Chapter 35 Oregon Laws 2008 Special Session
AN ACT
HB 3638
Relating to crime; creating new provisions; amending ORS 137.281,
137.750, 421.502, 421.508 and 421.510; and declaring an emergency.
Be It Enacted by the People of
the State of
SECTION 1. (1)
When a court sentences a defendant to a term of incarceration that exceeds one
year, the defendant may request a determination of the defendant’s eligibility
for release on post-prison supervision under ORS 421.508 (4). The court shall
order in the judgment that the Department of Corrections may release the
defendant on post-prison supervision under ORS 421.508 (4) only if, after a
hearing, the court finds that:
(a) The defendant meets
the eligibility requirements of subsections (2) and (3) of this section;
(b) The defendant was
not on probation, parole or post-prison supervision for an offense listed in
ORS 137.712 (4) or 811.705 (2)(b) at the time of the commission of the current
crime of conviction;
(c) The defendant has
not previously been released on post-prison supervision under ORS 421.508 (4);
(d) The harm or loss
caused by the crime is not greater than usual for that type of crime;
(e) The crime was not
part of an organized criminal operation; and
(f) After considering
the nature of the offense and the harm to the victim, the defendant’s
successful completion of the program would:
(A) Increase public
safety;
(B) Enhance the
likelihood that the defendant would be rehabilitated; and
(C) Not unduly reduce
the appropriate punishment.
(2) Except as provided
in subsection (4) of this section, a defendant may not be released on
post-prison supervision under ORS 421.508 (4) if the defendant is being
sentenced for a crime under ORS 163.145, 163.165 (1)(a) or (b), 163.525 or
811.705 (2)(b).
(3) A defendant may not
be released on post-prison supervision under ORS 421.508 (4) if the defendant
is being sentenced for a crime listed in ORS 137.700, 137.707, 163.095 or
181.594 (4).
(4) Notwithstanding
subsection (1) of this section, the parties may stipulate to a defendant’s
eligibility for release on post-prison supervision under ORS 421.508 (4). If
the court accepts the stipulation, the court does not need to make explicit
findings regarding the factors described in subsection (1)(b) to (f) of this
section. The parties may not stipulate to the defendant’s release on
post-prison supervision under ORS 421.508 (4) if the defendant is being
sentenced for a crime described in subsection (3) of this section.
(5) If the court makes
the findings described in subsection (1) of this section or accepts the
stipulation of the parties under subsection (4) of this section, the court
shall:
(a) Order on the record
in open court as part of the sentence imposed that the defendant may be
considered by the department for release on post-prison supervision under ORS
421.508 (4); and
(b) Include the order
described in paragraph (a) of this subsection in the judgment.
(6) Subject to the
requirements of this section, the court may order that the defendant serve a
minimum period of incarceration before the defendant is released on post-prison
supervision under ORS 421.508 (4). Nothing in this section authorizes the
release of the defendant on post-prison supervision before the defendant has
served the period of time described in ORS 421.508 (4)(b).
SECTION 2.
ORS 137.750 is amended to read:
137.750. (1) When a
court sentences a defendant to a term of incarceration upon conviction of a
crime, the court shall order on the record in open court as part of the
sentence imposed that the defendant may be considered by the executing or
releasing authority for any form of temporary leave from custody, reduction in
sentence, work release[, alternative
incarceration program] or program of conditional or supervised release
authorized by law for which the defendant is otherwise eligible at the time of
sentencing, unless the court finds on the record in open court substantial and
compelling reasons to order that the defendant not be considered for such
leave, release or [programs] program.
(2) The executing or
releasing authority may consider the defendant for [the programs] a program described in subsection (1) of this
section only upon order of the sentencing court appearing in the judgment.
(3) As used in this
section:
(a) “Executing or
releasing authority” means the Department of Corrections, State Board of Parole
and Post-Prison Supervision, Psychiatric Security Review Board, sentencing
court or supervisory authority.
(b) “Supervisory
authority” has the meaning given that term in ORS 144.087.
