Last month, the man who for many personified the trap
of mandatory minimum sentences was sprung from prison
two years early. The move took many people--his family
and the governor among them--by surprise and raised questions
about why it didn't happen sooner.
In 1995, Cliff Frey was one of the first Oregonians
tried under Measure 11. Despite the fact that Frey,
then 21, has the mental capacity of a 12-year-old, he
was convicted of sexual abuse and sentenced to 75 months
in prison. His attorney, Susan Russell, filed an appeal
of his case to the Oregon Court of Appeals, challenging
the constitutionality of Measure 11. It was denied in
1998.
Frey's family then turned to what they thought was
their last hope--Gov. John Kitzhaber ("Why
Hasn't Gov. Kitzhaber Set Him Free?," WW,
July 7, 1999). Many legal observers expected Frey's
commutation to be a slam dunk. Both the victim and the
prosecutor joined in the petition for his early release,
submitted in January 1999. "I can count on both hands
the number of times during my 19 years in office that
I have joined in a commutation request," says Michael
Schrunk, Multnomah County District Attorney.
But on Nov. 1, Kitzhaber denied Frey's commutation
request, saying he didn't want to become a court of
appeals for Measure 11 cases. It seemed to seal Frey's
fate.
Yet 18 days later, Frey was released from custody in
an agreement between Russell and Schrunk--"a special
remedy for a special case," as Russell puts it. In what
Schrunk calls "a torturing of post-conviction law,"
Frey's original conviction was wiped out, he was allowed
to plead guilty to a new charge of attempted sexual
assault, and he was sentenced by Judge James Ellis to
five years' probation.
The move came as a surprise to many people familiar
with the case, including Frey's family, which learned
of the impending deal only three days before his release.
That was still sooner than Kitzhaber, who, according
to his aides, didn't learn of Frey's release until he
read the morning newspaper.
Kitzhaber and his advisors, who have been verbally
lashed for not commuting Frey's sentence, now question
why Schrunk and Russell didn't strike a deal earlier.
"We wonder what took them so long and why they put us
in the position of being responsible for reversing the
sentencing," says Kitzhaber spokesman Bob Applegate.
In other words, if Frey could get a deal like this
in 1999, why couldn't Schrunk's office have offered
it to him the day after his December 1995 conviction?
The answer: Oregon law prohibits post-conviction relief
from the courts until all legal appeals have been exhausted.
So the earliest Schrunk's office could have negotiated
with Russell was in September 1998, when Frey's appeal
was shot down.
But at that point, Frey was preparing his commutation
request. Schrunk says commutation would have been better
for Frey, because if it were granted, he would not only
get out of prison, but would be free of probation as
well.
Many Measure 11 opponents have pointed to Frey's case
as a prime example of the inflexibility of the mandatory
minimum sentencing law.
Russell says Schrunk's office should never have charged
Frey with a Measure 11 crime in the first place. She
says the DA's office was "posturing" in 1995 because
Measure 11 had just gone into effect and it wanted to
test the limits of the system. If Frey were charged
today, she says, he would not be brought to trial.
"We've seen several recent cases where sex offenders
get probation offers," she says.
Schrunk confirms that his office has shifted policies,
noting that there is now better treatment for non-violent
sex offenders in the community than in prison. Russell
is also angry with Kitzhaber for stretching the commutation
process from January to November.
But Chip Lazenby, the governor's legal counsel, argues
that it took until August for the request to be finalized
with the inclusion of the victim's statement. He says
Schrunk's office should share the blame: "If they have
the power to prosecute Measure 11 cases, they need to
take responsibility for it." Lazenby says Frey's case
is an argument for putting sentencing back into the
hands of judges. "Where one advocate gets to determine
the outcome, there's going to be injustice," he adds.
Norm Frink, Multnomah County Chief Deputy District
Attorney, did not respond to WW's repeated requests
for comments. A vocal Measure 11 advocate, Frink fought
almost as hard as Frey's mother, Donna, for Frey's early
release.
Schrunk says that this case "shows if something goes
askew, you can fix it."
Donna Frey, however, takes a different view. She says
her son's case shows that "one-size sentencing does
not fit all." She's joined a group seeking to repeal
Measure 11 next November but says she doesn't expect
her son to make any campaign appearances during the
repeal effort. Meanwhile, the 25-year-old Frey gets
to try to put his life back together. He was twice raped
in prison and repeatedly beaten by fellow inmates.
His mother reports that he's so traumatized by his
treatment at the hands of fellow prisoners that he can
now only sleep with the doors to their Northeast Portland
home securely locked, the lights on and family members
in the room with him.
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Willamette Week | originally
published December 8,
1999
