Bill Text: OR SB78 | 2011 | Regular Session | Engrossed
Bill Title: Relating to compassionate release of prisoners; prescribing an effective date; providing for criminal sentence reduction that requires approval by a two-thirds majority.
Sponsorship: Unknown
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB78 Detail]
Download: Oregon-2011-SB78-Engrossed.html
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 1301
A-Engrossed
Senate Bill 78
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 Governor John A. Kitzhaber
for Department of Corrections)
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.
Prohibits prisoners sentenced to death from requesting reset or
advance of release date.
Authorizes State Board of Parole and Post-Prison Supervision to
advance release date of prisoner sentenced for crime, other than
aggravated murder or murder, committed on or after November 1,
1989, who { - is severely ill or - } { + suffers from severe
medical condition, including terminal illness, that has caused
impairment and will likely not improve or who is + } elderly and
permanently incapacitated.
Takes effect only if Senate Joint Resolution 3 (2011) is
approved by people at next regular general election. Takes effect
on effective date of constitutional amendment proposed in Senate
Joint Resolution 3 (2011).
A BILL FOR AN ACT
Relating to compassionate release of prisoners; amending ORS
137.635, 137.700, 137.707, 144.122, 144.126, 144.232 and
161.737; prescribing an effective date; and providing for
criminal sentence reduction that requires approval by a
two-thirds majority.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 144.122 is amended to read:
144.122. (1) { - After the initial parole release date has
been set under ORS 144.120 and after a minimum period of time
established by the State Board of Parole and Post-Prison
Supervision under subsection (2)(a) of this section, the - }
{ + A + } prisoner may request that the { + prisoner's + }
parole release date be reset to an earlier date { - . - } { + :
(a) For a prisoner eligible for an initial parole release date
under ORS 144.120, after the initial parole release date has been
set and after a minimum period of time established by the State
Board of Parole and Post-Prison Supervision under subsection
(3)(a) of this section.
(b) For a prisoner not eligible for an initial parole release
date under ORS 144.120, after a minimum period of time
established by the board under subsection (3)(a) of this
section. + }
{ + (2) + } The board may grant the request upon a
determination by the board that { + :
(a) + } Continued incarceration { + of the prisoner + } is
cruel and inhumane { - and that - } { + ;
(b) + } Resetting the release date to an earlier date is not
incompatible with the best interests of the prisoner and society
{ - and that - } { + ; and
(c) + } The prisoner:
{ - (a) - } { + (A) + } Has demonstrated an extended course
of conduct indicating outstanding reformation;
{ - (b) Suffers from a severe medical condition including
terminal illness; or - }
{ + (B) Suffers from a severe medical condition, including
terminal illness, that has caused substantial physical or
cognitive impairment or incapacity for which there is no
reasonable expectation of significant improvement; or + }
{ - (c) - } { + (C) + } Is elderly and is permanently
incapacitated in such a manner that the prisoner is unable to
move from place to place without the assistance of another
person.
{ - (2) - } { + (3) + } The Advisory Commission on Prison
Terms and Parole Standards may propose to the board and the board
shall adopt rules:
(a) Establishing minimum periods of time to be served by
prisoners before application may be made for a reset of release
date under subsection (1) of this section;
(b) Detailing the criteria set forth under subsection
{ - (1) - } { + (2) + } of this section for the resetting of a
parole release date; and
(c) Establishing criteria for parole release plans for
prisoners released under this section that { - , at a minimum,
must insure - } { + ensure + } appropriate supervision and
services for the person released.
{ - (3) The provisions of subsection (1)(b) of this section
apply to prisoners sentenced in accordance with ORS 161.610. - }
(4) The provisions of this section do not apply to prisoners
sentenced to { + death or + } life imprisonment without the
possibility of release or parole { - under ORS 138.012 or
163.150 - } .
SECTION 2. ORS 144.126 is amended to read:
144.126. (1) The State Board of Parole and Post-Prison
Supervision may advance the release date of a prisoner who was
sentenced { - in accordance with rules of the Oregon Criminal
Justice Commission or ORS 161.610 - } { + for a crime, other
than aggravated murder or murder, committed on or after November
1, 1989 + }.
