OREGON BALLOT MEASURE 11 GUIDE

OREGON BALLOT MEASURE 11 LAWS



David N Lesh
Oregon Measure 11 Defense Attorney
Oregon Super Lawyer 2018, 2019, 2020, 2021, 2022

Call today to speak with Mr. Lesh about your M11 case 
(503) 546-2928
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WHAT ARE THE BALLOT MEASURE 11 STATUTES IN OREGON? 

   ORS 137.700 Offenses requiring imposition of mandatory minimum sentences. 

     (1) Notwithstanding ORS 161.605, when a person is convicted of one of the offenses listed in subsection (2)(a) of this section and the offense was committed on or after April 1, 1995, or of one of the offenses listed in subsection (2)(b) of this section and the offense was committed on or after October 4, 1997, or of the offense described in subsection (2)(c) of this section and the offense was committed on or after January 1, 2008, the court shall impose, and the person shall serve, at least the entire term of imprisonment listed in subsection (2) of this section. The person is not, during the service of the term of imprisonment, eligible for release on post-prison supervision or any form of temporary leave from custody. The person is not eligible for any reduction in, or based on, the minimum sentence for any reason whatsoever under ORS 421.121 or any other statute. The court may impose a greater sentence if otherwise permitted by law, but may not impose a lower sentence than the sentence specified in subsection (2) of this section.

 

     (2) The offenses to which subsection (1) of this section applies and the applicable mandatory minimum sentences are:

______________________________________________________________________________

 

      (a)(A)        Murder in the second

      degree, as defined in

      ORS 163.115.                                                       300 months

 

      (B) Murder in the first

      degree, as defined

      in ORS 163.107                                                    360 months

 

      (C) Attempt or conspiracy

      to commit aggravated

      murder, as defined

      in ORS 163.095.                                                   120 months

 

      (D) Attempt or conspiracy

      to commit murder

      in any degree.                                                       90 months

 

      (E) Manslaughter in the

      first degree, as defined

      in ORS 163.118.                                                   120 months

 

      (F) Manslaughter in the

      second degree, as defined

      in ORS 163.125.                                                   75 months

 

      (G) Assault in the first

      degree, as defined in

      ORS 163.185.                                                       90 months

 

      (H) Assault in the second

      degree, as defined in

      ORS 163.175.                                                       70 months

 

      (I)  Except as provided in

      paragraph (b)(G) of

      this subsection,

      kidnapping in the first

      degree, as defined

      in ORS 163.235.                                                   90 months

 

      (J)  Kidnapping in the second

      degree, as defined in

      ORS 163.225.                                                       70 months

 

      (K) Rape in the first degree,

      as defined in ORS 163.375

      (1)(a), (c) or (d).                                                   100 months

 

      (L) Rape in the second degree,

      as defined in

      ORS 163.365.                                                       75 months

 

      (M) Sodomy in the first degree,

      as defined in ORS 163.405

      (1)(a), (c) or (d).                                                   100 months

 

      (N) Sodomy in the second

      degree, as defined in

      ORS 163.395.                                                       75 months

 

      (O) Unlawful sexual penetration

      in the first degree, as

      defined in ORS 163.411

      (1)(a) or (c).                                                          100 months

 

      (P) Unlawful sexual penetration

      in the second degree, as

      defined in ORS 163.408.                                      75 months

 

      (Q) Sexual abuse in the first

      degree, as defined in

      ORS 163.427.                                                       75 months

 

      (R) Robbery in the first degree,

      as defined in

      ORS 164.415.                                                       90 months

 

      (S) Robbery in the second

      degree, as defined in

      ORS 164.405.                                                       70 months

 

      (b)(A)        Arson in the first degree,

      as defined in ORS 164.325,

      when the offense represented

      a threat of serious

      physical injury.                                                      90 months

 

      (B) Using a child in a display

      of sexually explicit

      conduct, as defined in

      ORS 163.670.                                                       70 months

 

      (C) Compelling prostitution,

      as defined in

      ORS 167.017.                                                       70 months

 

      (D) Rape in the first degree,

      as defined in

      ORS 163.375 (1)(b).                                             300 months

 

      (E) Sodomy in the first degree,

      as defined in

      ORS 163.405 (1)(b).                                             300 months

 

      (F) Unlawful sexual penetration

      in the first degree, as

      defined in

      ORS 163.411 (1)(b).                                             300 months

 

      (G) Kidnapping in the first

      degree, as defined in

      ORS 163.235, when the

      offense is committed in

      furtherance of the commission

      or attempted commission of an

      offense listed in subparagraph

      (D), (E) or (F) of

      this paragraph.                                                       300 months

 

      (c)  Aggravated vehicular

      homicide, as defined in

      ORS 163.149.                                                       240 months

 

______________________________________________________________________________ [1995 c.2 §1; 1995 c.421 §1; 1995 c.422 §47; 1997 c.852 §2; 2006 c.1 §1; 2007 c.867 §5; 2019 c.635 §10]

 

******

 

      ORS 137.705 Definitions; adult prosecution of certain juvenile offenders.

