Seven Days; Measure 11 Reform; Weight-Mile Tax

Hi, I'm Stephanie Fowler and this is Seven Days. Our topics this week, another look at mandatory minimum sentencing and a proposal to change the way trucks pay for their share of highway deterioration. Let's meet this week's panel. Brad Cain covers the Capitol for the Associated Press. David Steeves is the Capitol correspondent for the Eugene Register Guard. Richard Aguirre is an editorial writer for the Salem Statesman Journal and Haasso Herring is the editor of the Albany Democrat Herald. It's been four years exactly since a measure to tough and sentencing for violent offenders and some juvenile offenders took effect. Soldiers approved measure 11 in 1994 and it became law on April 1, 1995. The 1997 legislature made some revisions in the law, but two Democratic lawmakers in

this year's session have proposed repealing it entirely. The chief arguments against the measure focus on the lack of discretion judges have in imposing sentences on teens convicted of certain crimes such as assault and robbery. Critics of measure 11 say the sentences it requires are also driving Oregon's costly prison expansion. Brad, what changes would the proposed legislation make to measure? Well, I think basically we should identify that it's representative's joint involvement of Portland and Floyd Przansky of Eugene. Basically, they want to give judges latitude again to take another look at these sentences that right now the measure essentially ties their hands and says that their mandatory minimums and representative's Przansky and Bowman say that that really goes too far and that judges should have some say here and, you know, taking in the mediating factors and other things into consideration. Is it true that judges' hands really are tied and there's nothing they can do and there's no opportunity for judiciary discretion?

Well, right now I think under the measure, if the DA agrees to a second look, I think that the judge can go along with it. They can be a second look only on three second degree felonies, but for the most part of the judges' hands are tied, it's called mandatory minimums and it explicitly takes a judgment away from the judges and what the two representatives are talking about is going to presumptive sentences, that's the baseline, that's what you presume is going to be the sentence unless you, you know, the judge decides to go for a higher or possibly a lower. Prosecutors and police are understandably opposed to this and so as a Republican leadership, they don't want judges to have any more discretion and in fact they believe measure 11 passes overwhelmingly as it did because judges had too much discretion and use it to impose far too lenient sentence on serious criminal offenders. We've seen, you know, the results of this program now, four years into it and the results have been as predicted in one way and that is that a lot of people are serving a lot of years in prison, but the unforeseen result is that the prisons we have, especially the

new ones for young people, the youth authority prisons of which we have five new ones around the state, a fall, which puts us in almost the same spot that we were in before we had them because at that time there was no way to deal with a lot of offenders and now we're in pretty much the same spot and largely that's because a lot of these people are being sentenced to these five and a half year terms or five years and ten months I guess it is the minimum for some of these crimes where you would think that with proper treatment that is not treatment so much as with proper programs in these youth prisons they could be led out much sooner because they would have seen the errors of their ways much sooner and in fact as we've heard in a number of reports there are these programs in these youth authority prisons that are excellent. They make these young people face up to what they've done, they make them realize that it was wrong and they make them and in a lot of these cases these are 15, 16, 17-year-old

kids who just plain until then either didn't know any better or just had some other kind of a problem that resulted in evil deeds but the fact is they have, I mean the whole idea behind these prisons used to be reform you know and the old days we had reform schools and we still have them but the fact is whether they reform in the first year or two they still are there. And is that possible but the situation that you described though is they had an unintended consequence. Do you think the voters if they knew that was the consequence would have said oh I never meant that? I think what we're talking about here is that the voters when we voted and when we editorialized I got to be honest about this, when we editorialized in favor of this measure we were thinking out that a lot of hard and evil criminals were getting criminals were getting off free or we're getting on probation, I mean that was a standard sentence for almost anything. Ten months probation and you do it again then twenty months probation or something like that.

