SENATE COMMITTEE ON JUDICIARY

 

 

February 03, 2005                                                                                               Hearing Room 343

1:00 p.m.                                                                                                                       Tapes 24 - 25

Corrected 10/26/05

MEMBERS PRESENT:         Sen. Ginny Burdick, Chair

Sen. Charles Starr, Vice-Chair

Sen. Roger Beyer

Sen. Floyd Prozanski

Sen. Vicki Walker

 

MEMBER EXCUSED:          Sen. Charlie Ringo

                                                Sen. Doug Whitsett

 

 

STAFF PRESENT:                 Joe O'Leary, Counsel

Dale Penn, Committee Assistant

 

 

MEASURES/ISSUES HEARD & WITNESSES:

                                                Introduction of Committee Measures – Work Session

                                                SB 124 – Public Hearing and Work Session

Craig Prins – Oregon Criminal Justice Commission

                                                SB 266 – Public Hearing

John Hummel – Oregon Criminal Defense Lawyers Association

            Michael T. Dugan – Deschutes County District Attorney   

                                                SB 273 & SB 274 – Public Hearing

                                                            Justin Baxter – Oregon State Bar

                                                            Jim Markee – Oregon Collectors Association

                                                            Cindy Robert – NACM

                                                            Sybil Hebb – Oregon Law Center

 

 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 24, A

007

Chair Burdick

Calls the meeting to order at 1:17 p.m.  Opens a work session in order to introduce committee bills.

INTRODUCTION OF COMMITTEE MEASURES – WORK SESSION

010

Joe O’Leary

Committee Counsel.  Reads LC 210, 1263, 1806, 2068 for introduction (EXHIBITS A - D).

018

Sen. Starr

MOTION:  Moves LC's:  210, 1263, 1806, 2068 BE INTRODUCED as committee bills.

 

 

VOTE:  4-0-3

AYE: In a roll call vote, all members present vote Aye.

EXCUSED:  3 - Prozanski, Ringo, Whitsett

025

Chair

Hearing no objection, declares the motion CARRIED.

025

Chair Burdick

Opens public hearing on SB 124, relating to sentencing guidelines.

SB 124 - PUBLIC HEARING

030

Craig Prins

Executive Director, Oregon Criminal Justice Commission.  Submits testimony and additional material in support of SB 124 (EXHIBITS E – I).  Discusses the sentencing guidelines for crimes.

070

Prins

Comments on the amended crimes with special focus on recent court cases (i.e., Blakely).  Talks about Exhibits G & H.

093

Chair Burdick

Asks about the furthest right column on Exhibit H that mentions “no action.”

096

Prins

Replies that no action will be taken in those circumstances.  Explains recent legislative bills relating to sentencing guidelines with Exhibit H.

135

Prins

Describes section 2 and 3 of SB 124, and how these areas will assist in streamlining the sentencing guidelines process.

166

Sen. Beyer

Wonders how the Blakely decision affects this.

175

Prins

Replies that the Blakely decision only affects aggravating factors.

188

Sen. Beyer

Asks about the fiscal impact of a decision that allowed a small amount of aggravating sentencing.

195

Sen. Prozanski

Comments on how we could go back to regular sentencing guidelines, and how it could affect the cost factors.

204

Prins

Mentions a recent court case interpreting the Blakely case and how it affects the court system in Oregon.

228

Chair Burdick

Reviews a bill coming into the Senate Judiciary that was the result of a work group with district attorneys and law enforcement which will focus on the sentencing guidelines.

232

Sen. Prozanski

Questions if this bill is mainly a housekeeping bill.

240

Prins

Replies that this bill is “pretty mundane.”

246

Sen. Beyer

Inquires about Exhibit G and the wording.

260

Prins

Responds that he will find the information.

284

Chair Burdick

Asks if a bill does not show up on Exhibit H from the charts on Exhibit G, then it did not pass in the 2003 Legislative session.

308

Chair Burdick

Closes Public Hearing on SB 124 and opens a work session.

