of Rights. That's why states develop their own constitutions from the outset of their implementation process as an entity.

    In a representative republic with citizen lawmaking powers, it is incumbent upon the judiciary to respect the policy choices of the law makers. DeMuniz is correct in his dissent that the majority has usurped lawmaking powers from both the legislature and the people in the case at hand.

    Still wrong. In a democratic republic with a representational lawmaking body, the job of the judiciary is to provide a check on the power of the executive and legislative branches. As Oregon has extended the legislative branch to the citizen initiative process, the judiciary's job is to check that process as well to ensure that the rights of individual citizens aren't trampled.

  • Boats (unverified)
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    LT, I don't give a damn what the Bible has to say about anything. The people have spoken and M11 is the law of this land, having survived innumerable constitutionality attacks.

    There is a procedure for downward departures, and it wasn't followed. The majority just put fancy fig leaves all over their imposition of private opinion on a matter that is properly debated either fully in public or by the peoples' representatives.

    In no way would the M11 sentences just overturned ever meet the federal standard of "gross disproportionality" under the Eighth Amendment.

    In 2003, the US Supremes upheld a 50 years to life sentence under CA's three strikes law for a $150 shoplifting conviction as the third strike.

    Six years and three months for being a convicted pervert in Oregon was small potatoes compared to that.

    The Oregon majority in the case at hand is soft-headed.

    Hence the praise here.

  • Boats (unverified)
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    Carla, your capacity for howlers is limitless.

    If the Bill of Rights was "job one," why were they appended to a three article constitution as afterthoughts?

    Article One, Section 8, the real beginning of the powers granted to this country by its governed, has nothing to say about civil rights. That waits until at least section 9 for the first glimmer--no bills of attainder or ex post facto laws.

    Job one was setting up the rules and powers necessary to provide for a country capable of protecting its citizens.

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    Carla, your capacity for howlers is limitless.

    Whatever, man. It's like you've never bothered to look in a mirror.

    If the Bill of Rights was "job one," why were they appended to a three article constitution as afterthoughts?

    As you know, Jefferson said that was a mistake and absolutely insisted that they be included. Ratification of the Constitution was in serious doubt, especially without them. In fact, if there had not been that concession, the Constitution would probably not have been ratified. So in fact, it was job one to get this done to get our basic laws passed.

    Some were more concerned about setting up an effective governmental structure (and it wasn't about protecting citizens--they didn't even want a standing army for crissake). The likely reason that the original adoption by the Convention didn't have the B of R was a concern over delay due to the pending debate.

    But all of this is really a red herring, boats. Prior to the Constitution, the Articles of Confederation included much of these same basic rights.

    It's the government's first job to protect the rights of the citizenry...and has been from the very beginning of this nation.

  • Boats (unverified)
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    Curious then, isn't it, how the "rights" to health care, affordable housing, and a living wage didn't make it in there?

    I'm sure if you could again channel Jefferson, he'd call it a drafting error.

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    Job number one of a government is to provide for the physical safety of its citizenry.

    If that were true - and it's not - then we would see it reflected in the reasons cited by the Founders for rebelling against the British.

    But alas what we find as the overwhelmingly primary reason was exactly what Carla stated - protection of individual civil rights.

  • OregonScot (unverified)
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    In the Rodriguez case the actual act she was charged and convicted with doesnt sound much but it was part of a string of such incidences ( some even more serious) by Rodriguez. To quote from the link. "Rodriguez was an employee at the Hillsboro Boys & Girls Club, where she worked with at-risk youth. One of the at-risk youths with whom she worked was a boy who was 12 years old when Rodriguez began working at the club. Rodriguez developed a close relationship with the boy and his family, spending time at his home, helping him with his homework, and giving him rides to the club and to school. She and the boy spent time together outside the club -- often alone -- in her car, at her apartment, or at his home -- all in violation of club rules. Rodriguez told the boy not to tell anyone that they had been alone at her apartment. Rodriguez and the boy often hugged each other and put their arms around each other. The boy sat on her lap in her office and occasionally kissed her on the cheek. Rodriguez sent email messages to the boy in which she called him "babyface" and said, "I love you" and "love you lots." The boy sent Rodriguez similar messages. Rodriguez took the boy with her on several trips, including overnight trips to visit a former club member and to visit her family. Their conduct had raised concerns among staff members and became the subject of rumors among other children at the club." As a father I see nothing inappropriate with her sentence. If she had been male and was doing this to a 12 year old girl would the sentence have been appropriate?

