Sentence for safety, not for message 


A s the judge who sentenced the last of the defendants who assaulted two off-duty Portland police officers, I submit that smart sentencing is more likely to protect police officers than the approach The Oregonian apparently promotes ("A light slap for police beating," Sept. 27). 

Sentencing can protect police officers (and the rest of us) only by reducing crime. Don't let judges off the hook by suggesting that our job is merely to show "that Portland will not tolerate" such attacks. It's easy to send a message or to express anger or denunciation or to display hubris. But really being tough on crime means reducing crime. It is wrong and dangerous to encourage posturing instead of sentencing that responsibly pursues crime reduction. 

Sentencing for "show" spares the criminal justice system accountability for public safety. It fosters the destructive myth that punishment is the same thing as responsible pursuit of crime reduction. It discourages smart sentencing, results in avoidable victimizations, multiplies the costs of crime and quite probably increases the dangers facing police officers. 

The roles of these defendants varied widely in a spontaneous, brutal and chaotic event. A responsible and careful jury acquitted the codefendant of the man I convicted. As with plea bargains I accepted for other defendants, I found this defendant not guilty of the more serious charges involving the stabbing of Officer David Michaelson. The defense urged a "presumptive" probation; the state (and a presentence report) reasonably sought an "upward departure" to 16 months in prison. Substantially more prison time was simply unavailable. 

Considering the Oregon Constitution's mandated "protection of society, personal responsibility, accountability for one's actions and reformation," I found that the approximately six months the defendant had already served in jail covered "accountability" and held him "responsible." 

Our primary duty is "protection of society." The literature of general deterrence teaches that it made no difference to other potential offenders whether this defendant received six or 16 months. Deterrence works, if at all, mainly through the certainty and swiftness of punishment rather than its severity. Incapacitation works while offenders are in custody. That's the strength of Ballot Measure 11. But with various time credits, this defendant would be out within 10 months. These months would disrupt what was now going reasonably well (for us) in the defendant's life, and ally him with other inmates. I had to weigh the likely resulting increase in the defendant's criminality against less than 10 months' safety achieved by incapacitation. 

I concluded that public and police safety would best be served by "reformation" encouraged by enforceable supervision without additional incarceration. The defendant's served time left me with no jail time with which to enforce a probation, so I "departed" to six months' prison to render the defendant almost immediately subject to "post-prison supervision" -- with teeth. 

Argue, if you will, with my reasoning. But, for the safety of our community, including officers who risk their lives for us, what we should not tolerate is sentencing for show instead of sentencing rigorously and intelligently aimed at crime reduction. 

Michael Marcus is the Multnomah County circuit judge who ordered a six-month jail sentence last Thursday for Damon Cunningham for his role in the May 2001 attack on off-duty Portland Police Officers Chad Gradwahl and David Michaelson.