| The Development of Oregon's |
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Sentencing and Corrections Policy
Oregon´s prison overcrowding began in the second half of calendar year 1975. A 1982 proposal for the Prison Overcrowding Project submitted by The Oregon Council on Crime and Delinquency, states that in the period between 1975 and 1980 Oregon´s general population increased by 15 percent. This increase was accompanied by a 35 percent increase in arrests and a 33 percent increase in felony court case filings. New commitments to state facilities increased by 28 percent and new commitments to probation increased by 90 percent.1
A brief history of the events and attempts to deal with this problem.
The Law Enforcement Council. The federal Omnibus Crime Control and Safe Streets Act of 1968 provided funds to the states to make improvements in the criminal justice system throughout the 1970s. Portland, having been designated a high crime area, was one of ten cities selected to receive extra funds. In 1974 there was $5,446,000 in Law Enforcement Assistance Administration funds designated for state and local projects and another $3,251,970 for the Portland area. In 1975 the amounts were $5,551,000 for state and local projects and $3,102,661 for the Portland area.2 The above included a ten percent match of state and local funds but did not include funding for the state´s criminal history project, the Law Enforcement Data System, the Oregon Uniform Crime Reporting project and the state´ Statistical Analysis Center. The need for improved criminal justice information systems had been identified prior to the passage of the act and were funded separately.
The amount allocated to corrections in fiscal year 1974 was $1,232,000 and in 1975 was $1,186,573. This was a time of a shift from custody only to rehabilitation, characterized by treatment programs and community supervision for both felony and misdemeanant offenders.
The prior decade had seen little change in the state prison population. In the 1961-1962 fiscal year the prison population was 1,844 and in the fiscal year 1973-1974, 1,930. Total admissions to prison for the fiscal year 1973-1974 were 1,291. The total placed on felony probation under the supervision of the state Community Services was 1,517 offenders in fiscal year 1973-1974. The total number of offenders under supervision on June 30, 1974 was 6,399.
Community Corrections. In 1975 Governor Straub appointed a Task Force on Corrections. A major element of the Task Force´s Oregon Correction Master Plan was the recommendation for a statewide community corrections system to provide alternatives to holding minor felons in secure and expensive state custody.3 The Task Force had worked closely with the Law Enforcement Council in the development of the plan. The 1977 Legislature provided state funds under the Act to enhance existing community programs and develop new sentencing alternatives to prison incarceration.
Prior to the enactment of the Community Corrections Act in 1977, all felony probation and parole supervision was the direct responsibility of the state.
Indeterminate Sentencing. Oregon like other states had had a form of sentencing known as "indeterminate" meaning open ended and not determined precisely.1 An offender sentenced to the state prison was sent there for up to the sentenced number of years, to be determined on the basis of his or her rehabilitation. It was up to the Parole Board to determine when that rehabilitation occurred, if at all. The prison sentence was limited to the maximum number of years established by the criminal law classification which was five years for a "C" felony, ten years for a "B" felony, and twenty years for an "A" felony. Different courts could sentence similar offenders committing similar crimes to vastly different sentence lengths.
The Parole Matrix. The 1977 legislature mandated the use of a parole matrix to achieve equity among inmates so that similar prisoners would serve a similar length of time.4 The release decisions were to be based on severity of the crime committed and the offender´s "risk factor" that was based on criminal history and adjusted for aggravating and mitigating circumstances. The legislature also made it clear that it wanted the Parole Board to increase the length of stay as much as possible for the more serious offenders .
Increasing prison terms for serious offenders was accomplished by decreasing prison terms for the less serious offenders. These actions signaled the move from a rehabilitative model of "corrections" to a "just deserts" model of sanctions. Judges began to sentence less serious offenders more frequently to county jails. Although the maximum jail term is one year, under ORS 137.520, this was often longer than a less serious offender would have spent in state prison.
- In 1978, the prison population in all of Oregon´s state correctional facilities was 2,602. 3
- In 1980, and according to the Prison Overcrowding Project Proposal, 81 percent of the inmates admitted to prison had never been inmates of state institutions in Oregon, or any where else, and as adults or juveniles.
