Pet Talk: Oregon's animal-abuse laws lose their bite under state sentencing guidelines
By Jacques Von Lunen, Special to The Oregonian
February 09, 2010, 3:58AM
The laws Oregon has to protect animals from abuse look great.
They look good enough, in fact, to ensure the state perennial bragging rights for being among the toughest in the nation on animal abusers.
Problem is, looks aren't everything.
Prosecutors say that in court, where it counts, they are hampered by Oregon's sentencing guidelines, which make animal-abuse laws all but useless. Budget concerns shut down attempts to correct the situation in last year's legislative session.
The problem lies with trying to convict people of felony animal-abuse charges.
Prosecutors say that lower-level offenses -- letting animals live in squalid conditions, for example -- carry adequate sanctions for the most part. But they say the punishment does not fit the crime when it comes to those who have killed or tortured animals.
That's because of sentencing guidelines.
On paper, someone who bludgeons puppies with a crowbar or throws a kitten in a fire -- real Oregon cases -- could, if convicted, go to state prison for five years. At least that's according to Oregon's statute on aggravated animal abuse (ORS 167.322)
But in reality, any judge sentencing a felon has to obey Oregon's sentencing guidelines. And in the case of animal abuse, the guidelines defang the law.
Oregon's sentencing guidelines are structured as a grid that weighs the severity of a crime and the criminal history of the offender.
Imagine a checkerboard with crime categories on one side and criminal history scores on the other. Through this grid runs a jagged line. Everything north of that line means prison time. Anything below results in probation.
A judge can point to the category of the crime in question, run a finger across the grid to the column under the offender's score and read the range of sentences that can be meted out.
Under Oregon's guidelines, aggravated animal abuse -- which the law defines as "maliciously killing or intentionally torturing an animal" -- is a Level 3 crime. At that level, even someone with a record of multiple violent crimes lands in the probation zone. There'll be no prison no matter how heinous the offense.
Judges have some discretion. A process called departure allows judges to add time in county jail -- as long as 12 months for the worst offenses -- to a probation sentence. And offenders who repeatedly violate the terms of their probation can ultimately end up doing the full time.
But neither scenario is very likely. And that's infuriating to prosecutors.
"We have what sounds like a tough law," says Josh Marquis, district attorney in Clatsop County. "But there is literally no way to get prison time, no matter how horrible the (animal-related) crime."
Heidi Moawad, deputy district attorney in Multnomah County, says, "Level 3 doesn't appropriately reflect the seriousness of these crimes."
Jean Kunkle, deputy district attorney in Marion County, says, "The fact that it's ranked 3 is frustrating."
All three have faced the sentencing limitations in cases in which offenders got off on probation or received a few months in county jail for, say, beheading or stomping to death an animal.
Anyone who thinks it's a waste to spend tax dollars on putting away a cat killer should read about the link between animal abuse and other violence.
"There's an absolutely undeniable link between person and animal cruelty," Marquis says. "All of the serious sexual psychopaths have animal cruelty in their backgrounds."
Moawad says animal abuse has played into domestic violence cases that she has seen: Spouse and child abusers kill or maim family pets to exert pressure on their victims.
Just to be clear: This isn't about hunting or telling people how to take care of their animals. This is about the few cases of malicious, intentional, torturous killing -- the cases that the vast majority of society agrees are ghastly.
If laws reflect a society's values and if Oregonians value their animals, then why, when it comes to punishing animal abuse, does Oregon lag other states?
Scott Heiser, director of the criminal-justice program at the Animal Legal Defense Fund, says that sentencing guidelines in Texas and Virginia, for example, indicate that a conviction of aggravated animal abuse in those states would most likely land you in prison.
And he cites a case in Wisconsin: Randy Lee Whitney was convicted of killing a woman's kitten by stomping on its head in 2005. His sentence was four years in prison. In Oregon, says Heiser, who used to be the Benton County district attorney, Whitney would most likely have gotten "a whopping 60 days (in) jail as a condition of a 24-month term of probation."
Animal abuse's ranking in Oregon's sentencing guidelines almost changed during the last legislative session.
The Criminal Justice Commission prepares recommendations for each crime's ranking, which the Legislature then must pass.
Marquis, the Clatsop County D.A., served on the commission until April. Moawad, his Portland colleague, testified before the commission. They made their case.
The commission recommended that the Legislature raise the ranking for aggravated animal abuse to Level 8 and the ranking for first-degree felony animal abuse -- cruelly killing an animal in front of a child, for example -- to Level 6.
Marquis thought he'd ended his commission term on a high note. "This was something I thought we'd accomplished," he says.
There was just one problem: money.
The Legislature's committee on ways and means -- the budget folks -- struck down the recommendation.
"There was a serious shortfall in the Department of Corrections budget," says Craig Prins, the commission's executive director. "We were reducing time served for guys who already have hurt people."
He says legislators favored the recommendations in principle but couldn't afford to add to the prison population.
But it's not as if the higher rankings would have flooded Oregon's prisons.
"I don't think the Legislature is in a position to say this is too expensive," Marquis says. "We can afford to send three or four really bad animal offenders to prison."
The prosecutors haven't given up on changing the guidelines.
"Maybe in better fiscal times," Kunkle says.
The door is not closed on the issue. Prins says either the Legislature or the commission could take it up again. But, he cautions, budget forecasts make that unlikely.
Unless the public demands such a change.
"My hope is that we could encourage legislators to give it another try," Moawad says.
-- Jacques Von Lunen