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Revolving prison cells: How COVID-19 commutations erode trust in justice

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Some Oregon inmates released early from prison through commutations ended up committing new crimes once they were out on the streets.

One of the more serious repeat offenders was an Albany man serving time in prison for armed car robbery and who had his sentence commuted by Gov. Kate Brown this year. Once out, he promptly stole another car and landed back in prison, but not before leading officers on a dangerous pursuit.

The man’s name is Pablo Francisco and, according to the Governor’s Office and the Oregon Department of Corrections, he was released early because of the COVID-19 pandemic. So far, 3,853 inmates in custody have contracted the virus, according to a Department of Corrections COVID-19 dashboard, and 44 have died. 

Local criminal justice officials call the commutations an overreach of executive authority that erodes the public’s trust in law enforcement.

“When you commute that many sentences, then you’re creating a new de facto sentencing scheme,” Linn County District Attorney Doug Marteeny said. “You go through this entire system, but then you go to, for lack of a better term, the Caesar in Salem who gives a thumbs up or thumbs down of whether this sentence meets the criteria of approval.”

The Governor’s Office says that the commutations reflect a changing mentality in criminal justice systems in general. With respect to commutations due to COVID-19 concerns, they point to the need to prevent deaths. 

Francisco was serving a 30-month sentence in connection to two car theft charges, one from November 2018, and the other in March of 2019. While out on a conditional release — even before he had been sentenced on those charges yet — he stole the property of another victim, particularly an iPad, valued at more than $1,000. That tacked another conviction onto his lengthy criminal record.

His sentence was commuted on March 25 of this year. Less than two months later, he was arrested and accused of similar crimes.

It was May 16. Albany police officers were dispatched to a call of a reckless driver on Santiam Highway near Goldfish Farm Road. The driver of a white Ford Fiesta, confirmed by police to be stolen, led police on a high-speed chase through residential neighborhoods along Geary Street. 

Per the probable cause affidavit by arresting Officer David Hoffman, the vehicle was clocked at speeds over 50 mph in a 25 mph zone. The driver failed to stop at posted signs and almost hit a pickup truck.

When the driver finally bailed from the car in the 1100 block of Southeast Second Street, police allege he attempted to run into a nearby residence, but the door was locked. Officers took the man into custody and identified him as Francisco.

Once booked at the jail and placed in a holding cell, “Pablo was wiping feces from his groin area and throwing toilet paper all over the floor and walls of the cell,” the affidavit states.

Francisco was sentenced to just over five years in prison in connection to these crimes in July, though he has appealed his conviction. He is serving that sentence at Deer Ridge Correctional Institution in Madras.

Francisco’s attorney did not return a call for comment.

So why was he released in the first place?

The Department of Corrections’ commutation form states that Francisco was at a high risk for COVID-19.

“We are collecting information for the Governor’s Office to identify adults in the Department of Corrections’ custody who may be considered for sentence commutation due to vulnerability to COVID-19 or are within six months of release,” the letter to Marteeny reads.

Brown had directed the Oregon Department of Corrections to evaluate adults in custody for consideration of commutations that fall under both of these two categories: those who are particularly vulnerable to COVID-19 and who were within a few months of their release.

In the case of COVID-19 concerns, representatives of the Governor’s Office said the decisions were handed down in order to save lives.

“On commutations during the pandemic, the majority of commutations were granted to prevent serious COVID-related illness and death among medically vulnerable adults in custody serving sentences for nonviolent offenses,”  deputy communications director Charles Boyle said by email. “As COVID-19 spread in jails and prisons across the country, Gov. Brown and many other governors took action to prevent further loss of life.”

Benton County too

Linn County isn’t the only place with turnstile offenders. One Benton County case spotlights how difficult it can be to calculate when an inmate is near that six-month mark that would make one eligible for a commutation.

Corvallis resident Avery McGrath, 28, was serving time for three separate 2016 cases in Benton County when Gov. Brown commuted one of his sentences last year. At the time, he was within a few weeks of his scheduled release date. 

McGrath was handed a total of 60 months – five years – in prison for 15 separate convictions in Benton County Circuit Court on Jan. 31, 2017. His crimes include identity theft, delivery of methamphetamine, theft, felon in possession of a firearm, unauthorized use of a vehicle and possession of a stolen vehicle. 

According to the Department of Corrections, the 60 months were for one count of meth dealing and one count of vehicle theft. The rest of the charges ran concurrent with the 60 months, so they did not increase the actual time to be served.

These were hardly his first offenses. McGrath had previously served a 14-month sentence for 2015 convictions of unauthorized use of a vehicle and eluding police. After getting out of prison on Dec. 22, 2015, McGrath violated his post-prison supervision with the aforementioned crime spree, starting in August 2016. 

When Brown commuted McGrath in October 2020, it was for his 30-month sentence for delivery of meth. According to Jennifer Black, communications manager for the Oregon Department of Corrections, McGrath had served 23 months and eight days of that sentence when it was commuted. At that point, he had served 44 months and eight days of his total 60-month sentence.

McGrath was released from custody on Oct. 8, 2020. Based on previous time served credit and his earned time credit, McGrath’s projected release date was Oct. 31, 2020. According to DOC guidelines, that made him eligible for commutation.

How the math in sentencing works 

When simply looking at the numbers, McGrath wouldn’t have qualified for a commutation at all. He served 44 months out of a 60-month sentence, 10 months shy of hitting that six-month window.  

