2020 OREGON ADMINISTRATIVE RULES COMPILATION
CHAPTER 255 Board of Parole and Post-Prison Supervision
Published By BEV CLARNO Secretary of State Copyright 2020 Office of the Secretary of State
Rules effective as of January 01, 2020 DIVISION 1 RULEMAKING PROCEDURE 255-001-0005 Notice of Rulemaking: Time and Manner 255-001-0010 Rulemaking Procedure 255-001-0016 Obtaining Copies of Board Rules 255-001-0020 Draft to Legislative Counsel 255-001-0060 Joint Rules with Other Agencies
DIVISION 5 DEFINITIONS 255-005-0005 Definitions
DIVISION 10 ORGANIZATION 255-010-0005 Membership 255-010-0015 Chairperson; Vice-Chairperson; Powers and Duties
DIVISION 12 PERSONAL SERVICE CONTRACTS
DIVISION 15 REQUEST FOR BOARD RECORDS OR FILES 255-015-0002 Board Records 255-015-0003 Oral Record of Hearing 255-015-0004 Public Records Requests 255-015-0010 Criteria for Denial of Disclosure of Records
DIVISION 20 BUSINESS MEETING 255-020-0005 Scheduling 255-020-0010 Quorum 255-020-0015 Matters for Consideration; Majority Vote 255-020-0020 Procedure
DIVISION 25 ADJUSTED COMMITMENT DATE 255-025-0005 Date Prison Term Starts to Run 255-025-0010 Credit for Time Served 255-025-0030 Effect of Inoperative Time on Prison Terms 255-025-0035 Adjusted Commitment Date for Parole Violations
DIVISION 30 PRISON TERM HEARING AND HEARING PROCEDURES 255-030-0010 Scheduling Prison Term Hearings 255-030-0013 Notification of Hearing 255-030-0015 When Full Board Is Required; Procedures for Board Decision 255-030-0021 Manner of Hearing
Page 2 of 212 255-030-0023 Inmate Appearance at Board Hearing 255-030-0024 Prison Term Hearing Waiver 255-030-0025 Inmate Accompaniment to Board of Parole and Post-Prison Supervision Hearing 255-030-0026 Who May Appear at a Board of Parole and Post-Prison Supervision Hearing 255-030-0027 Victim, District Attorney and Inmate Statements 255-030-0032 Evidence 255-030-0035 Information the Board Shall Consider at a Prison Term Hearing 255-030-0040 Inmate's Access to Written Materials/Rebuttal and Deadlines for Receiving Materials 255-030-0046 Continuance of Hearings: Cancellation of Hearings 255-030-0055 Notice of Decision Following Prison Term Hearing
DIVISION 32 AGGRAVATED MURDER 255-032-0005 Prison Term Hearing to Be Held 255-032-0010 Minimum Period of Confinement Pursuant to ORS 163.105 or 163.115 255-032-0015 Petition/Purpose for Review Hearing 255-032-0020 Purpose of Review Hearing 255-032-0022 Murder Review Hearings Notice 255-032-0025 Manner of Review Hearing 255-032-0027 Inmate's Right to Review Record; Exceptions 255-032-0029 Subpoenas for a Murder Review Hearing 255-032-0030 Evidence in a Murder Review Hearing 255-032-0031 Final Orders in Murder Review Hearings 255-032-0032 Continuance of Hearings: Cancellation of Hearings 255-032-0035 Effect of Denying Relief Request 255-032-0037 Prison Term Hearings for Inmates Found Likely to be Rehabilitated 255-032-0040 Record/Notice
DIVISION 33 RELEASE HEARINGS AND SUPERVISION FOR OFFENDERS WHEN OFFENSE COMMITTED AS JUVENILE
DIVISION 35 APPLICATIONS OF THE GUIDELINES TO ESTABLISH A PRISON TERM 255-035-0006 Exhibits 255-035-0013 Factors Which Determine an Initial Parole Release Date 255-035-0014 Initial Parole Release Date for Offenders Whose Probations Are Revoked November 1, 1989 or Later 255-035-0016 Variations from the Ranges for Aggravation or Mitigation 255-035-0018 Multiple Concurrent Convictions 255-035-0020 Board Bound by Court Order 255-035-0021 Consecutive Sentences: Creating a Unified Matrix Range 255-035-0022 Consecutive Sentences: Referring a Case to the Full Board; Going Below the Range; Additional Consecutive Sentences 255-035-0023 Effect of Minimum Sentences on Prison Terms; Consecutive Minimum Sentences 255-035-0025 Setting a Parole Release Date: When Matrix Range Exceeds Good Time Date 255-035-0030 Parole Denial
DIVISION 36
Page 3 of 212 DANGEROUS OFFENDERS — FOR CRIMES OCCURRING PRIOR TO NOVEMBER 1, 1989 255-036-0005 Parole Consideration Hearings 255-036-0010 Evaluations 255-036-0015 Department of Corrections Written Reports 255-036-0020 Request for Review Prior to Release Hearing Date 255-036-0025 The Release Hearing Packet 255-036-0030 Parole Supervision
DIVISION 37 DANGEROUS OFFENDERS — FOR CRIMES OCCURRING ON OR AFTER NOVEMBER 1, 1989 255-037-0005 Release Hearings 255-037-0010 Evaluations 255-037-0015 Department of Corrections Written Reports 255-037-0020 Request for Review Prior to Release Hearing Date 255-037-0025 The Release Hearing Packet 255-037-0030 Post-Prison Supervision
DIVISION 40 PERSONAL REVIEWS AND REDUCTIONS IN PRISON TERMS 255-040-0005 Scheduling of Personal Reviews 255-040-0010 Procedure for Personal Reviews 255-040-0023 Less than 36 Month Prison Term Reductions 255-040-0025 Resetting the Parole Release Date to an Earlier Date 255-040-0026 Effect of Minimum Terms on Reductions 255-040-0027 Special Request Reductions 255-040-0028 Reductions for a Severe Medical Condition or Incapacitated Elderly Person 255-040-0035 Notice; Disclosure; Record 255-040-0040 Personal Review Packets
DIVISION 50 POSTPONING A PAROLE RELEASE DATE FOR SERIOUS MISCONDUCT — THIS DIVISION IS APPLICABLE TO PRISONERS WHO COMMITTED CRIMES PRIOR TO NOVEMBER 1, 1989 255-050-0005 Grounds for Postponing a Parole Release Date 255-050-0010 Postponement Procedures: Hearing by Board 255-050-0011 Department of Corrections Report of Misconduct 255-050-0012 Postponement When Informed of Reasonable Grounds 255-050-0013 Postponement for Refusing to Participate in a Psychiatric or Psychological Evaluation 255-050-0015 Unauthorized Absence 255-050-0025 Misconduct Board Review Packet
DIVISION 60 RELEASE TO POST-PRISON SUPERVISION OR PAROLE AND EXIT INTERVIEWS 255-060-0006 Exit Interviews: Parole Plan; and Psychiatric Records 255-060-0008 Release Plans 255-060-0009 Residence Requirements for Certain Sex Offenders Upon Release from Custody 255-060-0011 Procedures for Predatory Sex Offender Designation for Offenders on Parole and Post-Prison Supervision
Page 4 of 212 255-060-0012 Psychological or Psychiatric Reports 255-060-0013 Postponement Order 255-060-0016 Procedures for Predatory Sex Offender Designation for Inmates 255-060-0018 Offenders Eligible for Sexually Violent Dangerous Offender Designation 255-060-0020 Out-of-State Parole Release Hearing Procedures 255-060-0030 Exit Interview Board Review Packet
DIVISION 62 SETTING OF PAROLE DEFERRAL PERIODS 255-062-0006 When Parole Deferral Periods May Occur 255-062-0011 Type of Hearing Eligible for a Deferral of More than Two Years 255-062-0016 Factors to be Considered in Establishing a Deferral Period Longer Than Two Years 255-062-0021 Request for Interim Hearing 255-062-0026 Interim Hearing Finding 255-062-0031 Final Orders
DIVISION 65 RESTITUTION AND SUPERVISION FEES 255-065-0005 When Restitution, Fines and Fees are Ordered: Payment Schedule 255-065-0015 Supervision of Payments: Conditions; Default; Effect on Discharge 255-065-0020 Establishment of Supervision Fees: Criteria, Disbursement of Fees
DIVISION 70 CONDITIONS OF PAROLE AND POST-PRISON SUPERVISION 255-070-0001 Conditions Not Limited by Exhibit J 255-070-0003 Offender Return to County of Residence 255-070-0015 Establishing Conditions
DIVISION 75 PROCEDURES FOR RESPONSES TO PAROLE AND POST-PRISON SUPERVISION CONDITIONS VIOLATIONS FOR OFFENDERS UNDER THE JURISDICTION OF THE BOARD OF PAROLE AND POST-PRISON SUPERVISION OR LOCAL SUPERVISORY AUTHORITY 255-075-0001 Definitions 255-075-0002 Suspension of Parole or Post-Prison Supervision; Citation to Appear 255-075-0003 Criteria for Allowing Offender to Remain in Community Pending Hearing 255-075-0004 Guidelines for “Best Interest” Return 255-075-0005 Hearing Requirement: Procedure 255-075-0006 Method of Hearing 255-075-0007 Designated Representative Conducts Hearing 255-075-0015 When Offender in Another Jurisdiction: Return 255-075-0025 Rights at Hearing 255-075-0026 Waiver of Hearing 255-075-0030 Board Rejection of Waiver 255-075-0031 Hearings Process 255-075-0035 Representation/Ability to Pay Attorney Fees 255-075-0036 Board Subpoenas; Witness 255-075-0040 Compelling of Witnesses: Contempt
Page 5 of 212 255-075-0042 Probable Cause; Preliminary Hearing; Deferral of Revocation Hearing 255-075-0045 Evidence; Subpoena of Documents 255-075-0046 Postponement 255-075-0055 Reopening Hearings: Criteria; Procedure 255-075-0056 Hearings Record 255-075-0065 Ten Day Period for Offender’s Evidence and Exceptions 255-075-0067 Final Action: Authority to Impose Administrative (Local) Sanctions, Revoke Supervision or Modify Conditions of Supervision 255-075-0070 Final Action: Procedure 255-075-0072 Re-release Order After Revocation 255-075-0073 Return to DOC for a Period of Greater than 12 Months 255-075-0075 Parolees/Offenders Convicted of New Crime in This or Another Jurisdiction 255-075-0078 Commencement Date for Prison Term Following a Violation 255-075-0079 Guidelines for Re-release 255-075-0080 Continuance on Parole or Supervision 255-075-0085 Parole Violators with No New Commitment; Action Required 255-075-0096 Denial of Rerelease Consideration 255-075-0097 Time for Future Disposition Hearing 255-075-0098 Restoration of Statutory and Meritorious Goodtime 255-075-0100 Future Disposition Hearing Packet
DIVISION 80 ADMINISTRATIVE APPEAL 255-080-0001 Exhaustion of Remedies 255-080-0005 Procedure for Administrative Review 255-080-0008 Specifications for Administrative Review Request 255-080-0010 Criteria for Granting a Review 255-080-0011 Limitations on Requests for Administrative Review 255-080-0012 Administrative Review Procedure 255-080-0015 Administrative Review Hearing Packet
DIVISION 85 SEX OFFENDER NOTIFICATION LEVELS 255-085-0010 Definitions 255-085-0020 Sex Offender Risk Assessment Methodology 255-085-0030 Assessments and Reassessments 255-085-0040 Reviews – Adult Male Registrants 255-085-0050 Reviews— Other Registrants 255-085-0061 Classification and Final Decision
DIVISION 87 RELIEF FROM REPORTING AND LEVEL RECLASSIFICATION PETITIONS AND HEARINGS FOR ADULT SEX OFFENDERS 255-087-0005 Purpose and Authority 255-087-0010 Definitions 255-087-0020 Determination of Eligibility for Relief from Sex Offender Reporting 255-087-0030 Petitions for Relief
Page 6 of 212 255-087-0040 Scheduling Hearings for Relief from Registration 255-087-0050 Determination of Eligibility for Reclassification of Sex Offender Notification Level 255-087-0060 Petitions for Reclassification 255-087-0070 Scheduling Hearings for Reclassification 255-087-0080 Hearing Procedures for Relief and Reclassification 255-087-0090 Final Decisions on Relief and Reclassification
DIVISION 94 ACTIVE AND INACTIVE PAROLE AND POST-PRISON SUPERVISION 255-094-0002 Definitions 255-094-0006 Period of Active Parole or Post-Prison Supervision 255-094-0010 Exceptions to Inactive Supervision and Return to Active Supervision 255-094-0015 Return to Active Supervision 255-094-0020 Sentence Expiration
Page 7 of 212 DIVISION 1 RULEMAKING PROCEDURE
255-001-0005 Notice of Rulemaking: Time and Manner (1) Prior to the permanent adoption, amendment, or repeal of any rule, the chairperson of the Board or the chair’s designee shall give notice of the proposed action at least 21 days prior to the effective date: (a) In the Secretary of State's Bulletin referred to in ORS 183.360; (b) By providing a copy of the notice to the legislators specified in ORS 183.335(14) at least 49 days before the effective date of the rule; and (c) By providing a copy of the notice at least 28 days prior to the effective date to persons on the Board mailing list established pursuant to ORS 183.335(7); and (d) By providing a copy of the notice to: (A) Oregon State Bar Bulletin; (B) Associated Press; (C) Release Services, County Community Corrections Offices, State of Oregon Department of Corrections; (D) Oregon District Attorneys Association; (E) Oregon Criminal Defense Attorneys Association; (F) All County Public Defender Offices; (G) All County Law Libraries; (H) Attorney General's Office; (I) State Public Defender; (J) Oregon Supreme Court Law Library; (K) University of Oregon Law Library; (L) Northwestern School of Law, Lewis and Clark College; (M) College of Law, Willamette University; (N) American Civil Liberties Union; (O) The Oregonian, Portland, Oregon; (P) Pendleton Eastern Oregonian, Pendleton, Oregon; (Q) The Statesman Journal, Salem, Oregon; (R) Medford Mail Tribune; (S) The Register Guard, Eugene, Oregon; and (T) Others upon formal written request of the Board. (2) When the Board has filed a temporary rule with the Secretary of State's Office, the Board shall provide a copy of the certificate and order and a copy of the temporary rule to the persons on the Board's mailing list, and to those listed in subsection (1)(c) of this section. (3) Notwithstanding subsection (2) of this section, when the Board has filed a temporary rule with the Secretary of State's Office, newspapers and media service shall only receive a copy of the certificate and order. (4) Notice pursuant to subsection (1) and (2) of this section shall be provided via electronic transmission, such as e-mail or other electronic technology. Notice via non-electronic means will be available upon request and upon payment of an annual fee of $15.00. The Board will make reasonable accommodations for individuals with disabilities. Statutory/Other Authority: ORS 183.335, 183.360 Statutes/Other Implemented: ORS 183.335, 183.360 History: PAR 1-2011, f. & cert. ef. 1-11-11; PAR 1-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 2-1994, f. 8-1-94, cert. ef. 8-15- 94; PAR 1-1994, f. & cert. ef. 4-4-94; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 6-1988, f. & ef. 5-19-88; 2PB 2-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
255-001-0010
Page 8 of 212 Rulemaking Procedure (1) The Board shall adopt all new and revised rules in accordance with the provisions of ORS Chapter 183, the Oregon Attorney General's Model Rules of Procedure and ORS 192.610 to 192.710. The Board will use only those sections of the Model Rules which relate to rulemaking. (2) The Board shall hold a business meeting, pursuant to Division 20, to consider proposed change(s) in its rules. Public notice of the meeting, and of the intent to consider rule change(s), shall be made pursuant to ORS 192.640(1). (3) The Board, in its discretion, may limit participation by inmates in the proposed adoption, amendment or repeal of any rule to written submissions. Statutory/Other Authority: ORS 183.335(1), ORS 183.335(3)(b), ORS 183.335(3)(c), ORS 192.610(1) – 192.710 Statutes/Other Implemented: 1999 SB 2222 History: PAR 1-2011, f. & cert. ef. 1-11-11; PAR 8-1999, f. & cert. ef. 11-15-99; PAR 1-1994, f. & cert. ef. 4-4-94; PAR 8- 1992, f. & cert. ef. 10-9-92; PAR 6-1988, f. & ef. 5-19-88; 2PB 2-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
255-001-0016 Obtaining Copies of Board Rules (1) The Board shall provide a free copy of its rules to all Oregon Department of Corrections institution law libraries and to any state agency or legislative entity that requests a copy. The Board has the discretion to determine the method of delivery in all cases. Rules will be provided in electronic format to institution libraries. (2) Others who desire copies of Board rules shall make their requests in writing. (a) The Board will charge a fee consistent with OAR 255-015-0015 to cover the costs of filling the request. The Board must receive payment in advance. Inmates who request copies of rules shall send authorization to withdraw funds from their inmate trust account and the Board shall verify that the account contains sufficient funds to cover the cost before providing copies. (b) There will be no cost for copies of rules in electronic format. Statutory/Other Authority: ORS 137.551, 144 Statutes/Other Implemented: ORS 192.800 - 192.810 History: PAR 1-2011, f. & cert. ef. 1-11-11; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 6-1988, f. & ef. 5-19-88; 2PB 2-1985, f. & ef. 5-31-85
255-001-0020 Draft to Legislative Counsel Prior to a proposed change in the rules, including temporary rules, the Board may submit a draft of the proposed action to Legislative Counsel. Statutory/Other Authority: ORS 144.140, 183.310 - 183.550 Statutes/Other Implemented: ORS 183 History: PAR 18-1988, f. & ef. 12-6-88; PAR 6-1988, f. & ef. 5-19-88; 2PB 1-1979, f. & ef. 2-1-79
255-001-0060 Joint Rules with Other Agencies (1) The Board shall adopt rules jointly with other administrative agencies as required by statute. (2) The Board may adopt rules jointly with another administrative agency when necessary to implement its own rules. (3) Jointly adopted rules shall be specifically designated as joint rules, and the appropriate agency shall be identified in the rules. Statutory/Other Authority: ORS 144 Statutes/Other Implemented: ORS 183.310 - 183.550 History: PAR 6-1988, f. & ef. 5-19-88
DIVISION 5 DEFINITIONS
Page 9 of 212 255-005-0005 Definitions (1) "Abscond": Unauthorized absence from parole or post-prison supervision. (2) "Active Supervision" or "Active Community Supervision": Supervision requiring the supervising officer's regular contact and monitoring to assure continued compliance with the general and special conditions of parole or post-prison supervision. "Active Supervision" shall not include: (a) The period of confinement in a local, state, or federal correctional facility; (b) The period of time between the suspension of parole or post-prison supervision and the date parole or post-prison supervision is continued; (c) Inactive parole or inactive post-prison supervision; (d) Involuntary commitment to a state or federal psychiatric facility. (3) "Administrative Sanction": Local, structured, or intermediate sanctions as those terms used in OAR 291-058-0010 Et al., and may include periods of local confinement in jails, restitution centers, treatment facilities, or similar facilities. (4) "Aggravation": The factors or elements surrounding the crime that appear to increase the seriousness of the criminal episode or reflect on the character of the offender pursuant to Exhibit E-1 and E-3. (5) "Board Action Form": A Board order after a decision. (6) "Base Range": The range for each crime category reflected in Exhibit C under the "excellent" column. (7) "Board": Board of Parole and Post-Prison Supervision. (8) "Board Review Packet": The information the Board shall consider at the inmate's hearing. Each of the Administrative Rule Divisions that establish a hearing shall list the contents of the packet. (9) "Compensatory Fines": A court-imposed penalty for the commission of a crime resulting in injury for which the person injured has a remedy by civil action (unless the issue of punitive damages has been previously decided on a civil case arising out of the same act and transaction). The court may award compensatory fines in addition to restitution. (10) "Correctional Facility": Any place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order. Correctional Facility includes a juvenile facility, if the juvenile is confined for a felony charge or conviction, and applies to a state hospital only as to persons detained therein after acquittal of a crime by reason of mental disease or defect or after a finding of guilty except for insanity. (11) "Crime Severity Rating": A classification for crimes committed prior to November 1, 1989, from a low of one (1) to a high of seven (7) assigned to each crime, based on the seriousness of the crime pursuant to Exhibits A-1, A-2, and A-3. (12) "Crime Spree": A set of criminal activities congruent in time or actually overlapping that are so joined by place and circumstances as to be the product of a continuous disposition or intent. (13) "Date of Return": The date another in-state or out-of-state jurisdiction physically returns the inmate to the Department of Corrections' custody following a hold. (14) "De Novo Hearing": A new initial prison term hearing, required when a court orders additional consecutive sentences for crimes that occurred prior to the first prison term hearing. (15) "Escape": (a) The unlawful or unauthorized departure from custody, a correctional facility or any form of temporary release or transitional leave; (b) The unauthorized departure or absence from this state or failure to return to this state by a person who is under the jurisdiction of the Psychiatric Security Review Board; (c) Does not include failure to comply with provisions of a conditional or security release as in ORS 135.245. (16) "Future Disposition Hearing": A hearing the Board may set at its discretion for purposes of deciding whether to deny or grant re-release for a violation of parole or post-prison supervision. (17) "Gang Member": A person who associates with a group that identifies itself through the use of a name, unique appearance, language (including hand signs), the claiming of geographical territory, or the espousing of a distinctive belief system and one of the purposes of the group is criminal activity. (18) "Gang-Related Activity": Crime committed by a gang member:
Page 10 of 212 (a) With other known gang members; (b) Against other known gang members; or (c) Against a person who is not a gang member; in order to further the purposes of the gang or impress other gang members. (19) "History/Risk Score": A rating from a high of eleven (11) to a low of zero (0) points, reflecting the prisoner's prior record and other factors that predict the likelihood of success on parole pursuant to Exhibit B, Part 1 and Part 2. (20) "Inactive Parole” and "Inactive Post-Prison Supervision": The offender remains under supervision, however: (a) There is no direct supervision by a supervising officer and no requirement of regular reporting; (b) There are no additional supervision fees; and (c) The offender remains subject to arrest by a supervising officer for violation of conditions of supervision and return to active supervision at any time until expiration of the sentence or post-prison supervision term as outlined in Division 94; and (d) Subsections (b) and (c) do not apply to those offenders being supervised in another state via Interstate Compact. Those offenders remain on active parole or post-prison supervision. (21) "In Camera Hearing": The inspection of a document by the Hearings Officer in private before the document may be introduced as evidence. (22) "Initial Parole Release Date": The date assigned to a prisoner for parole release based on the prisoner's matrix range, aggravation, mitigation, and judicially imposed minimum sentences. (23) "Inmate": Any person under the supervision of the Department of Corrections or a local supervisory authority who is not on parole, post-prison supervision or probation status (also referred to as prisoner). (24) "Inoperative Time": Time spent on abscond, escape, or unauthorized departure from custody, leave, parole or post- prison supervision, which does not count toward service of the sentence. (25) "Intensive Supervision": Enhanced level of supervision exceeding a county's high risk level supervision standards. Intensive supervision may include, but is not limited to, electronic monitoring, house arrest, curfew, day reporting, supervised housing, multiple supervising officers, adjunct surveillance by law enforcement or other specialists, increased face-to-face offender contacts in the community, increased collateral contacts (such as with family, therapist and employer), community notification, geographic restrictions, offender mileage logs, medication monitoring, intensive outpatient or residential treatment programming, urinalysis, and polygraph. (26) "Less Than the Sum of the Terms": An action by the Board whereby one or more of the consecutive ranges are treated as if they are concurrent. (27) "Mail Date" or "Mailed on Date": The date from which the Board calculates the timelines of receipt of Administrative Review Requests and other time-sensitive responses. The date is computer generated and scheduled to ensure actual mailing occurred on or before the listed date. (28) "Matrix Ranges": Ranges of months within which the Board has the discretion to set a prison term. The ranges are based on crime severity ratings and history/risk scores. (29) "The Matrix": A table that displays the matrix ranges by showing the intersection of the crime severity rating and the history/risk score pursuant to Exhibit C. (30) "Mitigation": The factors or elements surrounding the crime that appear to decrease the seriousness of the criminal episode or reflect on the character of the prisoner pursuant to Exhibit E-2 and E-3. (31) "Offender": Any person under the supervision of the Department of Corrections or a local supervisory authority who is not presently in the custody of a correctional facility, including persons on probation, parole or post-prison supervision. (32) "Parole": A Board-authorized conditional release from a state correctional facility into the community or to a detainer. Applies to offenders whose crimes were committed before November 1, 1989, offenders who were convicted of murder or aggravated murder and whose sentences allow for parole, and offenders sentenced by the court as Dangerous Offenders or Sexually Violent Dangerous Offenders. (33) "Particularly Violent or Otherwise Dangerous Criminal Conduct": Conduct that is not merely unpleasant or
Page 11 of 212 offensive, but that is indifferent to the value of human safety or property. (34) "Parole Board Record": The file the Board maintains for each inmate/offender containing the information listed in ORS 144.185. (35) "Period Under Review": Under Division 40, the time already served on the prison term, normally the three (3) or (5) year period prior to the personal review hearing. (36) "Post-Prison Supervision": A term of conditional release, as set by statute or the court under the supervision of the Department of Corrections or a correctional agency designated by the Department or a local supervisory authority. Applies to crimes committed on or after November 1, 1989. (37) "Principal Range": The range of months for the crime holding the highest crime severity rating. When the ranges are the same, the Board shall designate one range as the principal range. (38) "Preponderance": Evidence that is of greater weight or more convincing than the evidence offered in opposition to it. (39) "Probable Cause": A substantial objective basis for believing that more likely than not an offense or violation has been committed and the person to be arrested has committed it. (40) "Prison Term": The Board established time the inmate must serve before the initial parole release date, in accordance with applicable laws and the Board's Administrative Rules. (41) "Prison Term Hearing": The hearing at which the Board establishes an inmate's prison term and initial parole release date. (42) “Reasonable Cause”: The quantum of information that would cause a reasonably prudent person to believe that a condition or circumstance exists. (43) "Revocation": An action by a Sanction Authority to terminate an offender's parole or post-prison supervision. Sanction Authority may resume an offender's parole or post-prison supervision following the act of revocation. (44) "Revocation Hearing": A hearing to determine whether a violation of conditions of parole or post-prison supervision occurred and whether the Hearings Officer should recommend that the parolee or offender return to custody or continue on parole or post-prison supervision with additional conditions. (Commonly known as a “Morrissey Hearing”) (45) "Sanction Authority": For felony offenders sentenced by the court for crimes occurring before November 1, 1989, or sentenced to more than 12 months in the custody of the Department of Corrections or sentenced to 12 months or less and have additional sentences of greater than 12 months, the Board; and the Local Supervisory Authority for felony offenders sentenced by the court to 12 months or less, the Local Supervisory Authority. (46) "Sexually Violent Dangerous Offender": An inmate/offender who has psychopathic personality features, sexually deviant arousal patterns or interests and a history of sexual assault, and who the Board or Local Supervisory Authority finds presents a substantial probability of committing an offense listed in OAR 255-060-0008(6). "History of sexual assault" means that an inmate/offender has engaged in unlawful sexual conduct that is not related to the crime for which the inmate/offender is currently on parole or post-prison supervision and that seriously endangered the life or safety of another person or involved a victim less than twelve (12) years of age. (47) "Serious Physical Injury": Any physical injury that creates a substantial risk of death, or that causes serious and protracted disfigurement, or impairment of health or protracted loss or impairment of the function of any bodily organ. (48) "Stranger": A person who is either unknown to a victim or with whom the victim has a superficial acquaintance or acquaintance of short duration or infrequent contact. (49) "Subcategory": The criteria for rating criminal conduct within the crime categories based on the seriousness of the offense (Exhibit A). (50) "Subordinate Range": Any range less than or equal to the principal range. (51) "Subpoena Duces Tecum": A subpoena requiring the party to appear at a hearing with a document or piece of evidence to be examined at the hearing. (52) "Summing the Ranges": Adding ranges of consecutive sentences to produce a unified range pursuant to OAR 255- 035-0021. (53) "Supervising Officer": Parole and post-prison supervision officer.
Page 12 of 212 (54) "Supervisory Authority": The state or local corrections agency or official designated in each county by that county's Board of County Commissioners or County Court to operate correction supervision services, custodial facilities, or both (per ORS 144.087(1)). (55) "Unauthorized Absence": Time spent outside a state correctional facility without the authorization of the Department of Corrections or Local Supervisory Authority. (56) "Unified Range": The total range computed under OAR 255-035-0021 for consecutive sentences. (57) "Unsum the Ranges": Will establish a matrix range at less than the unified range. The effect of unsumming is to treat one or more ranges as concurrent. (58) "Variations": The time periods that the Board may use to set a prison term above or below the matrix range pursuant to Exhibit D. (59) "Victim": (a) Any person determined by the prosecuting attorney, the court or the Board to have suffered direct financial, psychological, or physical harm as a result of a crime that is the subject of a proceeding conducted by the State Board of Parole and Post-Prison Supervision. (b) Any person determined by the Board to have suffered direct financial, social, psychological, or physical harm as a result of some other crime connected to the crime that is the subject of a proceeding conducted by the State Board of Parole and Post-Prison Supervision. The term “some other crime connected to the crime that is the subject of the proceeding” includes: other crimes connected through plea negotiations, or admitted at trial to prove an element of the offense. The Board may request information from the District Attorney of the committing jurisdiction to provide substantiation for such a determination. (c) Any person determined by the Board to have suffered direct financial, social, psychological, or physical harm as a result of some other crime connected to the sentence for which the offender seeks release that is the subject of a proceeding conducted by the State Board of Parole and Post-Prison Supervision. The term “connected to the sentence for which the offender seeks release” includes other crimes that were used as a basis for: a departure sentence, a merged conviction, a concurrent or a consecutive sentence, an upper end grid block sentence, a dangerous offender sentence, or a sentence following conviction for murder or aggravated murder. The Board may request information from the District Attorney of the committing jurisdiction to provide substantiation for such a determination. [ED. NOTE: Exhibits referenced are available from the Board.] Statutory/Other Authority: ORS 144.050, 144.140 Statutes/Other Implemented: History: PAR 4-2017, f. 3-27-17, cert. ef. 4-5-17; PAR 2-2015, f. & cert. ef. 7-28-15; PAR 10-2010, f. & cert. ef. 12-1-10; PAR 4-2010(Temp), f. 7-2-10, cert. ef. 7-6-10 thru 1-1-11; PAR 1-2005, f. & cert. ef. 4-25-05; PAR 4-2000, f. & cert. ef. 2- 15-00; PAR 1-1998, f. & cert. ef. 5-1-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 1-1997, f. 3-11-97, cert. ef. 3- 14-97; PAR 12-1988(Temp), f. & ef. 7-20-88; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 5-1990, f. & cert. ef. 10-5-90; PAR 4-1989, f. & ef. 11-1-89; Reverted to PAR 8-1988, f. & ef. 7-1-88; PAR 18-1988, f. & ef. 12-6-88; PAR 14-1988(Temp), f. & ef. 9-20-88; PAR 13-1988(Temp), f. & ef. 8-5-88; PAR 9-1988(Temp), f. & ef. 7-14-88; PAR 8-1988, f. & ef. 7-1-88; PAR 7-1988, f. & ef. 7-1-88; PAR 6-1988, f. & ef. 5-19-88; 2PB 3-1986(Temp), f. & ef. 12-2- 86; 2PB 2-1986(Temp), f. & ef. 11-13-86
DIVISION 10 ORGANIZATION
255-010-0005 Membership The Board of Parole and Post-Prison Supervision shall consist of those members appointed by the Governor, pursuant to ORS 144.005. Statutory/Other Authority: ORS 144 Statutes/Other Implemented: ORS 144.005, 144.025
Page 13 of 212 History: PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; 2PB 3-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1- 79
255-010-0015 Chairperson; Vice-Chairperson; Powers and Duties (1) The Chairperson shall have the powers and duties established by law, and in addition, the powers and duties necessary for the performance of the office, as determined by the Governor. Such powers and duties shall include, but are not limited to: (a) Assigning Board members to panels and designating the presiding members in order to conduct hearings and reviews; (b) Apportioning matters for decision to the panels and Full Board; (c) Reassigning matters to different panels when required by rule, law, or procedure; (d) Scheduling business meetings and establishing the agenda; and (e) Informing the following persons of the scheduled release of each prisoner (ORS 144.120(6), 144.260): (A) Victims who request notification; (B) The Department of Corrections; (C) Sentencing judge; (D) District Attorney; (E) Sheriff, or arresting agency. (2) The vice-chairperson shall have the powers and duties determined by the Governor to be necessary for the performance of the office. Statutory/Other Authority: ORS 137.320, 137.370, 144.005, 144.025, 144.035, 144.050, 144.079, 144.120, 144.140, 144.305, 144.343, 144.783 Statutes/Other Implemented: ORS 144.120(6), 144.260 History: PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 6-1988, f. & ef. 5-19-88; 2PB 1- 1982, f. & ef. 5-19-82; 2PB 17-1981(Temp), f. & ef. 11-25-81; 2PB 1-1979, f. & ef. 2-1-79
DIVISION 15 REQUEST FOR BOARD RECORDS OR FILES
255-015-0002 Board Records The Board shall maintain a separate file on each person under its jurisdiction which shall contain the materials obtained pursuant to ORS 144.185. Statutory/Other Authority: ORS 144.185, ORS 183.335, ORS 192.311 - 192.431, ORS 144.025, ORS 144.050, ORS 192.001 Statutes/Other Implemented: ORS 144.185, ORS 144.130, ORS 192.314 History: PAR 6-2018, amend filed 10/30/2018, effective 10/31/2018; PAR 1-1999, f. & cert. ef. 1-15-99; PAR 4- 1998(Temp), f. & cert. ef. 10-14-98 thru 4-11-99; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 6-1988, f. & ef. 5-19-88; PAR 3- 1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86
255-015-0003 Oral Record of Hearing A recording of the oral proceedings of any hearing shall be kept by the Board for at least four years. Statutory/Other Authority: ORS 144.050, ORS 144.140 Statutes/Other Implemented: ORS 144.130, ORS 144.185, ORS 192.311 - 192.431 History: PAR 6-2018, amend filed 10/30/2018, effective 10/31/2018; PAR 2-2006, f. & cert. ef. 4-5-06; PAR 1-1999, f. & cert. ef. 1-15-99; PAR 4-1998(Temp), f. & cert. ef. 10-14-98 thru 4-11-99; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1987, f. & ef. 4-28-87; PAR 1-1987(Temp), f. & ef. 1-12-87; 2PB 4-1986(Temp), f. & ef. 12-2-86
Page 14 of 212 255-015-0004 Public Records Requests (1) All public records of the Board are available for public inspection and copying at the agency during usual business hours, except for records that the agency has determined to be exempt or conditionally exempt from disclosure in accordance with ORS Chapter 192 and any other references establishing an exemption to disclosure of public records. (2) A request to inspect or obtain copies of a public record or information from public records shall be made in writing and must include the following information: (a) Name, address, email address and telephone number of the requester; and (b) A specific description of the records requested and time period records were produced. (3) The Board will charge fees pursuant to ORS 192.324 and the Oregon Department of Administrative Services Standardized Public Records Requests Fees and Charges Statewide Policy 107-001-030 and ensure that all charges reflect no more than the actual cost to the Board of producing and processing the public records request. This includes fees for: (a) Staff time necessary to identify, locate, summarize or compile the record as requested; (b) Attorney fees and staff time associated with the screening of materials or redacting information that is exempt from disclosure; (c) Supervision of on-site inspection of the public record by the requester; (d) Customary fee per page or other media for reproduction, handling and assembling of copies to be provided; and (e) Postage or similar expenses and special supplies or services necessary to furnish the records. (4) The requester must pay all fees for access of a public record in advance. Statutory/Other Authority: ORS 144.025, ORS 144.050, ORS 183.335, ORS 192.311-401 Statutes/Other Implemented: ORS 192.311-401, ORS 144.130, ORS 144.185 History: PAR 6-2018, adopt filed 10/30/2018, effective 10/31/2018
255-015-0010 Criteria for Denial of Disclosure of Records The Board shall disclose its records to any person or agency unless: (1) Disclosure would interfere with the rehabilitation of a person in custody, and the public interest in confidentiality clearly outweighs the public interest in disclosure; (2) Disclosure would substantially prejudice or prevent the carrying out of the functions of the Board or the Department of Corrections, and the public interest in confidentiality clearly outweighs the public interest in disclosure; (3) The information was submitted to a public body in confidence and not otherwise required by law to be submitted, the information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and the public interest will suffer by disclosure of the information; (4) The requested record is a presentence investigation report prepared pursuant to ORS 137.077 or 137.530; (5) The requested records constitute advisory communications within a public body and in this instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure; (6) The records comprise investigatory information compiled for criminal law purposes and the public interest does not require disclosure in this particular instance; (7) The requested records pertain to potential or pending litigation involving the Board and the public interest does not require disclosure in this particular instance; (8) The records comprise Board deliberations per ORS 192.690; (9) Records are exempt from disclosure under ORS 192.355, 192.371, 192.398; or (10) The requested records are otherwise exempt from disclosure under the Public Records Law or other provisions of state or federal law; or other reasons. Statutory/Other Authority: ORS 183.335, ORS 144.025, ORS 144.050, ORS 192.311-192.401
Page 15 of 212 Statutes/Other Implemented: ORS 144.130, ORS 144.185, ORS 192.311-192.401 History: PAR 6-2018, amend filed 10/30/2018, effective 10/31/2018; PAR 1-1999, f. & cert. ef. 1-15-99; PAR 4- 1998(Temp), f. & cert. ef. 10-14-98 thru 4-11-99; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1989, f. & ef. 11-1-89; PAR 6- 1988, f. & ef. 5-19-88; PAR 3-1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86; 1PB 4-1985, f. & ef. 5-31-85
DIVISION 20 BUSINESS MEETING
255-020-0005 Scheduling The chairperson or vice-chairperson of the Board shall schedule regular business meetings and shall schedule additional business meetings as necessary or upon the request of a majority of the Board members. Statutory/Other Authority: ORS 137.320, 137.370, 144.005, 144.025, 144.035, 144.050, 144.079, 144.120, 144.140, 144.305, 144.343, 144.783 Statutes/Other Implemented: ORS 137.320, 137.370, 144.005, 144.025, 144.035, 144.050, 144.079, 144.120, 144.140, 144.305, 144.343, 144.783 History: PAR 3-2011, f. 3-3-11, cert. ef. 3-4-11; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1- 91; PAR 6-1988, f. & ef. 5-19-88; 2PB 5-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
255-020-0010 Quorum A business meeting requires the presence of at least a majority of the voting Board members, one of whom shall be the chairperson, vice-chairperson or chairperson’s designee. Statutory/Other Authority: ORS 137.320, 137.370, 144.005, 144.025, 144.035, 144.050, 144.079, 144.120, 144.140, 144.305, 144.343, 144.783 Statutes/Other Implemented: ORS 137.320, 137.370, 144.005, 144.025, 144.035, 144.050, 144.079, 144.120, 144.140, 144.305, 144.343, 144.783 History: PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 6-1988, f. & ef. 5-19-88; 2PB 5- 1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
255-020-0015 Matters for Consideration; Majority Vote At business meetings, the chairperson, chairperson's designee, Board members, agency staff, or invited guests shall present matters relating to Board policy and administration for consideration. A decision at a business meeting requires a majority of affirmative votes. Statutory/Other Authority: ORS 137.320, 137.370, 144.005, 144.025, 144.035, 144.050, 144.079, 144.120, 144.140, 144.305, 144.343, 144.783 Statutes/Other Implemented: ORS 137.320, 137.370, 144.005, 144.025, 144.035, 144.050, 144.079, 144.120, 144.140, 144.305, 144.343, 144.783 History: PAR 3-2011, f. 3-3-11, cert. ef. 3-4-11; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1- 91; PAR 6-1988, f. & ef. 5-19-88; 2PB 5-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
255-020-0020 Procedure A business meeting under this division is a public meeting as defined in ORS 192.610 to 192.690. Adequate public notice, public access, and public minutes are required. Statutory/Other Authority: ORS 192.610 - 192.690 Statutes/Other Implemented: ORS 192.610 - 192.690 History: PAR 6-1988, f. & ef. 5-19-88
Page 16 of 212 DIVISION 25 ADJUSTED COMMITMENT DATE
255-025-0005 Date Prison Term Starts to Run (1) Generally, the date on which the inmate is delivered to custody of the Department of Corrections for the purpose of serving the sentence is the commencement date for the prison term. (2) In the case of additional consecutive sentences, the board shall rescind the existing parole release date which shall become the commencement date for the new prison term unless the board unsums the consecutive ranges pursuant to OAR 255-035-0022. Upon unsumming the ranges, the board shall apply section three of this rule. (3) In the case of additional concurrent sentences, the sentencing date shall be the commencement date for the new prison term. Statutory/Other Authority: ORS 137.320, 137.370, 144.050, 144.079, 144.783 Statutes/Other Implemented: ORS 137.320, 137.370, 144.050, 144.079, 144.783 History: PAR 8-2000, f. & cert. ef. 11-15-00; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 6-1988, f. & ef. 5-19-88; 2PB 6-1985, f. & ef. 5-31-85
255-025-0010 Credit for Time Served (1) Upon certification of the credit for time served by the Department of Corrections, the board shall grant time served credit towards the prison term for the following time periods: (a) The actual, non-overlapping, certified time served in the county jail after arrest until the prison term begins; or (b) The actual, non-overlapping, certified time served in the county jail as a condition of probation. (2) When the board grants credit towards the initial prison term under subsection (1) of this section, the board shall deduct the time served credits from the commencement date as defined in OAR 255-025-0005(1). (3) When the board grants credit towards the prison term on a sentence consecutive to one being served, the adjusted commitment date shall be the prior parole release date. The board shall deduct the time served credits from the newly established parole release date after establishment of a prison term on the new consecutive sentence. (4) When the board grants credit towards the prison term on a sentence concurrent to one being served, the board shall deduct time served credits from the sentencing date on the new concurrent sentence. (5) If the board receives additional time served credits after establishment of the prison term, the board or its designee may administratively correct the parole release date. The board shall send written notice of the correction to the inmate. Statutory/Other Authority: ORS 137.320, 137.370, 144.005, 144.079, 144.783 Statutes/Other Implemented: ORS 137.320, 137.370, 144.005, 144.025, 144.035, 144.050, 144.079, 144.120, 144.140, 144.305, 144.343, 144.783 History: PAR 8-2000, f. & cert. ef. 11-15-00; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 18-1988, f. & ef. 12-6-88; PAR 11- 1988(Temp), f. & ef. 7-20-88; PAR 6-1988, f. & ef. 5-19-88; 2PB 6-1985, f. & ef. 5-31-85
255-025-0030 Effect of Inoperative Time on Prison Terms Inoperative time shall not count towards the completion of a prison term or an incarceration term for violation of parole or post-prison supervision conditions. In resetting the release date, the inoperative time shall be added to the term as provided in OAR 255-050-0105. The Board shall notify the inmate of its action. Statutory/Other Authority: ORS 144.050, 144.140 Statutes/Other Implemented: ORS 144.050, 144.140 History: PAR 8-1992, f. & cert. ef. 10-9-92; PAR 6-1988, f. & ef. 5-19-88
255-025-0035 Adjusted Commitment Date for Parole Violations
Page 17 of 212 The adjusted commitment date for parole violators with new convictions or new commitments shall be calculated as outlined in OAR 255-075-0078. Statutory/Other Authority: ORS 144 Statutes/Other Implemented: ORS 144 History: PAR 18-1988, f. & ef. 12-6-88
DIVISION 30 PRISON TERM HEARING AND HEARING PROCEDURES
255-030-0010 Scheduling Prison Term Hearings (1) The Board shall conduct a hearing to establish a prison term for each new inmate whose crime was committed prior to November 1, 1989, within: (a) Six months of admission to a Department of Corrections facility for those sentenced to five years or less; (b) Eight months of admission to a Department of Corrections facility for those sentenced to more than five years but less than fifteen years; or (c) Twelve months of admission to a Department of Corrections facility for those sentenced to life or fifteen years or more. (2) The Board shall follow section 1 of this rule to schedule a prison term hearing for any additional sentence received while in custody of a Department of Corrections facility. (3) For those prison term hearings which must be conducted within six months, the Board may defer setting a prison term for ninety days to obtain additional information. (4) The Board may establish prison terms after a hearing or as an administrative action without a hearing, pursuant to 255-030-0024. Statutory/Other Authority: ORS 144.120(1) Statutes/Other Implemented: ORS 144.120 History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 6-2000, f. & cert. ef. 6-9-00; PAR 3-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86; 2PB 7-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
255-030-0013 Notification of Hearing (1) The Board shall send written notice of the hearing and its purpose to the inmate. The inmate shall receive a copy of the Board Review Packet, including the notice of rights (Exhibit NOR-1), at least 14 days prior to the hearing. (2) If the inmate did not receive 14 days notice, the Board may reschedule the hearing or the inmate may waive the notice and the Board shall conduct the hearing. (3) The Board shall attempt to notify the victim, if the victim requests notification and furnishes the Board a current address, and the District Attorney of the committing county at least ninety (90) days before all hearings by sending written notice to the current addresses of both parties. Statutory/Other Authority: ORS 144.120(7), 144.130 Statutes/Other Implemented: ORS 144.120(7), 144.130 History: PAR 1-2015, f. & cert. ef. 4-15-15; PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 4- 2012, f. & cert. ef. 10-15-12; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 2-2012(Temp), f. & cert. ef. 6-28- 12 thru 12-25-12; PAR 8-2010, f. & cert. ef. 9-29-10; PAR 7-2010, f. & cert. ef. 9-3-10; PAR 3-1997, f. 3-11-97, cert. ef. 3- 14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 2-1990, f. & cert. ef. 4-5-90; PAR 1-1990(Temp), f. & cert. ef. 2-20-90; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86
Page 18 of 212 OREGON BOARD OF PAROLE & POST-PRISON SUPERVISION
HEARING NOTICE & NOTICE OF RIGHTS PACKET
INMATE:______
HEARING DATE:______HEARING LOCATION: ______
You have been scheduled by the board for a(n):______hearing.