And that was a perception and I think the perception to some degree may have been long. David, I think the biggest unintended consequence of this is that it effectively shifted a lot of the judging judicial decision making to the prosecutors away from the judges because they're the ones who now hold the hammer if they've got a kid or an adult who's before them they can say I'm going to we're going to go measure eleven with you which means a long sentence or you could plea and just admit your guilt to a lesser crime and maybe you'll only do two or three years and I wrote about one young man who decided to roll the dice. He said I didn't you know I'm not guilty of this measure eleven charge which was an assault charge and so he went to trial and he was convicted and he's doing seventy months in you know in a youth jail and eventually he'll transfer to an adult prison because he didn't want to play ball he didn't want to go ahead and plea bargain and so that's where the AG or the the prosecutors the DA's really hold the hammer now. And we are seeing the use of plea bargaining much more frequently now are they isn't that

one of the consequences. In fact that in fact that is prosecutors do do hold the cards as you say David well one thing they've decided to do is to plea it out a lot more cases so that the prison boom that was expected as a result of measure eleven has happened to some degree and and Oregon is in the middle of its largest prison building construction program but not as much as some people believe because of the fact that there please have been coming fast and furious. So the state has actually scaled down as projections of prison bed needs that they initially based on measure eleven because of the plea bargaining and then because some people say because the law is working and there's not as much except as except as also points out for juveniles and and as you point out the purpose is rehabilitation still some of the programs that you describe that have been effective in turning youth around are predicated on a two or three year cycle and after two or three years they've developed the youth about as far as they're going to get in terms of turning him around helping that person recognize errors of the way but then they have two or three more years to go or they

have to transfer that to with an adult prison but I think you should remember that the crimes that you know include in this measure are fairly serious I mean we talked to a woman who came to the Capitol and she said her 16 year old son is doing five years because he went into a convenience store with a cap gun and and they robbed it that took some beer and cigarettes and she was saying this is just this terrible and you know you have to feel for but on that and you think well you know to the convenience store clerk with somebody coming in with what looks like a gun and stick it on their face you know that that clerk might think that five years sounds like a pretty decent sense we don't you know as outside as people who are not in prison all these things sound pretty easy as five years in prison what's the big deal it's nothing to me the factors I think that when you are in prison for five years something changes or something changes you and in the case of these juveniles particularly when they do get a transferred eventually to adult prison in the case in the cases where that happens what are we I mean what what is going to be the result in a lot of cases it seems to me what people learn in prison is to be better criminals so that after you've been after you spent all that time on a minimum sentence where you could have been

where you where you have really reformed after maybe one or two years or two or three years that there are certain certain lack of flexibility that ought to be there in a system that really tries to do that is more than just plain punishment now but this is you know from hindsight this is after after we've had the experience of this measure for a while at the beginning everybody said exactly what you're saying Brad and that is that look these are serious crimes throw throw the book at them what do we care I mean if if they don't want the prison terms and they ought not to do the crime very simple no big deal but I think maybe we either didn't think about or forgot that some of these people are 15 years old or 16 years old and they are just not very either not very smart or not very mature or they have some other kind of thing that goes on would you think people really forgot that they were there were 15 year year olds covered because that was one of the major features in measure 11 that it would treat 15 to 17 year olds as adult offenders that's right again we we might people go back and have another discussion about this in a campaign next

year but but I guess I just I have a hard time with the idea that voters didn't really sort of what do you understand I think what we have was a whole bunch of horror stories about people who should have been in prison for a long time and got away free yeah we never heard about the stories about people who got away free who should have gotten away free because they reformed on their own I mean that's the sort of thing that killed people and they were out when they were you know that's it isn't a concern here for kids prior to measure 11 kid kinkle you know accused in the the first in slangs prior to that if you've been convicted he'd been out of 21 years old not now under measure 11 if if he's convicted well you don't you don't want to use that case as an example of much of anything I mean something that's so wrong that that I don't think it's typical of anything any particular thing but it's really the kids and who are at the margins I think that that are that the concern is about right now isn't that I mean kids who just right it's not kids who kill necessarily but the young man that I wrote about during the 97 session he got into a fight on the beach he was a professional baseball prospect I mean very powerful

powerful right arm so when he punched this guy he broke his jaw and it was you know they were both participating in this scuffle before it broke into a fight well he he ended up doing 70 months because it's a second degree assault conviction you know which I don't remember the precise legal terms that we're talking about malicious intent and blatant disregard for human life but David under the 1997 revisions is he not entitled to a second look because it was a second degree right it's one of three and to give you I'm this gives us an idea of the mindset of the of the legislators on this this second look narrow second look bill passed overwhelmingly in both houses but Kevin Mannix the author of measure 11 as an initiative who wasn't a legislator lobbied vociferously against it even though he was out of step with the republican legislature in control in 97 he's now sharing the committee that's going to decide what we do in the house that's going to deep six it in exactly if he couldn't live with that very narrow moderate change there's no way