SECTION 3.
ORS 421.502 is amended to read:
421.502. As used in ORS
421.502 to 421.512:
(1) “Cognitive
restructuring” means any rehabilitation process that redirects the thinking of
an offender into more socially acceptable directions and that is generally
accepted by rehabilitation professionals.
(2) “Department” means
the Department of Corrections.
[(3)(a) “Offender” includes a person who:]
[(A) Is in the custody of the department; and]
[(B) Is at least 18 years of age at the time of entry into the program.]
[(b) “Offender” includes a person who is under 18 years of age and has
been convicted of a crime upon remand from the juvenile court.]
[(c) “Offender” does not include a person convicted of a crime described
in ORS 163.095, 163.115, 163.118, 163.235, 163.355, 163.365, 163.375, 163.385,
163.395, 163.405, 163.408, 163.411, 163.415, 163.425, 163.427, 163.435,
163.525, 164.325 or 164.415.]
[(4)] (3) “Program” means the special alternative
incarceration program established under ORS 421.504 and the intensive
alternative incarceration addiction program established under ORS 421.506.
SECTION 4.
ORS 421.508 is amended to read:
421.508. (1)(a) The
Department of Corrections is responsible for determining which offenders are
eligible to participate in, and which offenders are accepted for, a program. However,
the department may not release an offender under subsection (4) of this section
unless authorized to do so as provided in section 1 of this 2008 Act. [However, the department may not consider an
offender for a program unless authorized to do so as provided in ORS 137.750.]
(b) The department may
not accept an offender into a program unless the offender submits a written
request to participate. The request must contain a signed statement providing
that the offender:
(A) Is physically and
mentally able to withstand the rigors of the program; and
(B) Has reviewed the
program description provided by the department and agrees to comply with each
of the requirements of the program.
(c) The department may
deny, for any reason, a request to participate in a program. The department
shall make the final determination regarding an offender’s physical or mental
ability to withstand the rigors of the program.
(d) If the department
determines that an offender’s participation in a program is consistent with the
safety of the community, the welfare of the applicant, the program objectives
and the rules of the department, the department may, in its discretion, accept
the offender into the program.
(2) The department may
suspend or remove an offender from a program for administrative or
disciplinary reasons.
(3) The department
may not accept an offender into a program if:
(a) The department has
removed the offender from a program during the term of incarceration for which
the offender is currently sentenced; or
(b) The offender has a
current detainer from any jurisdiction that will not expire prior to the
offender’s release from the custody of the department.
[(3)] (4) When an offender has successfully completed a
program, the department may release the offender on post-prison supervision if:
(a) The court has
entered the order described in section 1 of this 2008 Act; and
(b) The offender has
served a term of incarceration of at least one year.
(5) An offender may not
be released on post-prison supervision under subsection (4) of this section if
the release would reduce the term of incarceration the offender would otherwise
be required to serve by more than 20 percent.
(6) For the purposes of
calculating the term of incarceration served under subsection (4)(b) of this
section, the department shall include:
(a) The time that an
offender is confined under ORS 137.370 (2)(a); and
(b) The time for which
an offender is granted nonprison leave under ORS 421.510.
(7) Successful completion of a program does not
relieve the offender from fulfilling any other obligations imposed as part of
the sentence including, but not limited to, the payment of restitution and
fines.
SECTION 5.
ORS 421.510 is amended to read:
421.510. [Offenders participating in a program are
eligible for transitional leave as provided in ORS 421.168. Notwithstanding the
30-day maximum period allowed in ORS 421.168, the Department of Corrections may
grant a transitional leave of up to 90 days for an offender in a program. The
offender may not be released on transitional leave more than 90 days prior to
the offender’s discharge date.]
(1) The Department of
Corrections may consider an offender for nonprison leave under this section if
the court has entered the order described in section 1 of this 2008 Act.
(2) Nonprison leave
shall provide offenders with an opportunity to secure appropriate transitional
support when necessary for successful reintegration into the community prior to
the offenders’ discharge to post-prison supervision.