If an attorney is going to represent you at your hearing, please tell the attorney that the date should be verified at least one day before the hearing date by calling the Board of Parole & Post-Prison Supervision at 503-945-0902. Please tell your attorney or any visitor(s) that they must contact the Board in advance to find out about attending and/or participating in the hearing. Please read the attached notice of rights and procedures carefully.
HEARING ABBREVIATIONS:
EI…………... EXIT INTERVIEW PC………… PAROLE CONSIDERATION PH………… PAROLE HEARING PT…………. PRISON TERM FD………… FUTURE DISPOSITION PR………… PERSONAL REVIEW AR………… ADMINISTRATIVE REVIEW PP………… POSTPONEMENT MR………… AGGRAVATED MURDER REVIEW PI………… PERSONAL INTERVIEW PD PREDATORY SEX OFFENDER SVPS SEXUALLY VIOLENT DANGEROUS DESIGNATION OFFENDER DESIGNATION
(PSY or PS………………………indicates that a psychological evaluation will be considered.)
BE PREPARED
1. Read all information before the hearing.
2. Bring your hearing packet to the hearing.
3. If you need an interpreter or other help, contact the Board or your institutional counselor immediately.
4. Any written information you want the Board consider at your hearing should be received by the Board at least two weeks before the hearing. Please write on it: “FOR HEARING.”
5. For a Prison Term Hearing, review your history risk score, aggravation, and mitigation carefully.
6. If you want to challenge any information in the PSI, you must provide a signed order showing that the court has approved changes to your PSI.
Copies of Board administrative rules are available in the inmate legal library.
Revised 3/30/2015 Page 1 of 7 Exhibit NOR-1
Page 19 of 212 DEFINITIONS OF HEARINGS
PRISON TERM: Hearing held to establish a prison term, deny parole, or set a parole consideration hearing date.
PAROLE POSTPONEMENT: Hearing to determine whether the parole release date should be postponed for misconduct. The extension of the prison term can be from 5% to 100% of the prison term, but no more than 5 years. Inoperative (escape) time will be added.
FUTURE DISPOSITION: Hearing conducted after parole revocation to determine whether the inmate should be re-released on parole.
PAROLE CONSIDERATION: Hearing to determine whether a dangerous offender’s condition is absent, in remission, or whether inmate remains dangerous but can be adequately controlled in the community with supervision and mental health treatment. If the dangerous condition is absent or in remission, a parole release date may be set. If the condition is present, another parole consideration hearing date may be scheduled to be held no sooner than 2 years and no longer than 10 years from the current parole consideration date.
ADMINISTRATIVE REVIEW: Hearing conducted on a specific issue where it has been found that: prior Board action is not supported by the written findings; the written findings are inaccurate; pertinent information was not considered at a prior hearing; the action was inconsistent with Board rules or policies; or there is a change in the rules or statutes or a prison sentence.
PAROLE HEARING: Interview of inmate who is under the Discretionary System (crime committed before approximately 1977), to determine whether to grant release on parole. This may result in no action or the setting of a parole date.
PERSONAL REVIEW: Hearing to determine whether to grant a reduction in inmate’s prison term, based on a positive recommendation from the Department of Corrections,, which would result in advancing the projected parole release date.
PERSONAL INTERVIEW: A discretionary hearing scheduled by the Board to review the progress of an inmate.
AGGRAVATED MURDER REVIEW: Hearing to determine whether or not the inmate is likely to be rehabilitated within a reasonable period of time so that the terms of his/her sentence may be converted to life with the possibility of parole.
EXIT INTERVIEW: Interview with the inmate to determine whether to affirm or defer inmate’s projected parole release date. Projected parole release date may be affirmed, or postponed for no fewer than 2 years or no more than 10 years from the current projected parole release date.
PREDATORY SEX OFFENDER DESIGNATION: Hearing to determine if an offender who meets the criteria to be designated a Predatory Sex Offender is currently exhibiting behavior that warrants the designation.
SEXUALLY VIOLENT DANGEROUS OFFENDER DESIGNATION:
Revised 3/30/2015 Page 2 of 7 Exhibit NOR-1
Page 20 of 212 Hearing to determine if an offender should be deemed a sexually violent dangerous offender under ORS 144.635 and OAR 255-060-0018.
Revised 3/30/2015 Page 3 of 7 Exhibit NOR-1
Page 21 of 212 BOARD OF PAROLE AND POST-PRISON SUPERVISION INMATE RIGHTS AND HEARINGS PROCEDURES (OAR 255-030-0035(2)(a), OAR 255-030, 255-032, 255-040, 255-050, 255-060, 255-075) This is an informal summary of your rights at a hearing; please obtain and refer to the rules and statutes that govern the Board’s conduct of hearings.
Law that Applies
You are scheduled for a hearing before the Oregon State Board of Parole and Post-Prison Supervision. Based on the hearing results, the Board will issue an order which may affect your release date from the institution. Refer to the previous page – Definitions of Hearings – for more specific information on the type of hearing.
You may be released on parole or post-prison supervision (PPS). It is also possible that your parole release date or parole consideration date may be postponed or that parole/PPS release may be denied.
The hearing will be conducted as provided in Chapter 144 of the Oregon Revised Statutes and as further provided in the administrative rules of the Oregon Board of Parole and Post-Prison Supervision, OAR Chapter 255. Ordinarily the Board will apply the substantive rules in effect at the time you committed your crime(s) as well as the applicable procedural* rules and laws. These statutes and rules are available through the institution's inmate law library; please consult the law librarian or inmate legal assistant.
Right to an Attorney
The Board will not be represented by an attorney at the hearing. The Board will not appoint or pay an attorney for you. You may represent yourself at the hearing. You may also choose to bring your attorney at your expense. Legal aid organizations may be able to assist an inmate who has limited financial resources. Most Department of Corrections institutions have inmate legal assistants available through the legal library who can assist you in preparing for the hearing, and who may accompany you to the hearing. If you choose to consult an attorney or legal assistant, make sure you begin your contacts well before the hearing; the process can be time-consuming. If you hire an attorney, it is your responsibility to notify your attorney of the date of your hearing.
Who May Attend the Hearing
You may be accompanied by one person of your choice to the hearing, who may make a statement on your behalf. The hearing is public, and other persons who wish to observe or support you may attend in person, subject to Department of Corrections rules. Attendees may also participate by telephone if telephone access is available (the Board’s phone lines are limited). Tell your supporters and attorney to contact the Board at least two weeks in advance to arrange to attend the hearing.
Victim(s) of your crime(s) and their supporters, and/or a representative of the District Attorney’s office from the county where you were sentenced may also attend the hearing. The identified victim(s) and the DA representative have the right to make statements at the hearing under ORS 144.750 (former ORS144.120 (7)). You will be able to respond to any comments that are made.
Because Board hearings are public, representatives of the press may attend. The Board does not usually notify the parties that press representatives intend to be present at a hearing.
“Substantive” rules or laws are those that create, define, or regulate the rights and duties of you and the Board. “Procedural” rules or laws are those that set out the methods for holding a hearing or taking an action. Procedural rules do not affect your rights. Revised 3/30/2015 Page 4 of 7 Exhibit NOR-1
Page 22 of 212
Information Considered at the Hearing
The Board will consider the documents in the packet prepared for your hearing and provided to you. It is your responsibility to provide any other information you want considered. Please be aware that information you submitted for previous hearings will not automatically be considered by the Board for this hearing. You must resubmit any such information. The Board will not research and obtain information for you. You may not call witnesses or cross-examine any one who has provided information to the Board.
In general, information that you want the Board to consider should be provided in writing at least fourteen days before the hearing and you should write clearly on it: "FOR HEARING." Please send a written list of your certificates, instead of photocopies of the certificates themselves. The Board, at its discretion, may also accept limited amounts of written information during the hearing. You and one support person or representative may make statements to the Board. The support person’s statement is usually limited to 15 minutes.
Presiding Officer
Either the full Board or a panel of the Board (one or more members) will hear your case. One of the members will serve as the presiding officer (or “lead”) and will rule on all matters that arise at the hearing. The Board will usually announce its decision at the end of the hearing. If not you will receive the decision in writing in a Board Action Form (BAF).
Notice and Waiver
The parole packet and a notice of your hearing are sent to you at least 14 days before the hearing date. If you do not receive these materials at least 14 days prior to your hearing, you may either waive the notice period or have your hearing rescheduled. If you are near to a hearing date and have not received a packet or other information, let the Board know right away.
Refusal
You may refuse to attend your hearing. If so, please write to the Board and specifically state that you plan to refuse to attend your hearing. If it is a last minute decision, please inform your counselor, who in turn can notify the Board. When you are called out for the hearing, you should honor the call-out, and then inform institution staff of your decision not to attend the hearing. The Board may then hold the hearing without you, and make its decision. You should be aware that in your absence, the Board may deny parole, or defer parole to a date close to your good time date.
Hearing Procedure
The Board’s task is to gather information to make the best possible decision with the available information while assuring a fair and full hearing to all persons entitled to participate.
A Board hearing is less formal than a court appearance. Generally it is fairly short, so be prepared to speak briefly and to the point. You should bring your copy of the parole packet to your hearing. The Board may refer to some of the documents and may want to discuss them with you.
First, the Board will review the documents in your Board Packet, which will usually include the
Please refer to the statutes and administrative rules for the type of hearing you are having. . Revised 3/30/2015 Page 5 of 7 Exhibit NOR-1
Page 23 of 212 Presentence Report or a similar report, as well as information provided by police, the victim, or the district attorney, any Department of Corrections reports, and any recent psychological or psychiatric evaluations. You have the right to examine these documents before the hearing, subject to the exceptions listed in OAR 255-015-0010.
In the specific case of a Prison Term Hearing, the Board will tell you the proposed findings regarding your history/risk score and crime category. Go over the forms in your packet ahead of time. You have the right to present additional relevant information, including mitigating factors (refer to Exhibit E2 and E3) and you have the right to give the Board evidence or arguments on information that you believe is not accurate. If so, or if you wish to ask the Board to find mitigation, please send to the Board or bring with you written documentation to verify your statements. (Be aware that if you successfully appeal your conviction or sentence, any comments made to the Board during the hearing can be used upon retrial or resentencing.)
Depending on the purpose of the hearing, the Board will ask you questions about the crime(s) you committed, about your programming, prison adjustment or parole performance, efforts to deal with the factors that led to your criminal behavior, your parole planning, etc. If you have prepared a written statement, the Board prefers that you submit the statement to the Board and not plan to read aloud from it during the hearing. However, you can bring any notes that you want to remind yourself of what you want to tell the Board.
As noted above, your representative, the victim(s), and the DA representative may make statements to the Board. You will have an opportunity to speak to the Board and respond to the statements made by the victim(s) and DA.
Continuances
There are normally no continuances granted at the end of a hearing. You should be prepared to finish what you want to say or submit it in writing at the time of the hearing. However, if you can show that the record should remain open for additional evidence, the presiding Board member may, at his or her discretion, continue the hearing for a short period of time to allow you or others to submit extra information.
Decision
Following the fact-finding portion of the hearing, the Board will make its decision in private, and then will (usually) give its decision to you. There will not be an opportunity after the Board deliberates for re- arguments or objections. After the hearing, you will also be sent an order that states the Board's decision in your case. This order will be captioned Board Action Form (referred to as a “BAF”).
Record
An audio recording will be made of the entire hearing to preserve the testimony for future reference and in the event of appeal from the Board’s order. The hearing audio record will not be transcribed by the Board unless requested by the Department of Justice to prepare a record for a judicial appeal. Inmates may purchase a copy of the recording from the Board. The Board only keeps hearing recordings for 4 years from the date of the hearing; after 4 years they are destroyed.
Administrative Reviews and Appeals
If you believe the Board made a mistake in making its decision, you may seek administrative review.
Revised 3/30/2015 Page 6 of 7 Exhibit NOR-1
Page 24 of 212 You must ask the Board to examine your claims (“exhaust your administrative remedies”) before you may ask for judicial review from the Court of Appeals (see ORS 144.335 and OAR 255-080-0001). You may request review if you have evidence that:
1. The Board action is not supported by evidence in the record; 2. Pertinent information was available at the time of the hearing which through no fault of yours, was not considered; 3. Pertinent information was not available at the time of the hearing, e.g., information concerning convictions from other jurisdictions; 4. The Board acted inconsistently with its rules, policies, and procedures, and the inconsistency is not explained; 5. The Board acted in violation of a constitutional or statutory provision; or 6. The Board acted outside the range of discretion given to the agency by law.
Please use the blue form called Administrative Review Request Form (Exhibit O) to request a review. The form is available at the inmate law library. If you cannot get this form, please type or print your request in ink on blue or white paper. There are rules about how long the administrative review request can be, and about the format you should use. Be sure to look up OAR 255-080-0008 and follow the rules there.
The request for review must be received by the Board within 45 days after the date the Board Action Form is mailed, or within 45 days of the date you receive a supervision order. Read OAR 255-080-0005. Do not use the Exhibit O form to ask questions or to request corrections of obvious clerical errors. You can write to the Board for that.
The Board’s limited staffing may result in the response to your review request taking several months. The Board regrets such delays, and works to complete your Administrative Review Response (ARR) as quickly as possible.
After you receive the Board response to your request, if you still believe that the Board erred, and you can show that the order “adversely affects or aggrieves” you, you may then request judicial review from the Oregon Court of Appeals (see ORS 144.335). You must file a Petition for Review with the Oregon Court of Appeals within 60 days after the final administrative review response is mailed (see OAR 255-080-0001 to 0015).
Pay attention to the time and format requirements for your administrative review request and your petition for review so that they will not be too late to be considered or may be rejected for other reasons.
Harms you. If you cannot afford a lawyer to help you with an appeal to the court, you might qualify for appointed counsel. You should contact the Public Defender's Office about having an attorney appointed for you.
Revised 3/30/2015 Page 7 of 7 Exhibit NOR-1
Page 25 of 212 255-030-0015 When Full Board Is Required; Procedures for Board Decision (1) Except as otherwise provided in this rule, a panel of two voting members of the Board shall conduct all prison term hearings and shall make the final decision. (2) A panel of at least two members of the Board, may conduct hearings in the following cases; a majority of the Board shall make the final decision: (a) The court sentenced the inmate under ORS 161.725 and 161.735 as a dangerous offender; (b) The Department of Corrections recommends an extension of more than two years in the prison term for misconduct; (c) The court ordered a minimum sentence pursuant to ORS 144.110 and the minimum exceeds the matrix range and the variations permitted a panel; (d) A panel recommends a decision to set the prison term below a judicially set minimum sentence (A panel may uphold a judicial minimum); (e) A panel recommends unsumming a unified range. (3) A panel of at least two members of the Board may conduct hearings in the following cases, but the final decision shall be made by either three board members or, if the chairperson requires all voting members to participate, all voting members: (a) Cases involving a prisoner sentenced to life imprisonment for murder or aggravated murder; (b) Cases where the inmate was convicted of a crime involving the death of a victim, whether or not the prosecution directly charged the prisoner with causing the death of the victim. (4) If a Board member is not present at a hearing, and statute or rule compels review, or the vote may affect the outcome of the hearing, the Board member may vote administratively after reviewing the Board Review Packet and the handwritten Board Action Form with attached exhibits, or may request that a hearing be rescheduled. The Board's action shall be considered final if the absent member's vote is not required for a final decision. (5) A panel of one Board member or of one Board member and one hearings officer may conduct prison term hearings for inmates convicted of non-person-to-person crimes. In cases of a panel consisting of one Board member, another member shall vote after review of the record as provided in section 4 of this rule. A hearings officer may not participate on a panel in cases in which, pursuant to ORS 144.110, a court imposed a minimum sentence that exceeds the matrix range and variations permitted a panel. (6)(a) If there is a division in a panel so that a decision is not unanimous, another Board member shall vote after review of the record as provided in section (4) of this rule. (b) If the original panel was made up of one Board member, and the member voting after administrative review of the record disagrees with the decision, the chairperson shall reassign the case to a panel made up of the remaining Board members. If this second panel agrees with neither member of the original panel, the chairperson will refer the case for hearing and decision before the full Board. (c) When a panel recommends a decision to exceed the allowable variation from the matrix permitted to the panel and a third vote, the chairperson shall reassign the case for hearing and decision before the full Board. (d) When a panel recommends denying parole, the chairperson shall reassign the case for hearing before the full Board, and three members must affirmatively agree to deny parole, except that if the result is life imprisonment, the vote must be unanimous. Statutory/Other Authority: ORS 144.035, 144.054 Statutes/Other Implemented: ORS 144.035, 144.054, 144.110, 161.725 - 161.735 History: PAR 3-2016, f. & cert. ef. 8-29-16; PAR 2-2016(Temp), f. & cert. ef 4-26-16 thru 10-21-16; PAR 6-2000, f. & cert. ef. 6-9-00; PAR 3-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 4-1989, f. & ef. 11-1-89; PAR 18-1988, f. & ef. 12-6-88; PAR 6-1988, f. & ef. 5-19-88; PAR 2-1988(Temp), f. & ef. 3-25-88; Reverted to 2PB 7-1985, f. & ef. 5-31-85; 2PB 3-1986(Temp), f. & ef. 12-2-86; 2PB 2-1986(Temp), f. & ef. 11-13-86; 2PB 7-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
Page 26 of 212 255-030-0021 Manner of Hearing At the chairperson's discretion, the Board or its designated representative may conduct any hearing by teleconference call, videoconference call, or other electronic medium that ensures the inmate, the Board, and other participants the opportunity to hear and be heard. Statutory/Other Authority: ORS 144.035(5) Statutes/Other Implemented: ORS 144.035(5) History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86; 2PB 7-1985, f. & ef. 5-31-85
255-030-0023 Inmate Appearance at Board Hearing (1) The inmate shall be present in person, by telephone or videoconference, or by any other electronic medium that ensures the inmate, the Board, and other participants the opportunity to hear and be heard. (2) If an inmate refuses to appear at a hearing, the refusal will be considered to be the inmate’s waiver of appearance. (3) The Board may compel an inmate's appearance when the inmate refuses to appear. (4) The Board may choose not to compel the inmate to attend the hearing. The Board may then reschedule the hearing, or hold the hearing and make a decision in the inmate’s absence. Statutory/Other Authority: ORS 144.035(5), 144.120 Statutes/Other Implemented: ORS 144.035(5), 144.120 History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 3-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 1-1990(Temp), f. & cert. ef. 2-20-90; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88
255-030-0024 Prison Term Hearing Waiver (1) Notwithstanding OAR 255-030-0023(3), an inmate may waive his/her right to a prison term hearing based on the following criteria: (a) Sentence of less than 15 years; and (b) Non-person felony (The non-person felonies are designated on Exhibit A-I of these rules.); and (c) Matrix range of up to 14–20 months; and (d) Completed Prison Term Hearing Packet. (2) Within the time limits provided by OAR 255-030-0010, the Board, at its discretion, may notify the inmate in writing of: (a) His/her eligibility to waive the prison term hearing; and (b) The proposed prison term and conditions of parole. (3) A Department of Corrections counselor will review the waiver form with the inmate. (4) Upon receipt of a signed waiver, the Board shall make the findings required by OAR 255-035-0013 or 255-035-0014 and shall send the final Board order to the inmate. (5) If the Board is not satisfied that the waiver was made knowingly and intelligently or if it needs more information before making its decision, the Board may deny the waiver and order a hearing. Statutory/Other Authority: ORS 144.120(1)(b) Statutes/Other Implemented: ORS 144.120(1)(b) History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 6-2000, f. & cert. ef. 6-9-00; PAR 3-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 12-1988(Temp), f. & ef. 7- 20-88; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 1-1990(Temp), f. & cert. ef. 2- 20-90; PAR 4-1989, f. & ef. 11-1-89; Reverted to PAR 8-1988, f. & ef. 7-1-88; PAR 18-1988, f. & ef. 12-6-88; PAR 13-
Page 27 of 212 1988(Temp), f. & ef. 8-5-88; PAR 9-1988(Temp), f. & ef. 7-14-88; PAR 8-1988, f. & ef. 7-1-88
255-030-0025 Inmate Accompaniment to Board of Parole and Post-Prison Supervision Hearing (1) Purpose: The purpose of these rules is to jointly establish with the Department of Corrections policies and procedures governing who may accompany an inmate in a hearing before the Board of Parole and Post-Prison Supervision. (2) Policy: It is the joint policy of the Department of Corrections and Board of Parole and Post-Prison Supervision that inmates be permitted to have a person accompany them in hearings before the Board in accordance with ORS 144.123, as provided in these rules. The decision to approve a person's physical access to a Board hearing held within a Department of Corrections facility will be made by the functional unit manager or designee of the facility in which the inmate is confined, in accordance with the department's rules on Facility Access (OAR 291-016) and Visiting (Inmate) (OAR 291-127). A person's physical access to a Department of Corrections facility may be prohibited or restricted by the functional unit manager or designee consistent with these rules; the health, safety and security of staff, inmates, and the public; and with the safe, secure, and orderly operation and management of the facility. Statutory/Other Authority: ORS 144.123, 144.120(7) Statutes/Other Implemented: ORS 144.120(7), 144.123, 192.630 History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 3-2013, f. & cert. ef. 6-10-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3- 2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 10-2004, f. & cert. ef. 11-2-04; PAR 4-2004(Temp), f. & cert. ef. 5-14- 04 thru 11-10-04; PAR 6-2000, f. & cert. ef. 6-9-00; PAR 3-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 2-1990, f. & cert. ef. 4-5-90; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86; 2PB 1-1982, f. & ef. 5-19-82; Reverted to 2PB 1-1979, f. & ef. 2-1-79; 2PB 10-1981(Temp), f. & ef. 11-4-81; 2PB 1-1979, f. & ef. 2-1-79
255-030-0026 Who May Appear at a Board of Parole and Post-Prison Supervision Hearing (1) Inmate Accompaniment: When appearing before the Board of Parole and Post-Prison Supervision in a hearing, an inmate may be accompanied at the Department of Corrections facility in which the inmate is confined, subject to the prior approval of the facility functional unit manager or designee, by: (a) A person who has been approved for privileged visiting in accordance with the Department of Corrections rule on Visiting (Inmate) (OAR 291-127); (b) An assigned inmate legal assistant, selected in accordance with the Department of Corrections rule on Legal Affairs (Inmate) (OAR 291-139), from the Department of Corrections facility where the inmate is confined; or (c) The inmate's attorney. (2) In addition to those persons specified in subsection (1) of this rule, the inmate may be accompanied at the hearing via telephone or videoconference by such other person or persons as the Board of Parole and Post-Prison Supervision, in its discretion, may approve by prior arrangement. The inmate may select one person to speak on his/her behalf. The statement shall not exceed 15 minutes. The presiding Board member may grant the support person additional time upon a finding that further testimony is likely to be relevant to the Board's decision. The presiding Board member may exclude or limit irrelevant, immaterial or unduly repetitious testimony and evidence. (3) The Department of Corrections, if requested by the inmate or the Board, will assign an approved inmate legal assistant from the Department of Corrections facility where the inmate is confined to accompany an inmate at a Board hearing. The selection of the inmate legal assistant shall be governed by the policies and rules of the Department of Corrections. (4) Others Who May Attend/Appear at a Board Hearing: (a) Victim: The victim(s), personally, or by counsel or other representative, may attend Board of Parole and Post-Prison Supervision Hearings and may submit written and oral statements, including supporting documents, expressing any views concerning the crime and the offender.
Page 28 of 212 (b) District attorney: the district attorney from the committing jurisdiction or his/her representative or designee, may attend Board hearings and may submit written and oral statements, including supporting documents, expressing any views concerning the crime and the offender. (c) Public: Members of the public may attend, but not participate in, Board of Parole and Post-Prison Supervision hearings. (d) Media Representatives: Approved media representatives may attend, but not participate in, Board of Parole and Post-Prison Supervision hearings. (e) Department of Corrections Employees, Volunteers, and Contractors: Department of Corrections employees, volunteers, and contractors may attend, but not participate in, Board of Parole and Post-Prison Supervision hearings, except as requested or approved by the Board in order to provide testimony in the hearing. (f) Other: The Board retains the discretion to allow oral statements at hearings from one or more persons not otherwise identified in OAR 255-030-0026, if the Board deems the person(s) to have a substantial interest in the case, or to be able to provide information that may assist the Board in its deliberations. (5) Means and Manner of Appearance/Attendance: (a) Board Hearings Conducted With Inmate in Person Within a Department of Corrections Facility: (A) If the inmate will appear before the Board of Parole and Post-Prison Supervision in person within a Department of Corrections facility, the person(s) accompanying the inmate, the victim, the district attorney, and/or their representatives, members of the public, and approved media representatives, may attend the hearing in person at the Department of Corrections facility, subject to the approval by the functional unit manager of the facility in which the hearing is being conducted, or if arranged in advance with the Board, via telephone, videoconference call, or other electronic medium that ensures the inmate, the Board, and other participants the opportunity to hear and be heard. (B) A person who wants to attend a Board of Parole and Post-Prison Supervision hearing in a Department of Corrections facility must contact the Board at least two weeks in advance of the hearing to arrange. (C) A person's access to a Department of Corrections facility is subject to the Department of Corrections rules on Facility Access (OAR 291-016) and Visiting (Inmate) (OAR 291-127), and may be prohibited or restricted by the functional unit manager or designee of the facility in which the hearing is being conducted consistent with the health, safety and security of staff, inmates, and the public, and with the safe, secure, and orderly operation and management of the facility. (D) A person who attends a Board of Parole and Post-Prison Supervision hearing in a Department of Corrections facility is subject to the rules of conduct, and the terms and conditions of visiting set forth in the department's rules on Facility Access (OAR 291-016) and Visiting (Inmate) (OAR 291-127). (b) Board Hearings Conducted With Inmate via Telephone, Videoconference, or Other Electronic Medium: If the inmate will appear before the Board of Parole and Post-Prison Supervision via telephone, videoconference, or other electronic medium, the person(s) accompanying the inmate, the victim(s), and the district attorney, and/or their representatives, members of the public, and approved media representatives, may appear/attend the hearing at the place in which the Board is conducting the hearing, or via telephone, videoconference, or other electronic medium, as arranged in advance with the Board. (6) Conduct of Hearing: The Board of Parole and Post-Prison Supervision may eject any disruptive person from a hearing. The Board may require all persons to leave the designated hearing area during deliberations. Statutory/Other Authority: ORS 144.123, 144.750, former 144.120(7), 192.690 Statutes/Other Implemented: ORS 144.123, 144.750, former 144.120(7) History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 3-2013, f. & cert. ef. 6-10-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3- 2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 10-2004, f. & cert. ef. 11-2-04
255-030-0027 Victim, District Attorney and Inmate Statements (1) During the hearing, the victim(s), personally, by counsel, or by representative, and the district attorney from the committing jurisdiction may make statements not to exceed 15 minutes. The presiding Board member may grant the
Page 29 of 212 representative of the victim or the district attorney additional time upon a finding that further testimony is likely to be relevant to the Board's decision. The presiding Board member may exclude or limit irrelevant, immaterial, or unduly repetitious testimony and evidence. Following the statement(s) by the victim(s) and/or district attorney, the inmate may address the Board with his/her response. (2) One person selected by the inmate may make a statement not to exceed 15 minutes. The presiding Board member may grant the witness additional time upon a finding that further testimony is likely to be relevant to the Board's decision. The presiding Board member may exclude or limit irrelevant, immaterial, or unduly repetitious testimony and evidence. Statutory/Other Authority: ORS 144.750, former 144.120(7) Statutes/Other Implemented: ORS 144.750, former 144.120(7) History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 12-2010, f. & cert. ef. 12-1-10; PAR 5-2010(Temp), f. 7-2-10, cert. ef. 7-6-10 thru 1-1-11; PAR 6-2000, f. & cert. ef. 6-9-00; PAR 3-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 1-1992, f. & cert. ef. 1-13-92; PAR 6-1988, f. & ef. 5- 19-88; PAR 3-1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86
255-030-0032 Evidence (1) The presiding Board member at a Board hearing shall explain the issues to be decided. In the case of a prison term hearing, those issues are set forth in OAR 255-035-0013. In the case of other types of hearings, the issues are set forth in the applicable division of the Board’s administrative rules. (2) Evidence of a type that reasonably prudent persons would commonly rely upon in the conduct of their serious affairs shall be admissible in Board hearings, including: (a) The information set forth in OAR 255-030-0035; (b) Other relevant evidence concerning the inmate that is available. (3) Reliable, probative, and substantial evidence shall support Board orders. Substantial evidence is found when the record, viewed as a whole, would permit a reasonable person to make a particular finding. (4) The Board may exclude evidence if it is: (a) Unduly repetitious; (b) Not of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs; (c) Provided by a person, other than a justice system official, without first hand knowledge of the circumstances of the crime that is the subject of the proceeding before the Board; (d) Provided by a person, other than a justice system official, without first hand knowledge of the character of the inmate; (e) Addressing only guilt or innocence; or (f) Irrelevant or immaterial to the decision(s) to be made at that particular hearing. (5) The Board may receive evidence to which the inmate objects. If the presiding Board member does not make rulings on its admissibility during the hearing, the Board shall make findings on the record at the time a final order is issued. (6) Erroneous rulings on evidence shall not preclude Board action on the record unless shown to have substantially prejudiced the rights of the inmate. Statutory/Other Authority: 144.140, ORS 144.050 Statutes/Other Implemented: ORS 144.050, 144.140 History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 6-2000, f. & cert. ef. 6-9-00; PAR 3-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 1-1992, f. & cert. ef. 1-13- 92; PAR 5-1990, f. & cert. ef. 10-5-90; PAR 4-1989, f. & ef. 11-1-89
255-030-0035 Information the Board Shall Consider at a Prison Term Hearing (1) The Board Review Packet shall contain information relevant to the purpose of the hearing, which may include, but is not limited to:
Page 30 of 212 (a) Inmate's notice of rights and notice of administrative appeal; (b) Presentence Investigation (PSI), Postsentence Investigation Report (PSR), Parole Analyst Report (PAR), or report of similar content; (c) Sentencing/judgment orders; (d) Department of Corrections Inmate Face sheet; (e) Certification of time served credits; (f) Board Action Forms; (g) Information pursuant to Ballot Measure 10; (h) Material submitted by the inmate or representative relating to the calculation of the prison term, or to the subject matter of the hearing; (i) Current psychological/psychiatric evaluations; (j) Other relevant material selected at the Board's discretion. (2) The Board Review Packet need not include all documents in the inmate’s file. (3) At its discretion, the Board may consider additional written information and recommendations from those with a special interest in the case. If considered, the Board Review Packet shall include the information. The Board must receive any information submitted pursuant to this section at least fourteen days prior to the hearing. The Board may waive the fourteen-day requirement. Statutory/Other Authority: ORS 144.185, 144.223 Statutes/Other Implemented: ORS 144.185, 144.125(1), 144.223 History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 1-1992, f. & cert. ef. 1-13-92; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86; 2PB 7-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; 2PB 16- 1981(Temp), f. & ef. 11-25-81; 2PB 1-1979, f. & ef. 2-1-79
255-030-0040 Inmate's Access to Written Materials/Rebuttal and Deadlines for Receiving Materials (1) The inmate shall have access to all the material in the Board Review Packet except that exempted by OAR 255-015- 0010 (Criteria for Denial of Disclosure of Records). (2) The inmate shall have access to all the victim and district attorney’s responses pursuant to OAR 255-030-0035 except as exempted by the Board pursuant to OAR 255-015-0010. The Board shall include the responses in the Board Review Packet or shall give the responses to the inmate as soon as they are available to the Board. (3) If the victim, his/her representative, or the district attorney wishes to rebut any of the material in the Board Review Packet, the Board must receive the response seven days prior to the hearing. The Board shall notify the victim that the Board will include the response in the Board Review Packet sent to the inmate unless the victim requests confidentiality. (4) The inmate or representative shall submit any relevant information at least fourteen days prior to the hearing. (5) The Board may waive deadline requirements if it finds good cause to do so. Statutory/Other Authority: ORS 144.050, 144.130, 144.223, 192.502(4) or (5) Statutes/Other Implemented: ORS 144.130 History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 6-2000, f. & cert. ef. 6-9-00; PAR 3-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86; 2PB 7-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
255-030-0046 Continuance of Hearings: Cancellation of Hearings (1) Upon the request of any party or on its own motion, the Board may, for good cause, continue a hearing for a reasonable period of time. (2) A request for cancellation or postponement of a hearing must be for good cause, in writing, and at least seven days
Page 31 of 212 before the hearing. (3) A hearing may not be postponed or cancelled if that action would violate any statute or rule requiring the hearing to be held. (4) If the Board cancels a hearing at an inmate’s request, the inmate shall not be eligible to request another hearing for 90 days from the date of the scheduled hearing. The decision to grant a hearing is at the discretion of the Board. Statutory/Other Authority: ORS 144.050 Statutes/Other Implemented: ORS 144.185 History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13
255-030-0055 Notice of Decision Following Prison Term Hearing (1) Following a Board decision concerning the prison term of an inmate, the Board shall send written notice of the Board's final order to the inmate, district attorney, sheriff or arresting agency, the Department of Corrections, and upon request, the victim, the sentencing judge and the trial counsel. (2) The Board's final order shall contain the following findings, as applicable: (a) The prison term commencement date; (b) The history/risk assessment score; (c) The crime category with the subcategory rationale; (d) The matrix range; (e) When there are consecutive sentences, whether the range is unsummed and the reason for unsumming; (f) When there is a variation from the range, the reason for the variation; (g) Aggravation; (h) Mitigation; (i) The votes on minimum sentences; (j) The prison term set; (k) The parole release date; (l) Sentencing guidelines range, if applicable. Statutory/Other Authority: ORS 144.120, 144.260, 144.135 Statutes/Other Implemented: ORS 144.120, 144.260, 144.135 History: PAR 5-2013, f. & cert. ef. 11-27-13; PAR 2-2013, f. & cert. ef. 3-1-13; PAR 3-2012(Temp), f. & cert. ef. 9-18-12 thru 3-1-13; PAR 3-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 8-1992, f. & cert. ef. 10- 9-92; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1987, f. & ef. 4-28-87; 2PB 4-1986(Temp), f. & ef. 12-2-86; 2PB 7-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
DIVISION 32 AGGRAVATED MURDER
255-032-0005 Prison Term Hearing to Be Held (1) An adult person convicted of Aggravated Murder under ORS 163.095 shall receive a hearing within one year of sentencing. A person convicted of Murder under ORS 163.115 that was committed on or after June 30, 1995, and who was sentenced to life with a twenty-five (25) year minimum shall receive a hearing within one year of sentencing. At the hearing the Board shall set a review date congruent with the minimum terms set forth in OAR 255-032-0010 rather than a parole release date. In lieu of holding a hearing, the Board may determine the prison term/murder review date by administrative file pass. (2) Adult persons sentenced to death or life without the possibility of release or parole shall not receive a hearing. (3) Adult persons sentenced to life with a twenty (20) or thirty (30) year minimum for aggravated murder shall receive a
Page 32 of 212 prison term hearing pursuant to ORS 144.120 if they also have a sentence to the Department of Corrections' custody for a crime other than aggravated murder. (4) Inmates, who were juveniles and waived to adult court pursuant to ORS 419C.340 through 419C.364, and were under the age of 17 years at the time of their crime(s), and were convicted of Aggravated Murder, per ORS 163.095, and whose crimes were committed after October 31, 1989 and prior to April 1, 1995, shall receive a prison term hearing. At the hearing, the Board shall set a projected parole release date, in accordance with the guidelines and matrix that apply with respect to the date of the crime. (5) The Board will apply the applicable procedural rules under OAR divisions 30 and 35, in effect at the time of the hearing, for the conduct of the hearing. Statutory/Other Authority: ORS 144.120, 163.095, 163.115, 419C.340, 419C.364 Statutes/Other Implemented: ORS 163.105 History: PAR 1-2012, f. & cert. ef. 3-13-12; PAR 3-2010, f. & cert. ef. 3-26-10; PAR 4-2009(Temp), f. & cert. ef. 9-29-09 thru 3-28-10; PAR 1-2003, f. & cert. ef. 5-13-03; PAR 2-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 4-1999, f. & cert. ef. 5-18- 99; PAR 4-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 4-1989, f. & ef. 11-1-89; 2PB 8-1985, f. & ef. 5-31-85
255-032-0010 Minimum Period of Confinement Pursuant to ORS 163.105 or 163.115 (1) The minimum period of confinement for an adult person convicted of Aggravated Murder as defined by ORS 163.105(1) shall be thirty (30) years. (2) The minimum period of confinement for an adult person convicted of Aggravated Murder as defined by ORS 163.105(2) prior to December 6, 1984, shall be twenty (20) years. (3) The minimum period of confinement for a person sentenced to life for Murder under ORS 163.115 committed on or after June 30, 1995, shall be twenty-five (25) years. Statutory/Other Authority: ORS 144.110, 163.105, 163.115 Statutes/Other Implemented: ORS 144, 163.105, 163.115 History: PAR 1-2003, f. & cert. ef. 5-13-03; PAR 2-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 4-1999, f. & cert. ef. 5-18-99; PAR 6-1988, f. & ef. 5-19-88; 2PB 8-1985, f. & ef. 5-31-85
255-032-0015 Petition/Purpose for Review Hearing An inmate not described in OAR 255-032-0005(4) may petition and the Board shall hold a hearing to determine whether the inmate is likely to be rehabilitated within a reasonable period of time: (1) Any time after completion of a minimum period of confinement pursuant to OAR 255-032-0010(1) for an offense committed on or after October 23, 1999; or (2) Any time after twenty-five (25) years from the date of imposition of a minimum period of confinement pursuant to OAR 255-032-0010(1) for an offense committed on or between June 30, 1995 through October 22, 1999; or (3) Any time after twenty (20) years from the date of imposition of a minimum period of confinement pursuant to OAR 255-032-0010(1) for an offense committed before June 30, 1995; or (4) Any time after fifteen (15) years from the date of imposition of a minimum period of confinement pursuant to OAR 255-032-0010(2); or (5) Any time after completion of a minimum term of confinement pursuant to OAR 255-032-0010(3). Statutory/Other Authority: ORS 163.105 Statutes/Other Implemented: ORS 163.115 History: PAR 9-2018, amend filed 12/18/2018, effective 12/18/2018; PAR 3-2010, f. & cert. ef. 3-26-10; PAR 4- 2009(Temp), f. & cert. ef. 9-29-09 thru 3-28-10; PAR 6-2004, f. & cert. ef. 6-14-04; PAR 3-2004(Temp), f. & cert. ef. 4-15- 04 thru 10-11-04; PAR 1-2003, f. & cert. ef. 5-13-03; PAR 2-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 4-1999, f. & cert. ef. 5- 18-99; PAR 4-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1991, f. & cert. ef. 1-16-91;
Page 33 of 212 PAR 6-1988, f. & ef. 5-19-88; 2PB 8-1985, f. & ef. 5-31-85
255-032-0020 Purpose of Review Hearing The sole issue of the hearing described in OAR 255-032-0015 shall be to determine whether or not the inmate is likely to be rehabilitated within a reasonable period of time. Criteria indicating whether the inmate is likely to be rehabilitated prior to release include: (1) The inmate’s involvement in correctional treatment, medical care, educational, vocational or other training in the institution which will substantially enhance his/her capacity to lead a law-abiding life when released; (2) The inmate’s institutional employment history; (3) The inmate’s institutional disciplinary conduct; (4) The inmate’s maturity, stability, demonstrated responsibility, and any apparent development in the inmate personality which may promote or hinder conformity to law; (5) The inmate’s past use of narcotics or other dangerous drugs, or past habitual and excessive use of alcoholic liquor; (6) The inmate’s prior criminal history, including the nature and circumstances of previous offenses; (7) The inmate’s conduct during any previous period of probation or parole; (8) The inmate does/does not have a mental or emotional disturbance, deficiency, condition or disorder predisposing them to the commission of a crime to a degree rendering them a danger to the health and safety of the community; (9) The adequacy of the inmate’s parole plan including community support from family, friends, treatment providers, and others in the community; type of residence, neighborhood or community in which the inmate plans to live; (10) There is a reasonable probability that the inmate will remain in the community without violating the law, and there is substantial likelihood that the inmate will conform to the conditions of parole. Statutory/Other Authority: 163.105(1), 161.620, 144.780, ORS 144.110(2)(b) Statutes/Other Implemented: ORS 144.050, 144.140, 144.226, 144.228, 144.232 History: PAR 4-1999, f. & cert. ef. 5-18-99; PAR 4-1993, f. & cert. ef. 10-29-93; 2PB 8-1985, f. & ef. 5-31-85
255-032-0022 Murder Review Hearings Notice The Board's notice (Exhibit NOR-3MR) must include: (1) A statement that the sole issue to be considered shall be whether or not the inmate is likely to be rehabilitated within a reasonable period of time, and that the inmate shall have the burden of proof, by a preponderance of the evidence; (2) A statement of the inmate's right to be represented by counsel; and if the inmate is without sufficient funds, counsel will be appointed by the Board at Board expense; (3) A statement that the Board has authority and jurisdiction to hold a hearing on the issue pursuant to ORS 163.105(2) or 163.115(5); and (4) A statement of rights of the inmate at the hearing. Statutory/Other Authority: ORS 183.415, 163.105(2), 163.115(5) Statutes/Other Implemented: History: PAR 1-2015, f. & cert. ef. 4-15-15; PAR 4-2012, f. & cert. ef. 10-15-12; PAR 2-2012(Temp), f. & cert. ef. 6-28-12 thru 12-25-12; PAR 5-2007, f. & cert. ef. 7-30-07; PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07
Page 34 of 212 BOARD OF PAROLE AND POST-PRISON SUPERVISION AGGRAVATED MURDER REVIEW HEARING INMATES’ RIGHTS AND PROCEDURES (OAR 255-030, 255-032) This is an informal summary of your rights at the hearing; please obtain and refer to the rules and statutes that govern the Board’s conduct of Murder Review hearings.