  • Boats (unverified)
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    Directly from the DOI, ever read it?

    <hr/>

    He has abdicated Government here, by declaring us out of his Protection and waging War against us.

    He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

    He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

    He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

    He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

    <hr/>

    Sure, these are among a litany of charges, but the overall tenor of the Declaration is that the English government has become a predatory force among the colonists, thereby abdicating its role as protector of the citizenry.

  • Douglas K. (unverified)
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    In 2003, the US Supremes upheld a 50 years to life sentence under CA's three strikes law for a $150 shoplifting conviction as the third strike.

    That case was a 5-4 decision by the court's right wing that went against about a hundred years of "cruel and unusual" jurisprudence, including a fairly recent case that was pretty nearly on-point, and generally tossed any concept of "proportionality" out the window when it comes to prison sentences. Gee: Scalia, Thomas, Rehnquist, Kennedy and O'Conner got it wrong. What a shock!

    (Fines, on the other hand -- those are still subject to proportionality restrictions. You can throw someone in prison for the rest of their life for shoplifting a $1.00 candy bar as long as they are theoretically eligible for parole after a few decades, but you still can't hit them with a ridiculously steep fine for the same act.)

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    Curious then, isn't it, how the "rights" to health care, affordable housing, and a living wage didn't make it in there?

    I'm sure if you could again channel Jefferson, he'd call it a drafting error.

    They didn't abolish slavery at that time, either--but of course we know it was the right thing to do.

    All these red herrings, boats....you've lost this one.

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    As a father I see nothing inappropriate with her sentence. If she had been male and was doing this to a 12 year old girl would the sentence have been appropriate?

    The other things listed are things which should have got her fired, if true. But in jail? No.

    And I'm the mother of a son and a daughter.

  • OregonScot (unverified)
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    "As a father I see nothing inappropriate with her sentence. If she had been male and was doing this to a 12 year old girl would the sentence have been appropriate?

    The other things listed are things which should have got her fired, if true. But in jail? No.

    And I'm the mother of a son and a daughter."

    THose are more than just fireing offences. If this was a older guy with my daughter I would want more than him being fired. THough nothing is explicitly stated we can infer from the secrecy what was going on. Sorry but this long sentence will keep her away from other vunerable children for a few years. Im sure this child was not her first and probably wont be the last she molests.

  • Boats (unverified)
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    The constitution was amended to end slavery. I haven't seen the Universal Health Care Amendment being circulated, have you?

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    If this was a older guy with my daughter I would want more than him being fired. THough nothing is explicitly stated we can infer from the secrecy what was going on. Sorry but this long sentence will keep her away from other vunerable children for a few years. Im sure this child was not her first and probably wont be the last she molests.

    If she's convicted of a sexual offense, that already keeps her from children, by law.

    A six year jail term for what's been described is completely out of whack.

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    The constitution was amended to end slavery. I haven't seen the Universal Health Care Amendment being circulated, have you?

    So...? What does that have to do with this discussion?

    If enough people decide that health care...like not being a slave..is a "right", they can seek to amend the Constitution. And it will be the job of the government, just like it has been since we became a nation under the Articles, to preserve and protect that right.

    You're in a deep hole here, boats....quit while you're down.

  • Boats (unverified)
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    Forget it OregonScot. These liberals haven't had their children diddled with by adults. . . yet, therefore they identify with pedophiles more strongly, since pedophiles have an inviolate set of rights, victims be damned.