(3) An offender may
submit a nonprison leave plan to the Department of Corrections. The plan shall
indicate that the offender has secured an employment, educational or other
transitional opportunity in the community to which the offender will be
released and that a leave of up to 90 days is an essential part of the offender’s
successful reintegration into the community.
(4) Upon verification of
the offender’s nonprison leave plan, the department may grant nonprison leave
no more than 90 days prior to the offender’s date of release on post-prison
supervision under ORS 421.508 (4).
(5) The department shall
establish by rule a set of conditions for offenders released on nonprison
leave. An offender on nonprison leave shall be subject to immediate return to
prison for any violation of the conditions of nonprison leave.
(6) During the period of
nonprison leave, the offender must reside in, and be supervised within, the
state.
SECTION 6.
ORS 137.281 is amended to read:
137.281. (1) In any
felony case, [when the court sentences
the defendant to a term of imprisonment in the custody of the Department of
Corrections and execution of the sentence is not suspended, or execution is
suspended upon condition that the defendant serve a term of imprisonment in the
county jail,] when the defendant is sentenced to a term of
incarceration, the defendant is deprived of all rights and privileges
described in subsection (3) of this section from the date of sentencing until:
(a) The defendant is
released from incarceration [discharged
or paroled from imprisonment]; or
(b) The defendant’s
conviction is set aside.
(2) Subsection (1) of
this section applies to any term of incarceration, whether the term of
incarceration was imposed as a result of conviction or as a sanction or
revocation resulting from the defendant’s violation of the terms and conditions
of probation, parole or post-prison supervision. [In any felony case, when the court sentences the defendant to a term of
imprisonment in the custody of the Department of Corrections and execution of
the sentence is suspended upon any condition other than imprisonment in the
county jail, if the sentence of probation is revoked and the suspended portion
of the sentence is ordered executed, the defendant is deprived of the rights
and privileges described in subsection (3) of this section from the date the
sentence is ordered executed until:]
[(a) The defendant is discharged or paroled from imprisonment; or]
[(b) The defendant’s conviction is set aside.]
(3) The rights and
privileges of which a person may be deprived under this section are:
(a) Holding a public
office or an office of a political party or becoming or remaining a candidate
for either office;
(b) Holding a position
of private trust;
(c) Acting as a juror;
or
(d) Exercising the right
to vote.
(4) If the court under
subsection (1) of this section temporarily stays execution of sentence for any
purpose other than probation, the defendant nonetheless is sentenced for
purposes of subsection (1) of this section.
(5) A person convicted
of any crime and serving a term of imprisonment in any federal correctional
institution in this state is deprived of the rights to register to vote, update
a registration or vote in any election in this state from the date of
sentencing until:
(a) The person is
discharged or paroled from imprisonment; or
(b) The person’s
conviction is set aside.
(6) The county clerk or
county official in charge of elections in any county may cancel the
registration of any person serving a term of imprisonment in any federal
correctional institution in this state.
(7) Except as otherwise
provided in ORS 10.030, the rights and privileges withdrawn by this section are
restored automatically upon [discharge or
parole from imprisonment] release from incarceration, but in the
case of parole shall be automatically withdrawn upon a subsequent imprisonment
for violation of the terms of the parole.
SECTION 7. (1)
During the intake process, each county shall conduct a national criminal
history check on every person incarcerated in the county correctional facility.
(2) The county shall
develop policies and procedures to ensure that the results of the national
criminal history check are received before an inmate is released.
(3) The state shall
reimburse each county for the costs of conducting the national criminal history
checks.
SECTION 8. As
used in section 8, chapter 14,
(1) “Drug-addicted
person” means a person who has lost the ability to control the personal use of
controlled substances or alcohol, or who uses controlled substances or alcohol
to the extent that the health of the person or that of others is substantially
impaired or endangered or the social or economic function of the person is
substantially disrupted. A drug-addicted person may be physically dependent, a
condition in which the body requires a continuing supply of a controlled
substance or alcohol to avoid characteristic withdrawal symptoms, or psychologically
dependent, a condition characterized by an overwhelming mental desire for
continued use of a controlled substance or alcohol.