Law that Applies
1) You are scheduled for a Murder Review hearing before the Oregon State Board of Parole and Post- Prison Supervision. The Board has the authority and jurisdiction to hold a hearing on the issue pursuant to ORS 163.105(2) or 163.115(5).
2) The sole issue to be considered shall be whether you are likely to be rehabilitated within a reasonable period of time. You have the burden of proving, by a preponderance of the evidence, the likelihood of rehabilitation within a reasonable period of time. If after hearing all the evidence, the full Board, upon a unanimous vote of all members, or by such other vote as is specified in statute, finds that you are capable of rehabilitation, and that the terms of your confinement should be changed to life imprisonment with the possibility of parole or work release, it shall convert the terms of confinement to life imprisonment with the possibility of parole of work release and may set a projected parole release date. Otherwise, the Board shall not change the terms of confinement.
3) The hearing will be conducted in the manner prescribed by ORS 163.105 or ORS 163.115, and in the manner provided in the administrative rules of the Oregon Board of Parole and Post-Prison Supervision, OAR chapter 255, Division 32. Ordinarily the Board will apply the substantive rules in effect at the time you committed your crime(s) as well as the applicable procedural* rules and laws. These statutes and rules are available through the institution's inmate law library; please consult the law librarian or your inmate legal assistant.
4) OAR 255-032-0020 specifies that the criteria indicating whether an inmate is likely to be rehabilitated prior to release will include:
a. The inmate’s involvement in correctional treatment, medical care, educational, vocational or other training in the institution which will substantially enhance his/her capacity to lead a law-abiding life when released; b. The inmate’s institutional employment history; c. The inmate’s institutional disciplinary conduct; d. The inmate’s maturity, stability, demonstrated responsibility, and any apparent development in the inmate personality which may promote or hinder conformity to law; e. The inmate’s past use of narcotics or other dangerous drugs, or past habitual and excessive use of alcoholic liquor; f. The inmate’s prior criminal history, including the nature and circumstances of previous offenses; g. The inmate’s conduct during any previous period of probation or parole; h. The inmate does/does not have a mental or emotional disturbance, deficiency, condition or disorder predisposing them to the commission of a crime to a degree rending them a danger to the health and safety of the community; i. The adequacy of the inmate’s parole plan including community support from family, friends, treatment providers, and others in the community; type of residence, neighborhood or community in which the inmate plans to live;
“Substantive” rules or laws are those that create, define, or regulate the rights and duties of you and the Board. “Procedural” rules or laws are those that set out the methods for holding a hearing or taking an action. Procedural rules do not affect your rights.
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Page 35 of 212 j. There is a reasonable probability that the inmate will remain in the community without violating the law, and there is substantial likelihood that the inmate will conform to the conditions of parole.
This is not an exclusive list, and the Board will consider such other information as may contribute to its ability to reach a decision.
Right to an Attorney
The Board may be represented by an attorney at the hearing. You may hire an attorney to represent you. In that case, it is your responsibility to notify the attorney of the date of your hearing. The Board will appoint and pay for an attorney if you do not have the funds to pay for an attorney and if you request an attorney. You may also represent yourself at the hearing. If you choose to represent yourself, but determine in the course of the hearing that an attorney is necessary, you may not request a recess.
Who May Attend the Hearing
The hearing is public, and persons who wish to observe or support you may attend in person, subject to Department of Corrections rules. Attendees may also participate by telephone as long as telephone access is available (the Board’s phone lines are limited). Instruct your support persons and attorney to contact the Board at least two weeks in advance to arrange to attend the hearing.
Also attending the hearing, pursuant to statute and rule, may be victim(s) of your crime(s) and their supporters, and/or a representative of the District Attorney’s office from the committing jurisdiction (the county where you were sentenced). The identified victim(s) and the DA representative have the right to make statements at the hearing under ORS 144.120(7). You will have an opportunity to respond to any comments that are made.
Because Board hearings are public, representatives of the press may attend. The Board does not usually notify the parties that press representatives intend to be present at a hearing.
Information Considered at the Hearing/Witnesses
All material relevant and pertinent to issues before the Board will be made a part of the record. Exhibits not available prior to the hearing will be made available to you or your attorney at the hearing. Any material considered but not made part of the public record shall be separated and a statement to that effect shall be placed in the record. The Board shall follow the criteria for denial or disclosure of records set out in OAR 255-015-0010.
Discovery is not permitted. Requests that the Board research and obtain information you want considered cannot be honored. It is your responsibility to provide that information.
You must make your own arrangements for calling and presenting witnesses. However, upon a proper showing of general relevance and reasonable scope of the evidence being sought, the Board may issue subpoenas on your behalf. Make your request to the Board as soon as possible. If the Board allows the subpoena, the subpoena will be sent to you. You are responsible for serving it on the witness. Witnesses are not required to appear in person unless good cause can be shown why an in-person appearance is necessary. Witnesses may participate via teleconference. Instruct your attorney, witnesses, or any other visitor(s) that they must contact the Board in advance to receive information about attending and/or participating in the hearing. Testimony of each witness will ordinarily be limited to ten minutes.
In general, information that you want the Board to consider should be provided in writing at least two weeks prior to the hearing and you should write clearly on it: "FOR HEARING." The Board, at its discretion, may accept limited amounts of information during the hearing. Please be aware that information you submitted
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Page 36 of 212 for previous hearings will not automatically be considered by the Board for this hearing. You must resubmit any such information. You and your representative may make oral statements to the Board.
Notice and Waiver
You should receive your parole packet and a notice of your hearing at least 14 days before your hearing date. You should bring your copy of the parole packet to your hearing. If you do not receive these materials at least 14 days prior to your hearing, you may either waive the notice period or have your hearing rescheduled.
Presiding Officer
The full Board will hear your case. One of the members will serve as the presiding officer and will rule on all matters that arise at the hearing.
Hearing Procedure
The Board’s task at any hearing is to gather information to make the best possible decision with the available information while assuring a fair and full hearing to all persons entitled to participate. A Board hearing is less formal than a court appearance. Generally it is fairly short, so be prepared to speak concisely.
You should bring your copy of the parole packet to your hearing. You may want to call the Board’s attention to one or more documents, or the Board may refer to various documents and may want to discuss them with you. The Board will have reviewed the documents in your Board Review Packet, which will usually include the Presentence Report or a report of similar content, as well as any additional information provided by the police, counsel, the victim, or the district attorney, any Department of Corrections reports, and any recent psychological/psychiatric evaluations, as well as what you have submitted.
Please remember that under statute you have the responsibility (the “burden”) of proving, by a preponderance of the evidence, the likelihood of rehabilitation within a reasonable period of time. Be prepared to present your evidence! However, the Board may also ask you questions about the crime(s) you committed, about your programming, prison adjustment or parole performance, efforts to deal with the factors that led to your criminal behavior, your parole planning, etc. If you have prepared a written statement, the Board prefers that you submit the statement for review and not plan to read aloud from it during the hearing. However, you can bring any notes that you want to remind yourself of what you want to tell the Board.
Relevant evidence of a type of commonly relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible and will be received. Hearsay evidence is not automatically excluded, but the fact that it is hearsay will affect how much reliance the Board will place on it in reaching a decision.
If you object to the admissibility of evidence you must state your objection at the time the evidence is offered.
You should be aware that irrelevant, immaterial, or unduly repetitious evidence will be excluded, and you should plan your witness list and your own testimony with that in mind.
(If you successfully appeal your conviction or sentence in a court of law, any comments made to the Board during the hearing can be used upon retrial or resentencing.)
Continuances/Cancellation
There are normally no continuances granted at the end of a hearing. You should be prepared to finish what you want to say or submit it in writing at the time of the hearing. However, if you can show that the record should remain open for additional evidence, or upon the Board’s own motion, the presiding Board member
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Page 37 of 212 may, at his or her discretion, continue the hearing for a period of time not to exceed 60 days, to obtain additional information required to assist the Board in its decision.
If you ask for cancellation of a hearing, it must be for good cause, in writing, and with seven days’ advance notice. If the Board finds the cancellation request does not fulfill these requirements, an inmate shall not be eligible to request another hearing for 90 days from the date of the scheduled hearing.
The Board’s Decision
At the end of the hearing the Board will close the testimony and adjourn the hearing. It will then deliberate and in most cases will issue its final order in writing. The Board may also issue its decision orally on the record at the hearing. If the Board does not find the likelihood of rehabilitation within a reasonable period of time, the order will include findings of fact and conclusion(s) of law. If the Board finds that you have proven by a preponderance of the evidence the likelihood of rehabilitation within a reasonable period of time, then it is not necessary that the final order include findings of fact or conclusions of law.
Please be aware that the Board’s careful consideration of your case may result in preparation of the final order taking several months. The Board regrets such delays, and works to issue your order as quickly as possible.
Effect of Denying Relief Request
If the Board does not find likelihood of rehabilitation within a reasonable period of time, , and you have not been given an “extended deferral” (see next paragraph) you may petition again for a change in the terms of confinement no less than two years after the denial. Further petitions for a change may be made at intervals of not less than two years thereafter.
Extended Deferral
If the Board does not find that you have met your burden of proving that you are likely to be rehabilitated within a reasonable period of time, the Board may defer your opportunity to petition for a murder review hearing for no less than two years and for no more than 10 years from the date the petition is denied.
Exceptions to Order
After the hearing, you will be sent a final order reflecting the Board’s decisions in your case. This final order will be captioned “Board Action Form.” If you disagree with the final order, you may seek reconsideration of the order by means of an administrative review. See Appeals and Administrative Reviews below and Division 80 of the Board’s rules. If you disagree with the administrative review response, you may appeal to the Oregon Court of Appeals pursuant to ORS 144.335. There will not be an opportunity after the Board issues its final order for re-arguments or objections.
Record
An audio recording will be made of the entire hearing to preserve the testimony and other evidence for future reference. The hearing record will not be transcribed by the Board unless requested by the Department of Justice to prepare a response for judicial appeal. Inmates may purchase a copy of the audio recording of the hearing from the Board. The Board only retains hearing recordings for four years from the date of the hearing. After four years, the record is destroyed.
Administrative Reviews and Appeals
You must exhaust your administrative review remedies before you may appeal to the Court of Appeals (see ORS 144.335 and OAR 255-80-0001). You may request administrative review from the Board if you have evidence that:
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1. The Board action is not supported by evidence in the record; 2. Pertinent information was available at the time of the hearing which through no fault of yours, was not considered; 3. Pertinent information was not available at the time of the hearing, e.g., information concerning convictions from other jurisdictions; 4. The Board acted inconsistently with its rules, policies, and procedures and the inconsistency is not explained; 5. The Board acted in violation of a constitutional or statutory provision; or 6. The Board acted outside the range of discretion delegated to the agency by law.
In order to request a review, the Board asks you to use the blue form called Administrative Review Request Form (Exhibit O). The form is available at the inmate law library and the Board’s website. If you cannot get this form, please type or print your request in ink on white paper. The request for review must be received by the Board within 45 days after the date the Board Action Form is mailed (see OAR 255-080-0005). Do not use this form to make inquiries or to request corrections of obvious clerical errors.
Please note that the Board’s limited staffing may result in the response to your review request taking several months. The Board regrets such delays, and works to complete your Administrative Review Response (ARR) as quickly as possible.
After you receive the Board response to your request, if you still believe that the Board erred, and you can show that the order “adversely affects or aggrieves” you, you may then request judicial review from the Oregon Court of Appeals (see ORS 144.335). You must file a Petition for Review with the Oregon Court of Appeals within 60 days after the final administrative review response is mailed (see OAR 255-080-0001 to 0015).
Pay attention to the time requirements for your administrative review request and your petition for review so that they will not be too late to be considered.
If you cannot afford a lawyer to help you with an appeal to the Court, you might qualify for appointed counsel. You should contact the Public Defender’s Office about having an attorney appointed for you.
Harms you.
Revised 3/30/2015 Page 5 of 5 Exhibit NOR-3MR
Page 39 of 212 255-032-0025 Manner of Review Hearing (1) The proceedings shall be governed by the procedures for records, disclosure, and notice outlined in divisions 15 and 30. (2) At the hearing, the inmate has: (a) The burden of proving by a preponderance of the evidence the likelihood of rehabilitation within a reasonable period of time; and (b) If the inmate is without sufficient funds to be represented by an attorney at the hearing, the Board shall appoint legal counsel. The Board will make payment to the attorney according to rules posted on the Board website: http://www.oregon.gov/boppps/. (c) The right to a subpoena issued by the Board upon a showing of the general relevance and reasonable scope of the evidence sought, and pursuant to Board rules. (3) The initial testimony of each witness shall not exceed ten minutes. The presiding Board member may grant the witness additional time upon a finding that further testimony is likely to be relevant to the board's decision. The presiding Board member may exclude or limit irrelevant, immaterial or unduly repetitious testimony and evidence. (4) Pursuant to ORS 144.120, the crime victims have the right to appear at the hearing, or to submit a written statement concerning the crime and the person responsible. For the purposes of these rules, victim means any person determined by the prosecuting attorney, the court, or the Board to have suffered direct financial, psychological, or physical harm as a result of a crime and, in the case of a victim who is a minor, the legal guardian of the minor. The victim may be represented by counsel or a designee of the victim’s choice. If a victim chooses to speak, his/her statement should be concluded within 15 minutes. The Board may allow the victim to exceed that period when additional time is needed. (5) Pursuant to ORS 144.120, the district attorney from the committing jurisdiction has the right to appear at the hearing, or to submit a written statement concerning the crime and the inmate. The district attorney may be represented by a designee if he/she wishes. The district attorney’s statement should be concluded within 15 minutes. The Board may allow the statement to exceed that period when additional time is needed. (6) If upon hearing all the evidence, the full Board, upon a unanimous vote of all members, or by such other vote as is specified in statute, finds that the inmate is capable of rehabilitation and that the terms of the inmate's confinement should be changed to life imprisonment with the possibility of parole or work release, it shall convert the terms of the inmate's confinement to life imprisonment with the possibility of parole or work release and may set a parole release date. Otherwise, the Board shall deny the relief sought in the petition. The Board's final order granting or denying relief shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the Board's order. (7) When an inmate has a consecutive sentence for a crime other than Aggravated Murder or Murder as described in OAR 255-032-0005, the Board shall determine the prison term for the consecutive sentences(s) pursuant to ORS 144.120. The prison term for the consecutive sentence(s) will not begin to run until and unless the Board orders a release date on the Aggravated Murder sentence established pursuant to ORS 163.105, or the Murder sentence established pursuant to ORS 163.115. Statutory/Other Authority: ORS 163.105, 163.115, ORS 144.120 Statutes/Other Implemented: ORS 144.120 History: PAR 5-2018, minor correction filed 08/27/2018, effective 08/27/2018; PAR 3-2018, amend filed 08/10/2018, effective 08/10/2018; PAR 3-2010, f. & cert. ef. 3-26-10; PAR 4-2009(Temp), f. & cert. ef. 9-29-09 thru 3-28-10; PAR 5- 2007, f. & cert. ef. 7-30-07; PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07; PAR 3-2001, f. & cert. ef. 2-6-01; PAR 2-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3- 1991(Temp), f. & cert. ef. 5-1-91; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5- 19-88; 2PB 8-1985, f. & ef. 5-31-85
Page 40 of 212 255-032-0027 Inmate's Right to Review Record; Exceptions Except as provided in OAR 255-015-0010, all exhibits to be considered by the Board shall be disclosed to the inmate's attorney or the inmate, if proceeding pro se, within a reasonable period of time before the hearing: (1) Exhibits not available prior to the hearing shall be made available to the inmate's attorney or to the inmate, if not represented, at the hearing. (2) All material relevant and pertinent to issues before the Board shall be made a part of the record. (3) Any material not made part of the record shall be separated and a statement to that effect shall be placed in the record. The board shall follow the criteria for denial or disclosure of records set out in OAR 255-015-0010. Statutory/Other Authority: ORS 183.335, 192.410 – 192.505, 144.025(3), 144.050 Statutes/Other Implemented: History: PAR 5-2007, f. & cert. ef. 7-30-07; PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07
255-032-0029 Subpoenas for a Murder Review Hearing (1) Inmates must make their own arrangements for calling and presenting witnesses. However, upon the request of an inmate, and upon a proper showing of general relevance and reasonable scope of the evidence being sought, the Board may issue subpoenas on behalf of the inmate. (2) Witnesses are not required to appear in person unless good cause can be shown why an in-person appearance is necessary. Witnesses may participate via teleconference. (3) Witnesses appearing pursuant to subpoena, other than inmates, state officers, or employees of the Board, must receive fees and mileage payable by the Board as prescribed by law for witnesses in ORS 44.415(2), provided the Board certifies that the witness's testimony was relevant and material to the hearing. Statutory/Other Authority: ORS 44.415, 183.440 Statutes/Other Implemented: History: PAR 3-2010, f. & cert. ef. 3-26-10; PAR 4-2009(Temp), f. & cert. ef. 9-29-09 thru 3-28-10; PAR 5-2007, f. & cert. ef. 7-30-07; PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07
255-032-0030 Evidence in a Murder Review Hearing (1) Irrelevant, immaterial, or unduly repetitious evidence will be excluded, and privileges afforded by Oregon law shall be recognized by the presiding member. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs will be admissible. All offered evidence, not objected to, will be received by the presiding member subject to the presiding member’s power to exclude irrelevant, immaterial, or unduly repetitious matter. (2) In determining whether the evidence is material, relevant or reliable, the Board shall consider the following: (a) The age and source of the documents; (b) The ability of the witness to have observed and had personal knowledge of the incidents; (c) The credibility of the witness and whether the witness has bias or interest in the matter. (3) The inmate, the inmate's attorney, or the Board, may object to any evidence. Objections to evidence being introduced by the Board or the inmate may be made and will be noted in the record. The presiding board member must accept an offer of proof for excluded evidence. The offer of proof must contain sufficient detail to allow the Board or a court to determine whether the evidence was properly excluded. The presiding member shall have discretion to decide whether the offer of proof is to be oral or written and at what stage of the proceeding it will be made. The presiding member may place reasonable limits on the offer of proof, including the time to be devoted to an oral offer or the number of pages in a written offer. The Board may decide the following: (a) To sustain the objection and deny the admission and consideration of the evidence on the grounds that it is not material, relevant or reliable; or
Page 41 of 212 (b) To overrule the objection and admit the evidence and in considering the weight given to that evidence, consider the reason for the objection. (4) The Board will consider all available relevant evidence for purposes of determining the inmate’s likelihood of rehabilitation within a reasonable period of time. (5) The Board and the inmate will have the right of cross-examination of each witness that testifies, and will have the right to submit rebuttal evidence. Statutory/Other Authority: ORS 163.105, 163.115, 183.450 Statutes/Other Implemented: History: PAR 5-2007, f. & cert. ef. 7-30-07; PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07
255-032-0031 Final Orders in Murder Review Hearings (1) Final orders in Murder Review hearings must be in writing, and if adverse to the inmate include the following: (a) Findings of fact — a concise statement of those matters that are either agreed as fact or that, when disputed, are determined by the Board to be facts over contentions to the contrary. A finding must be made on each fact necessary to reach the conclusions of law on which the order is based; and (b) Conclusion(s) of law — applications of the controlling law to the facts found and the legal results of the application. (2) If the Board finds that the inmate has proven by a preponderance of the evidence that the inmate is likely to be rehabilitated within a reasonable period of time, then it is not necessary that the final order include findings of fact or conclusions of law. (3) The Board may also issue its decision orally on the record at the hearing. Statutory/Other Authority: ORS 163.105, 163.115, 183.470 Statutes/Other Implemented: History: PAR 5-2007, f. & cert. ef. 7-30-07; PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07
255-032-0032 Continuance of Hearings: Cancellation of Hearings (1) Upon the request of any party or on its own motion, the Board may, for good cause, continue a hearing for a reasonable period of time not to exceed 60 days to obtain additional information required to assist the Board in its decision. (2) If an inmate asks for cancellation of a hearing, it must be for good cause, in writing, and with seven days advance notice. If the board finds that the cancellation request does not fulfill these requirements, the inmate shall not be eligible to request another hearing for 90 days from the date of the scheduled hearing. Statutory/Other Authority: ORS 183.341(2) Statutes/Other Implemented: History: PAR 5-2007, f. & cert. ef. 7-30-07; PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07
255-032-0035 Effect of Denying Relief Request If the Board finds that the inmate is not capable of rehabilitation, the Board shall deny the relief sought in the inmate petition. The Board may not grant a subsequent hearing that is less than two years, or more than 10 years, from the date the petition is denied. (1) The Board may not grant a hearing that is more than two years from the date a petition is denied unless the board finds that it is not reasonable to expect that the prisoner would be granted a change in the terms of confinement before the date of the subsequent hearing. (2) A decision to grant a hearing that is more than two years from the date a petition is denied requires a unanimous vote of the Board members participating in the hearing; the length of the deferral shall be determined by a majority vote. (3) Factors to be considered in establishing a deferral period of longer than two years include those listed in OAR 255-
Page 42 of 212 062-0016. (4) The inmate may request an interim exit interview hearing pursuant to OAR 255-062-0021. (5) If the Board finds, based upon the request for an interim hearing, that there is reasonable cause to believe that the inmate may be granted a change in the terms of confinement, the Board shall conduct a hearing as soon as is reasonably convenient. An interim hearing may be granted by a majority of the Board. (6) If the Board denies a petition for an interim hearing, it shall issue a final order accompanied by findings of fact and conclusions of law, pursuant to ORS 144.285(3) (2009). A finding by the Board under (e) above does not bind the Board to any specific finding at the interim murder review hearing. Statutory/Other Authority: ORS 163.105, 144.285 Statutes/Other Implemented: ORS 144, 163.105 History: PAR 6-2011, f. & cert. ef. 11-30-11; PAR 4-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 4-1993, f. & cert. ef. 10-29- 93; PAR 6-1988, f. & ef. 5-19-88; 2PB 8-1985, f. & ef. 5-31-85
255-032-0037 Prison Term Hearings for Inmates Found Likely to be Rehabilitated (1) The Board shall hold a prison term hearing for an adult inmate convicted of murder as defined in ORS 163.115 or Aggravated Murder as defined in ORS 163.095 committed on or before October 22, 1999, whose sentence has been converted to life with the possibility of parole based on the Board’s determination that the inmate is likely to be rehabilitated within a reasonable period of time. (2) The Board will conduct the hearing under the provisions of division 030 of the Board’s rules in place at the time the hearing is conducted, and will establish the prison term or take other action authorized under the law and administrative rules that apply with respect to the date of the crime. Statutory/Other Authority: OAR 255-030-0012(1982), 255-032-0005(1)(1985), 255-032-0005(1)(1982)(1985), Janowski/Flemimg v. Board of Parole, 349 OR 432(2010), Severy/Wilson v. Board of Parole, 349 OR 461(2010), ORS 144.120 Statutes/Other Implemented: ORS 144.120 History: PAR 1-2012, f. & cert. ef. 3-13-12; PAR 7-2011, f. & cert. ef. 11-30-11
255-032-0040 Record/Notice Provisions for maintaining a record of the hearings and providing notice of decision shall be those set forth in divisions 15 and 30 of these rules. Statutory/Other Authority: ORS 144 Statutes/Other Implemented: ORS 144.120, 144.135, 144.260 History: PAR 6-1988, f. & ef. 5-19-88; 2PB 8-1985, f. & ef. 5-31-85
DIVISION 35 APPLICATIONS OF THE GUIDELINES TO ESTABLISH A PRISON TERM
255-035-0006 Exhibits Exhibits AI, AII, AIII, BI, BII, C, D, EI, EII, EIII, and F are essential components of the parole matrix guidelines and are hereby incorporated by reference. [ED. NOTE: Exhibits referenced are available from the Board.] Statutory/Other Authority: ORS 144.050, 144.120, 144.780, 144.787 Statutes/Other Implemented: ORS 144.780, 144.787 History: PAR 9-2000, f. & cert. ef. 11-15-00; PAR 8-1992, f. & cert. ef. 10-9-92
255-035-0013
Page 43 of 212 Factors Which Determine an Initial Parole Release Date During the prison term hearing the board shall make findings of fact concerning: (1) The prison term commencement date; (2) The crime severity rating and subcategory rationale (Exhibit A); (3) The inmate’s history/risk assessment score (Exhibit B); (4) The matrix range; (5) When there is a variation from the range, the reason for the variation; (6) Aggravation (Exhibit E-1); (7) Mitigation (Exhibit E-2); and (8) Minimum sentences. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 144.129(2), 144.110, 144.780-787 Statutes/Other Implemented: ORS 137.122, 137.551, 144.035(4), 144.050, 144.110, 144.120, 144.129(2), 144.245, 144.780 - 144.787 History: PAR 9-2000, f. & cert. ef. 11-15-00; PAR 12-1988(Temp), f. & ef. 7-20-93; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 1-1990(Temp), f. & cert. ef. 2-20-90; Reverted to PAR 8-1988, f. & ef. 7-1- 88; PAR 18-1988, f. & ef. 12-6-88; PAR 13-1988(Temp), f. & ef. 8-5-88; PAR 9-1988(Temp), f. & ef. 7-14-88; PAR 7-1988, f. & ef. 7-1-88; PAR 8-1988, f. & ef. 7-1-88; PAR 6-1988, f. & ef. 5-19-88; PB 9-1985, f. & ef. 5-31-85
255-035-0014 Initial Parole Release Date for Offenders Whose Probations Are Revoked November 1, 1989 or Later (1) To the extent permissible under law, for those offenders who committed crimes prior to November 1, 1989 and the court revoked the previously ordered probation November 1, 1989 or later, the board shall: (a) Make the findings of fact listed in OAR 255-035-0013 pursuant to Divisions 30 and 35 of the Board of Parole and Post-Prison Supervision rules; and (b) Make findings of fact pursuant to the Sentencing Guidelines Grid and applicable rules found in OAR chapter 213 and herein incorporated by reference including: (A) Crime category (213-004-0002, 213-004-0003, 213-004-0004, 213-004-0005, divisions 17, 18, 19 of OAR 213); (B) Criminal history as established by the post-sentence report (213-004-0006, 213-004-0007, 213-004-0008, 213- 004-0009, 213-004-0010, 213-004-0011); (C) Guideline ranges (Appendix 1 to OAR 213); (D) Aggravating or mitigating factors, if any (213-005-0001); (E) Upholding or overriding minimum sentences; (F) Summing of consecutive ranges (OAR 213-012-0001 to 0004); and (c) Except when the board upholds a minimum sentence or denies parole, set the prison term pursuant to: (A) The Sentencing Guidelines Grid (213-010-0002, 213-005-0006, Appendix 1) to the extent permissible under law, if the resultant prison term would be shorter than it would be under the Board of Parole Matrix Guideline and applicable rules; (B) The Matrix Guidelines (255-035-0013) if the resultant prison term would be shorter than it would be under the Sentencing Guidelines Grid and applicable rules. (2) When the board upholds a judicially or statutorily set minimum sentence which is longer than the prison term would otherwise be under the Sentencing Guidelines Grid, the board shall set the prison term at minimum sentence. (3) When the court orders a sentence shorter than the applicable prison term, the board shall apply OAR 255-035-0025. (4) Notwithstanding OAR 255-035-0025, the board may order a prison term of less than (6) months when the crime severity and criminal history fall below the Sentencing Guidelines dispositional line. [ED. NOTE: Appendices referenced are available from the agency.] Statutory/Other Authority: ORS 137.551
Page 44 of 212 Statutes/Other Implemented: ORS 137.551 History: PAR 9-2000, f. & cert. ef. 11-15-00; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 5-1992(Temp), f. & cert. ef. 6-24-92; PAR 1-1992, f. & cert. ef. 1-13-92; Reverted to PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 4-1989, f. & cert. ef. 11-1-89
255-035-0016 Variations from the Ranges for Aggravation or Mitigation (1) The Board may depart from the appropriate parole matrix range only upon making a specific finding that there is aggravation or mitigation which justifies departure from the range pursuant to OAR 255-005-0005, Exhibit E (Parts 1 and 2). The Board shall clearly state on the record the facts and specific reasons for its finding. The Board may give items of aggravation and mitigation different weight and not necessarily balance them one for one. (2) If a panel finds that the matrix range and the variations permitted a panel is inadequate to establish a prison term because of the panel’s findings of aggravation or mitigation, it shall secure a third vote for an additional variation or refer the matter to the Full Board. (3) OAR 255-005-0005, Exhibit D shows the maximum allowable variations from a range. The Board may apply a portion or all of the variation allowed. (4) The Board shall also apply these provisions to unified ranges. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 144.120(2), 144.785 - 144.787 Statutes/Other Implemented: History: PAR 1-1992, f. & cert. ef. 1-13-92; PAR 4-1989, f. & cert. ef. 11-1-89; PAR 18-1988, f. & ef. 12-6-88; PAR 14- 1988(Temp), f. & ef. 9-20-88; PAR 7-1988, f. & ef. 7-1-88; PAR 8-1988, f. & ef. 7-1-88; PAR 6-1988, f. & cert. ef. 5-19-88; Reverted to 2PB 9-1985, f. & ef. 5-31-85; 2PB 3-1986(Temp), f. & ef. 12-2-86; 2PB 2-1986(Temp), f. & ef. 11-13-86; 2PB 9-1985, f. & ef. 5-31-85
255-035-0018 Multiple Concurrent Convictions When concurrent sentences exist, the inmate shall be given a prison term based on the crime that provides for the longest prison term. Statutory/Other Authority: ORS 137.122 Statutes/Other Implemented: ORS 144 History: PAR 9-2000, f. & cert. ef. 11-15-00; PAR 4-1989, f. & cert. ef. 11-1-89; PAR 6-1988, f. & cert. ef. 5-19-88
255-035-0020 Board Bound by Court Order (1) The Board of Parole and Post-Prison Supervision does not have the authority to run a sentence concurrently or consecutively to an out-of-state jurisdiction, but is bound by the final judgment order issued by the Oregon courts. (2) The Board does not have the authority to convert a court ordered indeterminate sentence for a crime committed prior to November 1, 1989 to a Sentencing Guidelines determinate sentence. Statutory/Other Authority: ORS 137.120, 137.122, 137.123, 144.050, 144.079, 144.783 Statutes/Other Implemented: ORS 144 History: PAR 8-1992, f. & cert. ef. 10-9-92; PAR 2-1990, f. & cert. ef. 4-5-90; PAR 6-1988, f. & cert. ef. 5-19-88; 2PB 9- 1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; 2PB 1-1979, f. & ef. 2-1-79
255-035-0021 Consecutive Sentences: Creating a Unified Matrix Range (1) Notwithstanding section (4) of this rule, the Board shall establish the principal range for the most serious of the felonies committed during the time period under consideration. If two or more felonies are determined to be equally the most serious, the Board shall establish a principal range for only one of those felonies.