- The Felony Probation and Parole caseload for the fiscal year 1980-1981 was 11,155 (Field Services, Department of Corrections).
Capps v. Atiyeh : Oregon´s Prisons Unconstitutional. In 1980 the federal court ruled in Capps v. Atiyeh that the Oregon prisons presented unconstitutional conditions and ordered the state to reduce the institutional populations. On appeal, the U.S. Court of Appeals vacated and remanded the order to the U.S. District Court. In December of 1982, the U.S. District court said that Oregon´s prisons did not violate Constitution standards, but were, nonetheless, so seriously overcrowded that future court intervention could be likely if remedial steps were not taken.
In 1982, federal funding supporting the Law Enforcement Council, it´s programs and projects was abolished.
- In 1983, the legislature authorized conversion of the Eastern Oregon Hospital and Training Center to a 350-bed, medium-security correctional facility. 3
The Prison Overcrowding Project.Oregon was not alone in its prison overcrowding situation. The Edna McConnell Clark Foundation and the National Institute of Corrections funded a national Prison Overcrowding Project. The Project provided grants and technical assistance to four states: Colorado, Michigan, Oregon, and South Carolina in 1983. The Project sought to examine the factors contributing to prison overcrowding and develop strategies to control the size of prison populations.
The Oregon Prison Overcrowding Project collected offender-based data on inmates, offenders released from jail, and probationers. The Oregon Project concluded that the Oregon correctional system was expertly managed, given the offenders sent to it. They also did an inventory of the sanctions (punishments) and services available at the local level on a county by county basis.
The Criminal Justice Council. The Oregon Prison Overcrowding Project in its final 1985 report supported the formation of a Criminal Justice Council (House Bill 2093). "The primary purpose of the Criminal Justice Council was to provide a permanent forum ...for communication, coordination and overall planning". The Council would develop a punishment/risk management model that could be tested and validated in Oregon. The goal was to have a system that was capable of matching sanctions according to both the offense (punishment) and the offender (risk).
- The prison population on February 1, 1985 was 3,562 inmates according to the then Oregon Corrections Division.
- The Eastern Oregon Correction Institution (EOCI) opened in June 1985. 3
Oregon had a Jail Overcrowding Project from 1984 through 1988 that was related to the Prison Overcrowding Project. Their final 1988 report noted that twenty-two of the thirty-two counties operating jails had been sued for unconstitutional conditions of confinement. Jail population limits were either ordered (fourteen counties), or voluntarily set to avoid costly litigation. 4 The Project made findings and recommendations to the 1987 legislature.
The Sentencing Guidelines Proposal. Along with the Criminal Justice Council, established in 1985, the Jail Overcrowding Project recommended the Council develop sentencing guidelines. The guidelines were to be based on the severity of the offense and the seriousness of the offender´s criminal history. The guidelines would synchronize the demand and supply of correctional resources, including jails. The proposal was to be presented to the 1989 legislature.
The Jail Overcrowding Project also found that unnecessary delays were contributing to the overcrowding of jails. Time limits were adopted for: 1) offenders being detained in jails awaiting determination of whether they had violated conditions of their probation, 2) delays between conviction and sentencing, and 3) delays in the transmittal of the judgement orders to the sheriff for defendants in custody.
The 1987 legislature also passed a law declaring it state policy that the state, not the counties, was responsibile for the incarceration of sentenced felons.
The Governor´s Task Force on Corrections Planning. The voters of Oregon had defeated three ballot measures for the construction of new correction facilities over a period of six years preceding 1987. On January 7, 1987, Governor-elect Goldschmidt announced his Criminal Justice Initiative, "aimed at gaining control of the state´s criminal justice system and its most pressing problem, prison overcrowding." 5
The Task Force on Corrections Planning concluded that the then current need for more space in Oregon´s prison system could be met with minimum-security facilities. Governor Goldschmidt proposed adding 761 beds at the Eastern Oregon Institution in Pendleton and 900 beds in new minimum security facilities throughout the state.
