Comparing Kroger and Macpherson

Legal Newsline has an in-depth article discussing Democratic Attorney General candidates John Kroger and Greg Macpherson and the policy differences between the two. On the subject of their predecessor, Hardy Myers:

In lengthy interviews with LegalNewsLine, candidates Rep. Greg Macpherson and Professor John Kroger both praised retiring Attorney General Hardy Myers, the 68-year-old Democrat who has quietly led the state Department of Justice since 1996, but each said they would run the agency differently than their predecessor.

"I want to elevate the energy-level and visibility of the Department of Justice," Macpherson said. "Raising the profile of the office will help Oregonians understand what the Department of Justice is doing for them and can do for them."

Similarly, Kroger, who teaches criminal law and jurisprudence at Portland's Lewis & Clark Law School, said he would boost the AG's profile and use the Department of Justice, with its more than 1,300 employees and $380 million budget, to pursue "corporate polluters" and drug dealers.

"I'm going to use the bully pulpit of the office much more aggressively than Mr. Myers," Kroger said. "I think it's important that we have an effective and dynamic communicator in that office who can build political coalitions outside of Salem and talk about big issues and get the public to focus where it needs to focus."

The article details some other differences between Macpherson and Kroger:

As for fundamental policy differences between Kroger and Macpherson, the two differ on whether more of the Justice Department's jobs should be relocated to Portland, the state's major population center.

Kroger said such a move would help the agency recruit and retain attorneys, in particular. Macpherson, however, said he would rather "expand opportunities for remote access" for the attorneys so they don't have to work always from the department's Salem headquarters.

A striking difference between the two relates to Oregon's voter-approved mandatory sentencing law for violent crimes, outlined in Measure 11.

Macpherson said unlike Kroger, he believes that policymakers ought to be "open to changes" to the law, particularly because the state's prison population has exploded since its passage in 1994.

"We've seen that Oregon's prison population has more than doubled over the last dozen years, and it has made it very hard to support other public services we depend on like schools and even other public safety programs," Macpherson said.

Read the rest. Discuss.

  • (Show?)

    I'm disappointed that this article doesn't give both sides on the issues. For instance:

    A striking difference between the two relates to Oregon's voter-approved mandatory sentencing law for violent crimes, outlined in Measure 11. Macpherson said unlike Kroger, he believes that policymakers ought to be "open to changes" to the law, particularly because the state's prison population has exploded since its passage in 1994. "We've seen that Oregon's prison population has more than doubled over the last dozen years, and it has made it very hard to support other public services we depend on like schools and even other public safety programs," Macpherson said.

    That's all the article has on this issue. It says that there is "a striking difference"; however, the only information the author gives to that is to say that Macpherson said that his position is different than Kroger's.

    It would have been nice had they completed this train of thought and given Kroger's actual position on this, rather than relying on his opponent to frame it for him.

    I have to say that had I turned in such an article during my days as a journalist, it would have been back on my desk with red writing asking where Kroger's position was.

  • Jonathan (unverified)

    I agree. I checked the article just to make sure it wasn't edited that way. john supports mandatory minimums for violent crimes like rape and murder. he supports reforming m11 so that juveniles are not subject to it.

  • LT (unverified)

    Let me get this straight--Kroger has said he wants to appear in court more than recent AGs (as if the administrative part of the job isn't challenging enough) and he wants to move some of the DOJ jobs to Portland?

    In the 21st century "remote access" may well be possible. What Oregon DOJ jobs make sense to send to Portland? Why?

    And why don't either of them talk about election law? It is not as if the Oregon Law Comm. was formed merely to deal with issues that confront the legislature and Sec. of State, is it?

  • BCM (unverified)

    I checked Kroger's website to see where he stood on Measure 11, I couldn't find anything. I agree with what Macpherson said, but I would like to know what Kroger thinks--since it's so striking after all.

    His top priority is fighting meth, which leads me to believe that he is in favor of keeping M11 in place, which is going to keep sucking money away from schools and public safety as Macpherson said. We need to fight meth, but we don't have the funds nor the jail space to keep tossing users away for hard time.

