76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2562
A-Engrossed
Senate Bill 416
Ordered by the Senate April 29
Including Senate Amendments dated April 29
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Authorizes court to impose probation with intensive supervision
under certain circumstances when person is convicted of certain
drug or property crimes.
Authorizes Oregon Criminal Justice Commission to make grants to
counties in order to provide services to { + certain + }
offenders sentenced to { - intensive - } { + high-level + }
probation or { + certain + } offenders on parole or post-prison
supervision { - determined to be at high risk to reoffend - } .
Appropriates moneys from General Fund to commission for grants.
A BILL FOR AN ACT
Relating to crime; creating new provisions; amending ORS 137.656,
137.717, 423.150 and 475.933; and appropriating money.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 137.717, as amended by section 11, chapter 660,
Oregon Laws 2009, is amended to read:
137.717. (1) When a court sentences a person convicted of:
(a) Aggravated theft in the first degree under ORS 164.057,
burglary in the first degree under ORS 164.225, robbery in the
third degree under ORS 164.395, identity theft under ORS 165.800
or aggravated identity theft under ORS 165.803, the presumptive
sentence is 24 months of incarceration, unless the rules of the
Oregon Criminal Justice Commission prescribe a longer presumptive
sentence, if the person has:
(A) A previous conviction for aggravated theft in the first
degree under ORS 164.057, burglary in the first degree under ORS
164.225, robbery in the third degree under ORS 164.395, robbery
in the second degree under ORS 164.405, robbery in the first
degree under ORS 164.415 or aggravated identity theft under ORS
165.803;
(B) Two or more previous convictions for any combination of the
crimes listed in subsection (2) of this section; or
(C) A previous conviction for a crime listed in subsection (2)
of this section, if the current crime of conviction was committed
while the defendant was on supervision for the previous
conviction or less than three years after the date the defendant
completed the period of supervision for the previous conviction.
(b) Theft in the first degree under ORS 164.055, unauthorized
use of a vehicle under ORS 164.135, mail theft or receipt of
stolen mail under ORS 164.162, burglary in the second degree
under ORS 164.215, criminal mischief in the first degree under
ORS 164.365, computer crime under ORS 164.377, forgery in the
first degree under ORS 165.013, criminal possession of a forged
instrument in the first degree under ORS 165.022, fraudulent use
of a credit card under ORS 165.055 (4)(b), possession of a stolen
vehicle under ORS 819.300 or trafficking in stolen vehicles under
ORS 819.310, the presumptive sentence is 18 months of
incarceration, unless the rules of the Oregon Criminal Justice
Commission prescribe a longer presumptive sentence, if the person
has:
(A) A previous conviction for aggravated theft in the first
degree under ORS 164.057, unauthorized use of a vehicle under ORS
164.135, burglary in the first degree under ORS 164.225, robbery
in the third degree under ORS 164.395, robbery in the second
degree under ORS 164.405, robbery in the first degree under ORS
164.415, possession of a stolen vehicle under ORS 819.300,
trafficking in stolen vehicles under ORS 819.310 or aggravated
identity theft under ORS 165.803;
(B) Two or more previous convictions for any combination of the
crimes listed in subsection (2) of this section; or
(C) A previous conviction for a crime listed in subsection (2)
of this section, if the current crime of conviction was committed
while the defendant was on supervision for the previous
conviction or less than three years after the date the defendant
completed the period of supervision for the previous conviction.
(2) The crimes to which subsection (1) of this section applies
are:
(a) Theft in the second degree under ORS 164.045;
(b) Theft in the first degree under ORS 164.055;
(c) Aggravated theft in the first degree under ORS 164.057;
(d) Unauthorized use of a vehicle under ORS 164.135;
(e) Mail theft or receipt of stolen mail under ORS 164.162;
(f) Burglary in the second degree under ORS 164.215;
(g) Burglary in the first degree under ORS 164.225;
(h) Criminal mischief in the second degree under ORS 164.354;
(i) Criminal mischief in the first degree under ORS 164.365;
(j) Computer crime under ORS 164.377;
(k) Forgery in the second degree under ORS 165.007;
(L) Forgery in the first degree under ORS 165.013;
(m) Criminal possession of a forged instrument in the second
degree under ORS 165.017;
(n) Criminal possession of a forged instrument in the first
degree under ORS 165.022;
(o) Fraudulent use of a credit card under ORS 165.055;
(p) Identity theft under ORS 165.800;
(q) Possession of a stolen vehicle under ORS 819.300;
(r) Trafficking in stolen vehicles under ORS 819.310; and
(s) Any attempt to commit a crime listed in this subsection.