SB 124 – WORK SESSION

310

Sen. Starr

MOTION:  Moves SB 124 to the floor with a DO PASS recommendation.

 

 

VOTE:  6-0-2

EXCUSED:  2 - Ringo, Whitsett

315

Chair Burdick

Hearing no objection, declares the motion CARRIED.

SEN. BEYER will lead discussion on the floor.

322

Chair Burdick

Closes work session on SB 124 and opens a public hearing on SB 266.

SB 266 – PUBLIC HEARING

326

Joe O’Leary

Counsel.  Reads description of SB 266, relating to conviction of third felony sex offense.

340

John Hummel

Attorney, Oregon Criminal Defense Lawyers Association.  Reads testimony in support of SB 266.  Describes the common situation of a defendant in court cases concerning third felony sex offense.

390

Hummel

Defends the purpose of the bill.

450

Chair Burdick

Asks if the role of the defense attorney is to go beyond what they learn from their client and try to figure out if they have previous sex abuse charges.

459

Hummel

Replies that yes, the attorney is supposed to do that, but states that prosecutors have greater resources to accomplish background checks.

TAPE 25, A

033

Chair Burdick

Wonders about the withholding of information from the defense.

039

Hummel

Expresses that this is not about withholding of information, in these situations, the prosecutors don’t have the information until after the trail begins.

044

Chair Burdick

Asks about the number of individuals defending themselves.

046

Hummel

Responds that he doesn’t have the numbers.

049

Sen. Beyer

Inquires about other courts, not involved with sex abuse cases, being required to share maximum sentencing possibilities with the defendant.

055

Hummel

Asserts that crimes with a sentence contingent on previous convictions are usually not told to the defendant prior to the sentencing.

068

Sen. Beyer

Asks what would occur if the information was uncovered after the trial was started.

077

Hummel

Replies that in those circumstances, a delay would normally be given to allow both prosecutors and defendants to analyze the new information.

086

Sen. Prozanski

Inquires about several different scenarios, and asks what would occur in these situations after this bill passed.

100

Hummel

Analyzes the different scenarios and provides information on what would happen if SB 266 was passed.

110

Sen. Prozanski

Wonders if the court, at arraignment, should inform the defendant of any presumptive life sentencing guidelines.

129

Hummel

Responds that the OCDLA would support such a requirement.

145

Sen. Prozanski

Inquires about the scope of this problem.

150

Hummel

Replies that it is not a huge problem.

160

Michael T. Dugan

District Attorney, Deschutes County.  Reads testimony in opposition to SB 266 (EXHIBIT J).  Discusses presumptive sentences, and the possibility to have the entire guidelines challenged under the Blakely decision.

229

Sen. Prozanski

Asks about Measure 11 cases.

232

Dugan

Points out that they know if a case is Measure 11 at the onset.

250

Sen. Prozanski

States that it should be the responsibility of the judge at arraignment to express the maximum penalty.

261

Hummel

Counters it should not be the judge’s responsibility at arraignment.

281

Chair Burdick

Closes public hearing on SB 266.  Opens public hearing on SB 273 and SB 274.

SB 273 & SB 274 – PUBLIC HEARING

289

Joe O’Leary

Counsel.  Describes SB 273 and SB 274, relating to providing exemptions for debtors.

309

Justin Baxter

Oregon State Bar, Consumer Law Section.  Testifies in support of SB 273 and SB 274 (EXHIBITS K & L).  Discusses the need for alterations to judgment and bankruptcy exemptions from over a decade of appreciation and inflation in the market. 

375

Baxter

States that those items usually taken in lawsuits are usually needed to go to work and provide for families (cars, homes, etc.).  Expresses that these items need to be kept from settlements.

420

Baxter

Mentions tax breaks for children, and the possible tax liabilities and credits.  Comments that those refunds and breaks should go towards taking care of the family, as opposed to paying off debt.

458

Chair Burdick

Asks when the last time these exemptions were looked at or altered.

460

Baxter

Declares that it was July 1993 the last time these numbers were changed.

470

Chair Burdick

Inquires as to the numbers, and how the Oregon State Bar came up with them in comparison to other states.