Page 45 of 212 (2) The Board shall then establish a range for each of the remaining felonies committed during the same period using the appropriate base range for the crime pursuant to OAR 255-005-0005, Exhibit C. (3) The unified range for crimes committed during the same period shall be determined by summing the range established under section (1) of this rule with the ranges established under section (2) of this rule. (4) The method established by sections (1) to (3) of this rule for determining the unified range shall not apply if any of the crimes involved is: (a) Murder, as defined in ORS 163.115 or any aggravated form thereof; (b) Assault in the first degree, as defined in ORS 163.185; (c) Kidnapping in the first degree, as defined in ORS 163.235; (d) Rape in the first degree, as defined in ORS 163.375; (e) Sodomy in the first degree, as defined in ORS 163.405; (f) Sexual penetration with a foreign object, as defined in ORS 163.411; (g) Arson in the first degree, as defined in ORS 164.325; or (h) Treason, as defined in ORS 166.005. (5) To determine the unified range for inmates with consecutive sentences which involve a crime listed in section (4) of this rule, the Board shall establish the matrix range for each crime by using the inmate’s history/risk score pursuant to OAR 255-005-0005, Exhibit B and the applicable crime category rationale. The unified range shall be the sum of the ranges established under this section. (6) The unified range may be subject to the variations established in accordance with OAR 255-035-0016 and 255-005- 0005, Exhibit D. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 144 Statutes/Other Implemented: ORS 144 History: PAR 18-1988, f. & ef. 12-6-88; PAR 14-1988(Temp), f. & ef. 9-20-88; PAR 8-1988, f. & ef. 7-1-88; PAR 6-1988, f. & ef. 5-19-88
255-035-0022 Consecutive Sentences: Referring a Case to the Full Board; Going Below the Range; Additional Consecutive Sentences (1) When a panel recommends that a range be less than the sum of the terms under OAR 255-035-0021, the panel shall refer the case to a majority of the Board. (2) The duration of imprisonment for consecutive sentences may be less than the sum of the terms under OAR 255-035- 0021, if the Board finds by a majority vote that consecutive sentences are not appropriate penalties for the criminal offenses involved and that the combined terms of imprisonment are not necessary to protect community security. (3) When additional sentences are imposed for crimes which took place during the period under consideration at a prior prison term hearing and the additional sentences are consecutive to the sentences already considered, the Board shall: (a) Conduct a de novo prison term hearing pursuant to the provisions of Division 30 for all the crimes. The Board shall compute the unified range for the additional sentences and the sentences which were already considered under the provisions of OAR 255-035-0021; (b) Conduct a hearing to consider only the additional consecutive sentences using base ranges for the additional sentences. The commencement date for the new prison term under this subsection shall be the parole release date set at the previous prison term hearing; or (c) Conduct a hearing to consider whether to unsum the additional consecutive ranges. (4) The provisions of section (3) of this rule apply only to crimes which occurred on or after July 11, 1987, unless one of the crimes involved is listed in OAR 255-035-0021(4). (5) If one of the crimes involved is listed in OAR 255-035-0021(4) and the sentence is consecutive, the Board shall conduct a de novo hearing under subsection (3)(a) of this rule. (6) If a new sentence is consecutive to sentences already considered, and is the most serious offense with the highest
Page 46 of 212 crime severity rating and/or longest sentence, the Board shall conduct a de novo hearing under subsection (3)(a) of this rule. (7) When additional sentences are imposed for crimes which took place after the period considered at a prior prison term hearing and the additional sentences are consecutive to the sentences already considered, the Board shall establish the matrix range for the additional sentences as if they were new sentences. If the inmate has not yet been released on parole, the commencement date for the new prison term shall be the parole release date established at the previous prison term hearing. Statutory/Other Authority: ORS 144.079, 144.783 Statutes/Other Implemented: ORS 144.079, 144.783 History: PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 3-1990, f. 6-29-90, cert. ef. 7- 1-90; PAR 6-1988, f. & cert. ef. 5-19-88; PAR 9-1987, f. & ef. 12-16-87; PAR 7-1987(Temp), f. & ef. 7-21-87; PAR 5- 1987(Temp), f. & ef. 6-18-87; PAR 4-1987(Temp), f. 6-5-87, ef. 6-8-87; 2PB 9-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; 2PB 15-1981(Temp), f. & ef. 11-25-81
255-035-0023 Effect of Minimum Sentences on Prison Terms; Consecutive Minimum Sentences (1) The board shall not release a inmate on parole until the inmate has served a judicially imposed minimum prison term, except upon the affirmative majority vote of members who have found that: (a) The minimum term is not an appropriate penalty for the criminal offense; and (b) The minimum term is not necessary to protect the public. (2) If at least a majority of the board members have made the findings listed in section (1) of this rule, the board shall establish a prison term using the guidelines range and the standard variations allowed, unless there are remaining judicial minimums above the guidelines range in length, which the board has upheld. (3) When the court has ordered consecutive minimum sentences and the board finds that the combined minimums are not appropriate penalties for the criminal offenses involved and are not necessary to protect community security, the board, by a majority of concurring votes, may override one or more of the judicially imposed minimums and set a prison term which is less than the sum of the minimum terms. (4) The Board shall set a parole release date in accordance with OAR 255-035-0013 or 255-035-0014, and shall state the facts and reasons for its actions. (5) Notwithstanding subsection (3) of this rule, when the board overrides an ORS 163.115 murder minimum, the vote must be unanimous. (6) The board shall not override ORS 161.610 gun minimums except as provided by ORS 144.122, 144.126 and OAR 255-040-0028. (7) The board shall not override ORS 163.105 aggravated murder minimums. Statutory/Other Authority: ORS 144.035(4), 144.110, 144.245, 144.783 Statutes/Other Implemented: ORS 144.035(4), 144.110, 144.245, 144.783, 161.610, 163.105, 163.115 History: PAR 9-2000, f. & cert. ef. 11-15-00; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 2-1990, f. & cert. ef. 4-5-90; PAR 6-1988, f. & cert. ef. 5-19-88; PAR 8-1987, f. 12-11-87, ef. 12-14-87; PAR 6- 1987(Temp), f. & ef. 7-7-87; 2PB 9-1985, f. & ef. 5-31-85
255-035-0025 Setting a Parole Release Date: When Matrix Range Exceeds Good Time Date (1) When the board chooses to set a parole release date on a sentence with a statutory good time date which calls for an earlier release than the guideline range indicates (due to a short sentence), the minimum initial prison term shall be 6 months and the maximum shall be as follows: (a) Six months from the statutory good time date on a sentence of at least one year and less than three years; (b) Nine months from the statutory good time date on a sentence of three years and less than six years; (c) Twelve months from the statutory good time date on a sentence of six or more years.
Page 47 of 212 (2) On short sentences which call for an earlier release date than the guideline range indicates, the following shall apply: (a) Use the correct crime category for the principal crime and apply the closest range within which the statutory good time date minus the times found in section (1)(a), (b) or (c) falls and which provides a fully applicable range. (b) For subsequent consecutive sentences use the base range unless the principal crime is one of those listed in OAR 255-035-0021(4). (c) For example: [Table not included. See ED. NOTE.] (3) On sentences which are too short to fit within the matrix range for the correct crime category, the board shall set the maximum prison term at two days prior to the good time date. (4) When a inmate earns good time which causes the good time date to fall earlier than the current parole release date, the board shall reset the parole release date to two days prior to the good time date to ensure that all inmates serve a period of parole supervision in accordance with the intent of ORS 144.245. [ED. NOTE: Tables referenced are available from the agency.] Statutory/Other Authority: ORS 144.780 - 144.787 Statutes/Other Implemented: ORS 144.245, 144.780 - 144.787 History: PAR 9-2000, f. & cert. ef. 11-15-00; PAR 6-1991, f. & cert. ef. 10-15-91; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 6-1990(Temp), f. & cert. ef. 10-15-90; PAR 2-1990, f. & cert. ef. 4-5-90; PAR 8-1988, f. & cert. ef. 7-1-88; PAR 6-1988, f. & cert. ef. 5-19-88; 2PB 9-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; 2PB 15-1981(Temp), f. & ef. 11-25-81; Reverted to 2PB 1-1979, f. & ef. 2-1-79; 2PB 1-1980(Temp), f. 4-7-80, ef. 5-1-80; 2PB 1-1979, f. & ef. 2-1-79
255-035-0030 Parole Denial (1) Except when the result is life imprisonment, the board, with a majority vote of members, may deny parole pursuant to ORS 144.120(4) when: (a) The commitment offense included particularly violent or otherwise dangerous criminal conduct as defined by section 255-005-0005(30); or (b) Two (2) or more Class A or Class B felony convictions preceded the commitment offense; or (c) The inmate’s record includes a psychiatric or psychological diagnosis of a present severe emotional disturbance such as to constitute a danger to the health and safety of the community. (2) When the result of parole denial is life in prison, the board shall agree unanimously. (3) A panel may refer the matter to the full board with the recommendation that the board deny parole based on the criteria listed in subsection (1) of this section. (4) When the board chooses not to set a parole release date, it shall clearly state on the record the facts and specific reasons for that decision. Statutory/Other Authority: ORS 144.120(4) Statutes/Other Implemented: ORS 144.120(4) History: PAR 9-2000, f. & cert. ef. 11-15-00; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 18-1988, f. & cert. ef. 12-6-88; PAR 6-1988, f. & cert. ef. 5-19-88; 2PB 9-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
DIVISION 36 DANGEROUS OFFENDERS — FOR CRIMES OCCURRING PRIOR TO NOVEMBER 1, 1989
255-036-0005 Parole Consideration Hearings (1) Within six (6) months after commitment to the Department of Corrections' custody of any person sentenced as a dangerous offender, the Board shall set a date for a parole consideration hearing which shall be no later than ten (10) days prior to the date the inmate would have been eligible for parole release under Division 35 of these rules if the court had not sentenced the offender pursuant to ORS 161.725 and 161.735 as a dangerous offender.
Page 48 of 212 (2) A person sentenced as a dangerous offender for felonies committed prior to November 1, 1989 is eligible for parole release: (a) After having served the Board ordered prison term; and (b) The Board finds the inmate no longer dangerous; or (c) The Board finds the inmate remains dangerous but can be adequately controlled with supervision and mental health treatment and that the necessary resources for supervision and treatment are available to the inmate. (3) If the Board is unable to make the findings required by section (2) of this rule, the Board will conduct the next review hearing no less than two years, or more than ten years, from the current parole consideration date. (a) The Board may not grant the inmate a hearing that is more than two years from the date the petition is denied unless the Board finds that it is not reasonable to expect that the inmate would be granted a parole release date two years from that date. (b) A decision to establish a deferral period of longer than two years requires a unanimous vote of the members participating in the hearing. The length of deferral shall be determined by majority vote. (c) Factors to be considered in establishing a deferral period of longer than two years include those listed in OAR 255- 062-0015. (d) The inmate may request an interim parole consideration hearing pursuant to OAR 255-062-0020. (e) If the Board finds, based upon the request for an interim hearing, that there is reasonable cause to believe that the inmate may be granted a change in the terms of confinement, the Board shall conduct a hearing as soon as is reasonably convenient. An interim parole consideration hearing may be granted by a majority of the Board. (f) If the Board denies a petition for an interim hearing, it shall issue a final order accompanied by findings of fact and conclusions of law, pursuant to ORS144.228(1)(d) (2009). (g) A finding by the Board under (e) above does not bind the Board to any specific finding at the interim parole consideration hearing. (4) The Board will hold parole consideration hearings pursuant to these rules until: (a) The Board is able to make the required findings; or (b) The maximum court ordered sentence, less good time, expires. (5) If, at the parole consideration hearing or at any subsequent review, the Board makes the findings required by section (2) of this rule, the Board shall order parole release, subject to ORS 144.125 144.270-144.275 regarding review of release plans and supervision conditions. (6) At any hearing or review, the Board may consider: (a) The examining psychologist or psychiatrist's written report; (b) A written report from the executive officer of Department of Corrections institution in which the inmate has been confined; (c) A release plan, including verification that adequate supervision and mental health treatment are immediately available for the particular inmate; (d) Any other information regarding the inmate that the Board finds relevant. (7) If after the Board makes the findings required by section (2) of this rule, resulting in the inmate’s release on parole, the Board later has reasonable cause to believe the inmate's dangerousness has returned and/or the inmate cannot be adequately controlled with supervision and mental health treatment or that the necessary resources for supervision and treatment are unavailable, the Board may order the inmate’s return to the custody of the Department of Corrections, and schedule a future disposition hearing to determine whether to deny re-release on parole pursuant to OAR 255-075- 0096. Statutory/Other Authority: ORS 144.226, 144.228 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 51, OL 1997 (Enrolled SB156) History: PAR 5-2011, f. & cert. ef. 6-23-11; PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7-26-93
Page 49 of 212 255-036-0010 Evaluations (1) Within 120 days of the last day of the prison term and thereafter within 120 days before any parole consideration hearing, the Board shall order a complete mental and psychological or psychiatric examination of the inmate. (2) The evaluation provided may consist of a diagnostic study, including a comprehensive evaluation of the individual's personality, intelligence level, personal and social adjustments, or other information the psychologist or psychiatrist believes will aid the Board in determining whether the examined person is eligible for release. (3) The report of the psychologist or psychiatrist shall: (a) Include a statement as to whether the dangerous offender has any mental or emotional disturbance, deficiency, condition, or disorder predisposing him/her to the commission of any crime to a degree rendering the inmate a danger to the health or safety of others; (b) Any other information which would aid the Board in determining whether the inmate is eligible for release; (c) State progress or changes in the condition of the examined inmate; (d) Contain recommendations for treatment or medication that would assist the inmate in performing satisfactorily in the community upon release; (e) Be filed with the Board within 60 days after the examination; (f) Be certified and sent to the inmate, the inmate's attorney, and to the institution superintendent. Statutory/Other Authority: ORS 144.226, 144.228 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 51 OL 1997 (Enrolled SB156) History: PAR 5-2011, f. & cert. ef. 6-23-11; PAR 3-2006, f. & cert. ef. 4-5-06; PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 2-1994, f. 8-1-94, cert. ef. 8-15-94; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7-26-93
255-036-0015 Department of Corrections Written Reports The written report of the executive officer of the Department of Corrections, which the Board shall review at the parole consideration hearing, shall contain: (1) A detailed account of the inmate's conduct while confined; (2) All infractions of rules and discipline, the circumstances, and the punishment imposed; (3) Extent to which the inmate has responded to efforts made in the institution to improve his/her mental and moral condition; (4) A statement as to the person's present attitude towards society, the sentencing judge, the district attorney, and the arresting police officer; (5) A statement as to the inmate’s present attitude towards his/her previous criminal career; (6) The work record, showing average number of hours worked per day and the nature of the occupations; (7) The program history, including a summary of any psychological or substance abuse treatment and other activities that will assist the Board in: (a) Understanding the psychological adjustment and social skills and habits of the inmate; and (b) Determining the likelihood for successful community reentry. Statutory/Other Authority: ORS 144.228 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 51, OL1997 (Enrolled SB 156) History: PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7- 26-93
255-036-0020 Request for Review Prior to Release Hearing Date (1) Notwithstanding subsection 1 of OAR 255-036-0005, an inmate sentenced as a dangerous offender under ORS
Page 50 of 212 161.725 and 161.735 may request a parole consideration hearing prior to the earliest time the inmate is eligible for parole release. The Board may consider information presented by the inmate to determine whether the inmate is no longer dangerous or that even though dangerous, can be adequately controlled with supervision and mental health treatment which are available in the community. (2) The Board shall review the request for a parole consideration hearing by administrative file pass. (3) If the Board finds, based upon the request and the information therein, there is reasonable cause to believe the inmate is no longer dangerous or even though dangerous, can be adequately controlled with supervision and mental health treatment which are in fact available to the inmate, the Board shall order the documents required by ORS 144.228 and this division and conduct a parole consideration hearing as soon as reasonably convenient. (4) If the Board finds there is not reasonable cause to believe the inmate is no longer dangerous or to believe that the inmate can be adequately controlled with supervision and mental health treatment that is available in the community, the Board will deny the request for an early parole consideration hearing, and review the inmate’s case at the originally scheduled parole consideration hearing pursuant to OAR 255-036-0005(1). Statutory/Other Authority: ORS 144.228 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 51, OL 1997 (Enrolled SB 156) History: PAR 5-2011, f. & cert. ef. 6-23-11; PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 2-1994, f. 8-1-94, cert. ef. 8- 15-94; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7-26-93
255-036-0025 The Release Hearing Packet The Parole Consideration Hearing Packet shall contain: (1) Institution face sheet; (2) All prior Board Action Forms; (3) Psychological or psychiatric evaluations; and reports pursuant to ORS 144.226 to 144.228; (4) Documents listed in OAR 255-036-0005(6); (5) Correspondence; (6) Presentence Investigation report, post-sentence investigation report, or report of similar content; and (7) Sentencing orders. Statutory/Other Authority: ORS 144.228 Statutes/Other Implemented: ORS 144.226, 144.228 History: PAR 5-2011, f. & cert. ef. 6-23-11; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7-26-93
255-036-0030 Parole Supervision A dangerous offender released to parole prior to the sentence expiration shall serve the remainder of the sentence term imposed under ORS 161.725 and 161.735 on parole. The inmate shall serve at least three years of supervised parole. Statutory/Other Authority: OL 1993, Ch. 680, Section 1(b) (SB 139) Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 51, OL 1997 (Enrolled SB 156) History: PAR 5-2011, f. & cert. ef. 6-23-11; PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7-26-93
DIVISION 37 DANGEROUS OFFENDERS — FOR CRIMES OCCURRING ON OR AFTER NOVEMBER 1, 1989
255-037-0005 Release Hearings (1) Within six (6) months after commitment to the Department of Corrections’ custody of any person sentenced as a
Page 51 of 212 dangerous offender, the Board shall set a date for a release hearing which shall be no later than ten (10) days prior to the date the inmate is eligible for release on post-prison supervision. (2) A person sentenced as a dangerous offender for felonies committed on or after November 1, 1989, is eligible for release on post-prison supervision: (a) After having served the incarceration term set forth on the judgment order; and (b) The Board finds the inmate no longer dangerous; or (c) The Board finds the inmate remains dangerous but can be adequately controlled with supervision and mental health treatment and that the necessary resources for supervision and treatment are available to the inmate. (3) If the Board is unable to make the findings required by section (2) of this rule, the Board shall schedule reviews once every two (2) years until: (a) The Board is able to make the required findings; or (b) The maximum indeterminate sentence expires. (4) If after the Board makes the findings required by section (2) of this rule, the Board later has reasonable cause to believe the inmate dangerousness has returned and/or the inmate cannot be adequately controlled with supervision and mental health treatment or that the necessary resources for supervision and treatment are unavailable, the Board may order an evaluation pursuant to ORS 144.226 and shall conduct a new release hearing. (5) If, at the release hearing or at any subsequent review, the Board makes the findings required by section (2) of this rule, the Board shall order release to post-prison supervision, subject to ORS 144.096, 144.098, and 144.102 regarding supervision conditions and review of release plans, and subject to eligibility for release under statute and rule. (6) At any hearing or review, the Board may consider: (a) The examining psychologist or psychiatrist’s written report; (b) A written report from the executive officer of Department of Corrections institution in which the inmate has been confined; (c) A field analysis report and release plan, including verification that adequate supervision and mental health treatment are immediately available for the particular inmate; (d) Any other information regarding the inmate that the Board finds relevant. Statutory/Other Authority: ORS 144.226, 144.228, 144.232 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 52, OL 1997 (Enrolled SB 156) History: PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7- 26-93; PAR 9-1991, f. 11-27-91, cert. ef. 12-1-91; PAR 4-1991(Temp), f. 6-27-91, cert. ef. 7-1-91; PAR 4-1989, f. & ef. 11-1-89
255-037-0010 Evaluations (1) Within one hundred twenty (120) days of the last day of the incarceration term and at least every two years thereafter, the Board shall order a complete mental and psychological or psychiatric examination of the inmate. (2) The evaluation provided may consist of a diagnostic study, including a comprehensive evaluation of the individual's personality, intelligence level, personal and social adjustments, or other information the psychologist or psychiatrist believes will aid the Board in determining whether the examined person is eligible for release. (3) The report of the psychologist or psychiatrist shall: (a) Include a statement as to whether or not the dangerous offender has any mental or emotional disturbance, deficiency, condition, or disorder predisposing him/her to the commission of any crime to a degree rendering the inmate a danger to the health or safety of others; (b) Any other information which would aid the Board in determining whether the inmate is eligible for release; (c) State progress or changes in the condition of the examined inmate; (d) Contain recommendations for treatment or medication that would assist the inmate in performing satisfactorily in
Page 52 of 212 the community upon release; (e) Be filed with the Board within 60 days after the examination; (f) Be certified and sent to the inmate, the inmate’s attorney, and to the institution superintendent. Statutory/Other Authority: ORS 144.226, 144.228 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 52, OL 1997 (Enrolled SB 156) History: PAR 3-2006, f. & cert. ef. 4-5-06; PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 2-1994, f. 8-1-94, cert. ef. 8-15- 94; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7-26-93; PAR 9-1991, f. 11-27-91, cert. ef. 12-1- 91; PAR 4-1991(Temp), f. 6-27-91, cert. ef. 7-1-91; PAR 4-1989, f. & ef. 11-1-89
255-037-0015 Department of Corrections Written Reports The written report of the executive officer of the Department of Corrections, which the Board shall review at the release hearing, shall contain: (1) A detailed account of the inmate’s conduct while confined; (2) All infractions of rules and discipline, the circumstances, and the punishment imposed; (3) Extent to which the inmate has responded to efforts made in the institution to improve his/her mental and moral condition; (4) A statement as to the person’s present attitude towards society, the sentencing judge, the district attorney, and the arresting police officer; (5) A statement as to the inmate’s present attitude towards his/her previous criminal career; (6) The work record, showing average number of hours worked per day and the nature of the occupations; (7) The program history, including a summary of any psychological or substance abuse treatment and other activities that will assist the Board in: (a) Understanding the psychological adjustment and social skills and habits of the inmate; and (b) Determining the likelihood for successful community reentry. Statutory/Other Authority: ORS 144.228 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 52, OL 1997 (Enrolled SB 156) History: PAR 3-1998, f. 8-26-98, cert. ef.8-27-98; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7- 26-93; PAR 4-1989, f. & ef. 11-1-89
255-037-0020 Request for Review Prior to Release Hearing Date (1) Notwithstanding subsection (1) of OAR 255-037-0005, a inmate sentenced as a dangerous offender under ORS 161.725 and 161.735 may request a release hearing prior to the earliest time the inmate is eligible for release to post- prison supervision or a two year review. The Board may consider information presented by the inmate to determine whether the inmate is no longer dangerous or that even though dangerous, can be adequately controlled with supervision and mental health treatment which are in fact available to the inmate. (2) The Board shall review the request for a release hearing by administrative file pass. (3) If the Board finds, based upon the request and the information therein, there is reasonable cause to believe the inmate is no longer dangerous or even though dangerous, can be adequately controlled with supervision and mental health treatment which are in fact available to the inmate, the Board shall order the documents required by this division and conduct a release hearing as soon as reasonably convenient. (4) If the Board finds there is not reasonable cause to believe the inmate is no longer dangerous or even though the inmate remains dangerous, the inmate can be adequately controlled with supervision and mental health treatment and that the necessary resources for supervision and treatment are available to the inmate, the Board will review the inmate’s case at the originally scheduled release hearing pursuant to OAR 255-037-0005(1).
Page 53 of 212 Statutory/Other Authority: ORS 144.228 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 52, OL 1997 (Enrolled SB 156) History: PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 2-1994, f. 8-1-94, cert. ef. 8-15-94; PAR 4-1993, f. & cert. ef. 10- 29-93; PAR 1-1993(Temp), f. & cert. ef. 7-26-93; PAR 4-1989, f. & ef. 11-1-89
255-037-0025 The Release Hearing Packet The Post-Prison Supervision Release Hearing Packet shall contain: (1) Institution face sheet; (2) All prior Board Action Forms; (3) Psychological or psychiatric evaluations, and reports pursuant to ORS 144.226 to 144.228; (4) Documents listed in OAR 255-037-0005(5); (5) Correspondence; (6) Field parole analysis report or report of similar content which shall include verification of supervision level and admission to mental health treatment; and (7) Court orders. Statutory/Other Authority: ORS 144.228 Statutes/Other Implemented: ORS 144.226, 144.228 History: PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7-26-93; PAR 9-1991, f. 11-27-91, cert. ef. 12-1-91; PAR 4-1991(Temp), f. 6-27-91, cert. ef. 7-1-91; PAR 4-1989, f. & ef. 11-1-89
255-037-0030 Post-Prison Supervision (1) A dangerous offender released to post-prison supervision prior to the sentence expiration shall serve the remainder of the sentence term imposed under ORS 161.725 and 161.735 on post-prison supervision. (2) The Board of Parole and Post-Prison Supervision may return an inmate for a period of 180 days as a sanction for any supervision violation. Notwithstanding ORS 137.010 and the rules of the State Sentencing Guidelines Board, the Board may impose the sanction repeatedly for subsequent violations during the term of post-prison supervision. (3) The Board may at any time, return the inmate to prison and require that the inmate submit to an examination as provided in ORS 144.226. If the Board finds the inmate dangerous and/or cannot be adequately controlled with supervision and mental health treatment and/or the necessary resources for supervision and treatment are unavailable to the inmate, the Board shall return the inmate to prison for an indefinite period of time, not to exceed the sentence expiration date. (4) The Board shall review an inmate returned to prison once every two years as provided in OAR 255-037-0005. Statutory/Other Authority: ORS 144.232 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 52, OL 1997 (Enrolled SB 156) History: PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 1-1993(Temp), f. & cert. ef. 7- 26-93; PAR 9-1991, f. 11-27-91, cert. ef. 12-1-91; PAR 4-1991(Temp), f. 6-27-91, cert. ef. 7-1-91; PAR 4-1989, f. & ef. 11-1-89
DIVISION 40 PERSONAL REVIEWS AND REDUCTIONS IN PRISON TERMS
255-040-0005 Scheduling of Personal Reviews (1) The Board may reduce an established prison term, as defined in OAR 255-005-0005, after a personal review. (2) The Board may conduct personal reviews every three years for those inmates whose crimes were committed prior to
Page 54 of 212 November 1, 1989. The review period shall begin on the original adjusted commitment date on an uninterrupted period of incarceration. (3) Inmates with an established prison term of 36 months or less may be eligible for a personal review after they have served at least six months of their established prison term within a Department of Corrections institution. (4) The Board will only conduct a personal review after it has received a positive recommendation for a reduction in the prison term from the Department of Corrections. (5) Inmates sentenced for aggravated murder or as dangerous offenders, and those whose parole the Board denied are not subject to personal reviews. Dangerous offenders may be eligible for personal reviews upon receipt of a positive recommendation from the Department of Corrections, if the Board has found their condition absent or in remission and has set a parole release date. (6) After the Department of Corrections sends a recommendation, the Board may accept another recommendation for the period under review. Statutory/Other Authority: ORS 144.122, 144.226 Statutes/Other Implemented: ORS 144.122, 144.126 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 7-1992(Temp), f. & cert. ef. 7-29-92; PAR 1-1992, f. & cert. ef. 1-13-92; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 4-1989, f. & ef. 11-1-89; PAR 18-1988, f. & ef. 12-6-88; PAR 16-1988(Temp), f. & ef. 10-4-88; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1988(Temp), f. 3-30-88, ef. 4-4- 88; 2PB 11-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; 2PB 14-1981(Temp), f. & ef. 11-25-81; 2PB 1-1979, f. & ef. 2-1-79
255-040-0010 Procedure for Personal Reviews (1) A panel or the Full Board shall conduct personal review hearings pursuant to OAR 255-030-0015. (2) The Board may conduct personal reviews administratively. Statutory/Other Authority: ORS 144.025 Statutes/Other Implemented: ORS 144 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 1-1992, f. & cert. ef. 1-13-92; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; Reverted to 2PB 11-1985, f. & ef. 5-31-85; 2PB 3-1986(Temp), f. & ef. 12-2-86; 2PB 2-1986(Temp), f. & ef. 11-13-86; 2PB 11-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
255-040-0023 Less than 36 Month Prison Term Reductions (1) By letter of agreement, the Board may authorize the Department of Corrections to apply the same criteria and percentage reductions to an offender’s prison term as the Department applies to offenders earning credit toward their determinate sentences under Sentencing Guidelines’ rules. The authorization shall apply only to offenders: (a) With an established prison term of 36 months or less; and (b) Who have served at least six months in Department of Correction’s custody; and (c) Who display an extended course of conduct indicating outstanding reformation. (2) If the Department of Corrections recommends an earned credit reduction under this rule, the Board may administratively adjust the prison term when the Department of Corrections notifies the Board that credit has been earned. (3) The Board shall apply the criteria listed in OAR 255-040-0025(2). (4) If the Board previously upheld a judicially ordered minimum sentence, the Board shall not reduce the prison term to less than the minimum sentence except as provided by OAR 255-040-0028. (5) Inmates serving sanctions for parole violations are not eligible for a reduction. (6) If the Board previously ordered parole release postponement pursuant to ORS 144.125(3), the inmate is not eligible for a reduction. Statutory/Other Authority: ORS 144.122, 144.780
Page 55 of 212 Statutes/Other Implemented: ORS 144.125(3) History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 7-1992(Temp), f. & cert. ef. 7-29-93
255-040-0025 Resetting the Parole Release Date to an Earlier Date (1) For inmates with an established prison term greater than 36 months who demonstrate an extended course of conduct indicating outstanding reformation, the Board may grant a reduction of up to seven months for each three-year period under review. The inmate shall first serve the three-year period before the Board will review it. (2) The purpose of a personal review hearing shall be to determine: (a) Whether continued incarceration is cruel and inhumane; (b) Whether resetting the release date to an earlier date is compatible with the best interests of the inmate and society; and (c) Whether the inmate’s progress indicates outstanding reformation so as to warrant a reduction in the prison term under the following criteria: (A) The individual merits of each case; (B) The seriousness of the crime; (C) The protection of the public; (D) Demonstrable achievement in dealing with problems present at the time of incarceration and associated with criminal conduct (e.g., psychological disorder, drug or alcohol dependency, lack of educational or vocational skills); (E) Documented cooperation with authorities while in custody where a substantial benefit is derived by the authorities; and (F) The absence of disciplinary actions resulting from violation of rules within the review period. (d) That appropriate supervision and services are available for the particular inmate and to order supervision conditions. Statutory/Other Authority: ORS 144.122, 144.126 Statutes/Other Implemented: ORS 144.122, 144.126 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 7- 1992(Temp), f. & cert. ef. 7-29-92; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 18-1988, f. & ef. 12-6-88; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1988(Temp), f. 3-30-88, ef. 4-4-88; 2PB 11-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; 2PB 14-1981(Temp), f. & ef. 11-25-81; 2PB 1-979, f. & ef. 2-1-79
255-040-0026 Effect of Minimum Terms on Reductions (1) If the inmate has a judicial minimum sentence greater than 36 months, which the Board previously upheld pursuant to ORS 144.110 or 163.115, the Board must overturn the minimum before it can grant a reduction from the previously established term. (2) If the inmate has a mandatory minimum sentence pursuant to ORS 161.610, the Board cannot grant a reduction below the mandatory minimum sentence and the statutory reduction for good time, except as provided in OAR 255-040- 0028. Statutory/Other Authority: ORS 144.122, 144.126, 144.110, 163.115, 161.610 Statutes/Other Implemented: ORS 144.110, 144.122, 144.126, 163.115 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 7-1992(Temp), f. & cert. ef. 7-29-92; PAR 6-1991, f. & cert. ef. 10-15-91; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1988(Temp), f. 3-30-88, ef. 4-4-88
255-040-0027 Special Request Reductions (1) Upon the institution superintendent and Director of the Department of Correction’s special request for a reduction in the prison term, a Board majority may schedule a hearing or may consider the request administratively. (2) The criteria for a special request reduction shall be:
Page 56 of 212 (a) Demonstrated outstanding reformation using the criteria in OAR 255-040-0025(3); and (b) Documented cooperation with authorities contributed significantly to the safety and security of the facility; or (c) Cooperation with law enforcement officials results in the apprehension, interruption and conviction of persons involved in significant ongoing criminal activity. (3) The inmate shall have the burden of establishing that his/her conduct meets the criteria for any reduction under consideration. (4) The Board shall have discretion to reduce the prison term by the number of months it finds the behavior merits that is also compatible with the health and safety of the offender and the community. Statutory/Other Authority: ORS 144.122, 144.126 Statutes/Other Implemented: ORS 144.122, 144.126 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 1-1992, f. & cert. ef. 1-13-92; PAR 3- 1990, f. 6-29-90, cert. ef. 7-1-90
255-040-0028 Reductions for a Severe Medical Condition or Incapacitated Elderly Person (1) Except as provided in subsections (3) and (4) of this rule, the Board may consider reductions in prison terms when any inmate, regardless of whether they committed their crime before or after November 1, 1989, is suffering from a severe medical condition or is elderly and is permanently incapacitated and is unable to move from place to place without the assistance of another. The following information must accompany a request for reduction: (a) A medical authority’s report, which attests to validity of the condition with reasons why continued incarceration would be cruel and inhumane; and (b) The institution superintendent’s recommendation; and (c) The Department of Corrections Director’s recommendation regarding whether resetting the release date to an earlier date is compatible with the best interests of the inmate and society; and (d) The Governor’s commutation for those sentenced to life in prison or death for aggravated murder. (2) If a hearing may threaten the health and safety of the inmate or the Board, the Board shall consider the reduction administratively and may grant it upon an affirmative majority vote. (3) For inmates sentenced under Ballot Measure 11 (ORS 137.700), the Board has no authority to grant an early release due to a medical condition. (4) For inmates who committed their crime(s) after June 12, 1997, if the sentencing order states that the inmate is not entitled to any form of early release, the Board has no authority to grant an early release date due to a medical condition. If a sentencing order states that the inmate is eligible for early release, the Board may grant an early release due to a medical condition as provided in this rule. Statutory/Other Authority: ORS 144.122, 144.126, 161.610 Statutes/Other Implemented: ORS 144.122, 144.126 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 6-1991, f. & cert. ef. 10-15-91; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1988(Temp), f. 3- 30-88, ef. 4-4-88
255-040-0035 Notice; Disclosure; Record The notice, disclosure, and record making provisions of division 30 shall apply to all hearings, and reviews granted under this division. Statutory/Other Authority: ORS 144.120(3), 144.120(7), 144.122, 144.123, 144.126, 144.130, 144.135 Statutes/Other Implemented: ORS 144 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 6-1988, f. & ef. 5-19-88; PAR 3-1988(Temp), f. 3-30-88, ef. 4-4-88; 2PB 1-1979, f. & ef. 2-1-79
Page 57 of 212 255-040-0040 Personal Review Packets The Personal Review Packet shall contain: (1) Institution face sheet; (2) All Board Action Forms since the prison term hearing; (3) Psychological evaluations (last 6 months); (4) Recommendation to reset the release date to an earlier date; (5) Correspondence; (6) Field parole analysis report or report of similar content; and (7) Court orders. Statutory/Other Authority: ORS 144.120(3), 144.122, 144.123, 144.126, 144.130, 144.135 Statutes/Other Implemented: ORS 144 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; PAR 3- 1988(Temp), f. 3-30-88, ef. 4-4-88
DIVISION 50 POSTPONING A PAROLE RELEASE DATE FOR SERIOUS MISCONDUCT — THIS DIVISION IS APPLICABLE TO PRISONERS WHO COMMITTED CRIMES PRIOR TO NOVEMBER 1, 1989
255-050-0005 Grounds for Postponing a Parole Release Date (1) The Board shall postpone an inmate’s scheduled release date according to the procedures set forth in OAR 255-050- 0010, if it finds that the inmate engaged in serious misconduct during confinement. (2) The Board may postpone an inmate’s scheduled release date upon: (a) A report of serious misconduct and a recommendation for an extension of the prison term from the Director of the Department of Corrections or designee; (b) Reasonable grounds to believe an inmate has violated a law or engaged in serious misconduct; or (c) The refusal of an inmate to participate in a Board-ordered psychiatric or psychological evaluation pursuant to ORS 144.223; (d) Notification of unauthorized absence. (3) If serious misconduct occurs before the Board has established an inmate’s prison term and the conduct justifies an extension of the prison term, the Board shall add the time for misconduct to the prison term when the Board establishes the prison term. (4) If serious misconduct occurs after the Board has established a prison term and the conduct may justify an extension of the prison term, the Board may rescind the parole release date and order a postponement hearing to consider extending the prison term. Statutory/Other Authority: ORS 144.125, 144.223 Statutes/Other Implemented: ORS 144.125, 144.223 History: PAR 1-1999, f. & cert. ef. 1-15-99; 2PB 1-1979, f. & ef. 2-1-79; 2PB 12-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 4-1989, f. & ef. 12-1-89; Renumbered to 255-050-0010 & 255-050-0011; PAR 8-1992, f. & cert. ef. 10- 9-92; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97
255-050-0010 Postponement Procedures: Hearing by Board (1) When the Board conducts a parole postponement hearing, the following procedure shall apply: (a) The Board shall give the inmate notice of the hearing and its purpose; the provisions of division 30 as to appearance, disclosure, and record shall apply except: (b) An inmate may not waive his/her right to appear;
Page 58 of 212 (c) An inmate may not relitigate facts which the institution hearings officer has found at the disciplinary hearing. (2) If the Board finds serous misconduct, it may be classified within one of the following four categories and the Board may extend the prison term as provided in Exhibit G: (a) Hazard to human life or health; (b) Hazard to security; (c) Hazard to property; or (d) Third in a series of rule violations within a three-month period, while assigned to any Department of Corrections program. (3) The Board may request another hearing before the disciplinary committee originating the recommendation for extension, or choose not to extend a prison term if the Board finds that other disciplinary options are adequate for the seriousness of the misconduct, considering the factors found in OAR 255-050-0011. (4) The Board may continue the postponement hearing and order a psychiatric or psychological examination when it appears that a severe emotional disturbance may be present. If a psychiatrist or psychologist makes a diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board may defer release to a specified future date. When deciding not to set a parole release date, the Board shall apply OAR 255-035-0030. (5) A panel shall decide cases when a parole release date is extended for less than two years, unless OAR 255-030-0015 previously designated it a Full Board case. (6) When the recommended extension of the prison term exceeds the inmate’s statutory good time date or the sentence expiration date, the Board may extend the prison term up to two days less than the good time date or expiration date. (7) If the Board extends the prison term, the Board shall give the inmate: (a) The final order, including a written statement of the category of misconduct, if applicable, the facts and specific reasons for the decision, including the Board members’ individual votes; and (b) Notice of the right to administrative appeal pursuant to division 80. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 144.125, 144.223 Statutes/Other Implemented: ORS 144.125, 144.223 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1989, f. & ef. 11-1-89, Renumbered from 255-050-0005; PAR 8-1988, f. & ef. 7-1-88; PAR 6-1988, f. & ef. 5-19- 88; 2PB 12-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79; PAR 1-1999, f. & cert. ef. 1-15-99; 2PB 1-1979, f. & ef. 2-1- 79; 2PB 12-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 4-1989, f. & ef. 12-1-89; Renumbered to 255-050- 0010 & 255-050-0011; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97
255-050-0011 Department of Corrections Report of Misconduct (1) The Director of the Department of Corrections or designee may recommend an extension of an inmate’s parole release date as a disciplinary sanction. (2) The following guidelines shall apply to a recommendation to extend a prison term: (a) The Department shall have provided the inmate an opportunity for a Department of Corrections disciplinary hearing, and found the inmate to have violated a rule governing prohibited inmate conduct; and (b) The Department shall not recommend an extension of a prison term unless all other disciplinary options have been specifically considered and deemed, individually and in combination, inadequate for the seriousness of the misconduct. (3) The Department shall consider the following factors in determining whether an extension is appropriate: (a) Effectiveness of the sanction as a disciplinary measure, both to the prisoner and to the general prison population; (b) Degree of hazard posed to human health or life, facility security, or to property; (c) Seriousness of the misconduct had it been committed in the wider community;
Page 59 of 212 (d) Circumstances of the misconduct; and (e) The inmate’s prior record or institutional conduct. (4) The Board of Parole and Post-Prison Supervision shall not extend a prison term on a recommendation from the institution unless the recommendation classifies the misconduct within one (1) of the following four (4) categories: (a) Hazard to human life or health; (b) Hazard to security; (c) Hazard to property; or (d) Third in a series of rule violations within a three-month period, while assigned to any Department of Corrections program. Statutory/Other Authority: ORS 144.125, 144.223 Statutes/Other Implemented: ORS 144.125, 144.223 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1989, f. & ef. 11-1-89, Renumbered from 255-050-0005; PAR 6-1988, f. & ef. 5-19-88; 2PB 12-1985, f. & ef. 5-31- 85; 2PB 1-1979, f. & ef. 2-1-79; PAR 1-1999, f. & cert. ef. 1-15-99; 2PB 1-1979, f. & ef. 2-1-79; 2PB 12-1985, f. & ef. 5-31- 85; PAR 6-1988, f. & ef. 5-19-88; PAR 4-1989, f. & ef. 12-1-89; Renumbered to 255-050-0010 & 255-050-0011; PAR 8- 1992, f. & cert. ef. 10-9-92; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97
