Denial to Oregon’s Alternative to Incarceration Program No Longer Requires “Substantial and Compelling Reasons”

On July 9, 2014, the Oregon Court of Appeals held that sentencing courts are no longer required to find “substantial and compelling reasons” when denying eligibility to the Alternative to Incarceration Program (AIP).

AIPs consist of prison-based treatment, boot camp and work programs and include an intensive 180-day residential phase and a 90-day “non-prison/transitional leave” phase. Successful AIP completion reduces the prisoner’s sentence by up to three years.

Before January 1, 2009, Oregon defendants were entitled to AIP eligibility unless the sentencing court found “substantial and compelling reasons” to deny AIP eligibility. ORS 137.750(1)(1997).

In 2008, Oregon lawmakers removed all reference to the AIP from ORS 137.750 and enacted ORS 137.751, governing AIP eligibility. The new section eliminated the presumption of AIP eligibility. Therefore, courts are no longer required to find “substantial and compelling reasons” to deny AIP eligibility, under ORS 137.751(2008). Rather, the sentencing court is now required to make several express findings regarding the appropriateness of AIP eligibility in a particular case.

Carrie Dawn Goodenough was convicted of several crimes that she committed after January 1, 2009. At sentencing, she requested a finding of AIP eligibility. The state opposed the request, arguing that “substantial and compelling reasons” existed to deny AIP eligibility. Goodenough then argued “that there are not essential and compelling reasons to deny AIP.” The court agreed with the state, finding “substantial and compelling reason to order that AIP would not be appropriate.”

Goodenough appealed, arguing that the court improperly applied ORS 137.750(l)’s “substantial and compelling reasons” test to deny her AIP eligibility rather than the criteria under ORS 137.751(l).

The Court of Appeals agreed “that the trial court applied the wrong legal test” in considering Goodenough’s AIP eligibility. It refused to reverse, however, finding that Goodenough “not only failed to preserve the issue for appeal, but she also affirmatively invited the error.”

“Both defendant and the state invoked the ‘substantial-and-compelling-reasons’ framework of ORS 137.750(1) in arguing the issue of defendant’s AIP eligibility” the court found. “Neither party alerted the court that the framework for determining eligibility for AIPs had changed.” See: State v. Goodenough, 264 Ore. App. 211 (Or. Ct. App. 2014).

Robert Steven Cross was sentenced to 60 months in prison for violating probation. The court denied him AIP eligibility, rejecting his argument that “it was required to find ‘substantial and compelling reasons’ to deny AIP eligibility.”

On appeal, Cross argued again that the sentencing court was required to find “substantial and compelling reasons” to deny him AIP eligibility.

“Had defendant committed his offenses before January 1, 2009, he would be correct about what findings the trial court needed to make to deny AIP eligibility,” the Court of Appeals observed. Under ORS 137.751(1) (2008), however, the sentencing court “correctly concluded that it was not required to find ‘substantial and compelling reasons’ to deny” AIP eligibility. See: State v. Cross, 264 Ore. App. 205 (Or. Ct. App. 2014).

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