Oregon's criminal sentencing laws due for a change?

On December 30, 2011, Oregon's Commission on Public Safety issued a report that argued for the development and incorporation of rational and evidence based approaches to criminal sentencing and supervision into Oregon's current patchwork of inconsistent and sometimes contradictory sentencing laws and policy.

While the report is only a preliminary step in any wholesale process to reorganize and revise Oregon criminal sentencing laws, defense attorneys and their clients should pay close attention to the report's recommendations in making sentencing arguments today. The evidence based risk and needs assessments it suggests should be broadly incorporated into Oregon's system are widely available today and can be utilized to great effect in individual cases. The Commission and the report have been closely watched by the state judiciary and some Oregon counties are already on their own implementing some of its recommendations.

The report notes generally that the last comprehensive revision to Oregon's sentencing laws came in 1989 with the adoption of the felony sentencing guidelines. Since the guidelines were adopted however there have been numerous legislative actions, ballot measures, and initiatives which have overridden, supplanted or altered the sentencing guidelines. This has resulted in a felony criminal sentencing scheme that is confusing at best and contradictory at worst. The overarching trend since the guidelines were adopted has been one of reducing judicial discretion in sentencing criminals and increasing the application of mandatory minimum sentences from a narrow class of violent offenders to now include property and drug crimes.

This trend has been mirrored both by a 770% increase in the Oregon Department of Corrections (DOC)budget in the last 15 years and a tripling of the rate of criminal incarceration in the last 30 years. The report notes that Oregon's increasing reliance on incarceration as the primary sentencing resource has resulted in a shifting of DOC resources to the construction and maintenance of additional prisons and prison beds. Public Safety and DOC resources that could have been and had been utilized to more effectively monitor released offenders in the community and reduce their future criminality (recidivism) have been increasingly diverted to the prison sector.

All of this has occurred during a period in which national and Oregon statistics have shown a dramatic and long-term decrease in both violent and property crimes. According to the report, Oregon's crime rates have dropped to where they were in the late 1960's and "Oregonians are safer today than they have been in 40 Years."

The report urges that as the legislature begins to address a revision in Oregon's criminal sentencing policy, the state should strive to incorporate advances over the last 30 years in the study of criminality and reduction of recidivism. 93% of all criminal defendants who receive a prison sentence are ultimately released back into the community. There exists now, where there did not in 1989, large bodies of research that support a variety of evidence-based approaches to analyzing the risks a certain offender or class of offender poses to the community as well as what sentencing approaches tend to best prevent their return to crime upon release. Not surprisingly, incarceration is often the least efficacious method of preventing someone from re-offending upon release.

Evidence based programs need to be incorporated into the sentencing process to identify the most effective criminal sanctions that will increase public safety in the most cost-effective manner. Of course, in order to accomplish any meaningful reforms of this nature, the Legislature will have to tackle the knee jerk "lock em up" approach to sentencing that has too often informed and fueled Oregon's recent sentencing debates. One of the more interesting findings of the report itself is that although crime rates have been dropping, and rather dramatically, in Oregon for the last 40 or so years, most people are too aware of that fact. In essence, before Oregon can ever realize an evidence based and informed the system of decision making in sentencing, the voting public must itself be informed as to what really will promote their own safety and the safety of their community while not driving DOC funding levels to their current, unsustainable and largely ineffective levels.


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