Author Archives: Phil Studenberg


Oregonians missed a chance to reform Ballot Measure 11 this legislative session.  Budget writers hoped to hold the prison population near 14,000 saving enough money to kick $32 million to counties so they could invest in community corrections.  The vehicle was House Bill 3194 which would have removed mandatory minimum sentences of 70 months or more for first -degree sex abuse, second-degree robbery and second-degree assault, as well as giving Judges more discretion on certain property crimes and drug offenses.

Ballot measure 11 was passed in response to a perception that Oregon Judges were being too lenient in sentencing.  Many critics, this writer included, feel that Measure 11 took too much discretion from Judges and shifted the burden of persuasion to the District Attorneys.  In the old days my job was to humanize my clients to a Judge, ask for leniency and justice.  Now that pitch must be made, if at all, to a prosecutor with pretty much unlimited charging discretion.  A defendant’s lack of prior criminal activity, age, and other mitigating factors are not generally considered relevant to a Measure 11 sentence.

The effort at reform was defeated by the Governor and the District Attorneys at the last minute and any meaningful reform will have to wait.  Nationwide, harsh mandatory sentences are being repealed based on economic considerations, although the battles with the prison-industry complex and hash on crime politicians are sometimes bitter.  The advances in social science research now open the possibility of meaningful community supervision and crime reduction but as usual the legal system is slow to catch up with scientific research on biochemistry and mental illness.

These much-needed reforms will come for economic reasons, just as marijuana reform is coming based on economic arguments.  We must fight for more judicial discretion and treatment of offenders as human beings, not monsters. Many of the parents of my clients voted for Measure 11 with no idea that when their child is facing such a charge there is little or no justice or mercy.  I urge you to join FAMM (Families Against Mandatory Minimums) and help fight this good fight.


2013 promises to be a good year for those of us who believe that Prohibition has cost our society, in terms of law enforcement costs, criminalizing young people who would not otherwise be in the legal system, and loss of tax revenue to help our schools and social service network.

On May 30, 2013 the Oregon legislature passed Senate Bill 281 to allow people suffering from Post Traumatic Stress Syndrome (PTSD) to qualify for Oregon’s Medical Marijuana program.  It awaits the Governor’s signature.  This is a special boost to Oregon’s returning war veterans and victims of serious trauma and violence.

The Senate passed SB 40 which realigns the felony level designations of Manufacturing and Possession from Schedule I to Schedule II and creates misdemeanor marijuana possession (more than one ounce, less than four ounces and misdemeanor hashish possession. They also passed SB 82 which lifts the driver’s license suspension for conviction of possession of less than an ounce of marijuana.

HB 3460 adds “Medical Marijuana Facility” to the list of cardholders under the OMAA and allows growers with the patient’s permission, to be fully reimbursed for their excess marijuana by medical marijuana facilities.  This would functionally legalize Oregon’s defacto distribution/dispensary system.

HB 3371 which would legalize and tax marijuana has been filed in the legislature.  It would legalize the production, processing and sale of cannabis for adults 21 years and older and would allow up to six mature plans and 24 ounces of dried cannabis.  Oregon Health Authority would license producers and retailers and the OLCC would oversee taxation of cannabis.  Cannabis would be taxed $35 per ounce with proceeds going to the State Police, schools and services for providing mental health and alcohol and drug treatment. If passed it would take effect on Jul 1,2014.

On May 21 the Oregon District Attorney’s Association urged the state to reduce penalties for marijuana offenses as a way of reducing spending on prison beds.  It would prevent most marijuana offenders from going to prison.

The icing on the cake came from the Court of Appeals in State v Kingsmith where the Court ruled that “the general odor of marijuana in a vehicle does not alone give rise to a reasonable suspicion that a passenger of that vehicle has committed a crime”.  This has been a serious problem for defense attorneys in fighting pretext drug stops with the odor of marijuana.

All this indicates that the winds of change are not only blowing but they are reaching a stiff breeze that will bring about the event that we have been working toward since 1972.  The end of Marijuana Prohibition!  Join me and my office in fighting this good fight!


A film by Ken Burns

Most of us know Ken Burns from his famous documentaries on the Civil War and Baseball but the Central Park Five is a complete departure that paints a devastating portrait of the U.S. criminal justice system.  In 1989, five black and latino teenagers were arrested and convicted of a brutal rape of a white female jogger in Central Park. This was the incident which the media called group of young people engaged in “wilding” and they publicized the Central Park Jogger case to the point where a fair trial was impossible.  The calls for street justice were plentiful.

The five spent 6 to 13 years in prison only to ultimately be pardoned when the real perpetrator, a serial rapist, confessed to doing the act alone.  Burns explores how a racially divided New York City, the media and the legal system worked to deprive these young men of their teenage years.  His portrayal of prosecutor looking to make a reputation for herself and defense counsel sleeping at the counsel table is devastating.  The anguish of the parents of these young men is portrayed as is the callousness of the police and prosecutors.

I have followed and supported the work of the Innocence Project for many years and am heartened and depressed at the number of people incarcerated for crimes they did not commit. The vast majority of these false convictions arise from faulty cross-racial identifications and false confessions.  Each of the Central Park Five eventually confessed to a crime they did not commit after hours of grueling interrogation by the police.

The Oregon Supreme Court in State v. Lawson established new procedures to determine the admissibility of eyewitness identification.  The courts are now required to review eyewitness testimony in a manner consistent with the vast research in the area of eyewitness identification and memory.  It is worth noting that there was no identification of the Central Park Five by the jogger because of the massive trauma which she received.

The Lawson decision was authored by Chief Justice DeMuniz. As a defense attorney he helped an innocent Mexican client who was falsely convicted due to being unable to understand the interpreter.  He spoke an Indian language rather than the spanish which the interpreter was using.  DeMuniz used his own resources to travel to Mexico and actually located the real perpetrator.  His client now works as a paralegal with Hispanic clients.

These cases demonstrate how fragile the protections of our constitution are and how quickly they can be lost without extreme vigilance.