  • Justin (unverified)

    BCM, go read this link,, which is the loadedorygun interview with John Kroger. Kroger speaks extensively on Measure 11 and after hearing Macpherson speak repeatedly, it is apparent that he does not tell the truth about Kroger's position on measure 11.

  • No Spin Zone (unverified)

    I often hear Kroger supporters echo this line: "John supports mandatory minimums for violent crimes like rape and murder." (Echoed above by Jonathan.)

    This line is spin. Just about everyone supports harsh penalties for the most egregious crimes, like rape and murder. The real question is whether candidates support mandatory minimum sentences for less egregious physical crimes, including such things as third-degree assault. For the record, Measure 11 covers all of these crimes. This is where the real controversy lies, not whether rapists and murderers should be subject to harsh penalties.

    From the Loaded Orygun interview, it appears that Kroger does support Measure 11's broad application to all so-called violent crimes, including third-degree assault.

  • (Show?)

    Stop citing LO! Word on the BlueO street is that site just doesn't matter. (even though I ran this story two days ago. ;) )

    While I have to agree with Jenni about the one-sided reportage, it's good to see my friend Chris Rizo writing politics again. A lot of state papers are chucking state and local politics writers, and Chris was a casualty at Ashland DT. Chris usually seeks out more than what the principals tell him, so I'm surprised to see Mac get a free ride like that.

  • Kate (unverified)

    Kroger pledged his support of Measure 11 to the DAs. If he's changing his position depending on the audience, I find that more troubling than the fact that he supports Measure 11. But it appears that just some of his supporters are misrepresenting his position. From the Loaded Orygun interview, which was referenced in the comments as proof that Kroger opposes Measure 11, Kroger said "I think generally Measure 11 is a reasonable approach." Macpherson has stated that he opposes madatory sentences for several reasons, including their impact on the budget, and because "crimes are not cookie cutter, and they don't deserve cookie cutter sentences."
    Seems like a valid policy distinction to me.

  • (Show?)

    if folks are trying to say the interview has Kroger opposing M11, that's not right. But he does lay out areas he is open to changing, and I have NEVER, in any setting, equivocate on his position. On the contrary, he usually says he knows his position does not endear him to some progressives. I love that courage of conviction, and he's given me some things to think about. First of all, the MM for rape is just 8 years, which to a lot of folks seems low. Another point hemakes is that it can check judicial bias, particularly regarding race, where the white rapist might get 5 yes while the black rapist gets 15. Finally, kroger believes if he starts office by taking on M11, he will lose his DAs and his agenda will be stillborn. With their support, he can accomplish more in other areas.

  • (Show?)


    As teh Vice President of the union representing DOJ attorneys, let me answer your second question...

    It is stunningly immportant to create more space in Portland for DOJ attorneys -- which both candidates actually support despite how it came off in that interview -- and here is why.

    Over half our CURRENT lawyers, and almost 5/6th of our applicants, live in the metro area. Being able to avoid the 100 mile round trip commute improves recruitment, improves retention, improves morale, gives lawyers more personal time. It also would take a whole bunch of cars off the highway. When we lose lawyers, it is almost always to Portland or Eugene based oppostunities, not Salem ones.

    DOJ is the largest law firm in the state (Stoel Rives is larger overall, but has 100 fewer lawyers in Oregon). I doubt there's any law firm that size that hasn't branched out to meeet any variety of needs, including client and court access. Of the state DOJs this side of the Rockies, we aree the only one in which there is not a major presence in our largest city. Right now, we have a few units with roughly 40 of our 300 lawyers in Portland.

    Technology has changed. I can speak mostly to how Trial Division works. Except for the CCR section, which handles inmate suits, the other three division's see over 70% of their cases filed in US District Court or the three metro area circuit courts. The work is here. Client contact is largely by phone or e-mail, even putting aside that many clients (such as DEQ, BOLI, etc.) are actually in Portland. With client contect no more than 1-3% of our average time spent, being based in Salem is no longer critical.

    And on top of it all, our space in Portland is actually CHEAPER! There is precious little office space in Salem, and we pay more for the Robertson building, which houses the general counsel unit, than we do for our space at 1515 SW Fifth in Portland.