(3)(a) A presumptive sentence described in subsection (1) of
this section shall be increased by two months for each previous
conviction the person has that:
(A) Was for any of the crimes listed in subsection (1) or (2)
of this section; and
(B) Was not used as a predicate for the presumptive sentence
described in subsection (1) of this section.
(b) Previous convictions may not increase a presumptive
sentence described in subsection (1) of this section by more than
12 months under this subsection.
{ + (4)(a) The court may not impose a sentence described in
this section if a longer term of incarceration is otherwise
required by law. + }
{ - (4) - } { + (b) + } The court may impose a sentence
other than { - the sentence provided by subsection (1) or (3)
of - } { + a sentence described in + }this section if the
court imposes { - : - }
{ - (a) A longer term of incarceration that is otherwise
required or authorized by law; or - }
{ - (b) A departure sentence authorized by the rules of the
Oregon Criminal Justice Commission based upon findings of
substantial and compelling reasons. - } { + a longer term of
incarceration that is otherwise authorized by law. + } Unless the
law or the rules of the Oregon Criminal Justice Commission allow
for imposition of a longer sentence, the maximum departure
allowed for a person sentenced under this { - subsection - }
{ + paragraph + } is double the presumptive sentence provided
in subsection (1) or (3) of this section.
{ - (5) Notwithstanding subsection (4)(b) of this section,
the court may not sentence a person under subsection (4) of this
section to a term of incarceration that exceeds the period of
time described in ORS 161.605. - }
{ + (5)(a) The court shall sentence a person under this
section to at least the presumptive sentence described in
subsection (1) or (3) of this section, unless the parties
stipulate otherwise or the court finds:
(A) That the person was not on probation for a felony, parole
or post-prison supervision at the time the current crime of
conviction was committed;
(B) That the person has not been sentenced to probation as a
downward dispositional departure for any crime in the five-year
period immediately preceding the commission of the current crime
of conviction;
(C) That a sentence of probation with a high level of
supervision would better serve the foundation principles of
criminal law described in section 15, Article I of the Oregon
Constitution; and
(D) Substantial and compelling reasons exist to impose a
sentence of probation with a high level of supervision.
(b) When the court imposes a sentence of probation under this
subsection, the supervisory authority shall subject the person to
a high level of supervision for at least 12 months. The
supervisory authority may extend the period of high-level
supervision for all or part of the remaining supervision term.
(c) This subsection does not apply to sentences imposed for:
(A) Burglary in the first degree as defined in ORS 164.225, if
the offense is classified as crime category 9 of the sentencing
guidelines grid of the commission.
(B) Aggravated theft in the first degree, if the offense is
committed under the circumstances described in ORS 164.061.
(C) Aggravated identity theft as defined in ORS 165.803, if a
victim of the offense is 65 years of age or older at the time of
the commission of the offense. + }
(6) { + When a person is sentenced for an offense described in
subsection (5)(c) of this section, + } the court shall sentence
{ - a person under this section - } { + the person + } to at
least the presumptive sentence described in subsection (1) or (3)
of this section, unless the parties stipulate otherwise or the
court finds that:
(a) The person was not on probation, parole or post-prison
supervision for a crime listed in subsection (1) of this section
at the time { - of the commission of - } the current crime of
conviction { + was committed + };
(b) The person has not previously received a downward departure
from a presumptive sentence for a crime listed in subsection (1)
of this section;
(c) The harm or loss caused by the crime is not greater than
usual for that type of crime; and
(d) In consideration of the nature of the offense and the harm
to the victim, a downward departure will:
(A) Increase public safety;
(B) Enhance the likelihood that the person will be
rehabilitated; and
(C) Not unduly reduce the appropriate punishment.