    Then again, maybe they are impervious to opposing views. Rep. McCarthy, (D) NY, had her husband murdered by a racist and psychotic thug on the Long Island Railroad and then went on to blame the gun rather disproportionately against Colin Ferguson himself. She also unsuccessfully sued the Olin Corporation, the maker of the bullets used, begging the question of why she didn't also sue Sturm, Ruger, & Co., makers of the firearm, the Long Island RR, providers of the murder scene, for not having metal detectors, and the State of New York, for disarming its citizens in the face of criminal activity, etcetera.

    Some people just irrationally cannot hold criminals to account fully for their actions. Most often, they register to vote as Democrats.

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    Forget it OregonScot. These liberals haven't had their children diddled with by adults. . . yet, therefore they identify with pedophiles more strongly, since pedophiles have an inviolate set of rights, victims be damned.

    Actually boats, Kevin (upthread) already noted that his daughter was sexually assaulted. Pull your head out.

    You're not interested in helping victims...or you wouldn't be so casual about other people's children and what may have happened with them.

    You don't know a thing about me or mine..so stop pretending you do.

    Clearly you've run out of actual debate points and you've lost.

  • Douglas K. (unverified)
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    Forget it OregonScot. These liberals haven't had their children diddled with by adults. . . yet, therefore they identify with pedophiles more strongly, since pedophiles have an inviolate set of rights, victims be damned.

    Are you genuinely stupid enough to believe that? Or are you just trying to score some kind of debate points by feigning a complete lack of comprehension of what people are ACTUALLY posting here?

  • Ms Mel Harmon (unverified)
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    Boats,

    You can't make a decent argument, can you? So now, it's on to gross generalizations and rank stupidity. Sure, Boats, no Democrat has ever been the victim of sexual assault or rape or any violent crime. We're all just lovers of everything perverted and it's all about protecting criminal's rights at the expense of the victims. Frankly, I don't think you give a damn about the victims unless you can use them to try and score points, which is pathetic.

    Everyone has rights----even the accused, even the convicted. Just because we uphold someone's rights doesn't mean we agree with their actions. If I tread on anyone's rights, even the rights of those who have harmed me, then I diminish not only their rights, but my own. What part of this translates to "they identify with pedophiles more strongly, since pedophiles have an inviolate set of rights". In case you haven't noticed, we ALL have the same rights. It's one of the things that sets our country apart from so many. Is that frustrating and infuriating for victims? Yes, often. But if the system works the way it should, at the end of the day, everyone will be protected and all our rights preserved.

  • Boats (unverified)
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    A sample of one upthread was not very impressive and that writer also dismissed the victim's response to Buck's assault as unwarranted as though there is some standard and appropriate response to being violated.

    I made the decent argument, the one that no one here will answer to unless a conservative jurist does it in a different context: The majority enshrined its policy preferences into the constitution in lieu of those of both the legislature and the voters.

    Few here are offended because the "prison industrial complex" cramps the spot at the public money trough mentally reserved for their favorite pet social causes.

    No one but the sex offender is better protected by the lighter sentences gifted to them by the majority decision, duly noted for Douglas K to be a narrow 4-3 vote that studiously avoided prior case law on proportionality in Oregon as if the margin and precedent actually matters to the outcome.

  • alc (unverified)
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    Re: Rodriguez case

    Why was it that the fact that the kid and his mother did not feel sexual abuse occurred was left out of the arguments? Oh, how about Rodriguez's ex co-workers who made the accusations that didn't show up to court? Where are they? I wonder what their motive could have been in making the accusations? They didn't stay at the YMCA long after the spotlight was on them, huh?

    It seems like Rodriguez's teaching career is scarred forever. I would bet her life has been absolute hell for the past four years...wondering if and when she might have to spend another 5 years in prison. Since she was in this situation, how many people know what her contraints have been for the last 4 years? Surely, she didn't teach. Surely, she wasn't allowed to have her freedom. She had to be supervised in public, never allowed to be in the presence of minors. Think about being a prisoner but not able to see the bars! It seems like she's served more than enough time. Obviously, she won't ever have the opportunity to get another job without having to answer whether she'd ever been convicted of a crime. Forever she will have to admit this occurance to future employers. It seems like this was really drawn-out and over-hyped. Obviously, I think the punishment was too severe for the crime.

