Under the 2009 law, House Bill 3508 (HB3508), offenders who were already eligible for a 20 percent sentence reduction became eligible for a 30 percent reduction unless they were convicted of any of a long list of disqualifying crimes. The law focused only on current offenses, so prisoners who had disqualifying crimes in their past were still eligible.
Additionally, if an offender was serving sentences for both disqualifying and non-disqualifying offenses, he or she was entitled to a 30 percent sentence reduction on the non-disqualifying offense but only a 20 percent reduction on the disqualifying charge.
Oregon Department of Corrections (ODOC) officials were tasked with identifying the 4,466 eligible offenders – about 30 percent of the state’s prison population. If neither the prosecutor nor victims objected, the prisoner was automatically credited with the additional 10 percent sentence reduction, which sometimes resulted in his or her release, often with just 24-48 hour notice.
If the prosecutor or the victims objected – as happened in 800 cases – the law, in real money-saving fashion, required the original sentencing court to appoint counsel for the prisoner at state expense, hold hearings and allow the objecting parties to voice their concerns. Of course, such objections generally focused on the facts of the crimes rather than whether the offender’s conduct in prison warranted a sentence reduction.
“When victims have objected to these releases, judges typically denied the [increased] earned time,” said state Senator Suzanne Bonamici, a member of the Senate Judiciary Committee. By February 2010, 798 offenders had been denied the additional 10 percent sentence reduction.
Among those denied were prisoners convicted of serious offenses such as robbery, arson, attempted murder, assaulting police officers and prison guards, abuse of a corpse, sexually abusing children, possessing dangerous weapons, and downloading child pornography on a prison computer.
“There are very few saints in prison,” said state Senator Chip Shields, who co-wrote the law, “which is why this can’t happen in an easy way.” Still, Shields noted that the law worked exactly as expected, saving Oregon taxpayers $84 a day for each offender who was released an average of 55 days early.
Of course that argument was lost on victims and prosecutors, who condemned the law for releasing violent criminals, clogging court dockets, reopening wounds for crime victims and being a backdoor attempt to tamper with mandatory minimum sentencing statutes.
“They need to repeal this law,” declared Umatilla County District Attorney Dean Gushwa. “I can’t believe that they ever intended for this law to shave time off sentences for violent offenders.”
“I call it an oversight,” countered Senator Floyd Prozanski, a co-author of the law whose sister had been murdered. “Just like any major piece of legislation, we have now realized there are some crimes we intended to include [in the list of disqualifying offenses] that we are going to include.” Prozanski advocated “tweaking” the law by adding 20 crimes to the list of disqualifying offenses during a February 2010 special legislative session.
However, Doug Harcleroad, a former prosecutor-turned-lobbyist for the tough-on-crime Oregon Anti-Crime Alliance, accused Prozanski and others of pushing a bad law. “It is not a ‘tweak’ issue,” said Harcleroad. “The legislature made an error in increasing earned time.”
Just as the special legislative session began, Harcleroad’s group sponsored a statewide radio campaign opposing the expanded earned time law. “These ads are misleading listeners and giving them false information,” charged Prozanski.
The ads featured the case of Demetrius Payton, whose November 26, 2009 release from prison was moved up to October 2, 2009. “A woman is asleep in her own apartment,” the ad said. “Suddenly she’s attacked by a registered sex offender and convicted burglar. Even worse, he got out of prison early because of a law Oregon politicians passed last summer. And he’s not the only one.”
The problem was that Payton’s new crime wasn’t committed until January 2010 – two months after he would have been released even without the increased earned time. “They’re insinuating these crimes were committed as a result of earned time and that’s false,” said Prozanski. Harcleroad claimed he didn’t know about Payton’s original release date and said his group had relied on a news story when designing its $12,000 ad campaign.
Of course it’s impossible to unring a bell. The damage was already done, exactly as Harcleroad and others who opposed the earned time law knew it would be. During the 2010 special session, Senate Bill 1007 (SB1007) began as Prozanski’s “tweak,” but when the dust settled a month later the 2009 earned time legislation had been effectively gutted. Republican lawmakers had vocally opposed SB1007 in its original form, and accused Democrats who supported the bill of endangering public safety.
For crimes committed on or after SB1007’s February 17, 2010 effective date, earned time sentence reductions were rolled back to 20 percent. Opponents of the bill did not accomplish a complete repeal, however. For offenses committed on or after July 1, 2011, 30 percent sentence reductions will again be available until July 1, 2013, but for a smaller class of offenders, as the list of disqualifying crimes was expanded significantly.
“This is a reasonable period of time to look at the earned time and will allow us to ensure that, when we continue the additional 10 percent program, it will be limited to those crimes we intended,” said Senator Prozanski. “We’re having a timeout and will continue the program next year. We’ve realized most of the savings – somewhere between $4 million and $5.5 million.”