 

     (1)(a) As used in this section and ORS 137.707:

      (A) “Charged” means the filing of an accusatory instrument in a court of criminal jurisdiction.

      (B) “Detention facility” has the meaning given that term in ORS 419A.004.

      (C) “Prosecuted” includes pretrial and trial procedures, requirements and limitations provided for in criminal cases.

      (b) Unless otherwise provided in ORS 137.707, ORS chapters 137 and 138 apply to proceedings under ORS 137.707.

      (2)(a) If the juvenile court enters an order of waiver under ORS 419C.349 (1)(a), the person waived may be charged with the commission of an offense listed in ORS 137.707 and may be prosecuted as an adult. The person may be detained in custody only in a detention facility, unless the person is 16 or 17 years of age and the director of the county juvenile department and the sheriff agree to detain the person in a jail or other place where adults are detained. A person detained in accordance with this paragraph is subject to release on the same terms and conditions as for adults.

      (b) If a person waived under ORS 419C.349 (1)(a) is under 16 years of age, the person may not be detained before conviction, or after conviction but before execution of the sentence, in a jail or other place where adults are detained. [1995 c.422 §48; 2011 c.122 §1; 2019 c.634 §4]

 

*****

 

      ORS 137.707 Mandatory minimum sentences for certain juvenile offenders waived to adult court; lesser included offenses; return to juvenile court. 

 

     (1) When a person waived under ORS 419C.349 (1)(a) is convicted of an offense listed in subsection (4) of this section, the court shall impose at least the presumptive term of imprisonment provided for the offense in subsection (4) of this section. The court may impose a greater presumptive term if otherwise permitted by law, but may not impose a lesser term. The person is not, during the service of the term of imprisonment, eligible for release on post-prison supervision or any form of temporary leave from custody. The person is not eligible for any reduction in the minimum sentence for any reason under ORS 421.121 or any other provision of law. The person is eligible for a hearing and conditional release under ORS 420A.203 and 420A.206.

      (2) ORS 138.052, 163.105 and 163.150 apply to sentencing a person prosecuted under this section and convicted of aggravated murder under ORS 163.095 except that a person who was under 18 years of age at the time the offense was committed is not subject to a sentence of death or life imprisonment without the possibility of release or parole.

      (3) The court shall commit the person to the legal and physical custody of the Department of Corrections.

      (4) The offenses to which this section applies and the presumptive sentences are:

______________________________________________________________________________

 

      (a)(A)        Murder in the second

      degree, as defined in

      ORS 163.115.                                                       300 months

 

      (B) Murder in the first

      degree, as defined

      in ORS 163.107.                                                   360 months

 

      (C) Attempt or conspiracy

      to commit aggravated

      murder, as defined

      in ORS 163.095.                                                   120 months

 

      (D) Attempt or conspiracy

      to commit murder

      in any degree.                                                       90 months

 

      (E) Manslaughter in the

      first degree, as defined

      in ORS 163.118.                                                   120 months

 

      (F) Manslaughter in the

      second degree, as defined

      in ORS 163.125.                                                   75 months

 

      (G) Assault in the first

      degree, as defined

      in ORS 163.185.                                                   90 months

 

      (H) Assault in the second

      degree, as defined

      in ORS 163.175.                                                   70 months

 

      (I)  Kidnapping in the first

      degree, as defined in

      ORS 163.235.                                                       90 months

 

      (J)  Kidnapping in the second

      degree, as defined in

      ORS 163.225.                                                       70 months

 

      (K) Rape in the first degree,

      as defined in ORS 163.375.                             100 months

 

      (L) Rape in the second

      degree, as defined in

      ORS 163.365.                                                       75 months

 

      (M)            Sodomy in the first

      degree, as defined in

      ORS 163.405.                                                       100 months

 

