What is fair punishment for a murder, a rape or compelling someone into prostitution? How long should someone be in jail? Should there be a minimum sentence or should that depend on the circumstances?

After voters passed Measure 11 in 1994, Oregon has mandatory minimum sentences for serious crimes. It’s 25 years for murder. It’s eight years and 4 months for Rape 1. It’s five years and 10 months for compelling prostitution. A judge in Oregon generally has no choice but to at least impose the minimum.

The idea behind mandatory minimums is that certain crimes deserve a base level of punishment. A judge could be more severe, but not less. Mandatory minimums also ensure certainty for the public that criminals get similar sentences for similar crimes. Some argue, though, mandatory minimums don’t achieve justice. Judges aren’t allowed enough discretion for the facts of a case or the absence of a criminal history of a convicted individual.

This legislative session, Senate Bill 401 would convert Oregon’s mandatory minimums for certain felonies to presumptive sentences, excluding murder. Judges could give greater or lesser sentencing. Judges could judge. It will almost inevitably mean shorter sentences for many people convicted of violent crimes.

The Oregon District Attorneys Association does not want the change. Three district attorneys have come out in favor of the bill, including Deschutes County District Attorney John Hummel.

Two justifications for keeping Measure 11 are voters voted for it and state crime rates dropped after it passed. “When voters passed Measure 11 in 1994, violent crime rates in Oregon were at historically high levels. Since the passage of Measure 11, violent crime dropped by over 50%, to its lowest level since the 1960s. While violent crime declined nationwide during this period, Oregon violent crime declined more than anywhere else in the nation,” Oregon’s District Attorneys Association said in its testimony.

Hummel argued it’s hard to know exactly if Measure 11 was responsible or contributed significantly to the drop in crime. Correlation is there. Causation is difficult to prove.

The Oregon District Attorneys Association points out that mandatory minimum sentences are not absolutely mandatory. If judges make particular findings in court, they can impose less prison time or even no prison time in some cases. Some argue Measure 11 sentencing has an advantage because it makes decisions based on conduct, not skin color.

Hummel, along with Mike Schmidt, the Multnomah County DA, and Matt Ellis, the Wasco County DA, highlighted in their testimony what has been a concern about what mandatory minimum sentencing does to the legal system. It concentrates more power in the hands of district attorneys instead of judges. DAs can use the threat of a Measure 11 charge as clout in negotiations behind closed doors. “In a system of criminal justice where over 90% of cases are resolved via plea offer rather than trial, the incredible leverage provided by (Ballot Measure) 11 provides prosecutors — and prosecutors alone — the ability to decide the sentence by voluntarily declining to pursue a BM 11 charge, often by electing to reduce a charge to a lesser offense or an ‘attempt,’” they wrote.

We aren’t going to tell you what you should think about Measure 11 or the proposed changes to it in SB 401. We do believe judges are in the best position to determine what is just punishment. The changes in SB 401 would not wash away problems. But it does tilt more power into the hands of judges where we believe more power belongs.