he's going to so is that how we get in fact and in fact Kevin is pushing through six referrals to the ballot that will re-implement portions of measure 40 that were tossed out by the court last year that's the sequel to measure 11 that was intended to support victims rights but some people believe stack the deck further against criminal defendants let's stay with measure 11 let's show whether he knows what he's talking about or not but Mannix insists that there's no human cry from the general public to soften this thing or to change what's already well might we see that are these legislators going to go out I think it's sort of a two-prong thing what they're doing I think they're they're going to make the effort and they and you know and Floyd Presansky and Joanne Bowman say from the get-go we know that this is probably not going anywhere in the legislature but let's start the discussion now even though representative Mannix the judiciary chair and the sponsor the measure is going to deep six it but then the next step is is an initiative campaign they tried one the last election cycle and couldn't get the signatures they say they started late so this time they're going to try again and that would test your contention

house so that people didn't know really what they were doing well I don't have a great deal of optimism that or I mean I really don't expect an initiative I mean it has to be an initiative certainly if any change is going to be made at all my guess would be that the constituency for making that kind of a change is not that great on what we're talking about largely as a group of mate mostly of families really of people who especially of juveniles who are caught in this system and some other prisoners to keep the capital is basically all relatives of juvenile families and people familiar with the legal process because in 97 we had everybody I mean the H.E.'s office the judges you know defense attorneys of course but you had a pretty broad coalition of legal folks who were willing to make these revisions to measure 11 my guess would be that even though we talk about this I mean there's not a great deal of no grounds well in among Oregon voters for changing or getting or softening some of these get tough measures just yet now the mate checks as a violent crime has come that since then I mean maybe there's no connection

but I think one thing that also that could start to have some effect and is the continued cost organs paying for these juvenile facilities and for the prisons I would guess that if the vote on measure 11 were taken in Wilsonville today it might not pass us overwhelmingly because the reality of having to have those kind of correction facilities in communities people start to think is it worth the cost one of these days the cost may actually dawn on people when the numbers be get better known I mean four or five years ago we spent less than 400 million dollars on prisons in a by any my guess and now it's way past 600 million that is going to keep growing naturally and as things if things ever get tough in Oregon in terms of a recession perhaps and tax money not coming in as fast as it is now then people are going to wonder where to save money so you link presumptive sentencing instead of mandatory minimums with more money for education and and maybe you got a change there well look what happened what's happening in California

California is spending four billion dollars a year on prisons I mean almost as much as we want to spend over the next couple of years for education they've said they're not going to build any more prisons they just can't afford it anymore okay we're going to move on to our second topic right now automobile drivers in Oregon pay for the damage they do to the state's roads when they pay the gas tax at the pump truckers pay for the damage they do through a much more complicated system called the weight mile tax based on the total weight of a truck and the distance it travels within the state the theory behind the bureaucratically complicated tax is simple the more damage a truck does to Oregon roads the more tax it pays the trucking industry hates the tax and it's managed to convince nearly every other western state to adopt a fuel tax a diesel fuel tax instead now for the first time the Oregon trucking association has high hopes this session of killing the weight mile tax here but the politically powerful lobby for car drivers triple A opposes the change and that setting up what's likely to be one of the hottest transportation battles of the session

David why is the trucking industry pushing so hard to get rid of the weight mile tax well for this industry this is the ultimate you know success in lobbying because they get rid of two things they really any industry hates which is paying high taxes and dealing with owners regulations and they do that in one fell swoop if they can get this passed the weight mile tax is more expensive than what the diesel tax would be for them they would put in the same amount of money to the state but they're not going to have to put as much into pay for the administration so it's going to produce the same theoretically the same amount of tax money but it's not going to take as much out of the the trucking industry's pockets because they're not going to have to pay for all the the state employees who are administering this tax of course you know they should do all over again now because if this this issue once again is being tied up with the larger well not larger but the related issue of are we going to raise the gas tax and the vehicle registration fees to help repair our roads and this this weight mile tax controversy was one of the items that that held deep six at two years ago not not it wasn't solely responsible but