This Task Force also found that the existence of a sound offender classification system was essential to assigning appropriate offenders to minimum-security custody. Oregon´s Department of Corrections did not then have an adequate classification system. It was concluded that an offender classification system must be fully operational before the proposed facilities could become operational.
The Factors of Prison Overcrowding. The Governor´s Task Force on Corrections Planning, in a September 1988 report, provided an explanation of the growth of the prison population: "There are several factors more significant than increases in reported crime which have caused the growth in Oregon´s prison population. These are: (1) increasing rates of recidivism and revocation on the part of offenders on community supervision; (2) more effective law enforcement; (3) a higher number of prison sentences; (4) significant increases in the length of confinement for more serious offenders; and (5) frequent use by judges of mandatory minimum and consecutive sentences.
"In 1987 over 61 percent of the admissions to Oregon prisons were for offenders whose probation or parole was being revoked, either for violation of a condition of supervision or for a new crime. Only 38 percent of the 1987 prison admissions were new offenders who were not on parole or probation.
"More offenders are going to prison, and the most serious offenders are serving longer sentences than ever before. Contrary to popular impression, Oregon´s criminal justice system has already gotten tougher on crime. However, the state´s sanctioning capacity has not increased at a rate sufficient to fully enforce these policies." 6 The state correctional facilities were being used to sanction (punish) offenders who had been on probation, parole or post prison supervision and had violated the terms of their supervision or committed some new (but minor) crime.
In 1988 the voters passed Ballot Measure 4 (codified as ORS 137.635), which prohibits probation sentences and sentence reduction for certain repeat offenders.
Sentencing Guidelines Adopted. With the adoption of the sentencing guidelines in 1989 imprisonment rates and lengths of stay in prison for convictions of violent crimes increased. Prison sentences for drug crimes, other than simple possession, also increased, while sentences for property crimes decreased. The length of jail and probation sentences also decreased.
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Oregon´s total prison population on July 1, 1990 was 6,200.6 There were 23,000 felony offenders under supervision.
More than 80 percent of all prison admissions in 1991 were revoked community supervision cases, and more than half the prison population had been under community supervision immediately prior to incarceration.7
According to the Department of Corrections in a 1992 study, over 70 percent of the revoked population was sent to prison without having experienced any community-based sanctions for violation behaviors. For the vast majority that did receive some sanction, that sanction was jail. 7
The 1993 legislature enacted structured sanctions to expand local punishments for probation and post prison supervision violation, and reduce revocation to prison.
Ballot Measure 11. In 1994 the voters of Oregon passed Ballot Measure 11, which mandates prison sentences, minimum lengths of stay and prohibits early release for specific crimes of sex and violence (ORS 137.700 - ORS 137.710). Juveniles 15, 16, and 17 years of age committing the crimes were to be prosecuted as adults. (For more information see Department of Corrections)
The Shift to Counties. Governor Kitzaber, in 1994, established a team on community corrections programs to suggest proposals to lessen the need for prison building.8 The 1995 legislature passed Senate Bill 1145 (ORS 423.475 to 423.560), which directs counties to assume responsibility for all aspects of parole and probation supervision. Revocation sanctions are to be served in local facilities instead of prisons, effective July 1, 1997. All felony offenders sentenced to a term of incarceration of 12 months or less are to remain in local custody .
The Criminal Justice Commission. The 1995 legislative session allowed the Criminal Justice Council to sunset and created the Criminal Justice Commission. The earlier planning bodies had been composed of representatives from all elements of the criminal justice system, typically including law enforcement, local government, the judiciary, the Legislature, the Parole Board, the State Corrections Division/Department of Corrections, and prosecuting and defense attorneys. The new Commission was composed of but seven members, appointed with consideration to the different geographic regions of the state and with no more than four being from the same political party. Although the commission was limited in number the chairman was given the authority to create additional committees.