    How many teachers stand behind or over their students to overlook the student's work? Do teachers have control that a student might lean back on the teacher? Any student with a crush on their teacher could be in this situation.

    This should be an example to all teachers to have professional liability insurance. If Rodriguez had had the money to have hired the lawyers of her choice rather than public defenders, I wonder if this case had been so long?

    Hope Rodriguez can find a job that will overlook this outrageous situation!

  • Demofan (unverified)
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    Those of us in Washington County know that the story is way different than the defense version in the OREGONIAN. The evidence presented was that this adult woman was having sexual relationships (not brushing her breasts) with young boys. The jury did not convict of her of the most serious charges but the newspaper left that part out. A defense lawyer will always call a drunk driving crash that wipes out four kids as an unfortunate accident caused by someone with a chemical imbalance. The fact is that if you read the Supreme Court's opinion you'll see they actually said Measure 11 was constitutional. Three judges, including the Chief Justice dissented. If you weren't in the courtroom and just know the facts you read on the internet then don't buy Carla's predicatable anti-cop bias. Lots of Blue Voters passed Measure 11. They then reaffirmed Measure 11 six years later. Maybe five or six Portland legislators want to get rid of Measure 11 but they do this at the peril of the Democratic Party. Want to play into Kevin Mannix's hands? Get excited about letting middle class child molesters get a pass.

  • LT (unverified)
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    Demofan,

    From the Supreme Court opinion:

    In each case, the court held that a 75-month sentence for the conduct in which defendants engaged would not shock the moral sense of all reasonable people and therefore was not unconstitutionally disproportionate. The court remanded the cases for imposition of the mandatory Measure 11 sentence. Defendants petitioned for review, challenging both their convictions and their sentences, and we allowed review. For the reasons that follow, we affirm the convictions, but hold that the Court of Appeals erred in concluding that the sentences were constitutionally permissible. Accordingly, we affirm both the convictions and the sentences imposed by the trial courts.

    Reads like a US Supreme Court decision.

    I believe the court had the right to rule the way they did in this case. A measure I worked on and helped pass got overturned by the Oregon Supreme Court and they had the right to do that also. That is the way our government is set up, like it or not.

    What bothers me most about this debate is there seem to be people here who don't believe the Supreme Court has the right to overturn something they believe in.

    I don't think Kevin Mannix will be able to rally the troops to try and overturn this decision. My guess is that if he tried, the reaction might be "there he goes again". And I suspect there would be people who said, "you mean Mr. Tough on Crime thinks he has the right to overturn a Supreme Court decision because he alone is the anti-crime czar?".

    Where would Kevin Mannix get the money for such a crusade? Loren Parks? Trying to overturn this decision with money from someone like Parks whose life is both lurid and out of state?

  • Lance Comfort (unverified)
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    Douglas K. said: “I don't question that Ms. Rodriguez behaved unprofessionally based on the allegations, but turning a hug into "sex abuse" is a sick mockery of justice. “ Taken from Oregon Judicial Dept. Appellate Court Opinions website: (http://www.publications.ojd.state.or.us/S055720.htm) “She and the boy spent time together outside the club -- often alone -- in her car, at her apartment, or at his home -- all in violation of club rules. Rodriguez told the boy not to tell anyone that they had been alone at her apartment. Rodriguez and the boy often hugged each other and put their arms around each other. The boy sat on her lap in her office and occasionally kissed her on the cheek. Rodriguez sent email messages to the boy in which she called him "babyface" and said, "I love you" and "love you lots." The boy sent Rodriguez similar messages. Rodriguez took the boy with her on several trips, including overnight trips to visit a former club member and to visit her family. Their conduct had raised concerns among staff members and became the subject of rumors among other children at the club.”

    This was not just a ‘hug.’ I think 75 months sounds about right to me.