{ + (2) + } The release date may be advanced if the board
determines that { + :
(a) + } Continued incarceration { + of the prisoner + } is
cruel and inhumane { - and that - } { + ;
(b) + } Advancing the release date of the prisoner is not
incompatible with the best interests of the prisoner and society
{ - and that - } { + ; and
(c) + } The prisoner { - is - } :
{ - (a) Suffering from a severe medical condition including
terminal illness; or - }
{ + (A) Suffers from a severe medical condition, including
terminal illness, that has caused substantial physical or
cognitive impairment or incapacity for which there is no
reasonable expectation of significant improvement; or + }
{ - (b) - } { + (B) + } { - Elderly and - } { + Is
elderly and is + } permanently incapacitated in such a manner
that the prisoner is unable to move from place to place without
the assistance of another person.
{ - (2) - } { + (3) + } The board shall adopt rules
establishing criteria for release plans for prisoners released
under this section that { - , at a minimum, must insure - }
{ + ensure + } appropriate supervision and services for the
person released.
{ - (3) - } { + (4) + } The provisions of this section do
not apply to prisoners sentenced to { + death or + } life
imprisonment without the possibility of release or parole
{ - under ORS 138.012 or 163.150 - } .
SECTION 3. ORS 137.635 is amended to read:
137.635. (1) { + (a) + } When, in the case of a felony
described in subsection (2) of this section, a court sentences a
convicted defendant who has previously been convicted of any
felony designated in subsection (2) of this section, the sentence
{ - shall - } { + may + } not be an indeterminate sentence to
which the defendant otherwise would be subject under ORS 137.120,
but, unless it imposes a death penalty under ORS 163.105, the
court shall impose a determinate sentence, the length of which
the court shall determine, to the custody of the Department of
Corrections. Any mandatory minimum sentence otherwise provided by
law { - shall apply - } { + applies + }. The sentence
{ - shall - } { + may + } not exceed the maximum sentence
otherwise provided by law { - in such cases - } . The convicted
defendant who is subject to this section { - shall not be - }
{ + is not + } eligible for probation.
{ + (b) + } { - The convicted defendant shall - } { +
Except as provided by ORS 144.126, a convicted defendant who is
subject to this section must + } serve the entire sentence
imposed by the court and { - shall not, - } { + is not:
(A) + } During the service of such a sentence, { - be - }
eligible for parole or any form of temporary leave from custody
{ - . The person shall not - } { + ; or
(B) + } { - Be - } Eligible for any reduction in sentence
pursuant to ORS 421.120 or for any reduction in term of
incarceration pursuant to ORS 421.121.
(2) Felonies to which subsection (1) of this section applies
{ - include and are limited to - } { + are + }:
(a) Murder, as defined in ORS 163.115, and any aggravated form
{ - thereof - } { + of murder + }.
(b) Manslaughter in the first degree, as defined in ORS
163.118.
(c) Assault in the first degree, as defined in ORS 163.185.
(d) Kidnapping in the first degree, as defined in ORS 163.235.
(e) Rape in the first degree, as defined in ORS 163.375.
(f) Sodomy in the first degree, as defined in ORS 163.405.
(g) Unlawful sexual penetration in the first degree, as defined
in ORS 163.411.
(h) Burglary in the first degree, as defined in ORS 164.225.
(i) Arson in the first degree, as defined in ORS 164.325.
(j) Robbery in the first degree, as defined in ORS 164.415.
(3) When the court imposes a sentence under this section, the
court shall indicate in the judgment that the defendant is
subject to this section.
SECTION 4. ORS 137.700 is amended to read:
137.700. (1) { + (a) + } Notwithstanding ORS 161.605, when a
person is convicted of one of the offenses listed in subsection
(2)(a) of this section and the offense was committed on or after
April 1, 1995, or of one of the offenses listed in subsection
(2)(b) of this section and the offense was committed on or after
October 4, 1997, or of the offense described in subsection (2)(c)
of this section and the offense was committed on or after January
1, 2008, the court shall impose { - , and the person shall
serve, - } at least the entire term of imprisonment listed in
subsection (2) of this section.
{ + (b) + } { - The person - } { + Except as provided in
ORS 144.126, a person sentenced under this section must serve the
entire term of imprisonment imposed by the court and + }is not
{ - , - } { + : + }
{ + (A) + } During the service of the term of imprisonment,
eligible for release on post-prison supervision or any form of
temporary leave from custody { - . The person is not - } { + ;
or
(B) + } Eligible for any reduction in { - , or based on, - }
the minimum sentence { - for any reason whatsoever under ORS
421.121 or any other statute - } .