truckers more than just about anything now and I mean the way that in the charter school controversy which seems sort off the wall but it really was basically those two things that killed the package the last time and I have a hunch it's right it could do the same thing this time but you know the merits of the weight mile discussion itself ought to be explored a little bit you know we say that that's a complicated system but you really don't understand how complicated it is until somebody shows you the form that it takes to report the weight mile tax to the Oregon Department of Transportation it's bizarre I mean we complain about the income tax form and that kind of thing I mean this stuff is amazing you can't imagine how how a state can impose that kind of a record keeping requirement on any of its industries it doesn't make a whole heck of a lot of sense the the trucking industry has pledged itself in this bill that we're talking about I think it's 33 44 that would make the change in road taxation and in all the materials that they've distributed around the state the trucking industry has pledged itself to a number of

things among them that they want to be sure that they continue to pay their fair share of the road repair costs and they're unwilling even to to review every few years every couple of years I guess the the allocation of these costs and and adjust the proposed diesel tax so that the tax would be just as adjustable as the weight mile tax is now I mean that that has been the main argument argument in favor of the weight mile tax and that it can be adjust if studies show if studies done by the state show that trucks do a certain percentage of the damage to the roads but weight mile tax is easily adjustable to account for that and the trucking industry is saying well if we have the diesel tax will make the same adjustments and it seems with all those kinds of guarantees it's just very hard to come up with an argument why the change ought not to be made well what why this triple I say it shouldn't be made one of the reasons they believe is that it would shift the cost responsibility to passenger car owners that it would shift it to other truck owners and they cite the evidence that studies that show that these large trucks and I think it's about

80,000 pound truck is the normal big rig on the road that that causes the equivalent road where of 9,600 passenger cars and although it is an extremely complicated formula they have to fill out these logs that show when they went somewhere how much they were hauling and it's just it is a paperwork nightmare they will state officials believe that is the most precise way to assign the cost of road damage just because someone has something that's complicated doesn't mean it necessarily is a bad policy although I have heard that you say 200 employees or something like that maybe $12 million for the state. So what are people who spend their life? No, the transportation itself says that that 180 some people work on this sort of thing and that that is on the on the road tax collection and they could reduce that by not not all all of those but many of them to save about $12 million every year by any market. But as Richard says I mean to be that precise it is really the only way you can really precisely allocate the responsibility for the cost between cars and trucks.

It's simplicity for truckers worth perhaps giving a greater burden to cars. Well I don't know you have to definitely have to kind of think of that in terms of what's practical. All the other states on the west coast I think with the exceptional Idaho which is not considering getting rid as I understand it of the way the mile tax have already done that. Oregon is one of the only one well the only state in the country that doesn't have a diesel tax as I understand it for trucks and it's only one of five that has the weight mile tax as I get to these figures. Now that means that all these other states can't be completely stupid. I mean they're all interested in doing the same point. The only state in the west, the band self served gas and are you advocating? I wouldn't bear. It really means that this state has withstood lobbying pressure up to this point to get rid of it. Many more states had it previously than have it now. There is one component that tries to inject some fairness into it and that's a broad range of different vehicle registration fees which

the trucking industry says you know if a smaller truck pays a smaller amount a huge truck that's doing a lot of hauling is going to pay much higher registration fees so that tries to get some fairness into this. But they're having trouble winning on that as you know David because the trucking industry is not monolithic on this issue. They're not all supporting abolition of this tax. In fact most of the haulers in Oregon are saying no let's leave the system the way it is because they believe they're interested haulers because they believe that a shift and increase in diesel tax would hurt them more than it will hurt the long haul truckers. Well you know Brady Adams is talking about that today we chat with him about this issue. He has endorsed moving to a diesel tax but he said only if that kind of shift doesn't occur and he says and he also was looking for and this is this is I thought was interesting and if triple A and the truckers can come to some sort of agreement that he'll give his temper that gets support to the idea. There's even less support though in the caucus I talked to Jean-Joyflier who's the Senate Majority Leader and he said at this point he is not convinced that there can be a fair system by shifting away. And they've tried to separate the

