When Judge Cindee Matyas was about to sentence Michael Ehrlund for felony theft and drunken driving in February 2016, she warned him that any lapse in probation could have severe consequences.
Ehrlund, who lives in Astoria, pleaded no contest to first-degree theft for claiming more than $20,500 in state unemployment insurance benefits while working for J.M. Browning Logging. He also pleaded no contest to drunken driving after being pulled over near Knappa Market early one morning with a blood alcohol content of 0.20 percent, his third DUII in a decade.
In an agreement between the District Attorney’s Office and Ehrlund’s attorney known as a downward departure, Ehrlund received probation on the theft convictions, with the understanding that if he violated the terms and his probation was revoked by the Circuit Court, he would go to prison for five years. He also received 90 days in county jail, had his driver’s license revoked for life and was placed on probation for the DUII.
The deal spared Ehrlund from prison but left him in a precarious situation were he to mess up. The District Attorney’s Office does not agree to structured sanctions in downward departure cases — such as a county jail stint or residential treatment after a relapse into drinking — so any probation violation comes back before the judge, increasing the chances probation could be revoked.
“So the stakes are going to be quite high for you, do you understand that?” Judge Matyas asked.
Ehrlund, a father who was in a long-term relationship, said he had tried treatment for drinking before but would now take it more seriously.
“I learned my lesson,” he told the court. “I decided to drink to take care of a problem. I realized that, obviously, that’s not the way to do it.”
Oregon, alarmed by the high cost of prison, has embraced justice reinvestment, a national drive to contain prison spending and reduce recidivism.
The state has relaxed sentences for drug and property crimes and provided grants to counties to supervise more felons locally. The hope is to slow the growth of the prison population and interrupt the behavioral patterns that trigger new crimes.
Clatsop County is among the top five in prison use for drug and property crimes since the justice reinvestment initiative began in 2013, and judges, prosecutors and probation officers are examining what changes — if any — should be made to improve sentencing orders and probation.
Ehrlund is the kind of felon justice reinvestment has the potential to intercept. But a close look at his case, based on court records and police reports, shows the discord between theory and real life. Bad choices felons make on probation often give police, prosecutors and judges few alternatives, frustrating the larger policy goals of criminal justice reform.
Clatsop County’s relatively high prison use for drug and property crimes is tied to the significant number of downward departure sentences like the one Ehrlund accepted.
The prosecutor’s offer letter to Ehrlund’s attorney explained the trade-offs. Ehrlund was facing more than nine years in prison for theft if he went to trial and was convicted. If he pleaded guilty, prosecutors would agree to five years because he had no prior convictions for theft and the state wanted restitution for the $20,500 in unemployment benefits.
The five-year sentence would not be imposed if Ehrlund paid back the money, refrained from drinking and obeyed the law while on probation.
While Ehrlund had to serve time in the county jail for the DUII, he avoided going to prison for theft, a deal that, on paper, looks like a bargain.
But some defense attorneys and probation officers are concerned that downward departure sentences can set felons up for failure, especially if they have drug or alcohol problems. Since the District Attorney’s Office has a policy of no structured sanctions in downward departure agreements, probation officers are unable to manage felons who screw up by sending them to county jail or rehab, possibly staving off something worse.
Probation violations come back before the court, where long prison sentences are a judge’s order away.
Catch a ride
The Warrenton Police Department knew Ehrlund had his driver’s license revoked. They also knew he would drive his burgundy Hummer in the early mornings to the Fred Meyer parking lot in Warrenton, where he would catch a ride to work.
On a morning last July, a Warrenton Police officer was waiting when Ehrlund pulled into the parking lot. He was arrested for felony driving with a revoked license, but since the county jail was full, he was cited and released.
Ehrlund, according to the police report, told the officer his partner would pick him up after work.
Prosecutors moved to revoke Ehrlund’s probation, but before the court could weigh the new felony, he made another, more serious, mistake.