  • rw (unverified)
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    I have a favor to ask. I've read the title of this article over and over again. Rhythmically catchy it ain't, euphoniously a-tripping off my tongue it don't.

    And sense made it won't: I'm dull as a box of rocks.

    Tell me what the title means. I'm not gettin' it.

  • rw (unverified)
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    Lance - amazing that you are the first to post this. If this is not hearsay it IS far beyond the bland press releases all of our fishwrap media outlets have been blandly presenting as their own reportage.

    Hm.

  • Lance Comfort (unverified)
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    I posted where I got the info from, and as much as I'd like to be so computer skilled as to fake the '.state.or.us' web address I really am not so capable.

    I will say the information on the other case does sound a little more suspect as to overkill on the sentence. Ms. Rodriguez got off light.

  • Douglas K. (unverified)
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    Lance, I'm well aware of the facts of the case and the Court of Appeals opinion. But all that stuff cited by the court, all put together, doesn't add up to sexual abuse. It describes someone who was breaking the rules of her employment and knew it, but there was zero evidence of anything that met the legal definition of sexual abuse -- except when she hugged him. A woman hugs someone, she'll almost always wind up pressing her breasts against that person. As long as you can present evidence that suggests some kind of sexual interest on her part, you can turn ANY hug between a woman and a minor into "sex abuse."

    Under ORS 163.305(6), “Sexual contact” means "any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party." As long as a woman's breasts are deemed "intimate parts" that turns EVERY hug involving a woman into potential "sexual contact" depending on the motivation behind the hug -- on either party's part. (A guy hugs a woman because he wants to feel her breasts against his chest ... it's sexual contact.)

    An adult hugging a teenager or a child thus becomes dangerous if either party is female and someone else questions the motive behind the hug.

    ORS 163.427 Sexual abuse in the first degree. (1) A person commits the crime of sexual abuse in the first degree when that person: (a) Subjects another person to sexual contact and: (A) The victim is less than 14 years of age***

    All that other stuff about Rodriguez hugging the kid and letting him sit on her lap and kiss her and so forth was all evidence in support of her perceived sexual motivation in hugging him. But the fact remains: she was convicted of felony sexual abuse -- and now carries the scarlet letter of a sex offender -- based on a prolonged, fully clothed hug in a room full of people. A year in prison is excessive. Six and a half years is simply outrageous.

    I'm pretty sure the legislators who wrote this statute were thinking about feeling between people's legs, groping a woman's breasts, that sort of thing. It's simply preposterous to escalate a hug to "sexual abuse" no matter what other things the person may have done.

    Now, if Rodriguez did in fact let the kid feel her up, there'd be a more plausible case for sex abuse. But apparently, the jury didn't find persuasive evidence she'd done that.

  • Lance Comfort (unverified)
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    Douglas,

    Are you really going to tell me you are so naive as to believe that with all the supporting evidence regarding Ms. Rodriguez’s behavior, she did nothing more than the hug? She shows all the signs that they warn you about as to what a pedophile does. She told the child not to tell anyone about their meetings. She had inappropriate touching in public with the child. She had the child in situations where she was alone for long periods of time even though it was in direct violation to her job. If it walks like a duck, quacks like a duck, and looks like a duck, it’s a DUCK!!! Your argument is equivalent to saying “I know I heard the gunshot, walked in on you standing over the dead body with a smoking gun, but I just didn’t see it actually happen, so it must not have.” We could never convict anyone of any crime with that logic. If you are going to argue a case you would better off with Mr. Buck, I am actually inclined to agree with that decision.

  • Douglas K. (unverified)
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    Lance, practically everything that Rodriguez did with the kid, as listed by the Court of Appeals, could be completely innocent. She spent time alone with him. She hugged him. She let him kiss her on the cheek. She used affectionate nicknames and "love" in emails. She took him to visit her family. Are you so absolutely certain that someone who does those things must necessarily be a pedophile?