255-050-0012 Postponement When Informed of Reasonable Grounds The Board may rescind the parole release date when the Board is informed of reasonable grounds to believe that an inmate has violated a law or has engaged in serious misconduct. A fact-finding hearing shall be held by a Department of Corrections hearings officer to determine if the law violation or misconduct occurred. However, if the inmate has received an additional sentence to the Department of Corrections custody, no hearing is required. Statutory/Other Authority: ORS 144.125, 144.223 Statutes/Other Implemented: ORS 144.125, 144.223 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 4-1989, f. & ef. 11-1-89, Renumbered from 255-050-0005; PAR 6-1988, f. & ef. 5-19-88; 2PB 12-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1- 79; PAR 1-1999, f. & cert. ef. 1-15-99; 2PB 1-1979, f. & ef. 2-1-79; 2PB 12-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5- 19-88; PAR 4-1989, f. & ef. 12-1-89; Renumbered to 255-050-0010 & 255-050-0011; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97
255-050-0013 Postponement for Refusing to Participate in a Psychiatric or Psychological Evaluation (1) The Board may postpone a parole release date until a specified future date when an inmate has refused to participate in a psychiatric or psychological evaluation, which the Board ordered pursuant to ORS 144.223, prior to the inmate’s release on parole. (2) When the Board rescinds a parole release date under this section, the Board shall conduct a hearing to postpone the inmate’s release date. (3) The Board may postpone the parole release date up to two days before the inmate’s good time date. Statutory/Other Authority: ORS 144.125, 144.223 Statutes/Other Implemented: ORS 144.050, 144.140, 144.125, 144.223 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 1-1992, f. & cert. ef. 1-13-92; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88
255-050-0015 Unauthorized Absence (1) The parole release date of an inmate who is on unauthorized absence from a correctional facility shall be rescinded automatically. The Board may schedule a hearing when the inmate is available or the Board may administratively reset
Page 60 of 212 the parole release date by adding the inoperative time to the prison term. (2) The Board or its designee shall add the inoperative time to the prison term in the following manner: (a) If the unauthorized absence occurs prior to the parole release date and the inmate returns to custody of the Department of Corrections after the parole release date: (A) Count the first day of unauthorized absence and every day up to the parole release date; (B) Add the total number of days determined in (A) of this subsection to the date of return to the Department of Corrections’ custody following a hold in another in-state or out-of-state jurisdiction. (b) If the unauthorized absence occurs prior to the parole release date and the inmate returns to the Department of Corrections’ custody prior to the parole release date: (A) Count the first day of unauthorized absence and every day up to the date of return to the Department of Corrections following a hold in another in-state or out-of-state jurisdiction; (B) Add the total number of days determined in (A) of this subsection to the previous parole release date. (c) If the Board deferred the initial parole release date to a specific future date, that specific future date shall be used for purposes of calculations pursuant to section (2) of this rule. Statutory/Other Authority: ORS 144.125, 144.223 Statutes/Other Implemented: ORS 144.125, 144.223 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1989, f. & ef. 11-1-89; PAR 18-1988, f. & ef. 12-6-88; PAR 6-1988, f. & ef. 5-19-88; 2PB 12-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; 2PB 13-1981(Temp), f. & ef. 11-25-81; 2PB 1-1981, f. 1-20-81, ef. 2-15-81; 2PB 1-1979, f. & ef. 2-1-79
255-050-0025 Misconduct Board Review Packet The Misconduct Board Review Packet shall contain: (1) Institution face sheet; (2) All Board Action Forms since the prison term hearing; (3) Psychological evaluations; (4) Disciplinary report from the institution; (5) Correspondence; (6) Field parole analysis report; (7) Court orders; (8) PSI, PSR, PAR or document of similar content; (9) DOC hearings officer’s findings and recommendations; (10) Inmate’s Notice of Rights and Board of Parole & Post-Prison Supervision Procedures. Statutory/Other Authority: ORS 144.125, 144.223 Statutes/Other Implemented: ORS 144.125, 144.223 History: PAR 1-1999, f. & cert. ef. 1-15-99; PAR 5-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88
DIVISION 60 RELEASE TO POST-PRISON SUPERVISION OR PAROLE AND EXIT INTERVIEWS
255-060-0006 Exit Interviews: Parole Plan; and Psychiatric Records (1) At any time prior to an inmate’s scheduled release to post-prison supervision or parole, the Board on its own initiative or at the request of the Department of Corrections, may conduct an exit interview to review the inmate’s: (a) Release plan; (b) Victim’s statements, if any;
Page 61 of 212 (c) PSR or similar report; (d) Psychiatric/psychological reports, if any; (e) Conduct while in confinement; and (f) Any other information relevant to the inmate’s reintegration into the community that the inmate, the inmate’s attorney, the Department of Corrections or any other person submits. (2) The procedures for records, disclosure and notice outlined in Division 15 and 30 shall govern exit interviews. (3) A panel shall conduct the interview and the Board shall make decisions pursuant to OAR 255-030-0015. Statutory/Other Authority: ORS 144.098, 144.125, 144.800 Statutes/Other Implemented: ORS 144.098, 144.125, 144.800 History: PAR 5-1998, f. & cert. ef. 11-9-98; 2PB 1-1979, f. & ef. 2-1-79; 2PB 2-1980, f. & ef. 5-20-80; 2PB 1-1981, f. 1-20- 81, ef. 2-15-81; 2PB 8-1981(Temp), f. & ef. 11-4-81; 2PB 1-1982, f. & ef. 5-19-82; 2PB 13-1985, f. & ef. 5-31-85; PAR 6- 1988, f. & ef. 5-19-88; PAR 2-1990, f. & cert. ef. 4-5-90, Sections (3), (4), (5) & (6) Renumbered to 255-060-0008; PAR 3- 1991(Temp), f. & cert. ef. 5-1-91; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 2-1992(Temp), f. & cert. ef. 2-12-92; PAR 3- 1992, f. & cert. ef. 4-15-92; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 6-1997, f. 3-11-97, cert. ef. 3-14-97
255-060-0008 Release Plans (1) At any time prior to release on parole or post-prison supervision, the Board shall examine the inmate’s plans for residence, employment, or other situation in the community to determine whether the release plan is adequate. The plan may include, but is not limited to: (a) Employment; (b) School, or other situation (e.g., retirement income); (c) Verifiable residence; (d) A description of support services, program opportunities and treatment programs; (e) Prescribed medication; (f) Recommended conditions of supervision for the purpose of reformation and public safety, including a recommendation for waiver of the condition of supervision that the inmate reside for the first six months in the county where the inmate resided at the time of the offense that resulted in imprisonment; (g) Level of supervision consistent with the prisoner's risk assessment classification; and (h) A restitution and compensatory fine payment schedule. (2) The Board may defer parole release up to ninety (90) days from the parole release date when a plan is deficient or unverified in order to obtain verification or a satisfactory plan from the Department of Corrections. (3) An inmate requesting an out-of-state parole waives the ninety (90) days limitation on deferral of release. Such waiver is for the purpose of an adequate parole plan in the accepting state. (4) Except as provided in OAR 255-060-0014, the Board shall not defer release to post-prison supervision. The following procedure shall apply: (a) If the release plan the Department of Corrections or designee of Local Supervisory Authority submits at least 60 days prior to release is deficient, the Board will return it to the submitting agency with the Board's recommended modifications. (b) The Department or designee of Local Supervisory Authority shall submit a revised plan to the Board not less than ten days prior to the inmate’s release. (c) If the Board does not accept the revised plan, the Board shall determine the provisions of the final plan prior to the prisoner's release. (5) One Board member shall review and approve the release plan. (6) When an offender is released from the custody of the Department of Corrections or Local Supervisory Authority, after serving a sentence of incarceration as a result of a conviction for an offense listed in subsection (a) of this section, the Board or Local Supervisory Authority shall subject the inmate/offender to intensive supervision as defined in OAR
Page 62 of 212 255-005, for the full period of the offender’s parole or post-prison supervision if the inmate/offender was eighteen (18) years of age or older at the time the inmate/offender committed the offense and the Board or Local Supervisory Authority finds that the inmate/offender is a sexually violent dangerous offender, as defined in OAR 255-005. (a) The crimes to which section (6) of this rule apply are: (A) Rape in the First Degree and Sodomy in the First Degree if the victim was subject to forcible compulsion or under 12 years of old or was incapable of consent by reason of mental defect, mental incapacitation or physical helplessness; and (B) Unlawful Sexual Penetration in the First Degree; and (C) An Attempt to commit a crime listed in this subsection. (b) When the Board or Local Supervisory Authority makes a finding that an inmate/offender is a sexually violent dangerous offender under this section, the Board or Local Supervisory Authority shall make this finding in the Order of Supervision. Statutory/Other Authority: ORS 144.096, 144.125, 144.185 & Ch. 924, 1999 OL Statutes/Other Implemented: History: PAR 4-2000, f. & cert. ef. 2-15-00; 2PB 1-1979, f. & ef. 2-1-79; 2PB 2-1980, f. & ef. 5-20-80; 2PB 1-1981, f. 1-20- 81, ef. 2-15-81; 2PB 8-1981(Temp), f. & ef. 11-4-81; 2PB 1-1982, f. & ef. 5-19-82; 2PB 13-1985, f. & ef. 5-31-85; PAR 6- 1988, f. & ef. 5-19-88; PAR 2-1990, f. & cert. ef. 4-5-90; Sections (1), (2) & (3) Renumbered from 255-060-0006; PAR 3- 1991(Temp), f. & cert. ef. 5-1-91; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 9-1992, f. & cert. ef. 12-8-92; PAR 6-1997, f. 3- 11-97, cert. ef. 3-14-97; PAR 7-1999, f. 9-21-99, cert. ef. 9-22-99
255-060-0009 Residence Requirements for Certain Sex Offenders Upon Release from Custody (1) A sex offender classified as a sexually violent dangerous offender (ORS 137.765) or a predatory sex offender (ORS 181.765) may not reside near locations where children are the primary occupants or users. (2) This prohibition applies to permanent housing and not to transitional housing. For purposes of this rule, transitional housing means housing intended to be occupied by a sexually violent dangerous offender or a predatory sex offender for 45 days or less immediately after release from custody. (3) Exceptions to this prohibition may be made by the supervising parole/probation officer if it is determined that there is sufficient information to support this placement in terms of public safety and the rehabilitation of the offender. In making this determination, the following factors must be considered: (a) Other residential placement options pose a higher risk to the community; or (b) An enhanced support system that endorses supervision goals and community safety efforts is available at this residence; or (c) Enhanced supervision monitoring will be in place (e.g. electronic supervision, curfew, live-in-care provider, along with community notification); or (d) This residence includes 24-hour case management; or (e) The offender is being released from prison unexpectedly and more suitable housing will be arranged as soon as possible. If any of these factors apply to the offender and the residence under review, an exception to the permanent residence prohibition may be allowed. (4) The supervising officer must inform the community affected by this decision about the reasons for the decision prior to the offender’s release from custody. Statutory/Other Authority: ORS 144.644, 181.585 Statutes/Other Implemented: History: PAR 5-2003, f. & cert. ef. 10-10-03; PAR 3-2003(Temp), f. & cert. ef. 6-13-03 thru 12-9-03; PAR 7-2002, f. & cert. ef. 6-17-02; PAR 6-2002(Temp), f. & cert. ef. 4-15-02 thru 10-11-02; PAR 2-2002, f. & cert. ef. 1-29-02; PAR 5- 2001(Temp), f. 12-10-01, cert. ef. 1-1-02 thru 6-29-02
255-060-0011 Procedures for Predatory Sex Offender Designation for Offenders on Parole and Post-Prison Supervision
Page 63 of 212 (1)(a) For purposes of this rule, a predatory sex offender is defined as a person who exhibits characteristics showing a tendency to victimize or injure others and has been convicted of one or more of the following offenses: Rape in any degree, Sodomy in any degree, Unlawful Sexual Penetration in any degree or Sexual Abuse in any degree, or has been convicted of attempting to commit one or has been found guilty except for insanity of one of these crimes. In determining whether an inmate or offender is a predatory sex offender under this rule, the Board shall use the Static-99R (Exhibit Q- 1) and definitions (Exhibit Q-2), which have been approved by the Department of Corrections as required by ORS 181.585(2). The Board may also consider any other evidence that the offender exhibits characteristics showing a tendency to victimize or injure others. (b) All exhibits referenced in this rule are filed with the rule and are available at the Secretary of State’s office, the Board’s website, or on request from the Board. (2) Predatory sex offender designations made by the Board for inmates or offenders released from a Department of Corrections institution before November 14, 2012, are not included in this rule. Those designations are governed by the rules in effect when the designation was made. (3) Subject to the procedures set forth in this rule, the Board will make a finding that an offender is a candidate for predatory sex offender designation, if the offender scores six or more points on the Static-99R and has been convicted of a qualifying offense or has been found guilty except for insanity of a qualifying offense. (4) Offenders who score six or more points on the Static-99R, and have been identified as a candidate for predatory designation, must be told. They must be provided with a copy of the Static-99R, the Notice of Rights (Exhibit PSO-5) and the Notice of Rights to File Written Objections form (Exhibit Q-3). (a) The offender should submit any Written Objections (Exhibit Q-4) to the Static-99R score within three business days after signing the Notice of Rights (Exhibit Q-3). (b) Unless the offender waives the right to submit Written Objections, no sooner than three days after providing the Notice of Rights, the supervising officer will forward the Static-99R, Notice of Rights and Written Objections, if submitted, to the Board. The supervising officer must also include a written report explaining why the offender should be considered for predatory designation. Other materials that support the offender’s Static-99R score shall be included. (c) Upon receipt of the required documents, the Board will review them to verify the accuracy of the score, obtain supporting documentation if necessary, and determine if there is sufficient information to conduct an evidentiary hearing for purposes of determining whether the offender should be designated a predatory sex offender. The Board will prepare a file memo that verifies the index offense, qualifying conviction, and each point awarded on the Static-99R. The file memo will address offender’s written objections. If the Board determines there is sufficient information in the documents, it will forward them to its hearings officer, who will schedule an evidentiary hearing. (5)(a) The supervising officer or the Board’s hearings officer will provide the offender with: the documentation submitted by the supervising officer; the Static-99R; the memo prepared by the Board; and the Notice of Rights regarding an evidentiary hearing (Exhibit PSO-5). (b) Unless the offender waives their right to an evidentiary hearing, a hearing will be held. Refusal to participate in the notice of rights process will be considered a waiver. (c) The sole purpose of the evidentiary hearing will be to determine whether the offender exhibits characteristics showing a tendency to victimize or injure others. (6)(a) At the evidentiary hearing, the hearings officer will consider the written report submitted by the supervising officer, the Static-99R, and any additional evidence supporting the Static-99R score or otherwise indicating that the offender exhibits characteristics showing a tendency to victimize or injure others. (b) The offender may present evidence rebutting claims made in the supervising officer’s written report, challenge the Static-99R score, or rebut other evidence that the offender exhibits characteristics showing a tendency to victimize or injure others. (c) After consideration of all the evidence presented at the evidentiary hearing, the hearings officer will submit a report to the Board with a recommendation as to whether the offender is exhibiting characteristics showing a tendency to victimize or injure others.
Page 64 of 212 (7)(a) Upon receipt of the report and recommendation from the Board’s hearings officer, the Board will review the report and recommendation and determine whether the offender exhibits characteristics showing a tendency to victimize or injure others and is, therefore, a predatory sex offender. (b) A finding that an offender is a predatory sex offender must be made by at least two Board members. (c) The Board will issue an order of supervision containing the predatory designation. Upon receipt of the order, the offender’s supervising officer must present it to the offender and document that the offender received the order. (8) Pursuant to ORS 181.586, the community corrections agency supervising an offender found to be a predatory sex offender shall notify anyone whom the agency determines is appropriate that the person is a predatory sex offender. The agency shall make this determination as required by ORS 181.586. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 144.050, 144.140, 181.585, 181.586 Statutes/Other Implemented: History: PAR 3-2017, f. 3-27-17, cert. ef. 4-5-17; PAR 4-2000, f. & cert. ef. 2-15-00; PAR 1-2002(Temp), f. & cert. ef. 1- 15-02 thru 7-13-02; PAR 4-2002, f. & cert. ef. 3-12-02; PAR 5-2003, f. & cert. ef. 10-10-03; PAR 2-2004(Temp), f. & cert. ef. 1-41-04 thru 7-11-04; PAR 7-2004, f. & cert. ef. 6-14-04; PAR 1-2006(Temp), f. & cert. ef. 3-20-06 thru 9-15-06; PAR 5-2006, f. & cert. ef. 6-14-06; PAR 6-2006(Temp), f. 6-14-06 cert. ef. 6-15-06 thru 12-11-06; PAR 9-2006, f. & cert. ef. 10-9-06; PAR 1-2008, f. & cert. ef. 1-11-08; PAR 3-2008, f. & cert. ef. 9-12-08; PAR 5-2012(Temp), f. & cert. ef. 11-15-12 thru 5-13-13; Administrative correction, 5-22-13; PAR 4-2013, f. & cert. ef. 6-25-13; PAR 5-2016(Temp), f. 12-28-16, cert. ef. 1-3-17 thru 7-1-17
Page 65 of 212 EXHIBIT Q-1 STATIC-99R- TALLY SHEET
Registrant: ______
Item Risk Factor Codes Score Number 1 Age for assessment Aged 18 to 34.9 1 Aged 35 to 39.9 0 Aged 40 to 59.9 -1 Aged 60 or older -3 2 Ever lived with a lover Ever lived with lover for at least two years? Yes 0 No 1 3 Index non-sexual violence - No 0 any convictions Yes 1 4 Prior non-sexual violence - No 0 any convictions Yes 1 5 Prior sex offences Charges Convictions
0 0 0 1,2 1 1 3-5 2,3 2 6+ 4+ 3
6 4 or more prior sentencing dates 3 or less 0 (excluding index) 4 or more 1 7 Any convictions for non-contact sex offences No 0 Yes 1 8 Any unrelated victims No 0 Yes 1 9 Any stranger victims No 0 Yes 1 10 Any male victims No 0 Yes 1 Add up scores from individual risk Total Score factors
Oregon Board of Parole and Post-Prison Supervision - Exhibit Q-1
Page 66 of 212 255-060-0012 Psychological or Psychiatric Reports This rule applies to all persons in custody, except for any person in custody convicted of murder committed on or between November 1, 1989, and June 29, 1995, who was not designated a dangerous offender at sentencing, and except to the extent that it is made inapplicable by rules in effect when the person in custody committed the crimes of conviction. (1) After review of psychiatric and psychological reports, and all other information or documents presented during a hearing, the Board may defer parole release until a specified future date upon finding: The person in custody has a present severe emotional disturbance, such as to constitute a danger to the health or safety of the community. (2) The Board shall not deny release on parole solely because of a person in custody’s present severe emotional disturbance. The Board must also find the condition constitutes a danger to the health or safety of the community. (3) The Board may defer a scheduled parole release date for no fewer than two years and no longer than ten years. A deferral of longer than two years must comply with OAR 255 division 62 of these rules. (4) If the Board finds the person in custody does not have a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board shall affirm the parole release date and set parole conditions. (5) If the Board finds the person in custody has a present severe emotional disturbance, but that the disturbance is not so severe as to constitute a danger to the health or safety of the community, the Board may affirm the parole release date and set parole conditions. (6) For purposes of the Board finding that an offender is a sexually violent dangerous offender pursuant to OAR 255- 060-0018, the Board may order a psychological or psychiatric evaluation. Statutory/Other Authority: ORS 144.125, 144.223, 144.280, 144.635, 144.637 Statutes/Other Implemented: ORS 144.125, 144.223 History: PAR 3-2019, amend filed 09/09/2019, effective 09/09/2019; PAR 5-2014, f. & cert. ef 5-15-14; PAR 1- 2014(Temp), f. & cert. ef. 1-17-14 thru 7-16-14; PAR 4-2000, f. & cert. ef. 2-15-00; PAR 5-1998, f. & cert. ef. 11-9-98; PAR 6-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 2-1990, f. & cert. ef. 4-5-90
255-060-0013 Postponement Order Any order regarding the postponement of parole release shall be sent to the prisoner and shall set forth: (1) The facts and specific reasons for the decision and the individual votes of the Board members. (2) Notice of the right to administrative appeal pursuant to the procedures of division 80. Statutory/Other Authority: ORS 144 Statutes/Other Implemented: History: PAR 2-1990, f. & cert. ef. 4-5-90
255-060-0016 Procedures for Predatory Sex Offender Designation for Inmates (1)(a) For purposes of this rule, a predatory sex offender is defined as a person who exhibits characteristics showing a tendency to victimize or injure others and has been convicted of one or more of the following offenses: Rape in any degree, Sodomy in any degree, Unlawful Sexual Penetration in any degree or Sexual Abuse in any degree, or has been convicted of attempting to commit one or has been found guilty except for insanity or one of these crimes. In determining whether an inmate or offender is a predatory sex offender under this rule, the Board shall use the Static-99R (Exhibit Q- 1) and definitions (Exhibit Q-2), which have been approved by the Department of Corrections as required by ORS 181.585(2). The Board may also consider evidence that the inmate exhibits characteristics showing a tendency to victimize or injure others. (b) All exhibits referenced in this rule are filed with the rule and are available at the Secretary of State’s office, the Board’s website, or on request from the Board. (2) Predatory sex offender designations made by the board for inmates released from a Department of Corrections
Page 67 of 212 institution before November 14, 2012, are not included in this rule. Those designations are governed by the rules in effect when the designation was made or when the inmate was released from custody. (3) Subject to the procedures set forth in this rule, the Board will make a finding that an inmate is a candidate for predatory sex offender designation, if the inmate scores six or more points on the Static-99R and has been convicted of a qualifying offense or has been found guilty except for insanity of a qualifying offense. (4) Inmates who score six or more points on the Static-99R, and have been identified as a candidate for predatory designation, must be told. They must be provided with a copy of the completed Static-99R, the Notice of Rights (Exhibit PSO-5) and the Notice of Rights to File Written Objections form (Exhibit Q-3). (a) The inmate should submit any Written Objections (Exhibit Q-4) to the Static-99R score within three business days after signing the Notice of Rights. (b) Unless the inmate waives the right to submit Written Objections, no sooner than three days after providing the Notice of Rights, the counselor will forward the Static-99R, Notice of Rights and Written Objections, if submitted, to the Board. Other available materials that support the inmate’s Static-99R score shall be included. (c) Upon receipt of the required documents, the Board will review them to verify the accuracy of the score and obtain supporting documentation if necessary to determine if there is sufficient information to conduct an evidentiary hearing for purposes of determining whether the inmate should be designated a predatory sex offender. The Board will prepare a file memo that verifies the index offense, qualifying conviction, and each point awarded on the Static-99R. The file memo will address inmate’s written objections. If the Board determines there is sufficient information in the documents, the inmate will be scheduled for a sex offender evaluation. (d) Refusal to participate in a sex offender evaluation will not exclude inmate from predatory consideration. (e) Should the sex offender evaluation determine that the inmate is exhibiting characteristics showing a tendency to victimize or injure others the inmate shall be provided with a copy of the sex offender evaluation and the Board’s memo verifying the Static-99R points. Unless inmate waives the right to an evidentiary hearing, a hearing will be held. Refusal to participate in the notice of rights process will be considered a waiver. (f) The sole purpose of the evidentiary hearing is to determine if the inmate exhibits characteristics showing a tendency to victimize or injure others. (5)(a) At the evidentiary hearing, the Board will consider the written report submitted by the sex offender evaluator, the Static-99R, and any additional evidence supporting the Static-99R score or otherwise indicating that the inmate exhibits characteristics showing a tendency to victimize or injure others. (b) The inmate may present evidence rebutting claims made in the sex offender evaluator’s written report, challenge the Static-99R score, or rebut other evidence that the inmate exhibits characteristics showing a tendency to victimize or injure others. (c) After consideration of all the evidence presented at the hearing, the Board will make a determination as to whether the inmate should be designated as a predatory sex offender. (6) A finding that an inmate is a predatory sex offender must be made by at least two Board members. (7) Pursuant to ORS 181.586, the community corrections agency supervising an inmate or offender found to be a predatory sex offender shall notify anyone whom the agency determines is appropriate that the person is a predatory sex offender. The agency shall make this determination as required by ORS 181.586. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: V.L.Y v. Board of Parole & Post-Prison Supervision, 338 Or 44(2005), ORS 144.050, 144.140, 181.585, 181.586 Statutes/Other Implemented: History: PAR 3-2017, f. 3-27-17, cert. ef. 4-5-17; PAR 5-2016(Temp), f. 12-28-16, cert. ef. 1-3-17 thru 7-1-17; PAR 4- 2013, f. & cert. ef. 6-25-13; Reverted to PAR 3-2008, f. & cert. ef. 9-12-08; PAR 5-2012(Temp), f. & cert. ef. 11-15-12 thru 5-13-13; PAR 3-2008, f. & cert. ef. 9-12-08; PAR 4-2007, f. & cert. ef 7-17-07; PAR 10-2006, f. & cert. ef. 10-30-06; Suspended by PAR 8-2006(Temp), f. & cert. ef. 8-30-06 thru 2-2-07; PAR 7-2006(Temp), f. & cert. ef. 8-7-2006 thru 2-2- 07
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Page 69 of 212 1
Exhibit Q-2
Static-99R Coding Rules
Revised – 2016
Amy Phenix, Yolanda Fernandez, Andrew J. R. Harris, Maaike Helmus, R. Karl Hanson, & David Thornton
Exhibit Q-2 - adopted by the Oregon Board of Parole and Post-Prison Supervision 2017
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Table of Contents
How To Use This Manual ...... 4
Introduction ...... 6 Introduction to Static-99R...... 6 Missing Items ...... 7 Recidivism Criteria ...... 7 Non-Contact Sex Offences ...... 7 Training ...... 8 Treatment ...... 8 Self-Report and Static-99R ...... 8 Inter-Rater Reliability of Static-99R ...... 9 Revised Risk Levels ...... 11 Whom Can You Use Static-99R On? ...... 12 Time Offence-Free in the Community After Release from the Index Sex Offence ...... 13 Static-99R When the Current Offence is Not a Sexually Motivated Offence ...... 14 Static-99R with Adolescents who Sexually Offend...... 14 Static-99R with Offenders Who are Developmentally Delayed ...... 15 Static-99R with Institutionalized Offenders ...... 15 Static-99R with Offenders who Aid in a Sex Offence ...... 15 Static-99R with Non-Caucasian Sex Offenders ...... 16 Static-99R and Offenders with Mental Health Issues ...... 16 Static-99R and Gender Transformation ...... 16
Information Required to Score Static-99R ...... 18 Polygraph Information ...... 18 Standards of Proof and Coding Static-99R ...... 19
Definitions ...... 20 Sex Offence ...... 20 Category “A” and Category “B” Offences ...... 21 Probation, Parole or Conditional Release Violations as Sex Offences ...... 25 Institutional Rule Violations ...... 26 What Counts as a Conviction/Sentencing Date Versus a Charge ...... 28 Conviction/Sentencing Date ...... 28 Determining Whether Something is a Conviction ...... 29 Probation, Parole, or Conditional Release Violation ...... 29 Charges ...... 36 Situations That Do Not Count as Charges OR Convictions ...... 37 Index Sex Offence ...... 38 Offence Clusters, Pseudo-Recidivism, Historical Offences, and Prior Offences ...... 38 Historical Offences ...... 38 Index Cluster ...... 38 Pseudo-Recidivism ...... 40
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Post-Index Offences ...... 40 Prior Offence(s) ...... 41 Separating Index Clusters and Prior Offences ...... 42
Scoring the 10 Items...... 45 Item # 1 – Age at Release from Index Sex Offence ...... 46 Item # 2 – Ever Lived with an Intimate Partner – 2 Years………...………………………….49 Item # 3 – Index Non-Sexual Violence (NSV) – Any Convictions ...... 52 Item # 4 – Prior Non-Sexual Violence – Any Convictions ...... 58 Item # 5 – Prior Sex Offences ...... 63 Item # 6 – Prior Sentencing Dates ...... 68 Item # 7 – Any Convictions for Non-Contact Sex Offences ...... 70 Items #8, #9, & # 10 – The Three Victim Questions ...... 74 Item # 8 – Any Unrelated Victims? ...... 79 Item # 9 – Any Stranger Victims? ...... 82 Item # 10 – Any Male Victims? ...... 84
Scoring Static-99R & Computing the Risk Estimates ...... 85
Appendix A: Self-Test...... 86 Appendix B: References ...... 88 Appendix C: Static-99R Coding Form and Comments ...... 93
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How To Use This Manual
This manual comprises the third published version of the Static-99, and now Static-99R, Coding Rules (previous versions: Hanson & Thornton, 1999; Harris, Phenix, Hanson, & Thornton, 2003). Each Coding Manual has been designed to provide greater detail and a more comprehensive review of how to code Static-99 and Static-99R. This is the first set of coding rules designed for the revised version: Static-99R. The Static-99R Coding Rules are designed to be used in all jurisdictions where Static-99R is scored. We recommend that evaluators using Static-99 should switch to Static-99R (Helmus, Thornton, Hanson, & Babchishin, 2012). If, however, evaluators still use Static-99 (for example, following legal or administrative requirements), these coding rules should be applied to Static-99 as well (with the exception that the age weights differ between Static-99 and Static-99R). Additionally, those using Static-99 should not report the recidivism norms from the 2003 Coding Manual as they are outdated and obsolete and should not be used in forensic evaluations or considered in applied decisions (instead, see Helmus, Hanson, & Thornton, 2009). Although the 2009 norms are not ideal, they are preferable to the 2003 norms. In particular though, the 2009 Static-99 norms should not be used for offenders who are aged 60 or older at release, as they have been found (Helmus, Thornton et al., 2012) to substantially overestimate risk of recidivism (or if an evaluator is legally required to use them, they should note that it is an overestimate).
In most cases, scoring Static-99R is fairly straightforward for an experienced evaluator. If you are unfamiliar with this instrument, we suggest that you turn to the back pages of this manual and find the one-page Static-99R Coding Form. You may want to keep a copy of this to one side as you review the manual.
The purpose of the scoring manual is to provide all information necessary to score the items and produce a total Static-99R score, with some additional context on the appropriate uses of the scale. For information on how to interpret and report the score results (including both relative and absolute risk information), the reader is referred to the Evaluators' Handbook (Phenix, Helmus, & Hanson, 2016) available at www.static99.org, in the section labelled “Norms.” The handbook is updated periodically to incorporate advances in research, and evaluators are encouraged to check that their reports are based on the most recent version. The reason the coding rules and the workbook are in separate documents is that we expect updated research will require frequent updates to the latter, but not the former.
Although this version of the coding manual has non-trivial changes from the previous (2003) version which will result in different scorings for a small number of cases, we do not anticipate that these changes require re-calibration of the normative data for the scale. In other words, the existing Evaluator Workbook for Static-99R (Phenix et al., 2016) is still applicable. It is always possible, nonetheless, that future research will identify improvements to the normative data.
We strongly recommend you familiarize yourself with the entirety of the coding rules before scoring the instrument. We understand there is repetition in this manual and some material will be more pertinent than other sections. The coding manual has two broad sections. The first section has a lot of introductory and background material, as well as global recommendations on when/how to use the scale, including information on: - Training - Treatment - Self-report information - Inter-rater reliability
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- Who can you use Static-99R on -Time offence-free in the community after release from the index sex offence - When the current offence is not sexually motivated - Static-99R for offenders who are juveniles, developmentally delayed, institutionalized, who aided in a sex offence, are non-Caucasian, have mental health issues, or have undergone gender transformation - Information required to score Static-99R - Definitions for key concepts such as sex offence (including Category “A” versus Category “B” offences), charges, convictions/sentencing dates, offence clusters, pseudo-recidivism, and historical offences.
The second main section of the manual begins at the section entitled “Scoring the Ten Items” on page 45. This section provides the specific rules required to score each item. For each of the ten items, the coding instructions begin with three pieces of information: The Basic Principle, Information Required to Score this Item, and The Basic Rule. The following sections for each item provide fuller explanations of the item along with how the rules are intended to apply to unusual or difficult scoring cases, as well as how special circumstances affect the scoring and exclusions that may apply. Users should ensure that they are familiar with this more detailed guidance so they more fully understand the item and they know when to refer to it to resolve scoring difficulties. Often just reading these three small sections will allow you to score that item on Static-99R. The following sections for each item describe special circumstances or exclusions that may apply to your case. This expanded version of Static-99R coding contains much information that is related to specific uses of the Static-99R in unusual circumstances and many sections of this manual need only be referred to in exceptional circumstances or as occasional reminders. We also suggest that you briefly review the three appendices as they contain a self-test resource, helpful references, and the Static-99R Coding Form (pages 86 to 94).
If you find that you have a coding question not addressed in this manual, you can direct the question to [email protected] or at the website, www.static99.org. Please consult the coding manual and FAQs on the website prior to submission of questions.
We appreciate all feedback on the scoring and implementation of the Static-99R. Please feel free to contact any of the authors. Should you find any errors in this publication or have questions/concerns regarding the application of this risk assessment instrument or the contents of this manual, please address these concerns to:
Amy Phenix, Ph.D. Yolanda Fernandez, Ph.D. [email protected] [email protected]
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Introduction
Introduction to Static-99R
Static-99R is intended to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders. When combined with an appropriate table of norms (e.g., Phenix et al., 2016), Static-99R characterizes the individual’s relative risk for sexual recidivism in terms of how unusual it is (using percentiles) and in terms of how it compares to the risk presented by the typical sex offender (using risk ratios). Available norms also describe estimates of absolute recidivism rates over fixed follow up periods. The information provided by Static-99R can be thought of as a baseline estimate of risk for new sexual charges and convictions. This baseline assessment can be used to guide treatment and supervision strategies designed to reduce the risk of sexual recidivism.
The predecessor to Static-99R, Static-99 (Hanson & Thornton, 1999; 2000) was originally developed by R. Karl Hanson of the Solicitor General Canada and David Thornton at that time of Her Majesty’s Prison Service, England and now at Forensic Assessment, Training & Research LLC. The original Static-99 was created by amalgamating two risk assessment instruments (the RRASOR and SACJ-Min). The RRASOR (Rapid Risk Assessment of Sex Offender Recidivism), developed by Hanson, consisted of four items: 1) having prior sex offences, 2) having a male victim, 3) having an unrelated victim, and 4) being between the ages of 18 and 25 years old. The items of the RRASOR were then combined with the items of the Structured Anchored Clinical Judgement – Minimum (SACJ-Min), an independently created risk assessment instrument written by Thornton (Grubin, 1998). The SACJ-Min consisted of nine items: 1) having a current sex offence, 2) prior sex offences, 3) a current conviction for non-sexual violence, 4) a prior conviction for non-sexual violence, 5) having 4 or more previous sentencing dates on the criminal record, 6) being single, 7) having non-contact sex offences, 8) having stranger victims, and 9) having male victims. These two instruments were merged to create Static-99, a ten-item prediction scale.
In 2009 a revised version of Static-99, called Static-99R, was released for use (Hanson, Phenix, & Helmus, 2009; Helmus, 2009; Helmus, Thornton, Hanson, & Babchishin, 2012). This revision was completed to better account for the relationship between age at release and sexual recidivism, and to provide updated norms for the scale on more contemporary samples. Because of these advantages and the reduction of sex offender reoffence rates in contemporary samples, evaluators are advised to switch from the use of Static-99 to Static-99R. This project to revise Static-99 (now Static-99R) has led to the creation of percentiles (Hanson, Lloyd, Helmus, & Thornton, 2012) and risk ratios (Hanson, Babchishin, Helmus, & Thornton, 2013), and an update of the recidivism estimates (Hanson, Thornton, Helmus, & Babchishin, 2016) and nominal risk categories (Hanson, Babchishin, Helmus, Thornton, & Phenix, in press) for the scale. Future advances in research on the scale will be available at www.static99.org.
Static-99R has a number of strengths. It uses risk factors that have been empirically shown to be associated with sexual recidivism (Helmus & Thornton, 2015). It has explicit rules for scoring these factors and then combining them into a total risk score. The instrument’s ability to rank offenders in terms of their relative risk for sexual recidivism has been shown to be robust across many settings using a variety of samples (Hanson & Morton-Bourgon, 2009; Helmus, Hanson, Babchishin, Thornton, & Harris, 2012). Although some scoring decisions do require some judgement, Static-99R is relatively objective to score, which should reduce bias in decision-making, assuming the evaluator has carefully reviewed the coding manual.
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Static-99R also has a number of weaknesses. On average it demonstrates only moderate predictive accuracy (AUC = .69 to .70 depending on how the analyses are conducted; Helmus, Hanson et al., 2012). It does not include all the factors that might be included in a comprehensive risk assessment (Fernandez, Harris, Hanson, & Sparks, 2014; Thornton & Knight, 2015; Olver, Wong, Nicholaichuk, & Gordon, 2007). Absolute recidivism rates associated with specific risk scores have also been found to vary across samples (Helmus, Hanson et al., 2012) in a way that has made estimation of absolute levels of recidivism risk more complex (see Hanson, Thornton, Helmus, & Babchishin, 2016, for our recommendations concerning how to associate Static-99R scores to sexual recidivism rates). For estimates of general and violent recidivism, we recommend evaluators use the BARR-2002R instead of Static-99R (Babchishin, Hanson, & Blais, 2016).
It is important to score all items according to the scoring rules in this coding manual. Although the coding rules may not address all possible situations (requiring some professional judgement) and there may be some situations where the coding rules seem counter-intuitive because of the nuances of a particular case, it is important to stick to these coding rules as much as possible and not to override them with your own judgement (even when strict adherence to the coding rules feels silly). The reason that it is necessary to stick to the coding rules as closely as possible is because the further you deviate from the rules, the less applicable the research base behind the scale will be, and the normative data from the scale (e.g., percentiles, risk ratios, and recidivism estimates) may no longer be applicable. In order to benefit from the evidence base that supports the use of the scale, you must use the scale in a way that is consistent with the manual.
Static-99R does not address all relevant risk factors for sex offenders. Consequently, a prudent evaluator will always consider other external factors, such as dynamic or changeable risk factors, that may influence risk in either direction. Additional factors in an individual case may also affect risk. An obvious example is where an offender states intentions to further harm or “get” his victims (higher risk), or an offender may be somewhat restricted from further offending either by health concerns or where his environment is structured such that his victim group is either unavailable or he is always in the company of someone who will support non-offending (lower risk). These additional factors should be stated in any report as “additional factors that were taken into consideration” and not “added” to the Static-99R score or used in any way to adjust the Static-99R score or the resulting risk information (e.g., recidivism estimates). Adding additional factors to Static-99R, or adding “over-rides,” distances Static-99R estimates from their empirical base and substantially reduces their predictive accuracy. In other words, Static-99R is intended as one component of a risk assessment report. Additional information should be considered external to the scale.
Missing Items
The only item that may be omitted on Static-99R is “Ever Lived With a Lover” (Item #2). If no information is available, this item should be scored as a “0” (zero) – as if the offender has lived with an intimate partner for two years.
Recidivism Criteria
For Static-99R, the recidivism criterion is considered a new charge or conviction for a sex offence. Note, however, that roughly half of the samples included in the normative data for the scale did not have access to charges and used solely convictions. Where available though, charges were used.
Non-Contact Sex Offences
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The Static-99R samples included a small number of offenders whose only known sex offences were non- contact. Static-99R predictions of risk are relevant for non-contact sex offenders, such as exhibitionists or break-&-enter fetishists who enter a dwelling to steal underwear or similar fetish objects.
Training
The authors of this manual strongly recommend training in the use of Static-99R from a certified trainer before attempting risk assessments that may affect human lives. Training for Static-99R could be online or in person, but should involve opportunities for interaction (i.e., Q&A) and supervised practice of example cases. A list of certified Static-99R trainers is available from www.static99.org. Researchers, parole and probation officers, psychologists, sex offender treatment providers, and law enforcement involved in threat and risk assessment activities typically use this instrument. Researchers are invited to make use of this instrument for research purposes and this manual and the instrument itself may be downloaded from www.static99.org.
Furthermore, if you have been trained in Static-99 or Static-99R prior to the release of the 2016 version of the coding manual, we strongly recommend you obtain training on the updates to this coding manual, as there are many non-trivial changes (some of which may be missed if not pointed out by a trainer).
Treatment
Participation in treatment is not considered in scoring Static-99R or in interpreting the normative data for the scale.
The samples used to generate normative data for Static-99R varied in whether they were exposed to treatment, and in the quality of the treatment. Most samples contained offenders mixed in their exposure to treatment (e.g., roughly 25%-75% received treatment) or we did not know the level of treatment exposure.
Meta-analytic research demonstrates that on average, completion of treatment is associated with reduced sexual recidivism (Hanson, Bourgon, Helmus, & Hodgson, 2009). However, this effect depends on the quality of treatment, and likely on the dosage. Also, there are very few high quality research studies on this topic. Additionally, at an individual level, it is likely more relevant how the person responded to treatment rather than whether they merely attended treatment sessions. Used by itself, Static-99R does not provide a way of incorporating a history of treatment participation into actuarial risk assessment. We therefore recommend that evaluators may want to comment on treatment participation in their reports, but this discussion should be external to the Static-99R assessment. In the future there may be ways of measuring response to treatment and statistically combining this with baseline assessments of risk, such as Static-99R. Promising developments of this kind have been reported for the Violence Risk Scale – Sexual Offender version (Olver, Beggs Christofferson, Grace, & Wong, 2014).
Self-Report and Static-99R
Ten items comprise Static-99R. The amount of self-report that is acceptable in the scoring of these items differs across questions and across the three basic divisions within the instrument.
Demographic Questions: For Item #1 – Age at Release, although it is always best to consult official written records, self-report of age is generally acceptable. For Item #2 – Ever Lived With…, to complete this item the evaluator should make an attempt to confirm the offender’s relationship history through collateral sources and official records. There may, however, be certain cases (immigrants, refugees from third world countries) where confirmation is not possible. In the absence of these sources, self-report
Page 77 of 212 9 information may be utilized assuming, of course, that the self-report seems credible and reasonable to the evaluator. For further guidance on the use of self-report and Static-99R please see section “Item #2 – Ever Lived with an Intimate Partner – 2 Years.” Additionally, this is the only item where missing information is allowed. If the information is unavailable, the offender should be scored a “0”.