Longer Sentences Allowed. In 1996, voters adopted the Victims´ Rights constitutional amendment (Ballot Measure 40). It also expanded authority to impose consecutive sentences and allowed judges to disallow earned time credit and other sentence reduction. Although the amendment passed, it was eventually overturned, being found unconstitutional. The sentencing provisions of the amendment were later adopted by the 1997 legislature into law.
A special session of the legislature passed House Bill 3488 (ORS 137.717), creating presumptive prison sentences for certain repeat property offenders, primarily burglary 1 (19 months), burglary 2 (13 months) and car theft (13 months), effective July 1, 1997.
- The total prison population was 8,435 on July 1, 1998.9 According to the federal Bureau of Justice Statistics, Oregon had 260 prisoners sentenced to more than a year per 100,000 population; the U.S. national rate was 460 per 100,000 population.
Ballot Measure 11 Continued. In the November 2000 general election, voters overwhelmingly rejected a measure to repeal ballot measure 11 minimum mandatory prison sentences (73.5 percent no -- 26.5 percent to repeal).
Sentencing Practices: Before and After Guidelines.The Criminal Justice Council had conducted a survey representative of all felony convictions in 1986 for the purpose of developing the sentencing guidelines.10 The collected data was linked to a Department of Corrections database of admissions and release. The Council staff created a table of the actual time served between admission and parole. The calculations did not include temporary leave and did not include time served in jail. The imprisonment rate was estimated to be 18 percent with a total of 1,528 offenders sentenced to prison.
In Table 1 the average sentence length served in 1986 by crime group is compared to the average sentence reported in 1994 following the implementation of the Sentencing Guidelines. This 1994 data was not adjusted for non-reporting counties and was not adjusted for earned time credit, which was limited to a maximum of 20 percent of the sentence. The sentences are the total sentence including consecutive sentences where applied. The imprisonment rate was calculated to be 22 percent with a total of 2,763 offenders sentenced to prison. The crime group classification was based on the most serious crime of conviction (see the crimes within a group, use the back button to return).
| Table 1. Average Time Served in Months for 1986 and Average Sentence Length in Months for 1994 by Major Crime Group. |
| Crime Group |
1986 |
1994 |
| Arson |
5.1 |
46.2 |
| Assault |
26.1 |
38.5 |
| Burglary |
19.0 |
30.6 |
| Driving |
7.6 |
7.4 |
| Drug Manufacture/Delivery |
9.7 |
16.8 |
| Drug Possession |
9.0 |
5.4 |
| Forgery/Fraud |
14.4 |
7.7 |
| Homicide |
34.4 |
157.5 |
| Other |
13.1 |
15.5 |
| Other Person |
49.6 |
63.6 |
| Other Property |
|
4.8 |
| Other Sex |
22.2 |
32.6 |
| Rape/Sodomy |
40.1 |
94.9 |
| Robbery |
33.6 |
44.0 |
| Theft/Motor Vehicle Theft |
9.6 |
8.7 |
| Total Average |
21.3 |
30.9 |
It is clear that the average length of time in prison increased overall (an increase of 45 percent for the total) and particularly for crimes of violence. From 1986 to 1994 the number of offenders sentenced to prison increased 81 percent.
Department of Corrections Sentences: Before and after Ballot Measure 11 and Senate Bill 1145. Table 2 compares the length of the average prison sentence for offenders sentenced to the Department of Corrections in 1994 and in 2001. The imprisonment rate to the Department of Corrections in 2001 was 21 percent and a total of 3,190 offenders were sentenced to the Departments custody. Senate Bill 1145 became effective July 1, 1997 and directed that all sentences of 12 months or less incarceration be served at a local facility. Ballot Measure 11 disallowed for any reductions in the length of sentence beyond the mandatory minimum for the listed crimes. Further, judges were empowered in 1996 to disallow for any other crime the earned time credit and any other sentence reduction. Crime contained in the crime groups includes the attempt, solicitation to commit, and conspiracy to commit the crime.