    If so, then going by your "logic", I must be a child molester because I have been around children and teenagers in various places -- a car, a private home, a department store restroom -- with nobody else around, and I have hugged kids of various ages, and I have allowed even small children to kiss me on the cheek. Also, I've given kids piggyback rides and let them sit on my lap and all sorts of stuff that would probably get me in a lot of trouble if some creative prosecutor ever decided to make me the target of a witch hunt.

    The ONLY thing on the court's list of "misconduct" that makes me raise an eyebrow is Rodriguez letting the kid sit on her lap -- it strikes me that he was entirely too old for that, and that reasonably could call in question the motive in the rest of her actions. There was also the rumored breast-fondling incident that apparently wasn't supported by evidence. But all the rest is consistent with innocuous non-sexual behavior by someone who got too emotionally involved with a kid in her care and definitely violated work rules. However, "violating work rules" does not equal "sexual misconduct." Not every adult who gets close to a kid is trying to seduce him. (The emails may or may not be troubling, since the Court of Appeals didn't bother disclosing the context of "love you lots" when context would actually be quite important.) As for gossip and rumors among co-workers, those aren't evidence of anything.

    And as for this bit of absurdity:

    Your argument is equivalent to saying “I know I heard the gunshot, walked in on you standing over the dead body with a smoking gun, but I just didn’t see it actually happen, so it must not have.”

    That's not even remotely close to what I'm saying. But since you brought it up ... how do you know the killer didn't drop the gun and run out of the room, and you came in after another person in the room picked up the gun? How do you know it wasn't a suicide, and the person holding the gun had just picked it up off the floor? I'd wait for the explanation, and some supporting forensic evidence, before getting too firmly attached to one conclusion.

    There's a world of difference between what evidence actually shows and what someone might imagine happened, when working from fragmentary and incomplete information. In this case, the only thing Rodriguez was convicted of was hugging a teenage boy while fully clothed in a public place. All the rest went to her possible motive behind the hug, but it was still just a hug. And if hugging a teenager constitutes sexual abuse, there are a staggering number of sex abusers walking around out there today.

  • rw (unverified)
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    Lance, I was not questioning you. Nor was I "questioning" where you got it from. Your tone seems to indicate maybe someone else did.

    You have to be careful about wholesale believing it just b/c it's from a state.gov etc source.

    I've had much experience with the crap that is vaunted on state.gov sites, depending on the agency. FDA had a dirty record when I started working online pharma. Many MANY press releases fed to local media from DOJ/AG outlets are lies. They are being used as strategic weapons. Can't speak to percentage of rightness or wrongnes, only that there are strategies being prosecuted, and I have personal experience with one setup wherein smears were accomplished. I watched people be smeared and go to jail in the viagra wars - one person did four years in prison as she was swept in with a criminal fiancee, and after the decision was reversed three times no release for a long long time. She spent more than one extra year of life in a federal prison for crimes that destroyed her life, would have destroyed her life even if the DOJ had not been targeting her as well. Betrayal, lies, useage.

    The papers and second rate news outlets in her locale smeared her merrily. I called editors and publishers around the region. I made them work through the dirty press releases with me line by line, reviewing case fact, emailing them documentation as we spoke, so as to hopefully "turn" the situation viz continuous destructive press glare, bring about a tidal change of attention and responsibility. I actually squeezed a truthful answer out. Essentially, to quote one, he shrugged verbally and admitted, "It's from the DOJ,the Feds. We do not fact check those because we know that if it's untrue, we won't get sued. We print whatever they send" I confronted him with the fact that these were, essentially, a smear campaign preparatory to arrests that may or may not be warranted, and that they are essentially faux crimes filler if not vetted, that they could destroy lives. Again, that verbal shrug. They were, indeed, filler. But they knew they were safe from legal implications.

    And I am quoting.

    So some of the crap you see is still garbage and may be leading to destruction of lives. Not saying there is necessarily a lot of it - but I was watching the activism of eleven select attorneys general across the nation who were actually players' pieces in a turf war on big drugs.

    So, yah, more than likely, this is true stuff you quote, the real deal and is true. BUT not always so! Shockingly, not always so.

