November 29, 2009

Victim Again
A new Oregon law is forcing victims to unnecessarily relive violent crimes

By Rodger Nichols
The Chronicle

     Linda Jones feels passionately about HB 3508, which passed the Oregon legislature earlier this year.
     “The state wanted to save money, but it has trivialized my sister’s death,” she said, adding that it has victimized the family — already victims of violent crime — once again.
     Linda’s sister Cynthia was the youngest of seven children in the Ricketts family. She was a 1975 graduate of Wahtonka High School.
     But in 1991, her husband of 14 years, Donald Glen Richardson was convicted of shooting Cynthia in the head sometime between Oct. 28 and Nov. 1, 1990, while she slept in their Umatilla home, and dismembering the body.
     He originally received a sentence of life without possibility of parole for the murder and a five-year additional sentence for abuse of a corpse.
     That sentence was appealed to the Oregon Court of Appeals in 1992 because the sentence exceeded the sentencing guidelines previously passed by the state legislature and the case was remanded for resentencing.
     Under the new sentence, Richardson became eligible for parole after 25 years on the murder charge, and on the abuse of a corpse charge, the sentence was changed from five years consecutive to five years concurrent and one-year consecutive.
     Then came House Bill 3508, passed earlier this year by the Oregon State Legislature.
     HB 3508 was designed to save the state money and make room in the overcrowded prison system for more violent offenders. Its proponents argued it would save $73 million.
     One of the cost-saving measures of HB 3508 offers an additional 10 percent off the sentence of nonviolent offenders for good behavior. That’s in addition to the 20 percent leeway the state offers, meaning some well-behaved prisoners could get as much as 30 percent shaved off their prison sentence.
     But the bill had some downsides: It meant that up to 4,100 hearings would have to be held for prisoners who qualified for extra early release.
     And it failed to take into account prisoners who had committed both violent and nonviolent offenses.
     “The problem for us is that the offender may not be getting out for 20 years,” Kevin Neely, a lobbyist for the Oregon District Attorneys Association told KATU reporter Dan Tilkin in a Nov. 17 story. “But now, because of the new law, we have to call the victims and bring the victims into the courtroom. Those victims have to relive that absolute heinous event and, in all likelihood, the prisoner is not going to get this earned time anyway.”
     In Richardson’s case, the proposed 10 percent reduction would be applied to his one-year consecutive sentence of abuse of a corpse.
     Gary Zinn, state prison term analyst, wrote to the Umatilla County trial court administrator on Oct. 15. In his letter citing the new law, Zinn said, “Donald Richardson’s current projected release date is April 12, 2012. If Donald Richardson is approved for 30 percent earned time on all eligible sentences from all applicable counties the new projected release date will be March 3, 2012.”
     That put the mechanism in place for a required hearing in Richardson’s case.
Linda tells the story of what happened next.
     “I came home on a Friday to find a phone message from a victim’s advocate in Umatilla County. We had to wait until Monday to find out what was going on.”
     Three days later, on Nov. 12, she and other family members were sitting in a Pendleton courtroom to testify against early release for Richardson.
     “We couldn’t believe it. We had just gone through my mom’s passing and were trying to heal from that and then we got the news that this new bill might let my sister’s killer get out early.”
     She said Richardson appeared by speakerphone from the medium security Eastern Oregon Correctional Institution in Pendleton.
     “What is so outrageous is that [this bill] is for nonviolent offenders, but he was up for an additional 10 percent reduction based upon the fact that he abused a corpse. How more violent can that be?”
     Several family members had prepared statements, but none of them had a chance to make them.
     “It was over in less than 10 minutes. We didn’t get to have a voice, because the killer interrupted the judge after the district attorney gave the case to the judge and also stated there were family members who were going to give statements.”
     Linda said the family felt victimized again when the judge allowed Richardson to interrupt him, saying, “I’m going to stop this right now, judge. I don’t want early time out. I didn’t ask for this. I did the crime; I can do the time. I’ve hurt a lot of people.”
     That made family members furious.
     “We had to sit there and listen to him and we were not allowed to even speak. I’m very upset.”
     “It was the first time that’s happened in one of those hearings,” said Dean Gushwa, Umatilla County district attorney. “We’ve probably had a couple dozen of them.”
     This is not the first time Cynthia Richardson’s family has been put through the emotional anguish again.
     In 1992, Richardson successfully appealed his initial sentencing to the Oregon Court of Appeals.
     At that time, Linda said, “We had to listen to a public defender make a statement that this was just a ‘garden-variety murder.’ It was horrible.”
     Gushwa said at the original sentencing, the judge had told Richardson that he would go to prison for the rest of your natural life.
     “But that wasn’t the law when [the judge] said that in 1991,” Gushwa said, “because Measure 11 had already been enacted, and it set the guidelines.”
     Gushwa said the appellate judge set aside the initial verdict and sent it back to the original judge for resentencing within the sentencing guidelines, which was life imprisonment without parole for 25 years. At that time, the five years consecutive for abuse of a corpse charge was converted to five years concurrent and one year consecutive.
     In the most recent proceeding, Linda blamed the judge as well as Richardson.
“The judge allowed him to be in control; he didn’t stop the killer from interrupting.”
     As Umatilla District Attorney, Gushwa said he filed blanket objections for every 3508 hearing in which the offense involved a victim. That’s because, he said, under the Oregon Constitution Section 41 and 42 of Article 1, victims and their families have the right to be present at all stages of the proceedings.
     “When you invoke another hearing, it’s my duty to get hold of these victims or the victim’s family members, and let them know about the proceedings. Now these victims get revictimized.”
     Wasco County District Attorney Eric Nisley agreed.
     “In the criminal law, we deal with deeply disturbing events — events that profoundly and often permanently affect peoples’ lives,” he said. “In most cases, the desire for finality is strong for all parties, be it trial or guilty plea with a sentence decided on by a judge in open court where everyone gets the opportunity to comment. It is disturbing to have the legislature in essence ‘overturn’ the judge‘s decisions, forcing the cases back, re-opening the wounds that in many cases had begun to heal.
     “In my opinion, it is bad policy to go back and undo what has already been done. It creates anxiety for everyone and increased costs in the form of court appointed attorneys and in many cases, interpreters for the defendants. This is nothing compared to the unmeasurable toll of grief and anxiety visited upon the victims’ hearts and minds at the reopening of these cases. It is a shame the legislature could not foresee the consequences of their decision.”
     How did all this happen?
     State House Representative Jeff Barker (D-Aloha) was chair of the House Judiciary Committee that came up with the law. He said the law was never intended to allow violent offenders to get another day in court.
     “I’m really sorry about the oversight and I apologize to the victims,” he said Monday in a phone interview. “I’m a retired Portland police lieutenant and I started with the state police, so my concern is with the victims on these things. I’m planning on having a fix for it in the February session; that’s the soonest we can do it.”
     For Linda Jones, it’s a case of too little, too late.
     “He sentenced my sister to death,” she said. “Why should he ever get early release? She’s not getting early release.”