      (N) Sodomy in the second

      degree, as defined in

      ORS 163.395.                                                       75 months

 

      (O) Unlawful sexual

      penetration in the first

      degree, as defined

      in ORS 163.411.                                                   100 months

 

      (P) Unlawful sexual

      penetration in the

      second degree, as

      defined in ORS 163.408.                                   75 months

 

      (Q) Sexual abuse in the first

      degree, as defined in

      ORS 163.427.                                                       75 months

 

      (R) Robbery in the first

      degree, as defined in

      ORS 164.415.                                                       90 months

 

      (S) Robbery in the second

      degree, as defined in

      ORS 164.405.                                                       70 months

 

      (b)(A)        Arson in the first degree,

      as defined in ORS 164.325,

      when the offense represented

      a threat of serious

      physical injury.                                                      90 months

 

      (B) Using a child in a display

      of sexually explicit

      conduct, as defined in

      ORS 163.670.                                                       70 months

 

      (C) Compelling prostitution,

      as defined in ORS 167.017

      (1)(a), (b) or (d).                                                   70 months

 

      (c)  Aggravated vehicular

      homicide, as defined in

      ORS 163.149.                                                       240 months

______________________________________________________________________________

 

      (5) If a person charged with an offense under this section is found guilty of a lesser included offense and the lesser included offense is:

      (a) An offense listed in subsection (4) of this section, the court shall sentence the person as provided in subsections (1) and (2) of this section.

      (b) Not an offense listed in subsection (4) of this section:

      (A) But constitutes an offense for which waiver is authorized under ORS 419C.349 (1)(b), the court, upon motion of the district attorney, shall hold a hearing to determine whether to retain jurisdiction or to transfer the case to juvenile court for disposition. In determining whether to retain jurisdiction, the court shall consider the criteria for waiver in ORS 419C.349. If the court retains jurisdiction, the court shall sentence the person as an adult under sentencing guidelines. If the court does not retain jurisdiction, the court shall:

      (i) Order that a presentence report be prepared;

      (ii) Set forth in a memorandum any observations and recommendations that the court deems appropriate;

      (iii) Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 and 419C.411; and

      (iv) Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255.

      (B) And is not an offense for which waiver is authorized under ORS 419C.349 (1)(b), the court may not sentence the person. The court shall:

      (i) Order that a presentence report be prepared;

      (ii) Set forth in a memorandum any observations and recommendations that the court deems appropriate;

      (iii) Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 and 419C.411; and

      (iv) Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255.

      (6) When a person is charged under this section, other offenses based on the same act or transaction shall be charged as separate counts in the same accusatory instrument and consolidated for trial, whether or not the other offenses are aggravated murder or offenses listed in subsection (4) of this section. If it appears, upon motion, that the state or the person charged is prejudiced by the joinder and consolidation of offenses, the court may order an election or separate trials of counts or provide whatever other relief justice requires.

      (7)(a) If a person charged and tried as provided in subsection (6) of this section is found guilty of aggravated murder or an offense listed in subsection (4) of this section and one or more other offenses, the court shall impose the sentence for aggravated murder or the offense listed in subsection (4) of this section as provided in subsections (1) and (2) of this section and shall impose sentences for the other offenses as otherwise provided by law.

      (b) If a person charged and tried as provided in subsection (6) of this section is not found guilty of aggravated murder or an offense listed in subsection (4) of this section, but is found guilty of one of the other charges that constitutes an offense for which waiver is authorized under ORS 419C.349 (1)(b), the court, upon motion of the district attorney, shall hold a hearing to determine whether to retain jurisdiction or to transfer the case to juvenile court for disposition. In determining whether to retain jurisdiction, the court shall consider the criteria for waiver in ORS 419C.349. If the court retains jurisdiction, the court shall sentence the person as an adult under sentencing guidelines. If the court does not retain jurisdiction, the court shall:

      (A) Order that a presentence report be prepared;

      (B) Set forth in a memorandum any observations and recommendations that the court deems appropriate;

      (C) Enter an order transferring the case to the juvenile court for disposition under ORS 419C.067 and 419C.411; and

      (D) Enter an order providing that all court records of the case are subject to the same limitations on inspection, copying and disclosure of records, reports and materials as those set forth under ORS 419A.255. [1995 c.422 §49; 1995 c.421 §4; 1997 c.852 §3; 1999 c.1055 §12; 2007 c.867 §6; 2011 c.334 §2; 2019 c.634 §5; 2019 c.635 §11]

 

      Note: See second note under 137.700.