On an afternoon in December, a Warrenton Police officer and a Clatsop County Sheriff’s Office deputy found Ehrlund in the parking lot behind the Iredale Inn in Warrenton. He was on his cellphone, leaning over the tailgate of his silver Dodge pickup, and he smelled of alcohol.
Ehrlund had been refused service at Rod’s Bar and Grill because he was drunk, according to the deputy’s report, and a witness had followed him on foot and watched him drive over to the Iredale Inn, where he was also refused service.
The Warrenton Police officer was only going to arrest Ehrlund for felony driving with a revoked license, since the officer had not seen Ehrlund drive. But the sheriff’s deputy insisted on pursuing a felony drunken driving charge, aware that it might send Ehrlund to prison.
Ehrlund was given a breath test for alcohol when he was taken to the county jail by the Warrenton officer. On advice from a prosecutor, the sheriff’s deputy told jail staff he did not want to know the result. The sheriff’s deputy spoke with witnesses from the bars and had Ehrlund perform sobriety tests at the jail, which he failed. The deputy then had Ehrlund take another breath test.
He blew a 0.18, more than twice the legal limit for driving.
When Ehrlund came back before Judge Matyas for a final time in February — a year after accepting the downward departure agreement on his theft convictions — his fate was already decided.
The 39-year-old admitted he violated probation and pleaded guilty to felony driving with a revoked license and felony drunken driving. He received 60 months — five years — in prison on the downward departure for theft and another 10 months in prison for the new convictions.
Matyas said Ehrlund would be eligible for an alternative incarceration program, which provides intense treatment in prison in exchange for early release. The judge also recommended that Ehrlund be evaluated for drug and alcohol treatment when he gets out on parole.
“Sounds like you’ll be there long enough that you actually may be able to get into some programs that should help you when you get out,” Matyas said.
$94.55 a day
Lt. Kristen Hanthorn, who leads the Sheriff’s Office Parole and Probation Division, said that had probation officers been able to use structured sanctions with Ehrlund, they might have been able to step in after he was caught driving with a revoked license in July and change his path.
The new felony could have been enough for Ehrlund to get his probation revoked by the court, but it was also possible that a judge would recognize he was driving to get to work and give him another chance.
According to a probation report, Ehrlund had enrolled in outpatient treatment last May for his drinking and attended a court-ordered victim impact panel over the summer meant to show the risks of drunken driving. He had also completed the 100 hours of community service that had been ordered.
Ehrlund quit his job as an operator at J.M. Browning, where he had worked for several years, for work closer to home to lessen the pressure to drive, his probation officer said.
Even with the new drunken driving charge in December, the probation office had recommended county jail, not prison. They also wanted to get Ehrlund into inpatient treatment for alcohol abuse.
The state Department of Corrections says it costs $94.55 a day to keep an inmate in prison, or nearly $35,000 a year. Ehrlund, who is appealing his sentence, is at Santiam Correctional Institution in Salem. As of now, his earliest release date is in March 2021.
“Those prison beds are pretty valuable,” Hanthorn said. “We need them. And there are people that deserve to be there.
“I don’t think he’s one of them.”
District Attorney Josh Marquis is critical of justice reinvestment’s data-driven approach to reform, which he sees as another Salem fad that will fade away in a few years. He has dismissed the state’s incentives to counties to reduce prison use for drug and property crimes as a “negative bounty system.”
Over the past few weeks, Marquis and his staff have reviewed more than a dozen downward departure cases identified by the probation office — including Ehrlund’s — and the district attorney said his prosecutors would not have done anything differently.
Ehrlund stole unemployment insurance benefits from the state and racked up multiple DUIIs in Clatsop County and Pacific County, Washington.
“It’s defendant-by-defendant, crime-by-crime, victim-by-victim,” Marquis said. “You could have a theft of unemployment of the same magnitude, but take away all those DUIIs, and maybe have a completely different attitude.
“Maybe say, give that person a couple more shots before we revoke them.”
The district attorney believes Ehrlund belongs in prison. “I think he belongs in prison for the DUIIs alone.”