TAPE 24, B

020

Baxter

Replies with statistics and examples.

030

Sen. Walker

Asks about the national scale for Oregon’s affordable housing rates.

032

Baxter

Responds that both the prices and ability to buy factor into the scenario.  States that Oregon is around the middle of the road in these respects.  Mentions that location also has a great impact on this scenario.

052

Sen. Walker

Wonders if Congress intended for an individual to have to move to a lower priced area when they declare bankruptcy.

060

Baxter

Declares that he does not believe so, and that Americans are entitled to a “fresh start” if their liabilities get out of control.  Discusses how Congress put factors into place to assist this. 

080

Sen. Walker

Inquires about bankruptcy being a “windfall.”

088

Baxter

Responds that under bankruptcy law, creditors have many rights they can petition against the debtors.  Goes on to talk about the rights of both creditors and the individual requiring bankruptcy.

091

Sen. Walker

Wonders about the allotment under the bill that goes towards purchasing a vehicle.

112

Baxter

Expresses that the three thousand dollars allotted to buying a new car allows the debtor to purchase a solid, cheap car, not a luxurious automobile.

120

Sen. Walker

Desires the committee to know that there are balancing factors in these situations.

130

Sen. Beyer

Inquires about the child tax credit scenarios being cumulative.

150

Baxter

Replies that yes, it is cumulative.

155

Sen. Beyer

Wonders about the tax credit limit for the children.

164

Baxter

Discusses the tax credit limit.

179

Jim Markee

Oregon Collectors Association.  Testifies in opposition to SB 273 and SB 274.  Talks about the balancing act involved with bankruptcy.  Offers information as to why the numbers have not been altered in the last few years.

240

Markee

Discusses the automobile example earlier, and how raising the rates would be acceptable to his client, but not as high as the current bill proposes.

280

Markee

Talks about the confusion over the new child tax credits in SB 274.  Explains the financial illiteracy in this country, and how it sometimes is appropriate to ask individuals who are bankrupt due to living over their means to live below it after they declare.

314

Cindy Robert

National Association of Credit Management (NACM).  Testifies in opposition to SB 273.  Discusses the comparison between leaving college and bankruptcy.  Explains that nobody is entitled to a fresh start, and that you should pay back what you owe.

367

Sen. Prozanski

Reaffirms that it is going to be a policy decision for this committee whether anything needs to be adjusted from this point on.  Inquires if it is possible to look at those numbers again, and increase the exemptions to a point that is agreeable to both parties.

410

Sen. Walker

Asks for a work group to be assigned to address these issues.  Believes that negotiations could occur between both groups.

485

Chair Burdick

Approves such a workgroup; asking them to focus on SB 273.

TAPE 25, B

053

Sen. Beyer

Inquires about clarification on SB 274, relating to the additional child support credit.

065

Sybil Hebb

Oregon Law Center.  Provides written testimony on SB 273 (EXHIBIT M).

069

Chair Burdick

Closes public hearing on SB 273 and SB 274.

085

Chair Burdick

Adjourns the meeting at 2:42 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. Introduction, LC 210, staff, 2 pp
  2. Introduction, LC 1263, staff, 2 pp
  3. Introduction, LC 1806, staff, 2 pp
  4. Introduction, LC 2068, staff, 3 pp
  5. SB 124, written testimony, Craig Prins, 4 pp
  6. SB 124, Summary of Changes to the Rules, Craig Prins, 2 pp
  7. SB 124, 2003 Legislation Affecting Sentencing Guidelines Rules, Craig Prins, 3 pp
  8. SB 124, Recommendations for Sentencing Guidelines, Craig Prins, 4 pp
  9. SB 124, 2003 Amended Felony Sentencing Guidelines Rules, Craig Prins, 29 pp
  10. SB 266, written testimony, Michael Dugan, 2 pp
  11. SB 273, written testimony, Justin Baxter, 3 pp
  12. SB 274, written testimony, Richard Slottee, 23 pp
  13. SB 273, written testimony, Sybil Hebb, 2 pp