{ + (c) + } The court may impose a greater sentence if
otherwise permitted by law, but may not impose a lower sentence
than the sentence specified in subsection (2) of this section.
(2) The offenses to which subsection (1) of this section
applies and the applicable mandatory minimum sentences are:
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(a)(Murder, as defined in
ORS 163.115...300 months
(B) Attempt or conspiracy
to commit aggravated
murder, as defined
in ORS 163.095120 months
(C) Attempt or conspiracy
to commit murder, as
defined in ORS 903months
(D) Manslaughter in the
first degree, as defined
in ORS 163.118120 months
(E) Manslaughter in the
second degree, as defined
in ORS 163.125.75 months
(F) Assault in the first
degree, as defined in
ORS 163.185....90 months
(G) Assault in the second
degree, as defined in
ORS 163.175....70 months
(H) Except as provided in
paragraph (b)(G) of
this subsection,
kidnapping in the first
degree, as defined
in ORS 163.235.90 months
(I) Kidnapping in the second
degree, as defined in
ORS 163.225....70 months
(J) Rape in the first degree,
as defined in ORS 163.375
(1)(a), (c) or100)months
(K) Rape in the second degree,
as defined in O75 months5.
(L) Sodomy in the first degree,
as defined in ORS 163.405
(1)(a), (c) or100)months
(M) Sodomy in the second
degree, as defined in
ORS 163.395....75 months
(N) Unlawful sexual penetration
in the first degree, as
defined in ORS 163.411
(1)(a) or (c).100 months
(O) Unlawful sexual penetration
in the second degree, as
defined in ORS 753months
(P) Sexual abuse in the first
degree, as defined in
ORS 163.427....75 months
(Q) Robbery in the first degree,
as defined in O90 months5.
(R) Robbery in the second
degree, as defined in
ORS 164.405....70 months
(b)(Arson in the first degree,
as defined in ORS 164.325,
when the offense represented
a threat of serious
physical injury90 months
(B) Using a child in a display
of sexually explicit
conduct, as defined in
ORS 163.670....70 months
(C) Compelling prostitution,
as defined in O70 months7.
(D) Rape in the first degree,
as defined in
ORS 163.375 (1300)months
(E) Sodomy in the first degree,
as defined in
ORS 163.405 (1300)months
(F) Unlawful sexual penetration
in the first degree, as
defined in
ORS 163.411 (1300)months
(G) Kidnapping in the first
degree, as defined in
ORS 163.235, when the
offense is committed in
furtherance of the commission
or attempted commission of an
offense listed in subparagraph
(D), (E) or (F) of
this paragraph300 months
(c) Aggravated vehicular
homicide, as defined in
ORS 163.149...240 months
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
SECTION 5. ORS 137.707 is amended to read:
137.707. (1)(a) Notwithstanding any other provision of law,
when a person charged with aggravated murder, as defined in ORS
163.095, or an offense listed in subsection (4)(a) of this
section is 15, 16 or 17 years of age at the time the offense is
committed, and the offense is committed on or after April 1,
1995, or when a person charged with an offense listed in
subsection (4)(b) of this section is 15, 16 or 17 years of age at
the time the offense is committed, and the offense is committed
on or after October 4, 1997, or when a person charged with the
offense described in subsection (4)(c) of this section is 15, 16
or 17 years of age at the time the offense is committed and the
offense is committed on or after January 1, 2008, the person
{ - shall - } { + must + } be prosecuted as an adult in
criminal court.
(b) A district attorney, the Attorney General or a juvenile
department counselor may not file in juvenile court a petition
alleging that a person has committed an act that, if committed by
an adult, would constitute aggravated murder or an offense listed
in subsection (4) of this section if the person was 15, 16 or 17
years of age at the time the act was committed.
(2) { + (a) + } When a person charged under this section is
convicted of an offense listed in subsection (4) of this section,
the court shall impose at least the presumptive term of
imprisonment provided for the offense in subsection (4) of this
section. The court may impose a greater presumptive term if
otherwise permitted by law, but may not impose a lesser term.
{ - The person is not, - }
{ + (b) Except as provided in ORS 144.126, a person sentenced
under this section is not:
(A) + } During the service of the term of imprisonment,
eligible for release on post-prison supervision or any form of
temporary leave from custody { - . The person is not - } { + ;
or
(B) + } Eligible for any reduction in { - , or based on, - }
the minimum sentence { - for any reason under ORS 421.121 or
any other provision of law - } .