(7)(a) For a crime committed on or after November 1, 1989, a
conviction is considered to have occurred upon the pronouncement
of sentence in open court. However, when sentences are imposed
for two or more convictions arising out of the same conduct or
criminal episode, none of the convictions is considered to have
occurred prior to any of the other convictions arising out of the
same conduct or criminal episode.
(b) For a crime committed prior to November 1, 1989, a
conviction is considered to have occurred upon the pronouncement
in open court of a sentence or upon the pronouncement in open
court of the suspended imposition of a sentence.
(8) For purposes of this section, previous convictions must be
proven pursuant to ORS 137.079.
{ + (9) The court may not impose a sentence under this
section that exceeds the period of time described in ORS
161.605. + }
{ - (9) - } { + (10) + } As used in this section:
(a) 'Downward departure' means a downward dispositional
departure or a downward durational departure under the rules of
the Oregon Criminal Justice Commission.
(b) 'Previous conviction' includes:
(A) Convictions occurring before, on or after July 1, 2003; and
(B) Convictions entered in any other state or federal court for
comparable offenses.
SECTION 2. ORS 475.933 is amended to read:
475.933. (1) When a court sentences a person convicted of a
crime listed in subsection { - (2) - } { + (4) + } of this
section { + who has a previous conviction for a crime listed in
subsection (4) of this section + }, the court may not impose a
sentence of optional probation or grant a downward dispositional
departure or a downward durational departure under the rules of
the Oregon Criminal Justice Commission { - if the person has a
previous conviction for any of the crimes listed in subsection
(2) of this section. - } { + unless the court finds:
(a) That the person was not on probation for a felony, parole
or post-prison supervision at the time the current crime of
conviction was committed;
(b) That the person has not been sentenced to probation as a
downward dispositional departure for any crime in the five-year
period immediately preceding the commission of the current crime
of conviction;
(c) That a sentence of probation with a high level of
supervision would better serve the foundation principles of
criminal law described in section 15, Article I of the Oregon
Constitution; and
(d) Substantial and compelling reasons exist to impose a
sentence of probation with a high level of supervision.
(2) When the court imposes a sentence of probation under
subsection (1) of this section, the supervisory authority shall
subject the person to a high level of supervision for at least 12
months. The supervisory authority may extend the period of
high-level supervision for all or part of the remaining
supervision term.
(3) Notwithstanding subsection (1) of this section, the court
shall impose at least the presumptive sentence provided for by
law when a person is sentenced for:
(a) The unlawful delivery of methamphetamine to a minor under
ORS 475.890 (3) or 475.907; or
(b) The unlawful delivery or manufacture of a controlled
substance in an amount described in ORS 475.925. + }
{ - (2) - } { + (4) + } The crimes to which subsection (1)
of this section applies are:
(a) Manufacture or delivery of a controlled substance, other
than marijuana, under ORS 475.840 (1);
(b) Creation or delivery of a counterfeit substance, other than
marijuana, under ORS 475.840 (2);
(c) Manufacture or delivery of heroin under ORS 475.846,
475.848, 475.850 or 475.852;
(d) Manufacture or delivery of
3,4-methylenedioxymethamphetamine under ORS 475.866, 475.868,
475.870 or 475.872;
(e) Manufacture or delivery of cocaine under ORS 475.876,
475.878, 475.880 or 475.882;
(f) Manufacture or delivery of methamphetamine under ORS
475.886, 475.888, 475.890 or 475.892;
(g) Manufacture or delivery of a controlled substance within
1,000 feet of a school under ORS 475.904;
(h) Delivery of a controlled substance to a person under 18
years of age under ORS 475.906; and
(i) Possession of a precursor substance with intent to
manufacture a controlled substance under ORS 475.967.
{ - (3)(a) - } { + (5)(a) + } For a crime committed on or
after November 1, 1989, a conviction is considered to have
occurred upon the pronouncement in open court of sentence.
However, when sentences are imposed for two or more convictions
arising out of the same conduct or criminal episode, none of the
convictions is considered to have occurred prior to any of the
other convictions arising out of the same conduct or criminal
episode.
(b) For a crime committed prior to November 1, 1989, a
conviction is considered to have occurred upon the pronouncement
in open court of a sentence or upon the pronouncement in open
court of the suspended imposition of a sentence.
{ - (4) - } { + (6) + } For purposes of this section,
previous convictions must be proven pursuant to ORS 137.079.