two two items also by the way they're you know what I said the two years ago it helped kill the overall package that Brady Adams was saying today now we've got this funding thing here and we're going to talk about wait mile versus. They were linked. We don't want one to bog down or kill the other. Because they were sequencing them as David said and this the elimination of the wait mile tax had to take place first before the Republicans would approve a gas at 4% gas tax increase. You're saying now that they're well would you read it to me today was that they we we want their separate issues we're going to address them separately that we don't want. Well that may be what the Senate president wants to do but the fact of the matter is that that the trucking industry carries a good deal of cloud in the state and in the legislature and if they if they're not going to get their way at all on the on this change which to a lot of people seems kind of a sensible thing then they may just decide to do what they did last year and kill the that is a couple years ago and kill the kill the fuel tax increase the gas tax increase. We should

know by the way you know get with gas tax is going up I don't think the support in that building and sailing it's all that terribly strong or raise it anyway so maybe gas prices going up that I'm sorry that they're going up astronomically every day. So I'm saying I the more people I talk to the building they're saying well you know we do need to fix our roads but I think I think this this kind of this kind of issue might be enough to just kill the whole thing. But that that also would put them in conflict with Oregon businesses associated Oregon industries is strongly pushing for increasing the gas tax they believe that the road conditions are deteriorating so I mean the Oregon trucking association may win on this by trying to kill the transportation proposal but what does that get them. Well give it back it helps them avoid an increase in a way. In terms of the gas lean tax I mean how can the Republicans pass a gas lean tax when they're hammering the governor for his proposed tax increases. It's only a limited tax just those folks who drive cars would pay. Well the point they're making is that first of all the Republicans are making the point that if they're going to consider raising the gas tax for everybody else they're

first going to make certain reforms or force certain reforms to be made in the department of transportation and they're built to that effect the legislature would require a review by the legislature of all construction projects every a few months and there there are some other things like that. The end of it require Oda to spend a hundred million dollars on on certain corridors or roads that are thought to be safety hazards. It's still they meet all those all those objectives that still a major taxing. I mean that's a really good question but I think what Richard mentioned earlier which is that one of their biggest constituents AOI associated Oregon industries is behind this so they've sort of given them permission to raise taxes here it's going to be okay you're not going to look like you know a big tax mongering. It's just it's just a governor's tax plan. Well I tell you some of the Republicans that are worried about that sort of thing they don't care about the AOI. They don't care about AOI that much. They care about the the the committed Republican or conservative voters in some of their rural districts who have who tell them about

no gas tax entries at every town meeting they hold. So they won't necessarily pass it because the AOI says they wanted but that's a constituent of theirs too they're there to look out for businesses interest and I mean I think they have to weigh what what these constituent voting constituents say with the businesses that you know run the engine economically of the state. I guess what I'm suggesting also is it's just not as clear a debate as some people might like to portray I mean there is division between companies at Hall goods and certain goods throughout Oregon there is division in the business community and politically there is divisions not only among Republicans but Democrats and people can't forget that since the trucking associations killed the transportation proposal governor Kitsalber isn't going to be naturally you know very receptive to their message or to their plea for less government regulation. Well you know somebody mentioned to me that there are 36,000 firms in Oregon that do in the trucking business and they they're they're talking about spending maybe an average of a thousand dollars a year on on this kind of administration

of this tax and if they say they wouldn't have to do that they could save us a 36 million dollars. I mean that's sort of that's an argument that I would think with the economy-minded Oregonians would hold a lot of weight and would they pledge that pass on those savings to consumers? That's about a thousand dollars per average you know company. I mean how is this? The big ones but then you get into the other argument again is that a cost shift again? I mean don't you make the balance or tip the balances toward them and away from don't you really have to make it and don't you really have to make a decision or it doesn't legislate you have to make a decision if they're honest whether they're willing to depart from cost responsibility and for from each segment bearing their weight. They want to subsidize trucking industry then let's say so. Yeah but definitely I don't think that that's clearly the case. I think those increases that you talked about earlier are only for two years and once you separate the gas tax from the truck tax then and if the trucking industry is so powerful then they can keep killing any increase in the diesel fuel tax while gas tax increases proceed.

Well that's always been the argument for keeping the weight mild tax but the complications of it have gotten so bad and the administrative burden so high that I think might be time to find some other kind of a system as others say. But how's if there's no human cry to release criminal sentences there certainly isn't to give relief to trucking companies either. And thank you for tying those two subjects together at a time Brad Cain, David Steve's or Chedigiri and Haaso Haring. Thanks for joining us this week on seven days and thank you for watching. Good night.