{ + (c) + } ORS 138.012, 163.105 and 163.150 apply to
sentencing a person prosecuted under this section and convicted
of aggravated murder under ORS 163.095 except that a person who
was under 18 years of age at the time the offense was committed
is not subject to a sentence of death.
(3) The court shall commit the person to the legal and physical
custody of the Department of Corrections.
(4) The offenses to which this section applies and the
presumptive sentences are:
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
(a)(Murder, as defined in
ORS 163.115...300 months
(B) Attempt or conspiracy
to commit aggravated
murder, as defined
in ORS 163.095120 months
(C) Attempt or conspiracy
to commit murder, as
defined in ORS 903months
(D) Manslaughter in the
first degree, as defined
in ORS 163.118120 months
(E) Manslaughter in the
second degree, as defined
in ORS 163.125.75 months
(F) Assault in the first
degree, as defined
in ORS 163.185.90 months
(G) Assault in the second
degree, as defined
in ORS 163.175.70 months
(H) Kidnapping in the first
degree, as defined in
ORS 163.235....90 months
(I) Kidnapping in the second
degree, as defined in
ORS 163.225....70 months
(J) Rape in the first degree,
as defined in 100 months5
(K) Rape in the second
degree, as defined in
ORS 163.365....75 months
(L) Sodomy in the first
degree, as defined in
ORS 163.405...100 months
(M) Sodomy in the second
degree, as defined in
ORS 163.395....75 months
(N) Unlawful sexual
penetration in the first
degree, as defined
in ORS 163.411100 months
(O) Unlawful sexual
penetration in the
second degree, as
defined in ORS 753months
(P) Sexual abuse in the first
degree, as defined in
ORS 163.427....75 months
(Q) Robbery in the first
degree, as defined in
ORS 164.415....90 months
(R) Robbery in the second
degree, as defined in
ORS 164.405....70 months
(b)(Arson in the first degree,
as defined in
ORS 164.325, when
the offense represented
a threat of serious
physical injury90 months
(B) Using a child in a display
of sexually explicit
conduct, as defined in
ORS 163.670....70 months
(C) Compelling prostitution,
as defined in O70 months7.
(c) Aggravated vehicular
homicide, as defined in
ORS 163.149...240 months
_________________________________________________________________
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(5) If a person charged with an offense under this section is
found guilty of a lesser included offense and the lesser included
offense is:
(a) An offense listed in subsection (4) of this section, the
court shall sentence the person as provided in subsection (2) of
this section.
(b) Not an offense listed in subsection (4) of this section:
(A) But constitutes an offense for which waiver is authorized
under ORS 419C.349, the court, upon motion of the district
attorney, shall hold a hearing to determine whether to retain
jurisdiction or to transfer the case to juvenile court for
disposition. In determining whether to retain jurisdiction, the
court shall consider the criteria for waiver in ORS 419C.349. If
the court retains jurisdiction, the court shall sentence the
person as an adult under sentencing guidelines. If the court does
not retain jurisdiction, the court shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile
court for disposition under ORS 419C.067 and 419C.411.
(B) And is not an offense for which waiver is authorized under
ORS 419C.349, the court may not sentence the person. The court
shall:
(i) Order that a presentence report be prepared;
(ii) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(iii) Enter an order transferring the case to the juvenile
court for disposition under ORS 419C.067 and 419C.411.
(6) When a person is charged under this section, other offenses
based on the same act or transaction { - shall - }
{ + must + } be charged as separate counts in the same
accusatory instrument and consolidated for trial, whether or not
the other offenses are aggravated murder or offenses listed in
subsection (4) of this section. If it appears, upon motion, that
the state or the person charged is prejudiced by the joinder and
consolidation of offenses, the court may order an election or
separate trials of counts or provide whatever other relief
justice requires.
(7)(a) If a person charged and tried as provided in subsection
(6) of this section is found guilty of aggravated murder or an
offense listed in subsection (4) of this section and one or more
other offenses, the court shall impose the sentence for
aggravated murder or the offense listed in subsection (4) of this
section as provided in subsection (2) of this section and shall
impose sentences for the other offenses as otherwise provided by
law.