Criminal History Questions: For the five items that assess criminal history (Items 3, 4, 5, 6, and 7), an official criminal history record (e.g., from some law enforcement or correctional authority) is required to score these items and self-report is not acceptable. This being said, there may be certain cases (immigrants, refugees from third world countries, old out-of-state records) where self-report of crimes may be accepted if it is reasonable to assume that no records exist or that existing records are truly un- retrievable. In addition, the self-report must meet the threshold of Clear and Convincing Evidence to the evaluator (see page 19 for definition). For example, reports increase in credibility when it is consistent with his current sexual misbehaviour.
Although self-report (and any additional credible information) cannot be used to substitute official criminal records, it can be used to supplement official records. Specifically, official records are required to establish the existence of prior charges and convictions, but any credible information can be used to determine the nature of the offences (e.g., sexual motivation). For example, if the offender has a prior conviction for Trespassing at Night and the police report does not include any additional details, but the offender confesses that he was engaging in voyeurism, this self-report information can be used to classify the incident as a sex offence. The exception to this is that self-report information derived initially from a polygraph is normally not counted, even if the offender repeats that information later during treatment (page 18 for further explanation).
In some cases, evaluators may have official criminal records but they are incomplete and therefore not sufficient to establish a conviction. This may occur if the record displays a charge for an offence but is missing information on the outcome of the charge (i.e., conviction/acquittal/dismissal), or if the record indicates that there are youth convictions but does not specify what the convictions are for. In other circumstances, events which may constitute a conviction (e.g., for priests, military, etc.) may not necessarily appear on the criminal record. In these situations, credible self-report or additional information can be used to count these as convictions, provided that the self-report information is sufficient to confidently determine that the events in question meet the threshold of Clear and Convincing Evidence (page 19; note that this Clear and Convincing Evidence threshold applies). Static-99R should not be scored, however, in the absence of an official criminal record (except in rare occasions for immigrants or refugees). Self-reported offences that are subsequently discussed in a professional report are not considered "official records." However, a professional report that mentions a previous charge/conviction can count, if it is considered credible that an official record did/does in fact exist and has been obtained by a professional during a previous contact (e.g., if juvenile criminal records are no longer available, but a previous probation report mentions accessing that record and notes a charge or conviction).
Victim Questions: For the three victim items, self-report is generally acceptable assuming the self-report meets the basic criteria using the threshold of Balance of Probabilities (see page 19 for definition). Confirmation from official records or collateral contacts is always preferable. If the evaluator is scoring victim items that did not result in conviction then they should determine if, on the Balance of Probabilities, it is thought that a sex offence has occurred. If so, then the victim items for that crime should be scored.
Inter-Rater Reliability of Static-99R
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Given that Static-99R differs from Static-99 on only one of ten items, the extensive research on the rater reliably of Static-99 remains broadly applicable to Static-99R (for a summary, see Phenix & Epperson, 2015). Most studies have shown excellent levels of reliability for Static-99 scores in both research and applied settings (Hanson & Morton-Bourgon, 2009). Across 11 studies reporting inter-rater reliability, Helmus (2009) found consistently high reliability, with correlations ranging from .86 to .92 and Intra- Class Correlations (ICCs) ranging from .84 to .95.
A number of inter-rater reliability studies have been conducted in the field for Sexually Violent Predator (SVP) evaluators. An early unpublished study by Hanson (2001) examined 55 cases scored on Static-99 from SVP evaluations in California and found an ICC of .87. Levenson (2004) conducted a larger field reliability study in Florida and also found strong rater agreement in Static-99 total scores for 281 offenders evaluated for SVP commitment in Florida (ICC = .85).
Murrie et al. (2009) examined inter-rater agreement for Texas SVP evaluators. Reliability of Static-99 scores was high when comparing scores of experts on the same side of a case (ICC = .84 for petitioners’ experts and ICC = .95 for respondents’ experts). However, when comparing scores of petitioners’ experts with respondents’ experts, the ICCs dropped into the .60 range, suggesting that adversarial allegiance biases may impact risk assessment scores.
Field studies on inter-rater reliability have also been conducted in community supervision and treatment settings. In a Canadian study, the Dynamic Supervision Project, Static-99 scores across 88 cases produced an ICC = .91 (Hanson, Helmus, & Harris, 2015). Storey, Watt, Jackson, and Hart (2012) compared the ratings of clinicians in the field to those of researchers for 100 adult males who completed an outpatient sex offender treatment program. They found that clinicians and researchers showed excellent agreement for total scores on Static-99 (ICC = .92) and for most of the individual items.
Quesada, Calkins, and Jeglic (2014) examined the consistency of clinicians’ item and total scores with those from researchers using a sample of 1,973 case files. Total scores showed a high degree of consistency, as reflected by an ICC = .92 for the combined sample of researchers and clinicians. There was exact agreement in total scores on 1,255 (63.6%) of the cases, though a small number of cases (n = 90) achieved the same score despite some disagreements at the item level. An additional 557 (28.2%) cases yielded total scores that were within 1-point of each other. Overall, then, total scores from clinicians and researchers were identical or within one point of each other in 1,812 (91.8%) of the cases. Item-level agreement was also strong. Two of ten items produced outstanding agreement (K = 0.81 to 1.00 range), and the remaining eight items yielded substantial agreement (K = 0.61 to 0.80).
In a large study of field reliability with Static-99, Boccaccini et al. (2012) reviewed Static-99 scores for 600 sex offenders in Texas and 135 sex offenders in New Jersey. The Static-99 scores were generated by correctional officers in Texas and by doctoral-level evaluators in New Jersey. Unfortunately, no information was provided about how officers were trained on the scale in Texas. Texas evaluators produced an ICC = .79 and New Jersey evaluators produced an ICC = .88. In both state samples, about 55% of cases had identical scores from raters, and an additional 33% had scores within 1 point of each other. So, 88% of the time scores were the same or within one point of each other, consistent with many studies of inter-rater agreement on Static-99 scores.
For Static-99R specifically, McGrath, Lasher, and Cumming (2012) reported very high reliability (ICC = .89) when scored by researchers. Similarly, Thornton and Knight (2015) reported Static-99R inter-rater ICC of .89 for a single rater and .94 for the average of two raters.
Noting the importance of assessing reliability of scores produced by field workers, Hanson, Lunetta, Phenix, Neeley, and Epperson (2014) assessed the reliability of Static-99R scores from 55 corrections and
Page 79 of 212 11 probation officers in California scoring a common set of 14 cases (the rigorous training system for California evaluators was described in detail in the paper). Overall rater reliability was acceptable (ICC = .78). There was a substantial difference in the reliability of scores from experienced scorers (ICC = .85) and less experienced scorers (ICC = .71), pointing to the importance of recent practice. Experienced scorers were those who had scored 26 or more sex offenders on Static-99R in the previous 12 months.
Revised Risk Levels
In the original Static-99, total scores would translate into one of four risk categories: low, moderate-low, moderate-high, and high. When the scale was revised (creating Static-99R), we did not revise the cut-off scores for the risk categories. Our hope was that after completing our analyses on the other normative data for the scale (percentiles, risk ratios, and absolute recidivism estimates), we would revisit the risk categories to determine if they needed a change. As of 2016, we concluded that they did. We recommend that where the old Static-99R risk categories are used, the new levels should replace them, as they are based on stronger empirical and conceptual grounds.
The revisions to the risk levels are also part of a broader movement towards improved risk communication. The status quo in risk assessment has been for scale developers to translate total scores into risk levels in ways that were poorly defined and difficult to compare across measures. Consequently, it was common for similar scales to place the same offenders in different risk categories (Barbaree, Langton, & Peacock, 2006; Jung, Pham, & Ennis, 2013; Mills & Kroner, 2006). Compounding this confusion, it was also common for professionals to have very different interpretations of what labels like “low,” “moderate,” and “high” risk mean (Hilton, Carter, Harris, & Sharpe, 2008; Monahan & Silver, 2003; Slovic, Monahan, & MacGregor, 2000).
We believe that the way forward in risk assessment will involve the development of universal, non- arbitrary risk levels. Such categories should ideally describe psychologically meaningful characteristics of the individual (not the scale), be linked to realistic options for action, be evidence-based, applicable to all risk scales, use a simple professional language, and be easy to implement across diverse jurisdictions, scales, and offenders. As part of this broader goal, the United States Council of State Governments Justice Center has assembled a working group to develop standardized risk levels for general offenders (Hanson, Bourgon et al., 2016). This working group includes two members of the STATIC development team (R. Karl Hanson & Kelly Babchishin).
The Justice Center has currently proposed five broad risk levels for general reoffending. The lowest risk category (Level I) would be generally prosocial individuals who have nonetheless committed crime. They would not be expected to have the criminal backgrounds, criminogenic needs, or the prognosis typical of offenders. The recidivism rates of Level I offenders would be indistinguishable from the rates of spontaneous offending among non-offenders (e.g., young males). Level II would be higher risk than non- offenders, but lower risk than typical offenders. It is expected that Level II offenders would have some criminogenic needs, but that these life problems would be few and transient. Level III offenders would be the typical offenders in the middle of the risk distribution. Typical offenders have criminogenic needs in several areas, and require meaningful investments in structured programming to decrease their recidivism risk. Level IV offenders would be perceptibly higher risk than the typical offender. Most of these offenders would have chronic histories of rule-violations, poor childhood adjustment, and significant criminogenic needs across multiple domains. The Justice Center’s framework also included a fifth category for the highest risk offenders, defined as those virtually certain to reoffend. Level V offenders are those typically found in high security units, where considerable resources are devoted to managing current antisocial behaviour.
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The new risk levels for Static-99R were developed in line with the Justice Center’s proposed risk levels and informed by empirically based risk communication metrics (percentiles, risk ratios, and recidivism estimates; for further explanation of the new categories, see Hanson, Babchishin, Helmus, Thornton, & Phenix, 2016). Given that the Justice Center’s standardized risk levels were based on general offending, not sexual offending, the new STATIC levels made two significant deviations from the Justice Center’s proposed categories. Firstly, we defined Level I offenders as those whose sexual recidivism rates are generally indistinguishable from non-sex offenders with no known history of sex offending. In other words, this is a group whose risk of sexual reoffending is not different from other offenders in the criminal justice system who are not considered sex offenders. Secondly, given the low base rates of sexual recidivism, we are not currently able to empirically identify a group of sex offenders who are “virtually certain” to reoffend. Consequently, no Static-99R scores meet the definition of a Level V offender. However, it is possible to distinguish two groups who are meaningfully higher risk than Level III offenders. Consequently, we have labelled the two highest risk levels for Static-99R as Level IVa and Level IVb.
The revised Static-99R risk categories are as follows: Level I – Very low risk (Scores of -3 to -2) Level II – Below average risk (Scores of -1 to 0) Level III – Average risk (Scores of 1 to 3) Level IVa – Above average risk (Scores of 4 to 5) Level IVb – Well above average risk (Scores of 6+)
We recognize that evaluators tend to prefer labels for risk levels (e.g., “very low risk”) and we have provided them above. However, we also encourage evaluators to recognize biases, heuristics, and emotional reactions that are inherent in such common language terms. Consequently, we encourage evaluators to use “Level I” (and so forth) either instead of or in addition to the labels for each level. The language of “Levels” has the advantage of consistency with the Justice Center’s proposed definitions, and hopefully will become a common language used across diverse risk scales.
Although these are the new risk levels for Static-99R, we recognize that risk categories are most useful when they are meaningfully linked to decisions (e.g., treatment or supervision resource allocation). Consequently, it is possible that some jurisdictions may develop their own risk categories to maximize the utility of Static-99R for their decision-making purposes. For example, if a jurisdiction wants to refer the 10% highest risk offenders for high-intensity treatment, then it may make sense to create a high risk category defined by the top 10% of scores (using percentiles). Alternately, matching offenders to tiered services may necessitate reducing the five risk categories to three (if so, we would recommend clumping the first two categories together and the last two categories together). When evaluators or jurisdictions develop their own risk categories linked to specific policy actions, we recommend that when different words are used to describe site specific levels (different from the standard language proposed above), and when the site specific levels are identified as different from those proposed by the STATIC development team, that the definition of the site specific risk categories are clearly described in the report.
Whom Can You Use Static-99R On?
Static-99R is an actuarial risk assessment instrument designed to assess risk of sexual recidivism for adult males who have already been charged with or convicted of at least one sex offence against a child or a non-consenting adult. This includes offenders who are under some type of mental health commitment such as those found unfit to stand trial or not guilty by reason of insanity. Static-99R may be used with first-time sex offenders.
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This instrument is not recommended for females, young offenders (those having an age of less than 18 years at time of release – see additional restrictions on use with adolescents who have sexually offended on page 14), or for offenders who have only been convicted of prostitution related offences, pimping, sex in public locations with consenting adults, or possession/distribution of pornography/indecent materials including child pornography. Static-99R is not recommended for use with those who have never committed a sex offence, nor is it recommended for making recommendations regarding the determination of guilt or innocence in those accused of a sex offence. Static-99R is not appropriate for individuals whose only sexual “crime” involves consenting sexual activity with a similar age peer (e.g., Statutory Rape {a U.S. charge} where the ages of the perpetrator and the victim are close and the sexual activity was consensual); see page 76 for the criteria to determine consenting activity with a similar age peer.
Static-99R applies where there is reason to believe an actual sex offence has occurred (see pages 20 to 28) with an identifiable victim (see page 74) and the offender has received a charge or conviction (see pages 28 to 37). The offender need not have been convicted of the offence. The original samples used to create this instrument contained a number of individuals who had been found not guilty by reason of insanity and others who were convicted of non-sexual crimes, but in all cases these offenders had committed real sex crimes with identifiable victims. Static-99R may be used with offenders who have committed sex offences against animals. If an offender has only one sex offence on his record and was charged and found not guilty, and the evaluator believes that on a Balance of Probabilities, there was not a sex offence against an identifiable victim, then Static-99R should not be scored. If the offender was arrested or knows a warrant has been issued for his arrest, this counts as an arrest even if the offender flees the jurisdiction before he can be arrested. These arrests would count as equivalent to a charge. For a detailed explanation as to what may be counted as a charge or conviction please refer to pages 28–37 under the sections “Conviction/sentencing date versus charges” to “Index sex offence.”
Static-99R cannot be used with offenders only charged or convicted of possession or distribution of child pornography, unless their behaviour involved the creation of child pornography with a real identifiable child. Note that the creation of child pornography requires a real identifiable child. For example, an offender who takes pictures of neighbourhood children but morphs the images of neighbour children’s heads onto the images of child pornography, could not be scored on Static-99R.
Violent and General Recidivism
Static-99R is intended to provide information on risk for sexual recidivism only. To comment on the risk for violent or general recidivism among sex offenders, we recommend using the BARR-2002R, which can be scored from Static-2002R items (see Babchishin et al., 2016).
Time Offence-Free in the Community After Release from the Index Sex Offence
In some cases, evaluations may be for offenders who have had a substantial period at liberty in the community (since their release from the index sex offence; see definition and examples of “release” on pages 48) with opportunity to sexually reoffend, but have not done so. The longer an offender has been free of detected sexual offending since his release to the community from their index sex offence, the lower their risk of recidivism. Our research has found that, in general, for every five years the offender is in the community without a new sex offence, their risk for recidivism roughly halves (Hanson, Harris, Helmus, & Thornton, 2014). Consequently, we recommend that for offenders with two years or more sex offence free in the community since release from the index offence, the time they have been sex offence free in the community should be considered in the overall evaluation of risk. Static risk assessments estimate the likelihood of recidivism at the time of release and we expect they would be valid for approximately two years. For offenders released for longer than two years and who have remained sex
Page 82 of 212 14 offence free, consider their overall behaviour and factors external to Static-99R in your overall risk assessment. For example, if the offender reoffended with a non-sex offence or non-sexual violence, this would be considered outside their Static-99R score (which is estimated from time of release from their index sex offence). Historical sex offences (i.e., where an offender has a recent charge/conviction for a sex offence that may have occurred years or decades earlier) are discussed further on pages 38 to 44 and represent a different situation than what is discussed here (as this section refers to time since release from the index offence, not since the commission of the index offence).
Static-99R When the Current Offence is Not a Sexually Motivated Offence
Static-99R is appropriate for offenders with a history of sex offences but who are currently serving a sentence for a non-sex offence (note that in these cases, the paragraph above on time offence-free since release from the index sex offence may be applicable). Static-99R (and the age item) should be scored according to the most recent sex offence as the index offence (see pages 38 to 44 for further definition and examples). Their current non-sex offence (and any other criminal history accrued after release from their index sex offence) will not be considered anywhere in scoring Static-99R (although it should be considered elsewhere in a risk assessment report).
Static-99R with Adolescents who Sexually Offend
The only circumstances where Static-99R could be used with adolescents who have sexually offended (and even then, we suggest using the scale with caution and including appropriate caveats in your report) is where the offender was released from the index sex offence at age 18 or older, was 17 years old when he committed the offence, AND the offence appears similar in nature to typical sex offences committed by adult offenders. If any of these conditions are not met, Static-99R should not be used.
It should be noted that there were a small number of people in the original Static-99 samples and in normative data samples who had committed sex offences as juveniles (under the age of 18 years) and who were released as adults. In some cases an assessment of Static-99R risk potential may be useful on an offender of this nature (see below for greater detail).
Evaluations of juveniles based on Static-99R must be interpreted with caution as there is a very real theoretical question about whether juvenile sex offending is the same phenomena as adult sex offending in terms of its underlying dynamics and our ability to affect change in the individual, with research increasingly concluding that adults and adolescents who commit sex offences are meaningfully different (Caldwell, 2010; Chaffin, 2008; Chaffin, Letourneau, & Silovsky, 2002; Letourneau & Miner, 2005). In addition, the younger the adolescent is, the more important these questions become. In general, the research literature leads us to believe that adolescents who commit sex offences are not necessarily younger versions of adult sex offenders. In comparison to adult sex offences, the sex offences committed by juveniles are more likely to involve peers as co-offenders, lack planning, and lack indicators of deviant sexual interests. Developmental, family, and social factors would be expected to impact on recidivism potential. We have reason to believe that people who commit sex offences only as children/young people are a different profile than adults who commit sex offences. In cases such as these, we recommend that Static-99R scores be used with caution and only as part of a more wide-ranging assessment of sexual and criminal behaviour.
Although a meta-analysis of eight studies (Viljoen, Mordell, & Beneteau, 2012) has found that Static-99R has acceptable discrimination with juvenile offenders (i.e., the scale ranks offenders in their likelihood of recidivism, so high-risk juvenile offenders are more likely to reoffend than low-risk juvenile offenders), there are no studies assessing the calibration of the scale (i.e., whether the predicted recidivism estimates associated with Static-99R are applicable to adolescents who sexually offend). It is possible that the scale
Page 83 of 212 15 may over-estimate absolute recidivism rates for adolescents. Consequently, the recidivism rates from Static-99R should never be applied to individuals whose last known sex offence behaviour was before the age of 17.
In certain cases, the Static-99R may be useful with adolescents who have sexually offended, if used cautiously. There would be reasonable confidence in the instrument where the convictions are related to offences committed at the age of 17. In general, the younger the child, the more caution should be exercised in basing decisions upon Static-99R estimates. For example, if a 17-year-old offender committed a rape, alone, on a stranger female, you would have reasonable confidence in the Static-99R estimates. On the other hand, if the offender is now an adult (18+ years old) and the last sex offence occurred when that individual was 14 or 15, Static-99R estimates would not apply. If the sex offences occurred at a younger age or they look “juvenile” (participant in anti-social behaviour towards peers that had a sexual component) we would recommend that the evaluator use risk scales specifically designed for adolescent sex offenders.
The largest category of adolescents who sexually offend is generally antisocial youth who sexually victimize a peer when they are 13 or 14 years of age. These adolescents are most likely sufficiently different from adult sex offenders that we do not recommend the use of Static-99R nor any other actuarial instruments developed on samples of adult sex offenders. We would refer evaluators to other risk scales designed for juvenile sex offenders.
When scoring Static-99R, juvenile offences, when they are known from official sources, count as charges and convictions on “Prior Sex offences” regardless of the present age of the offender. Self-reported juvenile offences in the absence of official records do not count, except in rare situations (see pages 8-9).
Static-99R with Offenders Who are Developmentally Delayed
The original Static-99 samples contained a number of developmentally delayed offenders. A subsequent meta-analysis found that Static-99R predicted sexual recidivism well for developmentally delayed offenders (Hanson, Sheahan, & VanZuylen, 2013); consequently, we recommend the scale for use with this population.
Static-99R with Institutionalized Offenders
Static-99R is intended for use with individuals who have been charged with, or convicted of, at least one sex offence. Occasionally, however, there are cases where an offender is institutionalized for a non-sex offence but, once incarcerated, engages in sexual assault or sexually aggressive behaviour that is sufficiently intrusive to come to official notice. In some of these cases charges are unlikely (e.g., the offender is a “lifer”). If no sanction is applied to the offender, these offences are not counted. If the behaviour is sufficiently intrusive that it would most likely attract a criminal charge had the behaviour occurred in the community and the offender received some form of “in-house” sanction (e.g., administrative segregation, punitive solitary confinement, moved to a higher security prison or unit, etc.), these offences would count as charges on the Static-99R (see pages 36 to 37 for greater detail on what counts as equivalent to a charge). If that behaviour was a sexual crime, this would create a new index sex offence. However, if no sanction is noted for these behaviours, they cannot be used in scoring Static-99R.
Static-99R with Offenders who Aid in a Sex Offence
Risk tools like Static-99R apply to individuals who have committed an offence with a sexual motivation against an identifiable victim. If the offence did not have sexual motivation, then it would be inappropriate to use Static-99R. For example, the offender may arrange for another offender to molest a
Page 84 of 212 16 child but did not participate in the act for the purpose of sexual arousal (e.g., the motive may have been economic). It is also possible that the offender may want to watch a video of the molestation, which would indicate sexual motivation. It is appropriate to use Static-99R if, on a Balance of Probabilities (see page 19 for a definition of this term), it is believed that the offence had a sexual motivation.
Static-99R with Non-Caucasian Sex Offenders
Although there is ample empirical support for risk factors and risk assessment tools among sex offenders, virtually all of this research has been conducted with samples of primarily Caucasian offenders.
Studies have found that Aboriginal (e.g., Babchishin, Blais, & Helmus, 2012), African-American (Varela, Boccaccini, Murrie, Caperton, & Gonzalez, 2013), and African-Asian offenders (Långström, 2004) score higher on Static-99R than Caucasian offenders, whereas Latino sex offenders score lower on Static-99R than Caucasian offenders (Varela et al., 2013). However, the fact that non-Caucasian offenders and Caucasian offenders exhibit differences on Static-99R risk factors does not mean that Static-99R predicts differently between these groups.
Table 1 (page 17) presents a summary of five studies which compared the relative predictive accuracy of Static-99R scores across racial groups. Despite a general trend of Static-99R scores predicting sexual recidivism better for Caucasian offenders (AUCs range from .57 to .86, Mdn = .76) than for non- Caucasian offenders (AUCs ranged from .52 to .79, Mdn = .70), the three studies that conducted comparison analyses did not find a statistically significant difference between groups. The variability of results, however, should be a consideration in applied risk assessments with sex offenders identified with an ethnic minority.
Static-99R and Offenders with Mental Health Issues
The Static-99R samples contained significant numbers of individual offenders with major mental disorders. It is appropriate to use Static-99R to assess individuals with mental health issues, such as schizophrenia and mood disorders. A review of the literature has also generally found static risk scales to discriminate well among offenders with major mental illness (Kelley & Thornton, 2015). Although sex offenders with a history of psychiatric hospitalization are, on average, higher risk than other sex offenders, a history of psychiatric hospitalization provides limited information for risk prediction once established risk factors are considered (Lee & Hanson, 2016). In the Lee and Hanson (2016) dataset, Static-99R showed good discrimination for sexual recidivism among offenders with a history of psychiatric hospitalization (AUC = .76, 95% C.I. of .62 to .89, n = 108, with 17 recidivists). Given that mental health variables are generally not predictive of recidivism (Bonta, Blais, & Wilson, 2014), pending further calibration studies, there is no reason to suspect that the recidivism estimates for Static-99R would not be applicable to this subgroup.
Static-99R and Gender Transformation
Static-99R is only recommended, at this time, for use with adult males. Male to female transgender clients are considered male until near end of the process. Specifically, to be considered no longer a male for Static-99R purposes, the individual must not have a penis and have lived for at least two years as a woman. Static-99R does not apply to female to male transgender offenders as they are outside the sampling frame of the scale.
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Table 1 Static-99R Studies Comparing the Relative Predictive Accuracy between Racial Groups Study Country Comparison Mean Scale Predictive Accuracy (Sexual Recidivism) Follow-up NCaucasian AUC NNon-Caucasian AUC [95% CI] Babchishin et al. Canada Non-Aboriginal vs. Aboriginal 6 years Static-99 1,269 .73 [.68, .77] 319 .70 [.62, .77] (2012)1 Static-99R .74 [.70, .78] .71 [.64, .79] Hanson, Lunetta USA Caucasian vs. Hispanic 5 years Static-99 140 .86 [.72, .99] 200 .75 [.40, 1.00] et al. (2014)1 Static-99R .85 [.72, .98] .75 [.40, 1.00] Caucasian vs. African American Static-99 .86 [.72, .99] 99 .75 [.55, .94] Static-99R .85 [.72, .98] .76 [.56, .97] Långström Sweden Nordic vs. Non-Nordic European 6 years Static-99 1,085 .76 [.70, .84] 49 .79 [.59, .99] (2004)2 Nordic vs. African Asian Static-99 1,085 .76 [.70, .84] 128 .52 [.38, .65] Smallbone & Australia Non-Aboriginal vs. Aboriginal 29 months Static-99 320 .82 [.68, .91] 67 .76 [.61, .91] Rallings (2013) 2 Static-99R .79 [.68, .91] .61 [.45, .77] Varela et al. USA Caucasian vs. Hispanic 5 years Static-99 912 .57 [.45, .70] 588 .59 [.45, .73] (2013)1 Static-99R .59 [.45, .72] .57 [.41, .73] Caucasian vs. African American Static-99 .57 [.45, .70] 411 .58 [.43, .73] Static-99R .59 [.45, .72] .65 [.51, .78] Note. Bolded values denote that the Static-99R scores predicted sexual recidivism at p < .05. 1Conducted analyses comparing between groups and did not find a statistically significant difference between groups in Static-99/R predictive accuracy. 2Did not conduct analyses comparing between groups but concluded there was a difference in predictive accuracy.
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Information Required to Score Static-99R
Although potentially useful, an interview with the offender is not necessary to score Static-99R.
Three basic types of information are required to score Static-99R: demographic information, an official criminal record, and victim information.
Demographic Information Two Static-99R items require demographic information. The offender’s date of birth is required in order to determine age at release from the index sex offence. The second item that requires knowledge of demographic information is “Ever lived with an intimate partner – 2 years?” To answer this question the evaluator must know if the offender has ever lived in an intimate (sexual) relationship with another adult, continuously, for at least two years prior to the index sex offence.
Official Criminal Record In order to score Static-99R, the evaluator must have access to an official criminal record as recorded by police, court, or correctional officials. From this official criminal record you score five of Static-99R’s items: “Index non-sexual violence – Any convictions,” “Prior non-sexual violence – Any convictions,” “Prior sex offences,” “Prior sentencing dates,” and “Non-contact sex offences – Any convictions”. Self- report is generally not acceptable to score these five items – in the Introduction section, see sub-section – “Self-report and Static-99R” (pages 8 to 9).
Victim Information Static-99R contains three victim information items: “Any unrelated victims,” “Any stranger victims,” and, “Any male victims.” To score these items the evaluator may use any credible information at their disposal except polygraph examination. For each of the offender’s sex offences, the evaluator must know the gender and pre-offence degree of relationship between the victim and the offender. For additional information on handling missing information about victims, see page 77.
Polygraph Information
Information derived solely from polygraph interviews or examinations (for example, information on victims or offence motivation) is normally not used to score Static-99R. The reason that polygraph information is excluded is that such information was not used in the development and validation of Static- 99R. Polygraph-assisted disclosures typically provide greater diversity of victim types than gleaned from other sources; consequently, routinely including information from polygraph would inflate the scores compared to the procedures used to score Static-99R in the development and validation samples.
Where an admission is initially made in preparation for a polygraph examination, during the pre- polygraph interview, during a post-polygraph interview, or subsequent to testing deceptive on a polygraph examination, it would normally not be counted in scoring the Static-99R, regardless of whether it was subsequently repeated in treatment or in interviews. The one exception to this is where the disclosure eventually becomes sufficiently detailed that it essentially amounts to a confession of a specific criminal offense sufficient to make a new criminal investigation practical if the authorities were so minded. For example, “when I was 23, I sexually abused a 5 year old male by sucking his penis” would not be sufficiently detailed while “on January 15th 2013, in Marlborough, MA, when visiting with relatives Mark and Mary Smith, I sexually abused their 5 year old son by sucking his penis” would be sufficiently specific to count
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Standards of Proof and Coding Static-99R
“Standard of proof” is a legal concept that basically means “how sure are you” about something. Although the use of the terms in this manual will not always match that used by courts and related tribunals or administrative bodies, this terminology is nonetheless useful in establishing some general coding principles when dealing with the information in front of you. Legal systems vary, but most Western jurisdictions have the following three standards of proof:
Beyond a Reasonable Doubt: This is the highest standard. It requires near certainty and is the standard necessary for criminal convictions and other high-stakes decisions. Balance of Probabilities (a.k.a., Preponderance of Evidence): This is the lowest standard. It is common in civil cases and basically means “more likely than not,” or at least 51% certainty. Clear and Convincing Evidence (a.k.a., Clear and Convincing Proof): This less-common and infrequently used standard has a higher threshold than Balance of Probabilities, but it is not quite as stringent as Beyond a Reasonable Doubt.
There are two general types of decisions involved in scoring Static-99R. The first involves whether something counts as a conviction/sentencing date. Generally, a sentencing occasion requires a criminal conviction or its equivalent (which is subject to the Beyond a Reasonable Doubt standard). Some “findings of guilt” occur outside the criminal justice system (e.g., priests, military) and special rules apply; minimally, the Clear and Convincing Evidence standard should be met. Decisions based on a Balance of Probabilities are generally insufficient to be counted as a sentencing occasion.
Aside from the issue of whether something “counts” as a conviction or sentencing occasion, most other coding decisions are subject to the Balance of Probabilities standard (e.g., Is this victim a stranger? Was this offence sexually motivated? Would this behavior be subject to criminal sanction if the offender was not already on parole/probation?).
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Definitions
Sex Offence
For the purposes of a Static-99R assessment a sex offence is an officially recorded sexual misbehaviour or criminal behaviour with sexual intent. To be considered a sex offence the sexual misbehaviour must result in some form of criminal justice intervention (e.g., an arrest or charge) or official sanction (e.g., conviction). For people already engaged in the criminal justice system the sexual misbehaviour must be serious enough that individuals could be charged with a sex offence if they were not already under legal sanction. Do not count offences such as failure to register as a sex offender or consenting sex in prison.
Sex offences are scored only from official records and both juvenile and adult offences count. You may not count self-reported offences except under certain limited circumstances; please refer to the Introduction section – sub-section “Self-report and Static-99R.” Self-reported offences that are subsequently discussed in a professional report are not considered "official records." However, a professional report that mentions a previous charge/conviction can count, if it is considered credible that an official record did/does in fact exist and has been obtained by a professional during a previous contact (e.g., if juvenile criminal records are no longer available, but a previous probation report mentions accessing that record and notes a charge or conviction). An offence need not be called “sexual” in its legal title or definition for a charge or conviction to be considered a sex offence. Charges or convictions that are explicitly for sexual assaults, or for the sexual abuse of children, are counted as sex offences on Static-99R, regardless of the offender’s motive. Offences that directly involve illegal sexual behaviour are counted as sex offences even when the legal process has led to a “non-sexual” charge or conviction. An example of this would be where an offender is charged with or pleads guilty to a Break and Enter but police reports indicate the offender’s intent was to steal underwear to use for fetishistic purposes, or the offender is convicted of Disorderly Conduct for approaching a child and making sexual comments.
In addition, offences that involve non-sexual behaviour are counted as sex offences if they had a sexual motive and are part of the same continuous event. For example, consider the case of a man who strangles a woman to death as part of a sexual act but only gets charged with manslaughter. In this case the manslaughter charge would still be considered a sex offence. Similarly, consider a man who strangles a woman to gain sexual compliance but only gets charged with assault; this assault charge would still be considered a sex offence. Further examples of this kind include convictions for murder where there was a sexual component to the crime (perhaps a rape preceding the killing), kidnapping where the kidnapping took place but the planned sexual assault was interrupted before it could occur, assaults “pled down” from sexual assaults, and credible threats that are specific to a sex offence (e.g., ‘if you don’t do as I say, I will rape you’).
Note, however, that not all charges and convictions that are part of the sentencing occasion (see definition on pages 28 to 37) for a sex offence will count as sexual. To count them as sexual, they should be part of the sexual motivation of the offence, or clearly part of the commission of the sex offence. For example, an offender is convicted of Breaking and Entering, Theft, and Rape, and the offence was that he broke into a house, stole some items, and also sexually assaulted the resident. In this example, the Breaking and Entering and Theft were not part of the sex offence and would not be counted as sex offence charges or convictions. If the offender was also convicted of Forcible Confinement for keeping the victim in the
Page 89 of 212 21 house to facilitate the sexual assault, the Forcible Confinement would be counted as a sex offence charge and conviction. If, however, he locked the victim’s boyfriend in the bathroom while he committed the sex offence, the Forcible Confinement would not be counted as sexual. If there is evidence that a sex offence charge has been pled down to solely a non-sexual charge/conviction then it can count as a sex offence charge and conviction. For example if there is evidence the intent of the Break and Enter was to steal panties but this was pled down only to a Break and Enter conviction, then the Break and Enter is counted as a sexual charge and conviction.
Non-sexually motivated physical assaults, threats of non-sexual violence, and stalking motivated by sexual jealousy do not count as sex offences when scoring Static-99R.
Additional Charges Offences that may not be specifically sexual in nature, occurring at the same time as the sex offence, and under certain conditions, may be considered part of the sexual misbehaviour. Examples of this would include an offender being charged with/convicted of the following: Sexual Assault (rape) in one section of the criminal code and False Imprisonment as a separate conviction from a separate non-sexual section of the criminal code. Sexual Assault (rape) and Kidnapping Sexual Assault (rape) and Battery For a conviction to count as both non-sexual violence and a sex offence, the non-sexual violence behaviour must be part of the sex offence (e.g., same victim) and part of the behaviour necessary to achieve the sexual assault (e.g., the offender assaults the victim in order to gain compliance with the sexual behaviour). In instances such as these, the offender would be coded as having been convicted of two sex offences plus scoring in another item (index or prior non-sexual violence). For example, if an offender were convicted of any of the three examples above prior to the current “index” offence, the offender would score two prior sex offence charges and two prior sex offence convictions (On Item #5 – Prior Sex Offences) and a point for Prior Non-sexual Violence (Please see “Prior Non-Sexual Violence” or “Index Non-Sexual Violence” for a further explanation). If, on the other hand, the non-sexual violence was distinct from the sex offence (e.g., offender rapes a woman and then during his escape assaults a bystander), the conviction for Assault would be scored only as non-sexual violence and not both non- sexual violence and a sex offence.
Category “A” and Category “B” Offences For the purposes of Static-99R, sexual misbehaviours are divided into two categories. Category “A” offences involve most criminal charges that we generally consider “sex offences” and that involve an identifiable child or non-consenting adult victim. This does not mean the evaluator must know the personal identity of the victim(s). It means it must be clear that the intent of the offender was to target a being (child, adult, or animal), even if the personal identity of that person is unknown to the evaluator or even the offender. For example, an offender who surreptitiously takes photographs underneath women's skirts (i.e., "upskirt" photos or videos) has identifiable victims (the women whose privacy he has violated) even if the personal identity of those women is never ascertained. For internet offences as per the sections on victim items (pages 74 to 78), the victim is identified as the person the offender believes he is in contact with (e.g., a female child), even if the person on the receiving end of the communication is actually an adult police officer. Category “A” offences include contact offences, including sex with animals and dead bodies, and some non-contact offences with clear victims such as exposure to others, voyeurism, B&E (breaking and entering) with a sexual intent (e.g., stealing underwear), and some internet offences (e.g., solicitation offences).
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Category “B” offences are typically identified by two main criteria: a) sexual behaviour that is illegal but the parties are consenting or no specific victim is involved and b) indecency without a sexual motive. Category “B” offences include consenting sex in public places, possession of pornography (including child pornography), failure to disclose HIV status, and all prostitution, pimping and related offences with the exception of paying for the sexual services of an individual incapable of providing consent (underage, mentally incompetent), which is a Category “A” sex offence. Behaviours such as urinating in public or public nudity associated with mental impairment are also considered Category “B” offences. Behaviours that are revenge or anger motivated but have a sexual connotation can also be Category “B” offences for scoring purposes. An example includes distributing obscene images of a person without their consent (revenge porn).
Online sexual threats that are sufficiently serious to warrant a criminal charge can be scored as Category “A” or Category “B” sex offences, depending on the circumstances. Category “A” sexual threats would include those that are evaluated as a credible threat against an identifiable victim. Category “B” sexual threats are more impersonal, generic threats that can be perceived as sexually threatening but there is doubt that the threat could realistically be carried out (e.g., rape threats made anonymously online, typically to someone who is a stranger and lives in a different city). Behaviours that are not criminal in nature and would not result in criminal charges for someone not already involved in the criminal justice system, such as making offensive comments with some sexual connotation (e.g., an offender telling a female officer to “suck my dick” out of anger) do not count as a sex offence (Category “A” or “B”) even if the behaviour results in an institutional violation with a sanction.
Similar-age sexting (i.e., sending sexually explicit photos or messages, typically by phone) between underage peers that results in a criminal charge is scored as a Category “B” sex offence if the sexting is shared with other peers (e.g., other boys) but is not scored as a sex offence if the sexting is solely between the two underage peers (i.e., sender and receiver.)
“Publicity obscenities” (e.g., rude sexual comments made into a female journalist’s microphone) or other clearly attention seeking behaviours would not be counted as a sex offence for scoring purposes even if they result in criminal charges.
Evaluators should keep in mind that although many Category "B" offences are "non-contact" offences, as noted above, some non-contact offences, such as exhibitionism and voyeurism, are Category "A" offences.
Rule: if the offender has any Category “A” offences on their record - all Category “B” offences should be counted as sex offences for the purpose of scoring prior sex offences or identifying the Index offence. Category “B” offences do not count for the purpose of scoring victim type items (with the exception of victims from non-disclosure of HIV status). Static-99R should not be used with offenders who have only Category “B” offences. Offence names and legalities differ from jurisdiction to jurisdiction and a given sexual behaviour may be associated with a different charge in a different jurisdiction. The following is a list of offences that would typically be considered sexual. Other offence names may qualify when they denote sexual intent or sexual misbehaviour.