{ - (5) - } { + (7) + } As used in this section, 'previous
conviction ' means:
(a) Convictions occurring before, on or after July 1, 2009; and
(b) Convictions entered in any other state or federal court for
comparable offenses.
SECTION 3. { + There is appropriated to the Oregon Criminal
Justice Commission for the biennium beginning July 1, 2011, out
of the General Fund, the amount of $___ for the purpose of
carrying out the provisions of section 4 of this 2011 Act. + }
SECTION 4. { + (1) A county is eligible for a grant under ORS
137.656 (5)(b) if the county, in accordance with rules adopted by
the Oregon Criminal Justice Commission, is able to demonstrate a
current or future ability to provide, at a readily accessible
location or by streamlined referral, assistance to offenders who
have supervision-related service needs and are serving a term of:
(a) Probation imposed under ORS 137.717 (5) or 475.933 (1);
(b) Probation imposed for an eligible offense, provided that
the sentence was imposed as a sentence of optional probation or a
downward dispositional departure from a presumptive sentence,
under the rules of the Oregon Criminal Justice Commission; or
(c) Post-prison supervision imposed for an eligible offense.
(2) An award of grant moneys under this section must be used to
pay the cost of a supervision-related service or to reimburse a
service provider for the provision of the supervision-related
service.
(3)(a) The Oregon Criminal Justice Commission shall annually:
(A) Contract with a qualified independent person or
organization to conduct a scientifically valid evaluation of the
grant program described in this section to determine whether the
grant program is effective in reducing recidivism; and
(B) Conduct an audit of the grant program described in this
section to ensure that the grant moneys are awarded solely for
the purposes described in this section.
(b) All state agencies and persons providing or receiving
supervision-related services shall cooperate fully in the
evaluation and audit described in this subsection.
(c) No later than January 31 of each year, the commission shall
report to the Legislative Assembly on the results of the
evaluation and audit.
(4) As used in this section:
(a) 'Eligible offense' means:
(A) Felon in possession of a firearm or felon in possession of
a restricted weapon, under ORS 166.270.
(B) Assault in the third degree under ORS 163.165.
(C) Criminal driving while suspended or revoked under ORS
811.182.
(D) Failure to report as a sex offender under ORS 181.599.
(E) Failure to appear in the first degree under ORS 162.205.
(F) Escape in the second degree under ORS 162.155.
(G) Fleeing or attempting to elude a police officer under ORS
811.540.
(H) Perjury under ORS 162.065.
(I) Aggravated harassment under ORS 166.070.
(J) Laundering a monetary instrument under ORS 164.170.
(K) Making a false claim for health care payment under ORS
165.692.
(L) The possession, delivery or manufacture of a controlled
substance, for which the law authorizes a sentence of probation.
(b) 'Supervision-related service' means any of the following:
(A) Alcohol and drug assessment and treatment;
(B) Obtaining food and clothing, appropriate housing or state
identification;
(C) Obtaining employment;
(D) Transportation;
(E) Benefits application assistance;
(F) Case management, including obtaining parole and probation
officer contacts;
(G) Family and community support;
(H) Medical, dental and mental health evaluation and referral;
(I) Cognitive behavioral therapy;
(J) Financial and computer training;
(K) Referrals for faith-based mentoring or self-improvement;
(L) Legal consultation; or
(M) Education and training programs. + }
SECTION 5. ORS 137.656 is amended to read:
137.656. (1) The purpose of the Oregon Criminal Justice
Commission is to improve the effectiveness and efficiency of
state and local criminal justice systems by providing a
centralized and impartial forum for statewide policy development
and planning.
(2) The primary duty of the commission is to develop and
maintain a state criminal justice policy and comprehensive,
long-range plan for a coordinated state criminal justice system
that encompasses public safety, offender accountability, crime
reduction and prevention and offender treatment and
rehabilitation. The plan must include, but need not be limited
to, recommendations regarding:
(a) Capacity, utilization and type of state and local prison
and jail facilities;
(b) Implementation of community corrections programs;
(c) Alternatives to the use of prison and jail facilities;
(d) Appropriate use of existing facilities and programs;
(e) Whether additional or different facilities and programs are
necessary;
(f) Methods of assessing the effectiveness of juvenile and
adult correctional programs, devices and sanctions in reducing
future criminal conduct by juvenile and adult offenders;
(g) Methods of reducing the risk of future criminal conduct;
and
(h) The effective utilization of local public safety
coordinating councils.