(2) “Intensive
supervision” means the active monitoring of a person’s performance in a
treatment program by a parole and probation officer and the imposition of
sanctions, or request to a court for sanctions, if the person fails to abide by
the terms and conditions of a treatment program.
SECTION 9. (1)
The Department of Corrections shall determine which persons are eligible for
treatment under section 8 (1), chapter 14,
(2) The department shall
adopt rules to administer the grant program described in section 8 (1), chapter
14,
(3) Prior to adopting
the rules described in subsection (2) of this section, the department shall
consult with a broad-based committee that includes representatives of:
(a) County boards of
commissioners;
(b) County sheriffs;
(c) District attorneys;
(d) County community
corrections;
(e) The
(f) Presiding judges of
the judicial districts of this state;
(g) Public defenders;
and
(h) Treatment providers.
(4) In determining which
grant proposals to fund within each county, the department shall:
(a) Consult with the
committee described in subsection (3) of this section;
(b) Give priority to
those proposals that are best designed to reduce crime and drug addiction; and
(c) Be guided by
evidence-based practices, risk assessment tools or other research based
considerations.
SECTION 10. Nothing
in section 1, 7, 8 or 9 of this 2008 Act or the amendments to ORS 137.281,
137.750, 421.502, 421.508 or 421.510 by sections 2, 3, 4, 5 and 6 of this 2008
Act:
(1) Creates any claim,
right of action or civil liability; or
(2) Requires a
supervisory authority or the Department of Corrections to provide treatment to
any individual under the authority’s supervision or in the custody of the
department.
SECTION 11. (1)
Section 1 of this 2008 Act and the amendments to ORS 137.750, 421.502, 421.508
and 421.510 by sections 2 to 5 of this 2008 Act apply to persons sentenced for
a crime committed on or after January 1, 2009.
(2) Section 7 of this
2008 Act and the amendments to ORS 137.281 by section 6 of this 2008 Act apply
to persons incarcerated on or after January 1, 2009.
SECTION 12. Sections
8, 9 and 10 of this 2008 Act:
(1) Become operative on
January 1, 2009, if Senate Bill 1087 (2008) is referred to the people and
approved by a majority of votes cast thereon at the next regular general
election held throughout this state on November 4, 2008, and:
(a) Initiative Petition
40 (2008) is not placed on the ballot at the next regular general election held
throughout this state on November 4, 2008; or
(b) Initiative Petition
40 (2008) is placed on the ballot at the next regular general election held
throughout this state on November 4, 2008, and:
(A) Initiative Petition
40 (2008) is rejected by the people; or
(B) Initiative Petition
40 (2008) is approved by the people and Senate Bill 1087 (2008) receives a
number of affirmative votes greater than the number of affirmative votes
received by Initiative Petition 40 (2008).
(2) Are repealed on
December 31, 2008, if:
(a) Senate Bill 1087
(2008) is not referred to the people at the next regular general election held
throughout this state on November 4, 2008; or
(b) Senate Bill 1087
(2008) is referred to the people at the next regular general election held
throughout this state on November 4, 2008, and:
(A) Senate Bill 1087
(2008) is rejected by the people; or
(B) Initiative Petition
40 (2008) is placed on the ballot at the next regular general election held
throughout this state on November 4, 2008, and:
(i) Both Initiative
Petition 40 (2008) and Senate Bill 1087 (2008) are approved by a majority of
the votes cast thereon; and
(ii) Initiative Petition
40 (2008) receives a number of affirmative votes greater than the number of
affirmative votes received by Senate Bill 1087 (2008).
SECTION 13. This
2008 Act being necessary for the immediate preservation of the public peace,
health and safety, an emergency is declared to exist, and this 2008 Act takes
effect on its passage.
Approved by the Governor March 11, 2008
Filed in the office of Secretary of State March 11, 2008
Effective date March 11, 2008
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