| Table 2. Average Sentence Length in Months in 1994 and in 2001 for Offenders Sentenced to the Custody of the Department of Corrections by Major Crime Group. |
| Crime Group |
1994 |
2001 |
| Arson |
46.2 |
67.4 |
| Assault |
38.5 |
38.9 |
| Burglary |
30.6 |
29.9 |
| Driving |
7.4 |
22.6 |
| Drug Manufacture/Delivery |
16.8 |
24.1 |
| Drug Possession |
5.4 |
24.2 |
| Forgery/Fraud |
7.7 |
16.8 |
| Homicide |
157.5 |
167.8 |
| Other |
15.5 |
25.4 |
| Other Person |
63.6 |
41.7 |
| Other Property |
4.8 |
15.1 |
| Other Sex |
32.6 |
76.3 |
| Rape/Sodomy |
94.9 |
118.6 |
| Robbery |
44.0 |
69.1 |
| Theft/Motor Vehicle Theft |
8.7 |
17.4 |
| Total Average |
30.9 |
44.5 |
The average convicted offender sentenced to the custody of the Department of Corrections typically had a much longer sentence in 2001 than in 1994. An overall increase of 44 percent for the Total Average prison sentence length and the increase is apparent for all crime groups except Assault, Burglary and Other Person. 11 From 1994 to 2001 the number of offenders sentenced to the Department of Corrections increased 15 percent.
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The total prison population was 11,450 on July 1, 2002.12
The Department of Corrections counted its supervised probation and post prison population at 29,521 on July 1, 2002. The population of felony offenders under local control (incarceration sentences of 12 months and less) was 1,265.
Based on population estimates from the Center for Population and Research, Portland State University, in 1974 Oregon had 85 felony offenders in prison for every 100,000 population (1930/2,266,000). On July 1, 2002 Oregon had 327 felony offenders per 100,000 population in the states prison system (11,450/3,504,700).
In 1974 Oregon had 282 felony offenders per 100,000 population under supervision, probation or parole. In 2002, Oregon had 842 felony offenders per 100,000 population under probation or post prison supervision.
1Prison Overcrowding Project Proposal Submitted by the Oregon Council on Crime and Delinquency April 6, 1982.
2Law Enforcement Comprehensive Plan. December 31, 1974.
3Local Economic and Fiscal Impacts of a Minimum-Security Correctional Facility in Region One. Prepared for the Oregon Department of Corrections by Karen M. Seidel and Ronald L Chastain. Bureau of Governmental Research and Services. University of Oregon February 1988.
4Final Report of the Oregon Jail Overcrowding Project. Oregon Jail Overcrowding Project 2/18/1988.
5Emergency Plan For Minimum-Security Correctional Facilities. Adopted by Executive Order on September 16, 1987. Governors Task Force on Corrections Planning.
6Contained in the appendix of Special Report to the Governor and the Legislature: Promoting Balance in Oregon´s Corrections System. Governor´s Task Force on Corrections Planning. July 1990.
7From Community Supervision to Prison a Study of Felony Probation and Parole Revocation. Oregon Department of Corrections. September 1992.
8Oregon Community Corrections Funding Formula Review. Prepared for the Association of Oregon Counties By Billy F. Wasson, Consultant. November 2002.
9Oregon Corrections Population Forecast. Prepared by the Department of Administrative Services. October 1998.
10Crime And Punishment In Oregon Courts: 1986 Felony Sentencing Practices. Oregon Criminal Justice Council. November 1988.
11In 1999 Assault 4, domestic assault, was added to the Assault group and Assault 3 was expanded. In 2001 there were slightly more Assaults 3 and 4 than there were Assaults 1 and 2, whereas in 1994 Assaults 1 and 2 dominated the Assault group. Offenders convicted of Burglary seem to be getting roughly the same length of prison sentence in 2001 as in 1994. The anomaly with the group Other Person appears to have two foundations: 1) the average sentence length in 1994 for Kidnapping I was 200 months and the average sentence in 2001 for Kidnapping I was 92 months - just a little over the minimum mandatory sentence; 2) there were 22 convictions for Coercion in 2001 with an average sentence of 30 months and only 4 convictions in 1994.
12Oregon Corrections Population Forecast. Prepared by the Department of Administrative Services. October 2002.
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