(3) Other duties of the commission are:
(a) To conduct joint studies by agreement with other state
agencies, boards or commissions on any matter within the
jurisdiction of the commission.
(b) To provide Oregon criminal justice analytical and
statistical information to federal agencies and serve as a
clearinghouse and information center for the collection,
preparation, analysis and dissemination of information on state
and local sentencing practices.
(c) To provide technical assistance and support to local public
safety coordinating councils.
(d) To receive grant applications to start or expand drug court
programs as defined in ORS 3.450, to make rules to govern the
grant process and to award grant funds according to the rules.
(4) The commission shall establish by rule the information that
must be submitted under ORS 137.010 (9) and the methods for
submitting the information. A rule adopted under this subsection
must be approved by the Chief Justice of the Supreme Court before
it takes effect.
{ + (5) The commission shall, from funds appropriated to the
commission for that purpose, make grants to counties for the
purpose of:
(a) Providing supplemental funding for drug courts for
drug-addicted persons, as defined in ORS 423.150, including the
costs of appropriate treatment services and the incarceration of
persons who have violated the terms and conditions of a drug
court; and
(b) Providing offenders with supervision-related services as
defined in section 4 of this 2011 Act. + }
{ - (5) - } { + (6) + } The commission may:
(a) Apply for and receive gifts and grants from any public or
private source.
(b) Award grants from funds appropriated by the Legislative
Assembly to the commission or from funds otherwise available from
any other source, for the purpose of carrying out the duties of
the commission.
(c) Adopt rules to carry out the provisions of this subsection.
SECTION 6. ORS 423.150 is amended to read:
423.150. (1) The Department of Corrections shall:
(a) Provide appropriate treatment services to drug-addicted
persons in the custody of the department who are at a high or
medium risk of reoffending and who have moderate to severe
treatment needs; and
(b) Make grants to counties in order to provide supplemental
funding for:
(A) The operation of local jails;
(B) Appropriate treatment services for drug-addicted persons on
probation, parole or post-prison supervision; or
(C) The intensive supervision of drug-addicted persons on
probation, parole or post-prison supervision, including the
incarceration of drug-addicted persons who have violated the
terms and conditions of probation, parole or post-prison
supervision.
{ - (2) The Oregon Criminal Justice Commission shall make
grants to counties in order to provide supplemental funding for
drug courts for drug-addicted persons, including the costs of
appropriate treatment services and the incarceration of persons
who have violated the terms and conditions of a drug court. - }
{ - (3)(a) - } { + (2)(a) + } The appropriate legislative
committee shall periodically conduct oversight hearings on the
effectiveness of this section.
(b) The Oregon Criminal Justice Commission shall periodically
conduct independent evaluations of the programs funded by this
section for their effectiveness in reducing criminal behavior in
a cost-effective manner.
{ - (4) - } { + (3) + } The Department of Corrections shall
determine which persons are eligible for treatment under
subsection (1)(a) of this section using an actuarial risk
assessment tool.
{ - (5) - } { + (4) + } The department shall adopt rules to
administer the grant program described in subsection (1)(b) of
this section.
{ - (6) - } { + (5) + } Prior to adopting the rules
described in subsection
{ - (5) - } { + (4) + } 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 Oregon Criminal Justice Commission;
(f) Presiding judges of the judicial districts of this state;
(g) Public defenders; and
(h) Treatment providers.
{ - (7) - } { + (6) + } In determining which grant
proposals to fund within each county, the department shall:
(a) Consult with the committee described in subsection
{ - (6) - } { + (5) + } 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.
{ - (8) - } { + (7) + } Nothing in this section:
(a) Creates any claim, right of action or civil liability; or
(b) 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.
{ - (9) - } { + (8) + } As used in this section:
(a) '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.
(b) '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 7. { + The amendments to ORS 137.717 and 475.933 by
sections 1 and 2 of this 2011 Act apply to crimes committed on or
after the effective date of this 2011 Act. + }
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