Category “A” Offences Aggravated Sexual Assault Attempted sex offences (Attempted Rape, Attempted Sexual Assault)
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Compelling the commission of any sex offences (bestiality, incest, or sexual assault) or other sexual behaviour (e.g., flashing on a webcam), regardless of whether it is compelled in person or via the internet Conspiracy to commit a Category “A” sex offence Contributing to the delinquency of a minor (where the offence had a sexual element) Distributing obscene materials to minors (no economic motive; presume that intent is sexual unless there is clear economic motive) Covert photography (victim is person being photographed) for sexual purpose Exhibitionism (if the behaviour involved no sexual motive, this would count as a Category “B” offence; see indecent behaviour without sexual motive) Facilitating a sex offence with a controlled substance/Giving a noxious substance (when the purpose of giving the substance is to facilitate a sex offence) Forced oral copulation Forced penetration with a foreign object Incest Indecent Exposure Invitation to Sexual Touching Internet Luring Juvenile sex tourism (travelling to another country in order to engage in sexual behaviour with juveniles that is illegal in the country of origin) Lewd or Lascivious Acts with a Child Manufacturing/Creating Child Pornography where an identifiable child victim was used in the process. The offender must participate in the creation of the child pornography with a human child by being physically present or via the internet, such as in cases where the offender is watching sexual abuse occurring live on the internet. Remote creation of the child sexual abuse images without the offender present or watching the abuse live can be considered Category “A” if the offender directed or requested specific photographs or scenes to be created and the resulting child abuse images were shared with him or others. Obscene written stories that involve the sexual abuse of an identifiable child are considered a Category “A” sex offence if the stories are shared with others. If the obscene stories are solely for the offender’s own use then any charges/convictions are scored as a Category “B” sex offence. Similarly, digital creation of child abuse images (e.g., by super-imposing photos of a real child onto existing child pornography images) is counted as a Category “B” offence. Molest children Obscene phone calls Online Solicitation Paying for the sexual service of a minor/developmentally delayed person Rape (includes in concert. Rape in concert is rape with one or more co-offenders. The co- offender can actually perpetrate a sexual crime or be involved by holding the victim down) Requesting feces or urine for the purpose of masturbation Sexual Assault Sexual Assault Causing Bodily Harm Sexual Battery Sexual Communication with a Minor Sexual Homicide Sex offences against animals (Bestiality) Sex offences involving dead bodies (Offering an indignity to a dead body) Sodomy (includes in concert and with a minor; excludes consenting sexual activity among adults)
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Unlawful sexual intercourse with a minor (unless it falls under the category of consenting sex among similar age peers – see page 76). Voyeuristic activity (Trespass by Night)
Category “B” Offences Consenting sex with other adults in public places Crimes relating to child pornography (possession, selling, transporting, creating where only pre-existing images or digital creation of pornography are used). Possession of Child Pornography (digital, child bots, written stories including those that are for the offender’s own use and not shared, drawings that did not involve a live child model, avatars) Indecent behaviour without a sexual motive (e.g., urinating in public) Not informing a sexual partner of HIV positive status (even if the charge/conviction indicates a Category “A” offence such as Aggravated Sexual Assault; note this is an exception in which the victim information can be used to score the victim items) Polygamy Prostitution-related offences o Offering prostitution services o Pimping/Pandering o Profiting from child prostitution o Coercing others into sex trade o Seeking/hiring prostitutes (unless this involved paying a minor for sexual services) o Solicitation of a prostitute (unless this involved soliciting a minor for prostitution) o Selling pornography to minors (giving pornography to minors for free is assumed to have a sexual intent and is considered Category “A”) Revenge or anger motivated behaviours with a sexual aspect (e.g., distributing obscene images without consent, such as “revenge porn”) “Sexting” (primarily sending sexual images of an underage person) shared with others without the original person’s consent (consensual sexting between two peers is not considered a sex offence for scoring purposes even if it results in a charge) Statutory Rape offences - refer to the section "Who can you use Static-99R on?" (page 12 for more details).
Certain sexual behaviours may be illegal in some jurisdictions and legal in others (e.g., prostitution). Count only those sexual misbehaviours that are illegal in the jurisdiction in which the risk assessment takes place and in the jurisdiction where the acts took place (with the exception of juvenile sex tourism, which is counted as a Category “A” offence). Consider the case of an offender who lived in Nevada where prostitution was legal, and who had an old prostitution conviction from California. Currently the offender is being supervised in the community for a sexual assault conviction. If he is supervised in Nevada, the prostitution offence would not count. But if he moved to California and was supervised there, then it would count.
In regard to the Category “B” offence of not informing a sexual partner of HIV positive status, in some jurisdictions this offence is prosecuted as Aggravated Sexual Assault or as another charge that is typically considered a Category “A” sex offence. Regardless of the name of the offence, the behaviour of not disclosing HIV positive status to an otherwise consenting partner is a Category “B” offence. However, this offence is unusual for Category “B” offences as it includes an identifiable victim. Consequently, victim information is scored for this (and only this) Category “B” offence.
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Prostitution and pimping offences are considered Category “B” offences, with the exception of paying for the sexual service of a minor, which is a Category “A” offence. In contrast, profiting from the child prostitution is a Category “B” offence.
Exclusions The following offences would not normally be considered sex offences Annoying children Consensual sexual activity in prison (except if sufficiently indiscreet to meet criteria for gross indecency) Failure to register as a sex offender Being in the presence of children, loitering at schools Possession of children’s clothing, pictures, toys Stalking (unless sex offence appears imminent, please see definition of “Truly Imminent” below) Reports to or investigations by child protection services (without charges) Non-sexual breaches of community supervision conditions such as alcohol or drug use
Rule: Simple questioning by police or child service authorities not leading to an arrest or charge is insufficient to count as a sex offence, even if the child protection services consider the case “founded”
Probation, Parole or Conditional Release Violations as Sex Offences Rule: Probation, parole, or conditional release violations resulting in arrest or revocation/breach are considered sex offences when the behaviour could have resulted in a charge/conviction for a sex offence if the offender were not already under legal sanction and the behaviour results in a sanction.
Sometimes the violations are not clearly defined as a sexual arrest or conviction. The determination of whether to count probation, parole, or conditional release violations as sex offences is dependent upon the nature of the sexual misbehaviour. Some probation, parole and conditional release violations are clearly of a sexual nature, such as when a rape or a child molestation has taken place or when behaviours such as exhibitionism or possession of child pornography have occurred. These violations would count as the index offence if they were the offender’s most recent criminal justice intervention for a sex offence (and for possession of child pornography, if the offender has also had a Category “A” offence somewhere on their record). The violation must result in a "sanction," such as a suspension or revocation of conditional release, and not be limited to an investigation or report. For discussion of when these violations count as equivalent to a charge versus a conviction/sentencing date, see pages 29 to 31.
Generally, violations due to “high-risk” behaviour would not be considered sex offences. The most common of these occurs when the offender has a condition not to be in the presence of children but is nevertheless charged with a breach - being in the presence of children. A breach of this nature would not be considered a sex offence. This is a technical violation. The issue that determines if a violation of conditional release is a sex offence or not is whether a person who has never been convicted of a sex offence could be charged and convicted of the breach behaviour. A person who has never faced criminal sanction could not be charged with being in the presence of minors; hence, because a non-criminal could not be charged with this offence, it is a technical violation. Non-sexual probation, parole, and conditional release violations, and charges and convictions such as property offences or drug offences are not counted as sex offences, even when they occur at the same time as sex offences, or during community supervision for a sex offence conviction. Do not count offences such as failure to register as a sex offender, being in the presence of minors, or violations of alcohol or drug abstinence conditions.
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Taking the above into consideration, some high-risk behaviour may count as a sex offence if the risk for sex offence recidivism was truly imminent and an offence failed to occur only due to chance factors, such as detection by the supervision officer or resistance of the victim (see definition below).
Definition of “Truly Imminent”
For an offence to be truly imminent, it should be established based on Clear and Convincing Evidence (see page 19 for definition of thresholds of proof) that a sex offence would have occurred as part of the same behavioural sequence (minutes to hours) but for the detection and intervention from others. Examples of this nature would include an individual with a history of child molesting being discovered alone with a child and about to engage in a “naked wrestling game.” Another example would be an individual with a long history of abducting teenage girls for sexual assault being apprehended while attempting to lure teenage girls into his car. A real case in the Static-99 research samples involved an offender who was convicted for a technical violation for bringing a mattress into a ladies’ washroom. Here, the intent was clearly to rape a woman, but he was interrupted by security officials. A sex offender being in the presence of children, even against his conditions of community release, is not considered “truly imminent” as the offender may choose not to molest for an indefinite period of time or even at all. Being in the presence of minor would only qualify as “truly imminent” if there was other convincing evidence, such as stated intentions to offend, or material preparations.
Institutional Rule Violations Institutional rule violations resulting in institutional punishment can be counted as sex offences if certain conditions exist. The first condition is that the sexual behaviour would have to be sufficiently intrusive that a charge for a sex offence would be possible were the offender not already under legal sanction. In other words, “if he did it on the outside would he get charged for it?” Institutional disciplinary reports for sexual misbehaviours that would likely result in a charge were the offender not already in custody count as a charge. Poorly timed or insensitive homosexual advances, consenting sexual interactions with another offender, or consenting sexual interactions with a visitor would not count even though this type of behaviour might attract institutional sanctions. The exception would be if the sexual behaviour was so flagrant that it seemed clear the offender wanted someone to witness the sexual interaction (see the discussion of targeted versus non-targeted activity below). This would be more akin to a form of exhibitionism. The second condition is that the evaluator must be sure that the sexual misbehaviour actually occurred (based on a Clear and Convincing Evidence threshold – see page 19), and the third condition is that it is clear the institutional punishment was in response to the sexual misbehaviour (based on the Clear and Convincing Evidence threshold - see page 19). Finally, if the punishment is an institutional move, it must also be clear that the move is to a more secure environment and not a parallel move. In a prison environment it is important to distinguish between targeted activity and non-targeted activity. Institutional disciplinary reports (with sanctions) that result from an offender who specifically chooses a female officer and masturbates in front of her, where she is the obvious and intended target of the act, would count as a “charge” and hence, could stand as an Index offence. The alternative situation is where an offender who is masturbating in his cell is discovered by a female officer and she is not an obvious and intended target. In some jurisdictions this would lead to a disciplinary report. Violations of this “non- targeted” nature do not count as a “charge” and could not stand as an index offence. If the evaluator has insufficient information to distinguish between these two types of occurrences the offender gets the benefit of the doubt and the evaluator would not score these occurrences. A further important distinction is whether the masturbation takes place covered or uncovered. Masturbating under a sheet would not be regarded as an attempt at indecent exposure. Consider these two examples:
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(1) A prisoner is masturbating under a sheet at a time when staff would not normally look in his cell. Unexpectedly a female member of staff opens the observation window, looks through the door, and observes him masturbating. This would not count as a sex offence for the purposes of Static-99R, even if a disciplinary charge and institutional punishment resulted. (2) In the alternate example, a prisoner masturbates uncovered so that his erect penis is visible to anyone who looks in his cell. Prison staff have reason to believe that he listens for the lighter footsteps of a female guard approaching his cell. He times himself so that he is exposed in this fashion at the point that a female guard is looking into the cell. This would count as a sex offence for the purposes of scoring Static-99R if it resulted in an institutional punishment.
An example of a behaviour that might get an inmate a disciplinary charge, but would not be used as a charge for scoring Static-99R, includes the inmate who writes an unwanted love letter to a female staff. The letter does not contain sexual content to the extent that the offender could be charged. Incidents of this nature do not count as a charge.
Rule: Prison misconducts and institutional rule violations for sexual misbehaviours count as one charge per sentence
Prison misconducts for sexual misbehaviours count as one charge per sentence, even if there are multiple incidents and sanctions. The reason for this is that in some jurisdictions the threshold for misconducts is very low. Often, as previously described, misconduct will involve a female guard simply looking into a cell and observing an inmate masturbating. Even in prison, serious sex offences, such as rape and attempted rape, will generally result in official criminal charges. Official criminal charges for behaviours that occurred in prison are exempt from the one-charge-per-sentence rule.
If the offender is released and then returned to prison under the same sentence, subsequent misconducts and institutional rule violations for sexual misbehaviours following the return to prison on the same sentence would be clustered with any misconducts or rule violations from prior to the return (even if they are separate instances), and would all count as one charge for this sentence. Similarly, if an offender is civilly committed directly from prison, time spent in civil commitment would count as part of the original sentence.
Similar Fact Crimes Sometimes an offence may not have included a sexual component, but on the basis of the offender’s pattern of offending, it may be possible to conclude that the offence was sexually motivated. For example, an offender assaults three different women on three different occasions. On the first two occasions he grabs the woman as she is walking past a wooded area, drags her into the bushes and rapes her. For this he is convicted twice of Sexual Assault (rape). In the third case he grabs the woman, starts to drag her into the bushes but she is so resistant that he beats her severely and leaves her. In this case he is convicted of Aggravated Assault. In order for the conviction to be counted as a sex offence, it must have a sexual motivation. In a case like this it is reasonable to assume that the Aggravated Assault had a sexual motivation because it resembles the other sex offences so closely. In the absence of any other indication to the contrary this Aggravated Assault would also be counted as a sex offence. Note: This crime would also count as Non-Sexual Violence. Please also read subsection “Coding Crime Sprees” in section “Item #5 – Prior Sex Offences” (page 65).
Noxious Substance or Giving Alcohol to a Minor
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The charge or conviction for giving a noxious substance (or its equivalent, drugs, alcohol, or other stupefacient) can count as a sex offence if the substance was given with the intention of making it easier to commit a sex offence. If there was evidence that the substance was given to the victim just prior to a sexual assault with the intent to facilitate a sex offence, this would count as a sex offence. If there was no evidence about what went on, or the temporal sequence of events, the “giving of noxious substance” would not count as a sex offence.
What Counts as a Conviction/Sentencing Date Versus a Charge
Some items or coding decisions require a charge to be present, whereas others require a conviction or sentencing date to be present. Here we discuss which criteria must be met for something to count as a charge or to count as a conviction/sentencing date. For Static-99R coding purposes, the criteria for what counts as a conviction or sentencing date are the same. The primary distinction is that a single sentencing date may include several convictions. For the item “prior sex offences,” you count EACH conviction, even if there are multiple convictions on the same sentencing date. For the item “prior sentencing dates,” the unit that is being counted is the sentencing date, not the number of convictions. So if an offender is convicted of six sex offences on a single day (e.g., two convictions for child molestation and four convictions for child luring), that would count as six convictions for the “prior sex offences” item and one sentencing date for the “prior sentencing dates item” (this applies whether the offender is sentenced on the same day as he is convicted, or at a later date). So convictions and sentencing dates are counted up differently, but something that meets the criteria for a conviction will meet the criteria of a sentencing date (and vice versa).
Charges follow a lower threshold than convictions and sentencing dates. Anything that counts as a conviction or sentencing date would also count as a charge. Additionally, there are many other circumstances that count as a charge, but not as a conviction or sentencing date. The sections below will provide examples of what counts as a conviction or sentencing date, and then what additionally counts as a charge.
Conviction/Sentencing Date
A conviction or sentencing date is typically when the offender attends court, admits to the offence or is found guilty, and receives some form of sanction (fine, prison, conditional sentence). A determination of disposition by a court following a finding of not criminally responsible due to mental disorder (or its equivalent) also counts as a conviction/sentencing date if that disposition involves either institutional and/or mandated community sanction/care. Offenders may be convicted of more than one offence at the same sentencing date. Offenders may go to court and receive more than one sentence for a single crime spree. In this case, all convictions related to the same crime spree count as one sentencing date. Count both adult and juvenile offences. If a person commits a criminal offence as a juvenile or as an adult and receives a diversionary adjudication (i.e., an alternative sanction), this counts as a sentencing date. Examples include what has been termed restorative justice, reparations, family group conferencing, community sentencing circles. In England, an official caution counts as a sentencing date.
Sanctions for a conviction may include the following: - Alternative resolution agreements (e.g., restorative justice) - Community supervision - Conditional or absolute discharges - Fines - Imprisonment - Community-based Justice Committee Agreements
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Count as convictions: - Juvenile offences count (if there is official documentation available confirming them) - Where applicable, “Probation before judgement” counts as a conviction - Where applicable, “Consent decree” counts as a conviction - Suspended sentences count as a conviction - Misdemeanors
Do not count very minor offences for which it would be impossible to go to jail or to receive a community sentence (e.g., drinking under age, speeding). In Canada, all criminal code offences would be deemed serious enough to count; in contrast, most municipal by-laws would be of insufficient seriousness to count (e.g., parking, zoning infractions, keeping animals in the city). Graduated penalty offences (see below) are counted if it is at all possible to receive a custodial sentence, even if not on the first offence.
Determining Whether Something is a Conviction
A conviction requires a) a court or administrative tribunal using due process, resulting in b) an admission or finding of guilt and c) a sanction. This threshold is fairly high; arrests and charges (without convictions) do not count. The finding of guilt should be Beyond a Reasonable Doubt (i.e., a legal standard that generally refers to near certainty that the offence happened; see page 19 for additional information on standards of proof). It is possible to use a lesser criterion of Clear and Convincing Evidence (i.e., a legal standard with a higher threshold than Balance of Probabilities but lower than Beyond a Reasonable Doubt) for sanctions administered outside of the criminal justice system (e.g., Canon law for priests, military court martial, civil commitment procedures for the mentally ill). Institutional rule violations (e.g., prison misconducts), however, are insufficient to meet the standard of Clear and Convincing Evidence. Many of these special circumstances are addressed in subsections below.
Most convictions and sentencing dates are easy to identify (there is a conviction for a criminal offence, accompanied by a sanction). Sometimes an evaluator must make a decision about a situation that does not clearly fall under one of the rules outlined in the manual. In these circumstances, it is helpful to refer to the essential features articulated above.
Within the criminal justice system, a finding of guilt has a relatively clear meaning (something equivalent to a conviction) and a specific due process associated with that finding, such that our confidence in that finding is high. Establishing the equivalent of a finding of guilt outside typical criminal courts requires a consideration of the standard of proof and the due process involved in that finding (keeping in mind that there will be variability in the terminology used by many decision-making bodies). Beyond a Reasonable Doubt is a high standard of proof and findings of guilt using this standard would generally count, but this standard is rarely used outside criminal trials. However, to count something as a conviction, you would want to see a finding of guilt based on a standard that is higher than a Balance of Probabilities. As such, decisions based on a standard equivalent to or higher than Clear and Convincing Evidence could be considered convictions. It is also helpful to consider the due process involved in the finding of guilt. In criminal cases, accused parties have due process rights, including the right to hear the evidence against them and to have their side heard. Generally, to count something as a conviction, you would want to see those basic elements of due process present in some form (exact rules may vary).
Probation, Parole, or Conditional Release Violation
Generally, a probation, parole, or conditional release violation would count as equivalent to a charge and may be counted as an index sex offence (defined further on page 38). In some circumstances (defined
Page 98 of 212 30 below), it could be counted as a conviction. If it does not meet the criteria to be considered a conviction, it can still be counted as a charge (which is the presumed default option).
In Static-99R, to be considered a conviction or sentencing date, at least one aspect of the offending behaviour must be an offence that would normally result in arrest and conviction had the offender not already been under sanction (this will be discussed further below). As well, there are additional criteria for probation and parole violations. A violation of a probation order counts as a conviction and a sentencing occasion if there is a court hearing, finding of guilt, and a new sanction. The name of the charge can be "violation of probation" as long as the evaluator is reasonably certain at least one aspect of the underlying behaviour was a crime, not just a technical violation. A parole violation counts as a conviction when a paroling authority functioning as a quasi-judicial body determines that: a) the offender has committed a criminal offence that would normally result in arrest and conviction, and b) the offender is required to remain in custody after the determination of guilt (not just time served; time served refers to time spent detained in custody prior to sentencing). Simply having parole revoked without a finding of guilt for new offending does not count as a sentencing occasion.
In the absence of information on the nature of any conditional release violation, the following rules apply: (a) If the sanction for the violation involved custodial time being ADDED to the offender’s pre-existing sentence, the behaviour will be presumed to have been serious enough to count as an offence (and therefore a sentencing occasion). (b) For parole violations, if the offender was returned to custody to serve all or part of the time remaining on the pre-existing sentence but nothing more, then presume it was solely a technical violation. (c) If the offender was on probation and the sanction for the violation involved any time in custody (either time served or a custodial sentence; time served refers to time spent detained in custody prior to sentencing), the behaviour will be presumed to be serious enough to count as an offence (and conviction). Otherwise, assume it was solely a technical violation.
Charges or convictions for parole or probation violations can only count as a sexual charge or conviction if the underlying behaviour is a sex offence that would normally result in arrest (to count as a charge) and conviction (to count as a conviction) had the offender not already been under sanction. Sentencing for “technical” violations do not count as new sentencing occasions for a sex offence, or as a charge for a sex offence. For example, if an offender had a condition prohibiting being in the presence of children, a breach (violation) of this condition would not be counted as a new sentencing occasion or as a sex offence charge.
There are rare circumstances when behaviour resulting in a purely "technical" breach can be considered a sentencing occasion if the behaviour was clearly an attempted sex offence. This can occur in either of two circumstances: (a) in some jurisdictions the person may be charged with a new sex offence, but after his conditional release is revoked (breached) and he is sent back to prison with a substantial remaining sentence, the charges are dismissed by the prosecutor who decides there is little more to be gained by pursuing the new conviction; or (b) very restricted, uncontroversial cases where it is clear that an offence would have occurred had it not been for the intervention of a third party or for the resistance of the victim. For example, the offender is caught luring a child using the same modus operandi of his previous offences, or the offender is caught alone with a child and has a rape kit in his possession (see definition of "Truly Imminent" on page 26 for further examples). Note that merely being in the presence of children without supervision could not be considered a sex offence because it is not certain that an offence would have occurred had there not been some form of intervention. Note that the threshold to consider a breach as a sexual sentencing occasion is extremely high and the sex offence must be imminent. Being in the presence of children, failing to register, and the like are not considered sexual sentencing occasions.
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For "lifers" or others serving indeterminate sentences, release violations may be scored as a charge, conviction, and sentencing date [please see section below on "Revocation of Conditional Release for ’Lifers’, Dangerous Offenders, and others with indeterminate sentences" below].
If the offender violates probation or parole on more than one occasion, within a given probation or parole period, each separate occasion of a sexual misbehaviour violation is counted as one charge. For example, a parole violation for indecent exposure in July would count as one charge. If the offender had another parole violation in November for possession of child pornography, it would be coded as a second charge. Note that this differs for counting institutional misconducts, where multiple events in a sentence are only counted as one charge. However, multiple probation, parole and conditional release violations for sexual misbehaviours laid at the same time are coded as one charge. Even though the offender may have violated several conditions of parole during one parole period, it is only counted as one charge if the charges are filed all together, even if there were multiple sex violations. To count parole or probation violations as separate charges, the offender would need to have committed the violation behaviour after receiving the formal sanction for the previous misbehaviour.
These rules about counting multiple violations apply regardless of whether the criminal behaviour is sexual or non-sexual (e.g., non-sexual violence), or whether the violations meet the criteria of a conviction or a charge (although note that for all items except “prior sex offences,” a conviction would be required to score the item).
Revocation of Conditional Release for “Lifers,” Dangerous Offenders, and Others with Indeterminate Sentences
Occasionally, offenders on conditional release in the community who have a life sentence, who have been designated as Dangerous Offenders (Criminal Code of Canada, S. 753), or other offenders with indeterminate sentences either commit a new offence or breach their release conditions while in the community. Sometimes, when this happens the offenders have their conditional releases revoked and are simply returned to prison rather than being charged with a new offence or violation. Generally, this is done to save time and court resources as these offenders are already under sentence. If a “lifer,” Dangerous Offender, or other offender with an already imposed indeterminate sentence is simply revoked (returned to prison from conditional release in the community without trial) for criminal behaviour this can be considered equivalent to a conviction if the behaviour is of such gravity that a person not already involved with the criminal justice system would most likely be charged and convicted with a criminal offence given the same behaviour (and if the offence was sexually motivated, this would also be considered a sex offence, and a potential index offence). Note: the evaluator should be confident that were this offender not already under sanction that it is highly likely that a charge would be laid by police and a conviction would be likely. This section essentially lowers the threshold for counting parole violations as convictions compared to non-lifers. For non-lifers, the rules in the previous section apply.
Adjudication Withheld/Sanction Without Conviction
In some jurisdictions it is possible to have a disposition of “Adjudication Withheld,” in which case the offender receives a probation-like period of supervision. This is counted as a conviction because a sentence (a consequence representing a loss of freedom and/or some other cost) was given. When it is clear that a determination has been made by a judge that an offence was committed, it counts as a conviction even if adjudication is withheld or other language is used (e.g., “without conviction”), as long as there is still some kind of sanction (e.g., supervision).
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Clergy, Military, and Other Professions
For members of the military or religious groups (e.g., clergy) and regulated professionals some investigative processes, parallel legal processes, and movements within their own organizations can count as charges or convictions and hence, index or prior sex offences. First, the behaviour must be equivalent to a criminal code offence (something for which someone outside of that organization would be criminally charged). A complaint to a professional regulatory body (e.g., College of Physicians and Surgeons) that results in an investigation does not count as a charge because regulatory bodies are statutorily required to investigate all allegations. However, if following the investigation, the regulatory body decides there are reasonable and probable grounds that an offence occurred and this results in a sanction against the member, then this may count as a charge but not a conviction. In military law or church canon law (i.e., where there is an officially determined and parallel justice system), allegations that result in an investigation and parallel legal process may count as charges. When the parallel legal process results in a clear sanction this may also count as a conviction and sentencing date. Examples include the “de-frocking” of a priest or minister. Another example would be where an offender is transferred within the organization and the receiving institution knows they are receiving a sex offender. If this institution considers it part of their mandate to address the offender’s problem or attempt to help him with his problem then this would function as equivalent to being sent to a correctional institution, and would count as a conviction and, therefore, a sentencing date.
For members of the military, a religious group (clergy), or teachers (and similar professions) being transferred to a new parish/school/post, being given an administrative post away from the public with no formal sanction, or being sent to graduate school for re-training does not count as a charge or conviction. Where a priest/minister is transferred between parishes due to allegations of sexual abuse but there is no explicit internal sanction, these moves would not count as charges or convictions.
In the military, if an offender is given a sanction (military brig, lowered rank, or similar) for an offence this counts as a charge, conviction, and sentencing date. If an “undesirable discharge” or an equivalent sanction is given to a member of the military as the direct result of criminal behaviour (something that would have attracted a criminal charge were the offender not in the military), this counts as a charge, conviction and sentencing date as well. However, if the member left the military when he normally would have and the “undesirable discharge” is equivalent to a bad job reference, then the criminal behaviour would not count as a charge, conviction, or sentencing date. Pure military offences (conduct unbecoming, insubordination, not following a lawful order, dereliction of duty, etc.) do not count when scoring Static- 99R.
Conditional/Absolute Discharges
Where an offender has been charged with an offence and receives a conditional or absolute discharge, for the purposes of Static-99R a discharge counts as a conviction. (A conditional discharge can occur in Canada when a person is found guilty of an offence but is given conditions for release into the community that, if followed, result in the conviction being removed from their record. An absolute discharge is similar, but without the conditions.)
Consent Decree
Consent Decree counts as a conviction.
Court Supervision
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In some states it is possible to receive a sentence of court supervision, where the court provides some degree of minimal supervision for a period (e.g., one year). This is similar to probation and counts as a conviction.
Diversionary Adjudication
If a person commits a criminal offence as a juvenile or as an adult and receives a diversionary adjudication, this counts as a conviction. Examples include what has been termed restorative justice, reparations, family group conferencing, treatment courts, and community sentencing circles. It is not uncommon for an alternative sanction to be determined and for formal criminal justice processing to be deferred to a later date. For example, an offender may be required to attend treatment, and, if successful, would expect to receive a lenient sentence at a later date (or the charges would be dropped). In these cases, the initial diversionary determination would be considered as the conviction date.
Extension of Sentence by a Parole Board (or similar)
If an offender is assigned extra time added to his sentence by a parole board for a new offence this counts as an additional conviction if the new time extended the total sentence. This would not count as a conviction if the additional time was to be served concurrently or if it only changed the parole eligibility date (these situations would, however, count as a charge). This situation is presently not possible in Canada. The only exception to this rule is for “Lifers,” Dangerous Offenders, and others with indeterminate sentences. For offenders with indeterminate sentences, if their parole is revoked and they are returned to prison for a new offence, this counts as a conviction. The rationale for this difference is that in general, the standard of proof necessary to return an offender to prison without adding additional time to their sentence is insufficient to meet the standards that typically define a conviction. However, for offenders with an indeterminate sentence, even when there is enough evidence to obtain a conviction, it is rare to charge the offender with the new offence.
Failure to Register as a Sex Offender
If an offender receives a formal legal sanction, having been convicted of Failing to Register as a Sex Offender, this conviction would count as a sentencing date. However, it should be noted that charges and convictions for Failure to Register as a Sex Offender are not counted as sex offences.
Graduated Penalty Offences
In some jurisdictions, an offence committed once is not punishable by jail or a community sentence, but can only be punished by a fine. Further offending of the same type, however, can lead to a jail sentence. For example, a first offence of driving while intoxicated (or under the influence) may maximally lead to a fine, but subsequent adjudications of guilty for driving while intoxicated (or under the influence) can each result in a jail sentence. If a behaviour can eventually lead to jail and/or community supervision, it can count as a charge or conviction.
Juveniles
All justice systems recognize that children have diminished criminal responsibility, although the specific thresholds vary. Most jurisdictions specify an age at which children have no criminal responsibility, and one or more thresholds at which young people have diminished responsibility. For Static-99R scoring purposes, do not count any offences committed at age 11 or younger, regardless of whether the child was considered criminally responsible in that jurisdiction. Furthermore, do not count offences if the child was 12 or older at the time of the offence but still below the absolute threshold for criminal responsibility in
Page 102 of 212 34 that jurisdiction (e.g., in jurisdictions where children cannot be charged with a criminal offence prior to the age of 14). For Static-99R scoring purposes, all offences committed at age 18 or older are counted as adult offences (full criminal responsibility), regardless of whether the charges were processed in a separate system for young offenders (e.g., some jurisdictions extend juveniles courts to age 21).
Between the ages of 12 and 17, many jurisdictions distinguish between youth who have committed crimes that should be managed according to the goals of child welfare (e.g., out-of-home placements, special schools) and youth that should be managed as young offenders (charges, convictions, probation, open custody, secure custody). When the jurisdiction allows for juveniles to be considered as young offenders, and the young person’s crimes are addressed in that way, juvenile charges, convictions and sentencing occasions are counted the same way as adult offences.
On the other hand, when the crimes are addressed through the juvenile care systems (e.g., social services), certain interventions can be counted as a charge. Specifically, placement in a secure setting or transfer to a more secure setting could count as a charge. Note that any specific intervention (placement, transfer) would only count as one charge, regardless of the number of criminal instances motivating the intervention.
For offences committed between ages 12 and 15, count only one charge regardless of the number of actual offences committed or interventions applied. Consequently, the maximum possible score for the Static-99R item Prior Sexual Offences based on social service interventions for behaviour committed at age 15 or younger is one (one charge). For social service interventions connected to sexual offences committed at age 16 or older, each intervention is counted as a separate charge (the usual maximum of 3 is possible).
Transfers can count as charges if the criminal behaviour is sufficiently serious that someone outside of the juvenile system would be charged (criminal code level), if the transfer was in response to the criminal behaviour (based on the Clear and Convincing Evidence threshold; see page 19), AND if the transfer was to a more secure setting (based on the Clear and Convincing Evidence threshold). Instances in which juveniles (ages 12–17) are placed into residential care for aggression (sexual or otherwise) would count as a charge. In such instances, the young person is managed by the juvenile care system (social system) as an alternative to a juvenile justice system (not charged, tried, and sent to jail as adults are but rather, they are sent to a “home” or “placement”). Such social service interventions would count as a charge but not a conviction. Other dispositions such as home containment or other informal sanctions and conditions can be counted as a charge but not a conviction if there is Clear and Convincing Evidence that the informal sanction was a direct result of the misbehaviour (criminal code level) and the sanction is really a sanction (i.e., punitive in nature).
Note that the above scoring of social service interventions for juveniles is a change from the previous Static-99 Coding Rules – Revised 2003 (Harris et al., 2003) where certain transfers for juveniles could count as a conviction. The change was implemented to promote more consistency between the scoring of juvenile and adult offences.
In some jurisdictions, it is possible for juvenile offenders to get convicted of an offence whereas in other jurisdictions the juvenile has a “petition sustained,” is “adjudicated delinquent,” or other phrase essentially of the same meaning. For the purposes of scoring Static-99R, these are equivalent to an adult conviction because there are generally liberty-restricting consequences. Any jurisdictional dispositions meaning a juvenile is convicted would count as a conviction. There have been cases where a juvenile has been removed from his home by judicial action under a “Person In Need of Supervision” (PINS) petition due to aggression. This counts as a conviction (if the evaluator is convinced based on Clear and Convincing Evidence that this removal was directly due to the criminal behaviour).
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Mentally Disordered and Developmentally Delayed Offenders
Some offenders suffer from sufficient mental impairment (major mental illness, developmental delays) that criminal justice intervention is unlikely. For these offenders, informal hearings and sanctions such as placement in treatment facilities and residential moves would be counted as a charge and could count as a conviction if it meets the general principles from determining if something stands as a conviction (see “Determining Whether Something is a Conviction”, p. 29).
Not Criminally Responsible due to Mental Disorder/Not Guilty by Reason of Insanity
Being found “not criminally responsible due to mental disorder” (or its equivalent) is counted as a conviction if the court-determined disposition from the finding involved institutional and/or mandated community sanction/care.
Note that being found unfit to stand trial, however, counts as a charge but not a conviction (see section below on what counts as a charge).
Official Cautions – United Kingdom
In the United Kingdom, an official caution should be treated as equivalent to a charge and a conviction.
Pardoned/"Expunged" Offences
If official criminal records (e.g., police reports) still include the charges or convictions relevant to that sex offence they may be counted even if the offender was pardoned or otherwise excused for the behaviour. Youthful Offender adjudications count even though the nature of the offence is obscured from the public and replaced with a generic adjudication on the criminal history report. For assessment purposes, the behaviour still occurred. A professional report that mentions a previous charge/conviction can count if it is considered credible that an official record did/does in fact exist and was obtained by a professional during a previous contact (e.g., if juvenile criminal records are no longer available, but a previous probation report mentions accessing that record and notes a charge or conviction).
“PINS” Petition (Person In Need of Supervision)
There have been cases where a juvenile has been removed from his home by judicial action under a “PINS” petition due to aggression. This counts as a conviction (if the evaluator is convinced based on Clear and Convincing Evidence that this removal was directly due to the criminal behaviour).
Probation before Judgement
Probation before judgement counts as a conviction.
Stayed Charges/Sentences
Stayed charges/sentences take different forms in different jurisdictions. If there is a sanction associated with the stay of proceedings (e.g., stayed pending attendance in community treatment), stayed charges would count as a conviction, similar to other forms of alternative measures. They should not be considered convictions if there is no finding or admission of guilt, and no associated sanction (formal or informal).
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Suspended Sentences
In Canada, a suspended sentence counts as a conviction.
Charges
Anything that counts as a conviction or sentencing date also counts as a charge (see above for examples). In addition, the sections below outline circumstances that count only as a charge (they cannot be counted as a conviction or sentencing date). Note that the only item that counts ‘charges’ is prior sex offences, so in the sections below, these situations are only applicable for sex offences.
The following count as equivalent to a charge: - Arrests (if the offender knows a warrant has been issued for his arrest, this counts as an arrest even if the offender flees the jurisdiction before he can be arrested) - Charges not resulting in convictions (e.g., where there is an acquittal, or charges are withdrawn, dismissed, or stayed). This includes municipal citations for sexually motivated offences. - Convictions subsequently overturned on appeal - Parole and probation violations (they may also sometimes count as convictions; see pages 29 to 31)
Acquittals
Acquittals count as charges. The reason that acquittals are scored this way is based upon a research study completed in England that found that men acquitted of rape were more likely to be convicted of sex offences in the follow-up period than men who had been found guilty {with equal times at risk} (Soothill et al., 1980).
Convictions Overturned on Appeal
Convictions that are subsequently overturned on appeal are considered a charge, but not a conviction or sentencing date.
Dismissals
Being charged with an offence, but subsequently having the charge dismissed, counts as a charge.
Institutional Rules Violations (e.g., Prison Misconducts)
See pages 26 to 27 for further discussion of the circumstances under which institutional rules violations can count as a charge.
Loss of Institutional Time Credits (e.g., Worktime Credits)
Generally, "worktime credit" or “institutional time credits” means credit towards (time off) a prisoner's sentence for satisfactory performance in work, training, or education programs. Any prisoner who accumulates “worktime credit” may be denied or may forfeit the credit for failure or refusal to perform assigned, ordered, or directed work or for receiving a serious disciplinary offence. Loss of worktime or institutional time credit for sexual misbehaviour may count as a charge.
Not Guilty
A finding of “not guilty” counts as a charge.
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Peace Bonds, Judicial Restraint Orders, and “810” Orders
In some instances a Peace Bond/Judicial Restraint Order/810 Orders are placed on an offender when charges are dropped or dismissed or when an offender leaves jail or prison. An order of this nature, when it is primarily preventative, is not counted as a charge or conviction for the purposes of scoring Static- 99R.
There are some occasions when these orders are used reactively as a sanction for criminal behaviour (e.g., after a domestic violence incident, the offender enters a peace bond in exchange for dropping the charges). If the peace bond is a “protective” measure it is not counted. If the peace bond is a “sanction” it can count as a charge but not a conviction. In these cases the peace bond is usually associated with dismissed charges followed by the offender entering into a peace bond on the same date. When used as a sanction, these orders are not considered convictions because there is no official determination of guilt preceding the sanction and as such the peace bond can only count as a charge. In contrast, peace bonds implemented at the end of a sentence to prevent future offences would be considered preventive and do not count as a charge or conviction.
Unfit to Stand Trial
Being found unfit or incompetent to stand trial does not count as a conviction, even if the offender is detained for treatment. A declaration of unfit to stand trial essentially halts criminal proceedings. If the offender subsequently receives a finding of guilt (e.g., a conviction or its equivalent), then the subsequent sanction would count as a conviction. Regardless, the charge that led to the finding of being unfit would count as a charge.
Situations That Do Not Count as Charges OR Convictions
“Detected” by Child Protection Services
Being “detected” by the Children’s Aid Society or other Child Protection Services does not count as an official sanction; it may not stand as a charge or a conviction. Criminal charges must result from the detection for it to count as a sex offence for scoring purposes.
Failure to Appear
If an offender fails to appear for sentencing for an offence, this is not counted. The original charge counts as a charge, and if the offender subsequently attends court and is convicted, the conviction would count.
Juvenile Extension of Detention
In some states it is possible for a juvenile to be sentenced to a detention/treatment facility for an offence. At the end of that term of incarceration it is possible to extend the period of detention. Even though a judge and a prosecutor are present at the proceedings, because there has been no new crime or charges/convictions, the extension of the original order is not considered a charge or a conviction.
Questioned by Police
Being questioned by police (without being arrested or charged) does not count as a charge.
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Index Sex Offence
The index sex offence is generally the most recent sex offence. It could be a charge, arrest, conviction, or rule violation (see earlier definitions of a sex offence, conviction/sentencing date, and charge). Sometimes index offences include multiple counts, multiple victims, and numerous crimes perpetrated at different times because the offender may not have been detected and apprehended. Some offenders are apprehended after a spree of offending. If this results in a single conviction regardless of the number of counts, all counts are considered part of the index offence. Convictions for sex offences that are subsequently overturned on appeal can count as the index offence. Charges for sex offences can count as the index Offence, even if the offender is later acquitted. Please review earlier sections – anything that counts as either a charge or a conviction can count as an index offence, as long as it also meets the definition of a sex offence (i.e., is sexually motivated). Most of the offenders in the Static-99R normative samples (about 60% of cases from the routine, unselected samples) had no prior sex offences on their record; their index offence was their first recorded sexual misbehaviour. As a result, Static-99R is valid with offenders facing their first sexual charges, as well as offenders with a history of sex offence charges or convictions.
Offence Clusters, Pseudo-Recidivism, Historical Offences, and Prior Offences
Historical Offences
The evaluator may face a situation where an offender is brought before the court on a series of sex offences, all of which happened several years in the past. This most often occurs when an offender has offended against children in the past and, as these children mature, they come forward and charge the perpetrator. After the first charge is laid it is not unusual for other victims to appear and lay subsequent charges. The evaluator may be faced with an offender with multiple charges, multiple court dates, and possibly multiple convictions who has never before been to court – or who has never before been sanctioned for sexual misbehaviour. In a case like this, where the offender is before the court for the first time, all of the charges, court appearances, and convictions become what is known as an “index cluster” and they are all counted as part of the index offence. Static-99R applies once the offender is charged, even if the sexual behaviours occurred many years ago. Identifying ‘prior’ offences in the presence of such historical cases can be quite complicated – please review pages 41 to 44 for additional description.
Index Cluster
An offender may commit a number of sex offences in different jurisdictions, over a protracted period, in a spree of offending prior to being detected or arrested. Even though the offender may have a number of sentencing dates in different jurisdictions, the subsequent charges and convictions would constitute an index cluster. These “spree” offences would group together – the early ones would not be considered “priors” and the last, the “index” - they all become the index cluster. This is because the offender has not been “caught” for the earlier offences and then “chosen” to reoffend in spite of the detection. Furthermore, historical offences that are detected after the offender is convicted of a more recent sex offence would be considered part of the index offence (pseudo-recidivism) and become part of the index cluster (see subsequent section). For two offences to be considered separate offences, the second offence must have been committed after the offender was detected (i.e., arrested or charged) and/or sanctioned for the previous offence. For example, a sex offence committed while an offender was released on bail for a previous sex offence would supersede the previous charge and become the index offence. This is because the offender knew he had been detected for his previous crimes but chose to reoffend anyway.