    This is a very big issue for our union folks, but it's also good for the state, which will be able to hire more good lawyers and keep them longer.

  • (Show?)

    Jenni - yes, it's hard with only so much space to give full information about both sides on each major issue, and they should have done a better job.

    In a counter example, on the environment they fail to mention OLCV's endorsement or Macpherson's leadership on Measure 49. If they're going to devote significant space to talking about Kroger and the environment, at least they could have put in a sentence about Macpherson's work on it.

  • (Show?)


    Yes, I saw several times where the other side was missing. It was just that one which stood out the most, since they said there was a striking difference and then never said the difference. The closest they got was allowing one candidate to frame his opponent's position.

  • mlw (unverified)

    Just to be clear, Measure 11 does NOT cover assault 3. The Measure 11 crimes are - Arson 1 (if threat of serious physical injury) Assault 1 (generally serious physical injury w/a deadly or dangerouse weapon) Assault 2 (generally serious physical injury or physical injury with a deadly or dangerous weapon) Attempted Aggravated Murder Compelling Prostitution Kidnapping 1 Kidnapping 2 Manslaughter 1 Manslaughter 2 Murder Rape 1 Rape 2 Robbery 1 Robbery 2 Sex Abuse 1 Sexual Penetration 1 Sexual Penetration 2 Sodomy 1 Sodomy 2 Using a Child in Display of Sex

    Having practiced in several jurisdictions, the penalties for these crimes under Measure 11 are substantially LESS than I saw in other places. I would wager that sentences under Measure 11 are substantially LESS than those imposed, on average, for similar crimes in most other jurisdictions. Of course, like any law, M11 can be abused, but that's why we have elected prosecutors, so that they will be answerable to the public for their decisions.

  • (Show?)

    much needed information, thank you mlw!

  • LT (unverified)

    Thanks, mlw. But I think you hit the nail on the head.

    If someone who has seen what they consider an abuse of M.11 as you described "Of course, like any law, M11 can be abused, but that's why we have elected prosecutors, so that they will be answerable to the public for their decisions."

    hears Kroger saying M. 11 is basically good and Macpherson says he is open to change, that could make a difference in how they vote.

    Notice I said "HEARS" . There is a poster I have seen which says the message sent and the message heard are not always the same thing.

  • Robert Harris (unverified)

    Whenever someone wants to defend M11 frrom any changes, they point out that 8 years for rape or 10 years for murder isn't too harsh. But thats a red herring, since most people, including the vast majority of defense attorneys I know, don't argue otherwise.

    The real issues are:

    1. The lower level of offenses. Assault II, Robbery II, for instance. Many of these cases either have significant mitigating factors that a judge isn't able to consider in sentencing.

    2. The fact that the law takes discretion out of the Judges hands and hands it over to prosecutors and thus gives the DA the ability to leverage weak cases into pleas, depriving a defendant to a right to a trial.

    The FACT is, that under the sentencing guidelines, even without M11 the Court could still sentence rapists and murders to long long prison sentences.

    Here's a proposal. Increase the presumptive sentences for all current M11 crimes, but get rid of the mandatory requirement and make them presumptive sentences rather than mandatory. Lets make rape 10 years presumptive minimum. Under guideline rules,the judge could only lower the sentence if there were mitigating factors.(currently courts lower presumptive sentences in only about 10-15% of the felony cases, so this could theroretically increase M11 catagory sentences as a whole). If DA's wouldn't agree to this, then I can only assume that it isn't really that they believe Judges are too lenient. Rather they just want to keep the power to sentence that M11 shifted from Judges to DA's, and the concurrent leverage M11 provides them.

    As to DA's who abuse their discretion having to face the voters. Are you kidding me? When was the last time someone won a DA position by arguing that their opponent was too tough on crime. Please don't insult our intelligence with that "check and balance" argument.

  • No Spin Zone (unverified)


    I stand corrected -- Assault 3 is not covered by Measure 11, while Assault 2 is. Still, my point is equally valid. Assault 2 is a far cry from "rape and murder."