 

      ORS 137.709 Application of ORS 137.700 and 137.707. 

 

      ORS 137.700 and 137.707 do not apply to a person who is under 15 years of age at the time the person commits a crime listed in ORS 137.700 or 137.707. [2011 c.337 §1]

 

******

 

      ORS 137.712 Exceptions to ORS 137.700 and 137.707. 

 

     (1)(a) Notwithstanding ORS 137.700 and 137.707, when a person is convicted of manslaughter in the second degree as defined in ORS 163.125, assault in the second degree as defined in ORS 163.175 (1)(b), kidnapping in the second degree as defined in ORS 163.225, rape in the second degree as defined in ORS 163.365, sodomy in the second degree as defined in ORS 163.395, unlawful sexual penetration in the second degree as defined in ORS 163.408, sexual abuse in the first degree as defined in ORS 163.427 (1)(a)(A) or robbery in the second degree as defined in ORS 164.405, the court may impose a sentence according to the rules of the Oregon Criminal Justice Commission that is less than the minimum sentence that otherwise may be required by ORS 137.700 or 137.707 if the court, on the record at sentencing, makes the findings set forth in subsection (2) of this section and finds that a substantial and compelling reason under the rules of the Oregon Criminal Justice Commission justifies the lesser sentence. When the court imposes a sentence under this subsection, the person is eligible for a reduction in the sentence as provided in ORS 421.121 and any other statute and is eligible for a hearing and conditional release under ORS 420A.203 and 420A.206.

      (b) In order to make a dispositional departure under this section, the court must make the following additional findings on the record:

      (A) There exists a substantial and compelling reason not relied upon in paragraph (a) of this subsection;

      (B) A sentence of probation will be more effective than a prison term in reducing the risk of offender recidivism; and

      (C) A sentence of probation will better serve to protect society.

      (2) A conviction is subject to subsection (1) of this section only if the sentencing court finds on the record by a preponderance of the evidence:

      (a) If the conviction is for manslaughter in the second degree:

      (A) That the victim was a dependent person as defined in ORS 163.205 who was at least 18 years of age;

      (B) That the defendant is the mother or father of the victim;

      (C) That the death of the victim was the result of an injury or illness that was not caused by the defendant;

      (D) That the defendant treated the injury or illness solely by spiritual treatment in accordance with the religious beliefs or practices of the defendant and based on a good faith belief that spiritual treatment would bring about the victim’s recovery from the injury or illness;

      (E) That no other person previously under the defendant’s care has died or sustained significant physical injury as a result of or despite the use of spiritual treatment, regardless of whether the spiritual treatment was used alone or in conjunction with medical care; and

      (F) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section or for criminal mistreatment in the second degree.

      (b) If the conviction is for assault in the second degree:

      (A) That the victim was not physically injured by means of a deadly weapon;

      (B) That the victim did not suffer a significant physical injury; and

      (C) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.

      (c) If the conviction is for kidnapping in the second degree:

      (A) That the victim was at least 12 years of age at the time the crime was committed; and

      (B) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.

      (d) If the conviction is for robbery in the second degree:

      (A) That the victim did not suffer a significant physical injury;

      (B) That, if the defendant represented by words or conduct that the defendant was armed with a dangerous weapon, the representation did not reasonably put the victim in fear of imminent significant physical injury;

      (C) That, if the defendant represented by words or conduct that the defendant was armed with a deadly weapon, the representation did not reasonably put the victim in fear of imminent physical injury; and

      (D) That the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.

      (e) If the conviction is for rape in the second degree, sodomy in the second degree or sexual abuse in the first degree:

      (A) That the victim was at least 12 years of age, but under 14 years of age, at the time of the offense;

      (B) That the defendant does not have a prior conviction for a crime listed in subsection (4) of this section;

      (C) That the defendant has not been previously found to be within the jurisdiction of a juvenile court for an act that would have been a felony sexual offense if the act had been committed by an adult;

      (D) That the defendant was no more than five years older than the victim at the time of the offense;

      (E) That the offense did not involve sexual contact with any minor other than the victim; and

      (F) That the victim’s lack of consent was due solely to incapacity to consent by reason of being under 18 years of age at the time of the offense.