(b) If a person charged and tried as provided in subsection (6)
of this section is not found guilty of aggravated murder or an
offense listed in subsection (4) of this section, but is found
guilty of one of the other charges that constitutes an offense
for which waiver is authorized under ORS 419C.349, the court,
upon motion of the district attorney, shall hold a hearing to
determine whether to retain jurisdiction or to transfer the case
to juvenile court for disposition. In determining whether to
retain jurisdiction, the court shall consider the criteria for
waiver in ORS 419C.349. If the court retains jurisdiction, the
court shall sentence the person as an adult under sentencing
guidelines. If the court does not retain jurisdiction, the court
shall:
(A) Order that a presentence report be prepared;
(B) Set forth in a memorandum any observations and
recommendations that the court deems appropriate; and
(C) Enter an order transferring the case to the juvenile court
for disposition under ORS 419C.067 and 419C.411.
SECTION 6. ORS 144.232 is amended to read:
144.232. (1) A person sentenced under ORS 161.725 and 161.735
as a dangerous offender for felonies committed on or after
November 1, 1989, shall be considered for release to post-prison
supervision. { + Except as provided in ORS 144.126, + } the
offender is { + not + } eligible for release to post-prison
supervision { - after - } { + before + } having served the
required incarceration term established under ORS 161.737.
(2) The State Board of Parole and Post-Prison Supervision shall
hold a release hearing no later than 10 days prior to the date on
which the offender becomes eligible for release on post-prison
supervision as provided in subsection (1) of this section.
(3) The dangerous offender's eligibility for and release to
post-prison supervision shall be determined in a manner
consistent with the procedures and criteria required by ORS
144.228 for the parole determination process applicable to
dangerous offenders sentenced for crimes committed prior to
November 1, 1989.
(4) An offender released under this section shall serve the
remainder of the sentence term imposed under ORS 161.725, 161.735
and 161.737 on post-prison supervision, however:
(a) Notwithstanding ORS 137.010 or the rules of the Oregon
Criminal Justice Commission, the State Board of Parole and
Post-Prison Supervision may sanction an offender to the
supervision of the local authority for a maximum period of 180
days for any supervision violation. The sanction may be imposed
repeatedly during the term of post-prison supervision for
subsequent supervision violations.
(b) After release under this section, the board may at any time
return the offender to prison and require the offender to submit
to a psychiatric or psychological examination as provided for in
ORS 144.226. If the board finds that the offender's dangerousness
has returned and cannot be adequately controlled with supervision
and mental and physical health treatment, or that resources for
supervision and treatment are not available to the offender, the
board may defer the offender's release from prison for an
indefinite period of time. An offender returned to prison under
this paragraph is entitled to periodic reviews for possible
release to post-prison supervision as provided by subsection (3)
of this section.
SECTION 7. ORS 161.737 is amended to read:
161.737. (1) A sentence imposed under ORS 161.725 and 161.735
for felonies committed on or after November 1, 1989, shall
constitute a departure from the sentencing guidelines created by
rules of the Oregon Criminal Justice Commission. The findings
made to classify the defendant as a dangerous offender under ORS
161.725 and 161.735 shall constitute substantial and compelling
reasons to depart from the presumptive sentence as provided by
rules of the Oregon Criminal Justice Commission.
(2) When the sentence is imposed, the sentencing judge shall
indicate on the record the reasons for the departure and shall
impose, in addition to the indeterminate sentence imposed under
ORS 161.725, a required incarceration term that { + , except as
provided in ORS 144.126, + } the offender must serve before
release to post-prison supervision. If the presumptive sentence
that would have been imposed if the court had not imposed the
sentence under ORS 161.725 and 161.735 as a departure is a prison
sentence, the required incarceration term shall be no less than
the presumptive incarceration term and no more than twice the
maximum presumptive incarceration term. If the presumptive
sentence for the offense is probation, the required incarceration
term shall be no less than the maximum incarceration term
provided by the rule of the Oregon Criminal Justice Commission
that establishes incarceration terms for dispositional departures
and no more than twice that amount. However, the indeterminate
sentence imposed under this section and ORS 161.725 is not
subject to any guideline rule establishing limitations on the
duration of departures.
SECTION 8. { + This 2011 Act does not take effect unless the
amendment to the Oregon Constitution proposed by Senate Joint
Resolution 3 (2011) is approved by the people at the next regular
general election held throughout this state. This 2011 Act takes
effect on the effective date of that constitutional
amendment. + }
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