    Under Oregon law, a person can commit Assault 2 by "Intentionally or knowingly caus[ing] serious physical injury to another" or by "Recklessly caus[ing] serious physical injury to another by means of a deadly or dangerous weapon . . . ."

    I realize that any assault is serious, but my point is to say that when Kroger supporters echo the line "John supports mandatory minimums for violent crimes like rape and murder," they are just spinning his position. The fact is, he doesn't just support mandatory minimum sentences for crimes like rape and murder; he also supports mandatory minimum sentences for much less egregious crimes, like second-degree assault.

    I'm just trying to cut through the spin here.

  • mlw (unverified)

    So, Mr. Harris, just to be clear, you're arguing that we should reform M11 because it's too popular? That seems to be the logical conclusion to your suggestion that DAs are never defeated for being too tough on crime. Besides, its simply not true. You may recall that Benton County DA Scott Heiser was essentially forced out of office because of his policies being deemed too tough by Judge Janet Holcomb.

    As for the "more minor" crimes, like Assault 2 and Robbery 2, consider that 1) the minimum sentences for these are lower, and 2) the potential damage to the victims is quite high. Assault 2 is committed when someone - (a) Intentionally or knowingly causes serious physical injury to another; (b) Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon; or (c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life.

    Serious physical injury is usually an injury causing a substantial risk of death or substantial impairment of physical function for a protracted period. Usually, assault 2 is committed by either beating someone almost to death or using a gun, knife, baseball bat, etc to inflict an injury. I fail to see how that doesn't merit a substantial prison sentence. What's the mitigating factor? "I was really angry when I almost killed him?" "I only grazed him when I shot him?" Please, I once convicted a guy for only threatening a relative with a baseball bat and the jury gave him 99 years in the pen. The real travesty is that there's no "three strikes" (or four or five or six, or whatever) law in Oregon for most offenses. A fellow lawyer once commented that he would be satisfied with merely a "ten for ten" law that gave 10 years for a person's tenth felony. In truth, I see people with 10 or more felonies every day that still receive probation under the guidelines. No wonder the people passed M11.

    Moving on, robbery 2 is committed when someone takes something by the use of force or the threat of the use of force and is either 1) actually aided by another or 2) uses or threatens the use of a deadly weapon. Basically, this is for your typical liquor store robbery with a knife, gun, baseball bat, etc, or one where a bunch of guys decide to rob someone. I grant you that your point is marginally more valid here, but it's not like people "accidentally" knock off liquor stores. What's your mitigating factor there? These guys aren't Jean ValJean, stealing a loaf of bread.

    In all fairness, your argument is exactly that of most of the far left fringe - these laws are just too popular. It's not a very good argument, but, giving the benefit of the doubt, perhaps you mean instead that there should be an opt-out for cases where the jury deems the conduct to be not that serious. Fine, I don't have a problem with that, but it should be a judge, not a jury, that makes that call. The people like tough on serious crime legislation. If they want to make exceptions, it should be done by the jury, not by a judge. The very reason these laws passed was because the people thought the system, including judges, were too soft on serious criminals.

  • mlw (unverified)

    Oops...should have been jury, not judge, in the last paragraph. My objection to the M11 opponents, as well as those opposing a fix to the confessions law, is that they are fundamentally anti-democratic - they do not wish jurors to make these calls.

  • Anonymous (unverified)

    When looking at what constitutes a Measure 11 crime, I think it makes sense to look at what the Multnomah County District Attorney office stated in a brochure it helped devise after Measure 11 became law. An electronic version of that law is linked here at the Marion County Probation website.

    These are example of Measure 11 Crimes:


    ROBBERY II: You alone or with a friend want someone’s baseball cap. You either pretend to have a weapon or threaten to beat the owner up. You and your friend go to prison for 5 years and 10 months.

    ASSAULT II: You and a friend get into a fight with another person. Your friend pokes the other person in the eye with the handle of a hairbrush, a stick, etc. The eye is injured. You and your friend go to prison for 5 years and 10 months.

    SEXUAL ABUSE I: You and a date are at a movie. You touch your date’s buttocks, crotch, or breast. Your date tells you to stop. You ignore this and touch your date there again. You go to prison for 6 years and 3 months.