      (f) If the conviction is for unlawful sexual penetration in the second degree:

      (A) That the victim was 12 years of age or older at the time of the offense;

      (B) That the defendant does not have a prior conviction for a crime listed in subsection (4) of this section;

      (C) That the defendant has not been previously found to be within the jurisdiction of a juvenile court for an act that would have been a felony sexual offense if the act had been committed by an adult;

      (D) That the defendant was no more than five years older than the victim at the time of the offense;

      (E) That the offense did not involve sexual contact with any minor other than the victim;

      (F) That the victim’s lack of consent was due solely to incapacity to consent by reason of being under 18 years of age at the time of the offense; and

      (G) That the object used to commit the unlawful sexual penetration was the hand or any part thereof of the defendant.

      (3) In making the findings required by subsections (1) and (2) of this section, the court may consider any evidence presented at trial and may receive and consider any additional relevant information offered by either party at sentencing.

      (4) The crimes to which subsection (2)(a)(F), (b)(C), (c)(B), (d)(D), (e)(B) and (f)(B) of this section refer are:

      (a) A crime listed in ORS 137.700 (2) or 137.707 (4);

      (b) Escape in the first degree, as defined in ORS 162.165;

      (c) Aggravated murder, as defined in ORS 163.095;

      (d) Criminally negligent homicide, as defined in ORS 163.145;

      (e) Assault in the third degree, as defined in ORS 163.165;

      (f) Criminal mistreatment in the first degree, as defined in ORS 163.205 (1)(b)(A);

      (g) Rape in the third degree, as defined in ORS 163.355;

      (h) Sodomy in the third degree, as defined in ORS 163.385;

      (i) Sexual abuse in the second degree, as defined in ORS 163.425;

      (j) Stalking, as defined in ORS 163.732;

      (k) Burglary in the first degree, as defined in ORS 164.225, when it is classified as a person felony under the rules of the Oregon Criminal Justice Commission;

      (L) Arson in the first degree, as defined in ORS 164.325;

      (m) Robbery in the third degree, as defined in ORS 164.395;

      (n) A bias crime in the first degree, as defined in ORS 166.165;

      (o) Promoting prostitution, as defined in ORS 167.012; and

      (p) An attempt or solicitation to commit any Class A or B felony listed in paragraphs (a) to (L) of this subsection.

      (5) Notwithstanding ORS 137.545 (5)(b), if a person sentenced to probation under this section violates a condition of probation by committing a new crime, the court shall revoke the probation and impose the presumptive sentence of imprisonment under the rules of the Oregon Criminal Justice Commission.

      (6) As used in this section:

      (a) “Conviction” includes, but is not limited to:

      (A) A juvenile court adjudication finding a person within the court’s jurisdiction under ORS 419C.005, if the person was at least 15 years of age at the time the person committed the offense that brought the person within the jurisdiction of the juvenile court. “Conviction” does not include a juvenile court adjudication described in this subparagraph if the person successfully asserted the defense set forth in ORS 419C.522.

      (B) A conviction in another jurisdiction for a crime that if committed in this state would constitute a crime listed in subsection (4) of this section.

      (b) “Previous conviction” means a conviction that was entered prior to imposing sentence on the current crime provided that the prior conviction is based on a crime committed in a separate criminal episode. “Previous conviction” does not include a conviction for a Class C felony, including an attempt or solicitation to commit a Class B felony, or a misdemeanor, unless the conviction was entered within the 10-year period immediately preceding the date on which the current crime was committed.

      (c) “Significant physical injury” means a physical injury that:

      (A) Creates a risk of death that is not a remote risk;

      (B) Causes a serious and temporary disfigurement;

      (C) Causes a protracted disfigurement; or

      (D) Causes a prolonged impairment of health or the function of any bodily organ. [1997 c.852 §1; 1999 c.614 §3; 1999 c.954 §2; 2001 c.851 §5; 2005 c.843 §22; 2011 c.291 §3; 2019 c.553 §13; 2019 c.634 §23]

 

******





About the Author: 

David Lesh is a Portland attorney emphasizing the defense of serious criminal charges.  He has been a member of the Oregon State Bar since 1990.  Mr. Lesh is a former Multnomah County prosecutor (5 years) and lawyer to the Portland Police Bureau (3 years).  He was named an Oregon Super Lawyer in each year from 2018 to 2022.  His law practice has an A+ BBB rating.
Office Location:  434 NW 19th Avenue; Portland, OR  97209
Phone:  503.546.2928   |   Fax:  503.296.2935
Email: info @ davidlesh.net (no spaces)

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