  • rw (unverified)
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    Boats, who the hell are you you insensitive lout? How do you know WE are not children who were "DIDDLED" with? And perhaps we choose to counter the reaction from within?

    Listen, I talked to a clinic yday deeply involved in silly drama. Someone got stalked. SO now she wrote a policy that her staff cannot speak their last names. And the interactions in trying to get a mailing or contacts list is full of juvenile drama - a perverse enjoyment of the moment of refusing to give the name. And it's all because ONE lady got stalked, and now she has generalized her personal drama into a policy and into a thousand "what might happens". These are young girls she is influencing with this mindset and behaviour set to boot. One hopes they are not inculcated, via this work experience, into practicing freaked out generalization of bad experience. This woman truly thinks you can run a clinic refusing to identify yourself and be available to mail. And that somehow she can CONTROL it if some stalker is determined to get to her or one of the workers.

    So it's kind of like the ergonomics of my last workplace: my entire body was a rictus of pain (turns out it was stress-induced); we solved that huge and traveling pain till it all focused down into one wrist. :)... we could never ever get the pain gone - but we managed to force it down into that one location. Till I was wearing braces.

    This woman has compressed her justifiable fear nto a ridiculous behaviour that she has the power to force others to engage in forty hours of their life. It's all about refusing to supply your last name. And the relish of keeping that drama going.

    Boats, some of us may be the kids you are referring to, and may want to ensure that we do not relish nor propagate the dramas visited upon us. IN this case you are talking pedophilic abuses. Something YOU seem to be relishing a bit in your verbiage.

    We are to try NOT to generalize our various traumas out into the world.

  • rw (unverified)
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    Whut's a brush back pitch?

    The title is not very clear.

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    RW:

    A brush back pitch is a baseball term. Its a pitch thrown high and tight, inside the plate in an effort to force the batter away from the plate. It's done to intimidate the batter and basically let the batter know that the pitcher is in charge.

    I meant it metaphorically: The Supreme Court pushed against the M11 sentencing that's way out of proportion to the crime. It lets prosecutors know that they may need to be more careful with how they charge people...because these actions that don't warrant six years in jail (as in these two cases) may result in trial court judges reducing the sentence.

  • Douglas K. (unverified)
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    rw: the site that Lance linked to contains published court opinions. It's completely accurate and reliable, in that it faithfully reproduces the written opinions of the Court of Appeals. (Whether a given opinion is itself "accurate" or faithful to objective facts is a different matter; on very rare occasions appellate judges will misread the record or leave something out in a summary. But the opinion itself is what was written and published.)

  • rw (unverified)
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    Carla: my dead brother is rolling in his grave that his little sister (second base from age seven onward) did not remember that. :)....

    Douglas: yes, I did not say I am disputing his source. His statement seemed to say that de facto, the fact that it was a state site or .gov site it's FACT.

    My DOJ experiences (heck my experiences with reactive FDA White Papers posting after backroom dustups!!) taught me otherwise. That was my point. AND: those briefs you quote can be reversed as grave injustice. As in the case of the one person I'm thinking of. She was robbed of years of freedom and her reputation is soiled for the rest of her life. And nobody has to apologize or clean up what they broke. Indeed, that shit's still up there on the web everywhere. DOJ is not required to clean up the lying press releases, nor are they required to aggregate the total case hx so that one searching this woman's name can discover that she was acquitted and released.

    That's all I was "on" about. It's a pretty good place to go, but you will get human handiwork, not God's True Name. :)

  • Douglas K. (unverified)
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    Upthread, OregonScot asked:

    If she had been male and was doing this to a 12 year old girl would the sentence have been appropriate?

    No. In fact, there wouldn't have been a sex abuse charge at all. The only acts that led to sex abuse charges were allegations that (a) Rodriguez let the boy touch her chest, and (b) that she let the back of his head rest against her chest while she was standing behind him, hugging him and stroking his hair.