    KIDNAPING II: You hear that someone is messing with your friend. You go to their house and force them outside to beat them up. You go to prison for 5 years and 10 months.

    MANSLAUGHTER I: You are driving under the influence of alcohol and/or drugs. You cause an accident and someone dies. You go to prison for 10 years.

    Special thanks to the staff of the following for their assistance with this brochure:

    Multnomah County Department of Juvenile Justice Services Portland Public Schools Oregon Attorney General’s Office Multnomah County District Attorney’s Office

  • anonymous (unverified)

    Or a Measure 11 crime might be like this from the Willamette Week:

    "A Washington County jury found Rodriguez guilty in 2005 of first-degree sexual assault after police accused her of running her hands through a 13-year-old boy’s hair and pulling the back of his head against her covered chest in the middle of a crowded game room at the Boys and Girls Club in Hillsboro.

    Under Measure 11, a 1994 voter-approved ballot initiative setting mandatory minimum sentences, Rodriguez faced six years and three months in prison. But Circuit Judge Nancy Campbell gave her 16 months instead, saying the Measure 11 sentence would violate the state constitution as cruel and unusual punishment.

    Rodriguez served one year at the Coffee Creek Correctional Facility in Wilsonville, earning time off for good behavior. Meanwhile, prosecutors appealed her sentence, and in December a three-judge panel at the state Court of Appeals ruled unanimously that Rodriguez should serve out the remaining five years of her Measure 11 sentence. "

  • anonymous (unverified)

    Or a Measure 11 crime might be like this:

    Prison term law narrowly upheld

    April 20th 2000

    A mandatory six-year prison sentence for a 16-year-old boy who had consensual sex with his 13-year-old girlfriend might be unfair, but it does not violate the Oregon Constitution, a heavily divided Oregon Court of Appeals ruled Wednesday.

    The 5-4 ruling upholds the constitutionality of Measure 11, which sets minimum sentences for certain crimes, in the case of Justin Edward Thorp, now 19, who was convicted in 1998.

    The ruling comes just months before what is expected to be one of the most passionate debates of the fall election: whether to repeal Measure 11, the mandatory minimum sentencing law that voters passed in 1994.

    In 1996, Thorp made love at least twice with his consenting 13-year-old girlfriend. The girl's mother reported him to police. The Clackamas County district attorney's office then prosecuted Thorp, and in 1998 he was convicted of two counts of statutory rape.

    Measure 11 prescribes a mandatory minimum of 75 months in prison, but Clackamas County Circuit Judge Robert Morgan determined that such a sentence was cruel and unusual punishment in violation of the Oregon Constitution.

    Morgan based his decision in part on the fact that the girl said she initiated the sex. Thorp was three years and 10 days older than his victim. But had the difference in their ages been three years or less, it would not have qualified as second-degree rape. At most, he would have faced a misdemeanor sex offense and been sentenced to probation, prosecutors and defense attorneys agree.

    Morgan opted to sentence him to 35 months in prison, based on state sentencing guidelines. The state appealed, arguing that the 75-month sentence did not violate the Oregon Constitution. The majority of the Court of Appeals agreed.

    "It is our duty, under the Constitution, to uphold the mandated sentence unless we can say that the sentence shocks the 'moral sense of all reasonable' people," DeMuniz wrote. "That we cannot say."

    Haselton and three other judges disagreed strongly.

    "Under Oregon law, this 16-year-old defendant would have received a lesser punishment if, instead of having sex with his girlfriend at her initiation, he had compelled her to engage in prostitution, used her in creating child pornography or sexually abused her corpse. Disproportionality is manifest," Haselton wrote.

    Critics of Measure 11 seized on the ruling.

    "This case is a good example of how Measure 11 is misused by district attorneys," said Cathi Lawler, chief petitioner for a proposed initiative to overturn the measure.

  • anonymous (unverified)

    Or a Measure 11 case might look like are some snippets of two Willamette Week stories on Clifford Frey's case:

    Despite the fact that Frey, then 21, has the mental capacity of a 12-year-old, he was convicted of sexual abuse and sentenced to 75 months in prison.