He was admitted into the custody of DOC on Jan. 31, 2017, which would presumably make his release five years from that date. However, with earned time credit, convicted criminals don’t always serve their full sentence as stated in court documents. 

But the public isn’t always privy to these numbers and the way it affects a release date. Throw a commutation on top of that, and the sentence that appears in court documents doesn’t always play out in real life.

And the entire commutation process, despite involving public records, is all done largely out of the public eye. While trials and sentencings happen in open court, the DOC makes recommendations to the Governor’s Office and then the governor determines whether to grant the commutation or not. 

The public rarely learns that someone is being considered for commutation until after the fact. 

“It lacks transparency,” Marteeny said. “The hard work we do in the courts is all done in the open. … You have the victim in the room and then you have the wise judge who makes the final choice as to where the justice lies.

"And these (commutation) decisions, as far as I can tell, are made in some office up in Salem.” 

Other DAs agree this sweeping approach is problematic. 

“When assessing criminal matters, doing so on a case-by-case basis gives us the best opportunity to assess this,” Benton County District Attorney John Haroldson said. “If we move away to a more generalized model, then we increase the risk (and) the chances of overlooking a risk.”

Another alleged crime spree

Since he’s been out, McGrath has been a busy man. After being released from prison in October 2020, he has been accused of committing crimes throughout 2021 — in January, May and October.

There are currently five open cases in Benton County with McGrath as the defendant. He’s facing charges of:

  • DUII

  • Reckless driving

  • Careless driving contributing to an accident

  • First-degree theft

  • Unlawful possession of a controlled substance

  • Felon in possession of a firearm

  • Unlawful possession of a firearm

  • Failure to drive within a lane

The charges run the gamut of misdemeanors, violations and felonies, meaning McGrath may end up back in prison if convicted. His next court appearance for all cases is Jan. 20.

Bigger trends

This all follows a trend of increased commutations throughout the state.

Statewide, there have been about 900 commutations since the start of the pandemic, according to the most recent data provided by the Department of Corrections. Of those, 54 involved Linn County convicts. More rounds of commutations are already in the works. 

The controversy comes on the heels of similar conversations over the Governor’s Office commuting the sentences of violent juvenile offenders. In October, the governor announced the commutations of 70 juveniles sentenced for crimes as significant as aggravated murder and rape.

The move sparked outrage from the public and prompted district attorneys to speak out, including Marion County District Attorney Paige Clarkson. About a week after the announcement, she and Marteeny specifically focused on the effect these commutations have on the victims of the crimes they committed.

“An offender’s sudden or unknown release (or lack of meaningful input regarding the same) is one of the most common and fundamental concerns that prosecutors hear from victims during the criminal justice process,” she said in a news release. “The governor’s method here only serves to fuel those fears.”

Marteeny echoed similar concerns in a follow-up interview.

“It’s a principle of the criminal justice system that Oregon has moved away from: truth in sentencing,” he said, “so that the public hears a sentence and then it actually happens.”

Boyle, the spokesman for the governor, said the rationale behind these commutations is in line with SB 1008, which altered the sentencing for violent offenses by juveniles in Oregon.

“Governor Brown believes that we must put more emphasis on preventing crime and rehabilitating youth than on harsh punishments and lengthy and costly prison sentences,” he said in an email. “We can no longer rely solely on imprisonment as the only solution.”

In general, Boyle says that the increase in commutations reflects a changing mentality over effective criminal justice, particularly when youths are involved.

Measure 11, passed in 1994, for instance, imposed mandatory minimum sentences on convictions for serious violent and sex-related crimes. It prohibited earned time on Measure 11 offenses and automatically tried minors as adults.

Measure 11 has specifically been the topic of criminal justice reform since the turn of the millennium.

“Youth should be held accountable for their actions, but the fact is that adolescent brains are still growing and developing, especially in skills such as reasoning, planning, and self-regulation,” Boyle said. “Yet, too often our criminal justice responses do not take this into account. In particular, Measure 11 removed many routes for young people to demonstrate their capacity for change and positive growth.”

Criteria for early COVID-related release

The DOC criteria stipulates that only inmates who are within six months of their expected release are eligible. They also must have received a sentencing judgment that precludes them from getting out via other alternative incarceration programs or short-term transitional leave, both of which are programs that already allow an inmate to be released early.

Other requirements include that they must not be serving a sentence for a person-on-person crime, they must have a record of good conduct for the last year and they must have their out-of-custody health care needs assessed prior to their early release.

The final point in the DOC’s updated guidelines: The inmate must “not present an unacceptable safety, security or compliance risk to the community.”

Given these criteria, it’s difficult to see how Francisco or McGrath fit the bill. While Francisco was still serving his remaining time for a property crime — car theft — he had also served sentences on such charges as assault and robbery, both crimes against people.

Now they stand accused of committing new offenses once they were released. 

The seeming discrepancies, and the lack of transparency surrounding these commutations, are why district attorneys say this action erodes the public’s faith in law enforcement institutions.

“I respect, certainly, the executive branch’s ability and duty to commute sentences,” Marteeny said. “But it’s not being done with care. … When you build it in the huge sweeping way that it was, it really significantly changes our system and it wastes a lot of taxpayer money.”

Troy Shinn covers healthcare, natural resources and Linn County government. He can be reached at 541-812-6114 or troy.shinn@lee.net. He can be found on Twitter at @troydshinn. 

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