Felony Sentencing in Oregon
What is Oregon’s sentencing law for felonies? Prior to 1989, Oregon sentenced people to “indeterminate” sentences. That is, that the sentence was the maximum you could serve, but when you went off to jail it was unclear what your actual sentence would be. The Parole Board would release you and supervise you up to the statutory maximum for your sentence. If you’ve seen Shawshank Redemption, you get the idea.
That system was replaced in 1989 with the Oregon Sentencing Guideline. At the center of the Guidelines is the “grid.” Each crime is given a “crime seriousness score” against the person’s criminal history score. This gives the sentencing judge a “presumptive sentence” which he or she can go up or down from based on a list of aggravating and mitigating factors. The sentence is then “determinate.” That is, the person’s release date can be calculated by taking his sentence, reducing “good time” credits for good behavior, and subtracting his credit for time already served pre-sentence. If the person has disciplinary problems in prison, he can lose some of his good time and his sentence is increased accordingly.
What is Ballot Measure 11? Ballot Measure 11 has been the most significant modification to Oregon’s Sentencing Guidelines. Beginning with Ballot Measure 11, a series of mandatory minimum sentences have been added to the sentencing guidelines for certain felonies. Some people have referred to this as the “one strike and you’re out” rule.
Ballot Measure 11 operates “over the grid.” The grid is still used, as above, but if the presumptive sentence is below the Ballot Measure 11 minimum, then the sentence is increased to the minimum. The other effects of Ballot Measure 11 are:
- Children are subjected to adult sentencing for certain crimes beginning at the age of 15.
- There is no time off for good behavior for certain felonies.
- There is no alternative incarceration or reduction of sentence of any kind for any reason.
So consider the following example: Andre is 15 years old and a freshman in high school. He and some friends go to a local convenience store to steal beer. The owner of the store sees them stealing beer and follows them down the street. One of Andre’s friends has a knife and displays it at the owner allowing their escape. If Andre is convicted of Robbery in the First Degree in Oregon he will serve 90 months, that is 7.5 years, with no reduction, no programs, and no time off for good behavior. Under the grid, his sentence would have been a presumptive 34-36 months with the possibility of a reduction for being a first time offender. He would also have the possibility of drug programs, boot camp programs or the like to reduce his sentence.
What are the Ballot Measure 11 minimums?
Arson I: 90 months
Assault I: 90 months
Assault II: 70 Months
Kidnapping I: 90 months
Kidnapping II: 70 months
Manslaughter I: 120 months
Manslaughter II: 75 months
Murder: 300 months
Rape I: 100 months
Rape II: 75 months
Robbery I: 90 months
Robbery II: 70 months
Sex Abuse: 75 months
Sexual Penetration I: 100 months
Sexual Penetration II: 75 months
Sodomy II: 100 months
Sodomy II: 75 months
What is the Ballot Measure 11 “escape clause:” In 1997, in response to outrage at excessive sentences, the Oregon legislature enacted ORS 137.712. Upon a conviction for certain crimes on the above list, the court may elect not to give the mandatory minimum under very certain circumstances. Those circumstances are:
Manslaughter in the second degree when a child dies because the parents treated the child with only spiritual treatment and not traditional medicine.
Assault in the second degree when the victim was not injured by a weapon and did not suffer a “significant physical injury.”
Kidnapping in the second degree when the victim was 12 years of age or more.
Robbery in the second degree when the victim did not suffer a “significant physical injury,” and the victim was not in fear of imminent physical injury from a dangerous weapon or imminent significant physical injury from a dangerous weapon.
Rape in the second degree, Sodomy in the second degree, or sexual abuse in the first degree when the victim is at least 12 but less than 14, the defendant is not more than five years older than the victim, that the offense did not include another minor victim, and the lack of consent was due only to the victim’s age.
Unlawful sexual penetration in the second degree when the victim is 12 years of age or older, the defendant was no more than five years older than the victim, that the offense did not include another minor victim, the lack of consent was due only to the victim’s age, and the unlawful sexual penetration was with the finger of the defendant and nothing else.
What is Jessica’s law? Since Ballot Measure 11 was put in effect in 1995, there have been a series of laws that have actually increased the Ballot Measure 11 minimums. Notably, in 2006 Jessica’s Law raised the minimum for certain sexual offenses against children to 300 months, that is 25 years. Those charges are Kidnapping I, Rape I, Sexual Penetration I, and Sodomy I when the child is under 12 years of age.
The above is a very brief summary of Oregon felony sentencing law. The law is very complex and cannot possibly be summarized on a web page. You should under no circumstances use this information to represent yourself against any allegation of a felony crime. You should hire a qualified and experienced attorney immediately if you believe that you are or will be accused of a crime. Call Barry W. Engle PC at (503) 224-2171 for a confidential consultation.
Links:
2016 Oregon Sentencing Guidelines Grid (2 pages) DOC_20170320135514 DOC_20170320135534