    Frey and his 17-year-old victim had had a consensual sexual relationship of more than two years.

    When police were called, it appeared to be a simple case of forcible sexual assault. It turned out, however, that there were aspects of the case that made it a bit more complicated.

    For one thing, the girl and Frey had a consensual sexual relationship dating back to New Year's Eve in 1993. Russell believes that on the night of the assault, Frey was receiving "mixed signals" from the girl, and that the tenor of their encounter changed quickly and dramatically before Frey realized it. She says the whole incident near Amalfi's lasted less than two minutes.

    Frey's own circumstances also made the case less black-and-white. He had no prior criminal record and didn't have a history of being physically aggressive. Even his response to the incident was unusual. When police showed up to arrest him early the next morning, he was waiting for them on the front steps. He knew he had done something wrong, although he didn't know exactly what would happen next.

    In fact, Frey would never fully understand everything that was swirling around him. Frey has an IQ of 69, well below the average IQ of 100 but at the high end of the mentally retarded range.

    In 1993, he graduated from Grant High School with what's known as a "modified diploma," a degree for special-education students that shows he completed school, although he wasn't required to meet the normal standards

    (Prosecutors said the system worked and righted itself after Frey got out after four years or so due to some legal maneuvering by his attorney and the Mult. County DA.)

    Donna Frey, however, takes a different view. She says her son's case shows that "one-size sentencing does not fit all."

  • anonymous (unverified)

    The bottom line is that prosecutors like harsh mandatory minimums because they like having the power of deciding who to charge with the harsh sentence and who to give a break to through downward charging and plea bargains. They know who the bad guys are and they don't need any judges using discretion in sentencing. "It really changes the playing field," as Kroger said, "It makes it easier to get a disposition in a case."

    But we need a strong adversarial system with due process protections and judges that are more than wallflowers to strike the right balance of justice. And it's ridiculous to have electing or unelecting a DA as the main check and balance. Are you serious?

    Kroger may well be a great guy, but he has obvious disadvantages from being an out-of-stater. If Kroger lived in this state for more than a couple years, or practiced law in this state ever, he might not be such a "strong supporter" of Measure 11 and might not be opposed to anything that would "water it down", as he said to the Oregon District Attorneys Association.

    I'm glad he seems to be changing his position (someone mentioned more discretion on juvenile cases), but I wonder why he didn't mention that to the DA's?

  • Robert Harris (unverified)

    Mr. Wilde, again you're missing the points.

    Running as a law and order DA is politically the only way to campaign. I don't see how that makes my argument eqaul to saying that we need to reform M11 because its too popular, but thanks for the strawman. I've said numerous times, most of the M11 sentences are not innappropriate, in my opinion. The problem is that in the less serious crimes (and I have never argued that all M11 catagory crimes aren't serious, so you are misstating my argument once again), M11 gives inordinant amount of power to the DA's.

    and...while you never addressed my proposal that we put the M11 sentences back on the guideline with increased presumptive sentences, you did indicate that you didn't trust judges to be just. Well, you can always run against these "liberal judges" if you want. (though my experience is that a DA's definition of a liberal judge is one who doesn't do what the DA wants most of the time)

    But you did make one very interesting proposal, and one that I would absolutely agree with and have made in the past. Lets tell the juries in all M11 cases what mandatory minimums a defendant faces if the person is convicted of the charged crime, or any lesser included offenses. That proposal has been made by the defense bar and opposed by DA's in this state. Why is that? Because they say its not within the province of the juries to consider the sentence, thats the Judge's province. But of course in a M11 crime, its really the DA's province. Regardless I think the real reason DA's oppose it is that a jury wouldn't always convict of M11 crimes when there is significant mitigating circumstances if it knew there was an unreasonably long mandatory. to what mitigating circumstances could possibly exist in a M11 crime. I don't know how long you've been in Oregon, or how many M11 cases you've tried, but please read some of the posts above. I can also give you some personal examples, if you're interested, please call me, or email me privately. I'll be happy to share stories with you.

    Finally, I know you don't know me and that you disagree with my position that Judges should sentence, but my friends and co-workers would laugh if they heard anyone infer I was part of any "left wing fringe".

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