    Man lets a 12 year old girl touch his chest? No sex abuse. Man lets a 12 year old girl rest her head on his chest? No sex abuse. The crimes Rodriguez was charged with could be committed only by a woman. A guy would have been fired for breaking work rules, but would have been at no risk of a sex abuse charge under these facts.

  • Lance Comfort (unverified)
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    I just wanted to give a very sincere thanks to Douglas and rw, and everyone else who has made their voice heard. I have great respect for all of your input, especially those with the courage to disagree, and the consideration to do it in such a civil manner. These are conversations that need to go on.

  • LT (unverified)
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    "It lets prosecutors know that they may need to be more careful with how they charge people...."

    And here we have the crux of the matter. For all the "voters have spoken" and "this will help Kevin Mannix" rhetoric, some people here seem to have forgotten that not all voters have their lives revolve around elections. Not only that, but if they voted for something and didn't like the way it was implemented, they have a right to change their minds.

    And one more thing: where did the idea come from that party registration determines life experience? Everyone registers with the same party their whole life? Generalizing is bad no matter who does it.

    Any political movement that is enemy oriented ("But the Democrats..." but also those last year who screamed "Merkleyite" on anyone who didn't say Novick was the greatest candidate ever) has a very uphill road.

    When "we must be tough on crime" morphed into "the definition of tough on crime is supporting Mannix ballot measures", that movement sewed the seeds of its own destruction. If Kevin Mannix was really that powerful, his measure would have passed instead of Measure 57. And for the "we must have spending priorities!" folks, delaying 57 in dire financial times is open to debate.

  • EastBankThom (unverified)
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    Great title metaphor!

    Read more at: http://www.huffingtonpost.com/bruce-wilson/blue-dog-leader-works-wit_b_298087.html

  • EastBankThom (unverified)
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    Sorry. FF seems to have decided to insert a random link.

  • MLG (unverified)
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    It is amazing to actually go through the process of being the accused or a family member of the accused. Both of the cases were about sex abuse. Not rape. Not molestation. Sex abuse. Depending on who you get involved will depend on what sex abuse is constituted as. Did you realize its not ok to wear boxer shorts? In your own home? Imagine my surprise when I was told that a man, wearing boxer shorts in his own home, wasn't allowed to do this. Wow. I wear them to the store. After all? They do look alot like shorts, which many people wear. Few people realize the havoc teenagers can create with families. More investigation needs to happen in these supposed crimes. And 75 months for someone who has no criminal record and no history of violence or tendencies to aberrant behavior is absurd. Before anyone decides to heavily disagree with me keep in mind I am now living a life waiting for someone to get out of prison for a crime I know for a fact he didn't commit and the accuser said he didn't do. We were advised to plea out, even though they had no evidence, it was a he said she said thing. One person on a jury who decides that the male is lying makes for a rough 75 months. And having multiple conversations with a teenager about sex and masturbation is perfectly alright if you are the custodial parent of a troubled teenager who is on the brink of doing exceptionally bad things, but, under advisement of multiple attorneys I now have to tell all of my single parent friends that they need to have a WITNESS. Thats right. You can't even have the "talk" in your own home in private. It needs to be done where other people can corroborate your story in case someone gets upset. I do not disagree that these crimes happen. They do. And in those cases punishment should be meted out. Keep in mind that in order for it to be "sex abuse" the accused is supposed to have achieved sexual gratification...essentially forcing the other person into helping achieve that with words or behaviors. Most people don't look at what the terminology is. The general public I'm sure sees the term flash on the screen or in print and assumes its someone forcibly being made to be sexually abused. Whatever someone's lurid vision is of sex abuse. I can imagine some scenes from recent horror movies flashing through many tax payers minds, but that isn't always the case. However? That being said? I would hate for Oregon to turn into a giant parental concentration camp of prisons dotting the landscape because our juveniles feel uncomfortable with talking to their parents and the government feels the need to punish people for doing their job. The cost is very prohibitive. One statistic that was thrown out was $80,000 a year to feed, clothe, and rehabilitate an offender. Thats alot of money. Again? More investigation and there should be actual PROOF using the terminology that the laws are written in.

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