SB1007 also requires the Secretary of State and the Oregon Criminal Justice Commission to audit the ODOC’s earned time program and assess its impact on recidivism rates. “We haven’t had the opportunity to see how this is working,” said Senator Bonamici. “I’m not convinced there is a danger to public safety.” She noted that research has shown fewer released offenders commit crimes in other states that have increased earned time.
Prosecutors are now accusing lawmakers of cutting their pay over the earned time dispute. Prosecutors fought the 2009 earned time increase on behalf of victims, according to Crook County District Attorney Daina Vitolins. When it became clear in late June that the bill would pass, prosecutors decided to “get out of the way,” stated Kevin Neely, a lobbyist for the Oregon District Attorneys Association.
In subsequent June 2009 budget hearings, however, several legislators suggested that prosecutors should have their pay reduced for fighting the earned time legislation, as their opposition reduced the scope of the bill and thus the projected cost savings. After the budget hearings closed, lawmakers passed a last-minute budget bill that cut about $170,000 from elected district attorneys’ pay. Prosecutors in counties with less than 100,000 residents receive $87,000 from the state and those with over 100,000 population receive $99,000. Many counties supplement the state pay of their elected prosecutors.
For many prosecutors the pay cut amounted to about $5,000. “You’re pretty much talking about a month’s salary,” said Jefferson County District Attorney Steve LeRiche. “What employed person can say they could lose a month’s salary and not [feel it]?”
Prosecutors claim that lawmakers used the pay cut to pressure them into an uncharacteristically quiet role regarding SB1007, the bill intended to “tweak” the earned time law. On February 10, 2010, Clatsop County District Attorney John Marquis warned his fellow elected prosecutors by email not to criticize the bill.
“There are many problems with this ‘fix’ but if any of us say a word they’ll cut off our salaries,” wrote Marquis. “So I hope everyone has equity for a loan, savings or has been setting aside money.” The next day, Malheur County District Attorney Dan Norris circulated an email to other prosecutors claiming that lawmakers were “buying our silence on [legislation] with our salary .... The legislature has taken a very dangerous low road by tying our hope that we get the salary [restored] to our rolling over on earned time.”
Legislative leaders denied the charge. “Neither I nor anyone I am aware of would tie the two together,” said House Speaker Dave Hunt. Some prosecutors insist, however, that they know otherwise. Marquis claimed that based on inquiries at the state capitol, unnamed “legislators who had the power to do this” made the threat.
“I think I’m able to distinguish between truth and rumor,” said Marquis, who refused to single out a specific legislator, claiming he did not want to reveal his sources.
Lawmakers said the pay cut was not retribution, noting that many deeper cuts were being made across the board. “Prosecutors were not singled out,” stated former Senator Margaret Carter, who co-authored the budget bill. Even Deschutes County District Attorney Michael Dugan’s wife, state Representative Judy Stiegler, voted for the bill that reduced prosecutors’ pay.
“I remember Mike coming home and saying, ‘Do you know you cut my salary?’ And I’m like, ‘What are you talking about dude?’” said Stiegler. Of course, Dugan didn’t want to accuse his wife of being part of the supposed legislative conspiracy; he’d rather call her clueless. “It’s my opinion that at least 87 of the people in that building had no inkling whatsoever,” said Dugan, suggesting that just three top lawmakers read the bill and knew that their vote would make prosecutors the only elected officials to receive a pay cut as a result of the 2009 budget bill.
“The legislature was facing a projected $4 billion deficit last year,” noted David Rogers, executive director of the Partnership for Safety and Justice, a nonprofit criminal justice reform organization. The earned time bill “was designed to protect critical public safety agencies and programs,” he said. Senator Prozanski agreed, observing that “the reality is, we’re in dire [economic] times.” Apparently, prosecutors upset over their pay cut believe that that reality applies to everyone but them.
In a separate 2009 bill which became effective on January 1, 2010, the Oregon legislature created a 60-day earned time education incentive. Prisoners who lost earned time for misconduct or non-compliance with their program plan can regain up to 60 days of forfeited earned time by obtaining a GED, high school diploma, qualifying college certificate or degree, or journey-level apprenticeship certificate.
Offenders who have obeyed prison rules and never lost earned time credits will receive no additional benefit from obtaining a GED or college degree. The earned time received as an education incentive cannot exceed the statutory maximum of 20 percent (or 30 percent, if applicable), and cannot be “banked” and applied against any future forfeitures of earned time.
Sources: The Oregonian, HB3508 (2009), SB1007 (2010), www.oregoncatalyst.com
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login