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For the purposes of this section, ‘detection’ refers to some kind of official detection for the offence, such as an arrest or a charge. Anything in the coding manual that counts as a charge, conviction, or sentencing date would count as ‘detection.’ Having a sex offence detected by a family member, friend, or child protection services does not count as official detection.
An index cluster can occur in three ways.
The first occurs when an offender commits multiple offences at the same time or over a period of time. Subsequent to committing all offences, the offender is charged and these offences are then dealt with as a group by the police and the courts. The second occurs when an index offence has been identified for an offender and following this the evaluator becomes aware of previous historical offences for which the offender has never previously been charged or convicted. These previous offences come forward and become part of the index cluster. This is also known as “pseudo-recidivism.” It is important to remember, these historical charges do not count as priors because the offending behaviour was not officially detected before the offender committed the index offence. The issue being, the offender has not been previously officially detected for his behaviour and then made the choice to reoffend. The third situation arises when an offender is charged with several offences that come to trial within a short period of time (a month or so) sometimes in different jurisdictions. For example, an offender might sexually offend in different counties of a state and have trials in different counties for a spree of offending. When the criminal record is reviewed it appears that a cluster of charges were laid at the end of an investigation and that the court could not attend to all of these charges in one sitting day. When the evaluator sees groups of charges where it appears that a lot of offending has finally “caught up” with an offender – these can be considered a “cluster.” If these charges happen to be the last charges they become an index cluster. The evaluator would not count the last court day as the “index” and the earlier ones as “priors.” A second example of this occurs when an offender goes on a crime “spree” – the offender repeatedly offends over time, but is not detected or caught. Eventually, after two or more crimes, the offender is detected, charged, and goes to court. But he has not been independently sanctioned between the multiple offences. For Example: An offender commits a rape, is apprehended, charged, and released on bail. Very shortly after his release, he commits another rape, is apprehended and charged. Because the offender was apprehended and charged between crimes this does not qualify as a crime “spree” – these charges and possible eventual convictions would be considered separate crimes (even if the offender is subsequently convicted for both on the same day). If these charges were the last sex offences on the offender’s record – the second charge would become the index and the first charge would become a “prior.” However, if an offender commits a rape in January, another in March, another in May, and another in July and is finally caught and charged for all four in August, this constitutes a crime “spree” because he was not detected or consequenced between these crimes. As such, this spree of sex offences, if they were the most recent sex offences on the offender’s record, would be considered an index cluster and all four rape offences would count as the index, not just the last one. In a slight variation of this, consider what would happen if the offender were caught and charged in August for just one of the offences (perhaps the one from March). Maybe the offender was convicted. Perhaps the following year he was subsequently caught and convicted for the January and July offences, and then the year after that he was convicted for the May offence. In this example, they would still all count as one cluster, even though there are separate convictions in three different years, because the offender never reoffended after being caught for the first time.
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Pseudo-Recidivism
Pseudo-recidivism occurs when an offender who has been involved in the criminal justice system is charged with old offences for which they have never before been charged. This occurs most commonly with sex offenders when public notoriety or media publicity surrounding their trial or release leads other victims of past offences to come forward and lay new charges. Because the offender has not been charged or consequenced for these misbehaviours previously, they have not been officially detected and then chosen to reoffend. For Example: Mr. Jones was convicted in 2012 of three sexual assaults of children. These sexual assaults took place in the 1990’s. As a result of the publicity surrounding Mr. Jones’ possible release in 2015, two more victims, now adults, come forward and new charges were laid in 2015. These offences also took place in the 1990’s but these victims did not come forward until 2015. Because Mr. Jones had never been detected for these offences, they were not on his record when he was convicted in 2012. Offences for which the offender has never been detected that come to light once the offender is in the judicial process are considered pseudo-recidivism and are counted as part of the index cluster. Historical charges of this nature are not counted as priors. In this case, both the 2012 convictions and 2015 charges form part of the index cluster, even though they are several years apart. The basic concept in order to disentangle clusters or sentencing occasions is that the offender has to be officially detected for previous misbehaviours and then “choose” to ignore that sanction and reoffend anyway. If he chooses to reoffend after being officially detected then he creates a new offence and this offence is considered part of the record, usually a new index offence. If historical offences come to light, for which the offender has never been detected, once the offender is in the system for another sex offence, these offences “come forward” and join the index offence to form an index cluster. Further complications in historical cases (when a series of offences occur in between the index behaviour and the detection for the index) are described on page 41, under the section of “Prior Offences.”
Post-Index Offences
Offences where the behaviour occurs after the sentencing date for the index offence are considered post- index offences and do not count for Static-99R purposes. Post-index sex offences create a new index offence (and would prompt a re-scoring of the scale). Post-index violent or non-violent offences should be considered “external” risk factors and would be included separately in any report about the offender’s behaviour. Technical violations after conviction for an index sex offence are also not considered anywhere in Static-99R scoring.
Static-99R is intended to summarize the offender’s risk of sexual recidivism on the day of their first opportunity to reoffend after the index offence (e.g., release from prison for the index sex offence, conviction date if they received a non-custodial sentence, or date of charge if there was no conviction). No matter how much time has passed since then, the score still summarizes what their risk was like on that day. Events occurring after that point in time may be relevant for risk management and supervision, but they would be considered as separate from the Static-99R assessment.
If an offender commits an offence before the sentencing date for the index offence, but the conviction occurs after the index offence sentencing date (or even after the offender’s release), it can still count for scoring purposes. This may mean that a Static-99R score will be updated after an offender’s release from the index offence if there is a new conviction for misbehaviour that occurred before the index sentencing date but was detected after the index sentencing date.
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When the index sex offence does not result in a sentencing date (e.g., the index offence resulted in a charge but not a conviction), then the latest date of processing for the charge (e.g., the day the charges were dismissed) is treated as equivalent to the sentencing date for the purposes of defining post-index offences. For Example, Post-Index Sex Offences: Consider a case where an offender commits a sex offence, is apprehended, charged, and released on bail. You are assigned to evaluate this offender but before you can complete your evaluation he commits another sex offence, is apprehended, and charged. Because the offender was apprehended, charged, and released this does not qualify as a crime “spree.” He chose to reoffend in spite of knowing that he was under legal sanction. These new charges and possible eventual convictions would be considered a separate crime. In a situation of this nature the new charges would create a new sex offence and become the new index offence. If these charges happened to be the last sex offences on the offender’s record – the most recent charges would become the index and the charge on which he was first released on bail would become a “prior sex offence.” For Example, Post-Index Violent Offences: Consider a case where an offender in prison on a sex offence commits and is convicted of a serious violent offence. This violent offence would not be scored on either Item #3 (Index Non-Sexual Violence convictions) or Item #4 (Prior Non-Sexual Violence convictions) but would be referred to separately, as an “external risk factor,” outside the context of the Static-99R assessment, in any subsequent report on the offender.
For Example, NOT a Post-Index Offence: Consider a case where an offender is released on bail for the index sex offence, commits an assault, and then is later convicted for the index sex offence. One year later, the offender is convicted for the assault. This would NOT count as a post-index offence because the behaviour occurred before the index sentencing date. In an alternate situation, however, if the offender was not convicted for the index sex offence, then the assault WOULD be a post-index offence, because in the absence of a conviction, behaviour after detection for the index offence would count as a post-index offence.
Prior Offence(s)
An offence (sexual, non-sexual violent, or non-violent) would be counted as a prior offence if the offender committed a new offence after being detected for the offence in question, but prior to the detection for the index sex offence (or the latest index sex offence detection in a cluster). Examples will follow. Generally for something to count as a new offence, the offender must reoffend after detection for a previous offence. If the offender was aware that they were under some form of legal restraint and then goes out and sexually reoffends in spite of this restriction, the new offence(s) would create a new index offence. An example of this could be where an offender is charged with “Sexual Communication with a Person Under the Age of 14 Years” and is then released on his own recognizance with a promise to appear or where they are charged and released on bail. In both of these cases if the offender then committed an “Invitation to Sexual Touching” offence after being charged and released, the “Invitation to Sexual Touching” would become the new index offence and the “Sexual Communication with a Person Under the Age of 14 Years” would automatically become a prior sex offence. In order to count violations of conditional release as priors they must be “real crimes,” something that someone not already engaged in the criminal justice system could be charged with. Technical violations such as being in the presence of minors or drinking prohibitions do not count (see section on “parole, probation, and conditional release violations” on pages 29 to 31).
Identifying prior offences can be particularly tricky when the index offence is historical in nature – in these cases, the offender may accumulate an extensive criminal history after the index sex offence is committed, but before he is detected for it. When handling these cases, always reflect on the underlying
Page 110 of 212 42 rule that an offence will count as a prior if, after being detected for it, the offender commits a new offence (which could be the index sex offence) that is still prior to detection for the index sex offence. Examples are provided in the next section.
Separating Index Clusters and Prior Offences
There are cases where it can be difficult to distinguish index clusters from prior offences, particularly when sexual offending occurs over a period of several years. Keep in mind the general rule that to be a prior offence, the offence and its official detection must have occurred before another offence that is prior to the detection for the index sex offence. Some examples are provided below.
Example No. 1 Joe Smith sexually offends against his daughter between 2010 and 2015 and is charged and sentenced in 2016. He commits a sexual assault against another victim in 2011 and is sentenced in 2011. He commits a non-sexual assault in 2014 and is charged and convicted in 2014. Both the 2011 and 2014 circumstances count as priors (although only the 2011 conviction would be for prior sexual offending) because some of the index sex offence behaviour was committed after he was detected for the previous offences. The offender chose to keep offending after being detected in 2011, and again in 2014.
Example No. 2 John Johnson sexually offends against his daughter between 2010 and 2014 and is charged and sentenced in 2016. He commits a sexual assault against another victim in 2011 and is charged in 2011. He commits a non-sexual assault in 2015 and is charged and sentenced in 2015. The 2011 charge is a prior sex offence because he continued the index sexual behaviour after being sanctioned for the 2011 offence. The non- sexual assault becomes part of an index cluster because even though he was charged and sentenced for the assault before being detected for the index sex offence, the assault occurred after the index sex offence was committed. So the offender did not choose to commit the index sex offence after being detected for the non-sexual assault. So the non-sexual assault would be part of the index cluster.
Example No. 3 Richard Jones sexually offends between 1986 and 1989. He commits a sex offence in 1998 and is sentenced in 1999. He commits a sex offence in 2012. Due to publicity for this offence, his victims from the 1980s come forward and he is convicted and sentenced for the 2012 offence as well as the historical offences from the 1980s. In this example, the offences from the 1980s are part of the index cluster. The sex offence in 1998 is a prior. Even though it occurred after the historical offences, it still occurred and was detected before the 2012 sex offence that formed part of the index cluster.
Example No. 4 James Smith sexually offends between 1986 and 1989. He commits a sex offence in 2002 and is sentenced in 2005. In 2012 he is charged for the offences in the 1980s. Even though the two sentencing dates are almost a decade apart, they are considered an index cluster because the offences for which the offender was sentenced in 2012 were not committed after the offender was detected in 2005.
The following examples will highlight additional scenarios that can occur with a purely historical index sex offence. Given that they are subtle variations of similar circumstances, they will be presented as a list of events ordered chronologically (the time gaps between each event could be days, months, or years – it does not matter). In complex cases, we have found that stripping the offence history to the essential dates facilitates the coding of prior and index offences.
Example No. 5 Index sex offence behaviour
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Non-sexual offence behaviour Non-sexual offence detection/conviction Index sex offence detection/conviction
In this example, there are no prior offences, because the offender has never reoffended after detection for a previous offence. These offences would all be part of an index cluster. If the non-sexual offence were violent, it would count as index non-sexual violence in Item 3.
Example No. 6 Index sex offence behaviour Non-sexual offence 1 behaviour Non-sexual offence 1 detection/conviction Non-sexual offence 2 behaviour Non-sexual offence 2 detection/conviction Index sex offence detection/conviction
In this example, the first non-sexual offence counts as a prior because after detection, the offender reoffended prior to detection for the index offence (and if it were a violent offence, it would count as prior non-sexual violence in Item 4). The second non-sexual offence does not meet the definition of a prior offence because the offender did not reoffend after detection and, consequently, it is clustered with the index offence (and if it were a violent offence, it would be counted as index non-sexual violence in Item 3).
Example No. 7 Index sex offence behaviour Non-sexual offence 1 behaviour Non-sexual offence 1 detection/conviction Non-sexual offence 2 behaviour Index sex offence detection/conviction & non-sexual offence 2 detection/conviction (at the same time)
Similar to Example 6, the first non-sexual offence counts as a prior because after detection, the offender reoffended prior to detection for the index offence (and if it were a violent offence, it would count as prior non-sexual violence in Item 4). The second non-sexual offence is still clustered with the index offence (like in Example 6) because the offender has not chosen to reoffend after the second non-sexual violent offence.
Example No. 8 Index sex offence behaviour Non-sexual offence 1 behaviour Non-sexual offence 1 detection/conviction Non-sexual offence 2 behaviour Index sex offence detection/conviction Non-sexual offence 2 detection/conviction (at the same time)
Similar to Example 6, the first non-sexual offence counts as a prior. The second non-sexual offence is part of the index because the behaviour occurred prior to detection for the index offence. To count this as a post-index offence, the behaviour would have had to occur after the sentencing date for the index offence.
Example No. 9 Non-sexual offence 1 behaviour Non-sexual offence 1 detection/conviction
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Index sex offence behaviour Non-sexual offence 2 behaviour Index sex offence detection/conviction Non-sexual violence 2 detection/conviction
Similar to Example 6, the first non-sexual offence counts as a prior. The second non-sexual offence is part of the index because the behaviour occurred prior to the sentencing date for the index sex offence even though the detection and conviction didn’t occur until after the detection/conviction for the index sex offence. If this was a violent offence it would count as index non-sexual violence.
Example No. 10 Non-sexual offence 1 behaviour Non-sexual offence 1 detection/conviction Index sex offence behaviour Index sex offence detection/conviction Non-sexual offence 2 behaviour Non-sexual violence 2 detection/conviction
In this example the first non-sexual offence counts as a prior. The second non-sexual offence is considered post-index because the behaviour occurred both after the behaviour and detection/conviction for the index sex offence.
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Scoring the 10 Items
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Item # 1 – Age at Release from Index Sex Offence
The Basic Principle: The rates of almost all crimes decrease as people age (Hirschi & Gottfredson, 1983; Sampson & Laub, 2003). Sexual offending does not appear to be an exception. Most studies have found that older sex offenders are lower risk to reoffend than younger sex offenders (Barbaree & Blanchard, 2008; Hanson, 2002; Helmus, Thornton, et al., 2012). Research has found that the original Static-99 did not fully account for age at release and that a new age weighting improved the predictive accuracy (Helmus, Thornton, et al., 2012). With the new age weighting (used in this item), age at release from the index sex offence no longer significantly contributed to the prediction of sexual recidivism after controlling for Static-99R scores (in other words, the new age item fully accounted for age at release). Similar results were found in subgroups of rapists and child molesters. Information Required to Score this Item: To complete this item the evaluator has to confirm the offender’s birth date (from the official records if possible) or have other knowledge of the offender’s age through collateral report or offender self-report. The evaluator would benefit from access to an official criminal record as compiled by police, court, or correctional authorities that identifies the date of release from the index sex offence.
The Basic Rule: Score 1 to -3 points depending on the age of the offender when they are released from their index sex offence referencing the table below:
Aged 18 to 34.9 1 Aged 35 to 39.9 0 Aged 40 to 59.9 -1 Aged 60 or older -3
Static-99R is not intended for those who are less than 18 years old at the time of first release from the index sex offence (see “Static-99R with Adolescents who have Sexually Offended,” page 14 for discussion of the limited circumstances in which Static-99R can be applied for offenders who committed the index sex offence as a juvenile). Under certain conditions, such as anticipated release from custody or presentence reports, the evaluator may be interested in an estimate of the offender’s risk at some specific time in the future. Static-99R may be scored months or years before the offender’s release to the community and the offender may advance an age scoring category by the time he is released. For assessing risk in the future, consider what his age will be on the date of release from the index sex offence. In this case, you calculate risk based upon age at anticipated exposure to risk.
Sometimes the release date may be uncertain, for example, if he is eligible for parole but may not qualify for release due to an inadequate release plan. In these cases it may be appropriate to use some form of conditional wording indicating how his risk assessment would change with a delayed release date.
In any situation where the offender has not yet been released from the index sex offence and their first possible release date is uncertain (e.g., pre-sentence assessments, in-custody assessments, civil commitment proceedings), the evaluator has several options available in scoring this item: 1) The item can be scored based on the offender’s current age, with conditional wording included in the report to note how the risk results would change if the offender were released later. 2) The item can be scored based on a first likely release date, with conditional wording in the report noting how the risk results would change if the release date were to change.
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3) The item can be scored multiple ways, reflecting a range of possible release dates (e.g., the earliest and latest release dates), with conditional wording included in the report to explain how the risk score would change based on this range. Whichever option is chosen should be clearly explained in the risk assessment report.
Note that in some cases, the index sex offence identified for Static-99R scoring purposes may not be the same as the offender’s current offence. For example, sometimes an offender is serving a sentence for a non-sexual offence but they are assessed as a sex offender due to a prior sex offence. Because this item is scored using age at release from the index sex offence rather than age of release from the current offence, the offender may now be significantly older than when they were released from their index sex offence. For example, an offender may be released from custody on their index sex offence at age 35 and they may be released at age 55 from a current prison term after committing a non-sexual offence. In these cases where an offender has committed subsequent non-sexual offences and is now much older, the effect of aging on sexual recidivism (as well as their continued criminality after the index sex offence) will need to be considered outside Static-99R. For Static-99R assessment purposes, however, the scale will describe the offender’s risk when he was released at age 35.
For offenders who are released from their index sex offence and are placed on conditional release for several years, they may incur one or more conditional release revocations. The age used would be the age at release after the index sex offence and not the age at release from the revocation.
For offenders with an index cluster consisting of multiple release dates, this item should be scored based on the initial release date from the latest sex offence in the cluster.
There are limited circumstances where it is possible to make a judgement call that although an offender was “released” from the index sex offence, they were returned to custody for a technical violation so quickly that the case is more comparable to someone who has been continually incarcerated with no release at all, and you could score their age based on their current anticipated age of re-release. This type of decision is a deviation from the general coding rules and should only be made in extreme circumstances. Specifically, to consider making this judgement, all of the following conditions must apply: the offender was in the community for a short period of time after the initial release from the index offence (no more than 6 months), he was returned to custody for a technical violation (not any behaviour that would be considered a new offence, sexual or non-sexual), and since the revocation, the offender has been in custody for 10 or more years without any kind of release. These situations are most applicable to offenders who are released to the community but are quickly revoked for technical violations and civilly committed. If this decision is made, the evaluator should clearly explain why they did not count the initial release.
For purposes of offenders subject to civil commitment in the United States, an offender may be found to meet the criteria as a Sexually Violent Person/Sexually Dangerous Person and not released to the community when their prison term expires. They may be sent directly to the SVP/SDP treatment center where they may be detained for lengthy periods of time. Evaluators conducting evaluations while the offender is detained or committed as an SVP/SDP should use the current age of the offender if the last prison term was for a sex offence. This is because the offender has still not been released to the community since their index sex offence. If the last prison term was for a non-sexual offence then the evaluator should use age at release from the index sex offence.
For offenders who are released from their index sex offence and remain in the community for more than two years without a new sex offence please refer to the section on “Time Offence Free in the Community after Release from Index Sex Offence” (page 13).
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What does “release” mean?
“Release” refers to when the offender is “free” (in the community) after the index sex offence is processed and therefore has an opportunity to reoffend. It may refer to release from court, jail, prison, psychiatric hospital, or the like. Offenders are considered in the community if they are on parole, probation, or other types of community supervision. If they do not receive a custodial sentence for their index offence, the release date would be the date of conviction. If the index sex offence was a charge that did not result in a conviction, date of release is the day the charges were dropped/dismissed.
An offender is still considered “released” to the community if they are: -on parole -on probation -on supervised or conditional release (see below for exceptional circumstances where community supervision may not count as release) -under GPS (Global Positioning System) monitoring -while on bail -while under court order to return to court on a certain date (e.g., released under their own recognizance) -while living in a psychiatric facility or chemical dependency program on a voluntary basis (i.e., for treatment)
An offender is not considered released if they are: -Living in an institution but with work release (e.g., daytime release to work) -While on escape or elopement status no matter where the offender is living -While living in a treatment facility on an involuntary basis (i.e., based on a court determination of relevant dangerousness and/or in lieu of further criminal proceedings and/or to obtain a postponement of legal proceedings concerning one or more criminal charges) -While living in the community under severe restrictions such that the opportunities to offend would be similar to those in institutional settings (e.g., house arrest, some forms of community supervision, group home with 24-hour staff supervision)
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Item # 2 – Ever Lived with an Intimate Partner – 2 Years
The Basic Principle: Research suggests that having a prolonged intimate connection to someone may be a protective factor against sexual reoffending. See Hanson and Bussière (1998), Table 1 – Items “Single (never married) and Married (currently).” On the whole, we know that the relative risk to sexually reoffend is lower in men who have been able to form and maintain intimate partnerships.
Information Required to Score this Item: To complete this item it is highly desirable that the evaluator confirm the offender’s relationship history through collateral sources or official records.
The Basic Rule: If the offender has never had an intimate adult relationship of two years’ duration you score the offender a “1” on this item. If the offender has had an intimate adult relationship of two years’ duration you score the offender a “0” on this item. This is scored based on relationship history prior to release from the index offence. Live-in relationships lasting longer than two years occurring after the offender is released from the index offence should not be used to score this item; rather, they should be considered outside of Static-99R.
The intent of this item is to reflect whether the offender has the personality/psychological resources as an adult to establish a relatively stable “marriage-like” relationship with another person. It does not matter whether the intimate relationship was/is homosexual or heterosexual or polyamorous. The gender identification/expression of both partners is also not considered in this item.
Missing Information This is the only item that may be omitted on Static-99R. If no information is available this item should be scored a “0” (zero) – as if the offender has lived with an intimate partner for two years. To complete this item the evaluator should make an attempt to confirm the offender’s relationship history through collateral sources and official records. In the absence of these sources self-report information may be utilized assuming, of course, that the self-report seems credible and reasonable to the evaluator. There may be certain cases (immigrants, refugees from third world countries) where it is not possible to access collaterals or official records. Where the evaluator, based upon the Balance of Probabilities (see page 19 for definition), is convinced this person has lived with an intimate partner for two years the evaluator may score this item a “0”. It is greatly preferred that you confirm the existence of this relationship through collateral contacts or official records. This should certainly be done if the assessment is being carried out in an adversarial context where the offender would have a real motive to pretend to a non-existent relationship.
Considerations in Scoring In cases where confirmation of relationship history is not possible or feasible the evaluator may choose to score this item both ways and report the difference in results in their final report.
If a person has been incarcerated most of their life, is not allowed to establish an intimate relationship (e.g., priests), or is still quite young and has not had the opportunity to establish an intimate relationship of two years’ duration, they are still scored as never having lived with an intimate partner for two years. They score a “1.” There are two reasons for this. The first being, this was the way this item was scored in the original samples and to change this definition now would distance the resulting norms and recidivism estimates from those validated on Static-99R. Secondly, having been part of, or experienced, a sustained relationship may well be a protective factor for sexual offending. As a result, the reason why this protective factor is absent is immaterial to the issue of risk itself.
Offenders may have less traditional living arrangements such as homelessness. In this case, homelessness would not count as living with an intimate partner. Additionally, roommates who had sex a few times but
Page 118 of 212 50 did not consider themselves in a relationship would not be counted. Long-distance relationships also do not count, regardless of the duration (see section on extended absences below for possible exceptions).
Non-traditional relationships such as polyamory can count, as long as the offender lived with one of their partners for two or more years while they considered themselves in a romantic/intimate relationship, regardless of other people that were also involved in that relationship.
You can count live-in relationships with an intimate partner even if they are living with one of the partner's parents, or if one person in the relationship is a sex worker.
The offender is given a point for this item if he has never lived with an adult lover (male or female) for at least two years. An adult is an individual who is over the age of consent to marriage. The period of co- habitation must be continuous with the same person. If the co-habitation started with a partner who was not an adult but continued into adulthood, this can still be counted if the co-habitation continued for at least two years after both parties reached the age of consent to marry, and the offender did not sexually offend against this partner until at least two years after they reached age of consent to marry (to determine whether allegedly consensual sexual activity was a sex offence, see page 76). Cases where the offender has lived over two years with a child victim in a “lover” relationship do not count as living with an intimate partner and the offender would be scored a “1” on this item. Illegal relationships (incestuous relationship with his mother) and live-in relationships with “once child” victims do not count as “living together” for the purposes of this item and once again the offender would score a “1” on this item. A “once child” victim is the situation where the offender sexually abused a child but that victim is either still living, as an adult, in an intimate relationship with the offender or who has lived, as an adult, in an intimate relationship with the offender.
Generally, relationships with adult sex offence victims do not count. However, if the offender and the victim had two years of an intimate, co-habitating relationship before the sex offences occurred then this relationship would count and the offender would score a “0” on this item. However, if the sexual abuse started before the offender and the victim had been living together in an intimate relationship for two years then the relationship would not count regardless of its length.
If the offender sexually offended against their partner’s children, the relationship can still count if the offender lived with the partner for at least two years (regardless of the sexual abuse of the partner’s children).
Exclusions Legal marriages involving less than two years of co-habitation do not count (see section below on extended absences for possible exceptions) Prison lovers do not count Prison marriages (of any duration) where the offender is incarcerated during the term of the relationship do not count Illegal relationships, such as when the offender has had an incestuous relationship with his mother do not count Intimate relationships with non-human species do not count Relationships with sex offence victims do not count (see above for exception) Priests and others who for whatever reason have chosen, as a lifestyle, not to marry/co-habitate are still scored as having never lived with an intimate partner
Extended Absences
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In some jurisdictions it is common for an offender to be away from the marital/family home for extended periods. The offender is generally working on oilrigs, fishing boats, bush camps, military assignment, or other venues of this nature. Although the risk assessment instrument requires the intimate co-habitation to be continuous, there is room for discretion. If the offender has an identifiable “home” that he/she shares with a lover and the intimate relationship is longer than two years, the evaluator should look at the nature and consistency of the relationship. The evaluator should attempt to determine, in spite of these prolonged absences, whether this relationship looks like an honest attempt at a long-term committed relationship and not just a relationship of convenience. If this relationship looks like an honest attempt at a long-term committed relationship then the evaluator would score the offender a “0” on this item as this would be seen as an intimate relationship of greater than two years’ duration. If the evaluator thinks that the relationship is a relationship of convenience (and note that this is the only circumstance where you would consider the quality of the relationship or the offender’s motive for the relationship), the offender would score a “1.” If the living together relationship is of long duration (three plus years) then the periods of absence can be fairly substantial (four months in a logging camp/oil rig, or six months or more on military assignment).
Note that these guidelines for extended absences generally refer to situations where the absence is necessary for employment or possibly other reasons (e.g., taking care of a parent who is ill). Absences due to incarceration do not apply under this section. Short periods of incarceration (1 month or less) can be tolerated (i.e., would not nullify the relationship for scoring purposes) if the cumulative live-in relationship (when the offender is not in jail) is over two years. Absences of 32 days or more would be considered breaks in the relationship that restart the clock.
Sexless Relationships/Quality of Relationship With minor exceptions (described above for extended absences or where the offender has sexually offended against his partner), the quality of the relationship, including the presence of verbal, emotional, and physical violence is not part of scoring this item. It is the presence or absence of the two year live-in relationship that should be the primary factor in scoring. To score a ‘0’ (zero) on this item the individuals must have engaged in sexual activity at least once during their live-in relationship.
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Item # 3 – Index Non-Sexual Violence (NSV) – Any Convictions
The Basic Principle: A meta-analytic review of the literature indicates that having a history of violence is a predictive factor for future violence. See Hanson and Bussière (1998), Table 2 – Item “Prior Violent Offences.” The presence of non-sexual violence predicts the seriousness of damage were a reoffence to occur and is strongly indicative of whether overt violence will occur (Hanson & Bussière, 1998). This item was included in Static-99R because in the original samples it demonstrated a small positive relationship with sexual recidivism (Hanson & Thornton, unpublished data). In English data, convictions for non-sexual violence were specifically predictive of rape (forced sexual penetration) rather than all kinds of sex offences (Thornton & Travers, 1991). More recently, an updated meta-analysis of the Static-99R items found that this item was a significant predictor of recidivism in some analyses, but not in others (Helmus & Thornton, 2015). Moderator analyses found that the item significantly predicted sexual recidivism in samples from North America, but not in studies outside North America. Consequently, when using Static-99R outside North America, this item may not be a strong predictor and caution in assessments may be warranted. Information Required to Score this Item: To score this item the evaluator must have access to an official criminal record as compiled by police, court, or correctional authorities. Self-report of criminal convictions may not be used to score this item except in specific rare situations, please see sub-section “Self-report and Static-99R” in the Introduction section (pages 8-9). The Basic Rule: If the offender’s criminal record shows a conviction for a non-sexual violent offence that is part of the index sex offence (or index cluster), you score the offender a “1” on this item. If the offender’s criminal record does not show a conviction for a non-sexual violent offence with the index offence cluster, you score the offender a “0” on this item (see pages 38 to 44 for multiple examples on separating index, prior, and post-index offences). This item refers to convictions for non-sexual violence that are dealt with on the same sentencing occasion as the index sex offence or that clusters with the index sex offence (for more information on identifying clusters, see pages 38 to 42). Typically, a separate non-sexual violence conviction in that sentencing occasion (or cluster) is required to score this item (although following the examples below, there are some situations where a single conviction may stand as both the sex offence and the non-sexual violence conviction). These convictions can involve the same victim as the index sex offence or they can involve a different victim. All non-sexual violence convictions are included, providing they were dealt with on the same sentencing occasion as the index sex offence(s), or they form part of the index cluster. Further examples are provided below. Non-sexual violence offences committed after the index offence cluster should be considered risk factors external to the measure (see section on post-index offences on page 40-41).
In other words, to score this item, an evaluator should identify all non-sexual violent convictions where the behaviour was committed prior to detection for the last component of the index sex offence. These non-sexual violent convictions can then be classified as either “index” non-sexual violence or “prior” non-sexual violence. If the offender was detected for the index sex offence after detection/sanction for the non-sexual violence, then the non-sexual violence would be counted as a “prior.” If not, it would be counted as part of the index. Both adult and juvenile convictions count in this section.
Anything that counts as a conviction or sentencing date (defined on pages 28 to 37) would count on this item.
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Included are: Abduction Aggravated assault Arson Assault Assault causing bodily harm Assault peace/police officer Attempted abduction Attempted child stealing Attempted robbery Attempted assault cause bodily Injury Any ‘attempt’ at a violent offence would count Battery Car jacking Child abuse Compelling the commission of an offence Criminal harassment Cruelty to animals/Animal neglect Extortion False imprisonment Felonious assault Forcible confinement Give noxious substance (alcohol, narcotics, or other stupefacient in order to impair a victim) Grand theft person (“Grand theft person” is a variation on Robbery and may be counted as non-sexual violence) Home invasion Juvenile non-sexual violence convictions count on this item Kidnapping Manslaughter Murder “PINS” Petition (Person in need of supervision) There have been cases where a juvenile has been removed from his home by judicial action under a “PINS” petition due to violent actions. This would count as a conviction for non-sexual violence (if the evaluator is convinced based on Clear and Convincing Evidence that this removal was directly due to the criminal behaviour). Robbery Threatening/Menacing Stalking (non-sexual) Using/Pointing a Weapon/Firearm in the commission of an offence (but NOT possessing a weapon or unsafe storage of weapons) Violation of a domestic violence order (Restraining Order) (a conviction for) Wounding
Note: If the conviction was Battery, Assault, Forcible Confinement, Kidnapping, or Murder and the evaluator knew that there was a sexual component, this would count as a sex offence and as a non-sexual violence offence. This means that non-sexual violent offences are non-sexual in the offence name, but may have been sexual in the behaviour (note that this is different than Static-2002R coding rules, where the behaviour must also be non-sexual).
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Unlike sex offences (which are classified as “sexual” based on the motivation), this item (and the following item) requires that the name of the conviction must refer to a violent offence – it is not judged on the offender’s motivation or the particular circumstances of the offending.
When determining if a conviction not listed above should be counted as non-sexual violence, review the relevant legal definition of the offence name. If the definition includes a mandatory component involving some sort of intentional force, touching, threats, and/or the behaviour directly and intentionally leads to concern for one’s safety (except in the cases of dangerous driving or negligence), then count as violent. Note that intention is important in the legal definition of the conviction. An offence may cause the victim to fear for their safety, but to count the offence as violent, the legal definition of the offence must require that the offender’s behaviour intentionally caused fear for safety. For example, if an offender breaks into a house not knowing that the victim was home and startles the victim, there was no intent to cause fear for safety.
Excluded are: Arrest/charges (and their equivalents) do not count Convictions overturned on appeal do not count Non-sexual violence that occurs after the index offence cluster does not count Institutional rules violations cannot count as non-sexual violence convictions Do not count impaired driving, driving accidents, or convictions for negligence causing death or injury.
Non-Sexual Violence As Part of the Index Cluster Index non-sexual violence requires a conviction for non-sexual violence as part of the index cluster. To be part of the index cluster, the non-sexual violence must be detected at the same time as the index sex offences are detected, or if detected at different times, there must be no new offending behaviour between detection for the index sex offence and detection for the non-sexual violence offences. For something to count as two separate convictions (and therefore not both part of the index cluster) the offender must be detected (i.e., charged or equivalent) for one behaviour (e.g., index sex offence) and then choose to reoffend with non-sexual violence (considered post-index offending). In the opposite case the offender must have been detected for the non-sexually violent behaviour (considered prior non-sexual violence) and then choose to reoffend sexually after the sanction for the non-sexual violence (some exceptions to this in the case of prior offences are described on pages 41 to 44).
Example 1: The sexual offending behaviour occurred between 2010 and 2015, and the offender was charged and convicted in 2016. The assault occurred in 2011, and the offender was charged and convicted in 2011. Another assault occurred in 2014, and the offender was charged and convicted in 2014.
In this case both the 2011 and 2014 assaults would be prior non-sexual violence occasions and would not count as index non-sexual violence. The reason they are not considered part of the index (even though the index sexual behaviour started first) is because the offender continued committing the index sex offence behaviour AFTER being detected for both assaults. The offender was sanctioned for non-sexual violence and chose to reoffend sexually, so the assaults are considered separate sentencing dates prior to the index sex offence.
Example 2: The sexual offending behaviour occurred between 2010 and 2014, and the offender was charged and convicted in 2016. The assault occurred in 2011, and the offender was charged and convicted in 2011 Another assault occurred in 2013, and the offender was charged and convicted in 2015.
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The 2011 conviction is prior non-sexual violence because the index sex offence behaviour continued after the sanction for assault (i.e., the offender chose to reoffend sexually). The 2013 assault is index non- sexual violence because there was no new offending between 2014 and 2015, and the second assault behaviour occurred after the 2011 conviction. The offender did not choose to reoffend sexually after the 2015 sanction for assault, therefore this assault conviction becomes part of the index sex offence.
Example 3: The sexual offending behaviour occurred between 2005 and 2009, and the offender was charged and convicted in 2010. The assault occurred in 2006, and the offender was charged and convicted in 2006. Another assault occurred in 2012, and the offender was charged and convicted in 2012.
The 2006 conviction is prior non-sexual violence, and the 2012 assault is considered a post-index offence and should be considered as a risk factor external to Static-99R.
In cases where the evaluator does not have specific information regarding the dates the sexual and non- sexually violent offensive behaviour occurred, the evaluator should default to the chronological charge/conviction dates included in the official criminal history.
An index non-sexual violence conviction may be counted when the associated index sex offence is a charge.
Weapons offences Weapons offences do not count unless the weapon was used in the commission of a violent or a sex offence. For example, an offender might be charged with a sex offence and then in a search of the offender’s home the police discover a loaded firearm. As a result, the offender is convicted, in addition to the sex offence, of unsafe weapons storage. This would not count as a conviction for non-sexual violence as the weapons were not used in the commission of a violent or sex offence. A conviction for possession of a firearm or possession of a firearm without a licence or improper storage of a firearm would generally not count as a non-sexual violent offence. A conviction for pointing a firearm would generally count as non-sexual violence as long as the weapon was used to threaten or gain victim compliance. Intent to harm or menace the victim with the weapon must be present in order to score a point on this item. Similarly, if an offender was carrying a weapon while committing an offence, it would only count as a violent offence if the offender revealed or mentioned the weapon to threaten or gain victim compliance.
Resisting arrest “Resisting Arrest” does not count as non-sexual violence. In Canadian law this charge could apply to individuals who run from an officer or who hold onto a lamppost to delay arrest. If an offender fights back he will generally be charged with “Assault a Peace/Police Officer” which would count as non-sexual violence.
Convictions that are coded as only “sexual” Sexual Assault, Sexual Assault with a Weapon, Aggravated Sexual Assault, and Sexual Assault Causing Bodily Harm are not coded separately as non-sexual violence – these convictions are simply coded as sexual Assault with Intent to Commit Rape (U.S. Charge) – A conviction under this charge is scored as only a sex offence – Do not code as non-sexual violence. Convictions for “Sexual Battery” (U.S. Charge) – A conviction under this charge is scored as only a sex offence – Do not code as non-sexual violence.
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Situations considered both a sex offence and a non-sexual violence offence An offender may initially be charged with one count of sexual assault of a child but plea-bargains this down to one Forcible Confinement and one Physical Assault of a Child. In this instance, both offences would be considered sex offences (they could be used as an index offence or could be used as priors if appropriate) as well; a risk point would be given for non-sexual violence (index or prior as appropriate).
If you have an individual convicted of Kidnapping/Forcible Confinement (or a similar offence) and it is known, based on the Balance of Probabilities, this was a sex offence - this offence may count as the index sex offence or you may score this conviction as a sex offence under prior sex offences, whichever is appropriate given the circumstances. These convictions would also count as non-sexual violence. For Example
Criminal Record for Joe Smith
Date Charge Conviction Sentence July 2000 Forcible Confinement Forcible Confinement 20 Months incarceration and 3 years probation
If the evaluator knows that the behaviour was sexual this conviction for Forcible Confinement would count as one sex offence (either for “priors” or an “index”) and one non-sexual violence (either “prior” or “index”)
However, were you to see the following:
Criminal Record for Joe Smith
Date Charge Conviction Sentence July 2000 1) Forcible Confinement 1) Forcible Confinement 20 Months incarceration and 3 years probation 2) Sexual Assault 2) Sexual Assault
If the evaluator knows that the Forcible Confinement was directed toward the victim of the sex offence it counts; if it is against an incidental or accidental victim then it does not count as a sex offence (see section on identifying victims) even if the behaviour is instrumental to the sex offence being carried out. For example, forcible confinement of the victim while committing the sex offence would count as two sex offences (either for “priors” or an “index”) and one non-sexual violence (either “prior” or “index”). In contrast, forcible confinement of the victim’s boyfriend in another room would count only as non- sexual violence (the Sexual Assault would still count as a sex offence).
Military If an “undesirable discharge” is given to a member of the military as the direct result of a violent offence (striking an officer, or the like) this would count as a non-sexual violence conviction and as a sentencing date (Item #6). However, if the member left the military when he normally would have and the “undesirable discharge” is equivalent to a bad job reference, this offence would not count as non-sexual violence or as a sentencing date.
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Murder – With a sexual component A sexual murderer who only gets convicted of murder would get one risk point for non-sexual violence, but this murder would also count as a sex offence.
Revocation of conditional release for “Lifers,” Dangerous Offenders, and others with indeterminate sentences If a “lifer,” Dangerous Offender, or other offender with an already imposed indeterminate sentence is simply revoked (returned to prison from conditional release in the community without trial) for a sexual behaviour that would generally attract a sexual charge if the offender were not already under sanction and at the same time this same offender committed a violent act sufficient that it would generally attract a separate criminal charge for a violent offence, this offender can be scored for index non-sexual violence when the accompanying sexual behaviour stands as the index offence. Note: the evaluator should be sure that were this offender not already under sanction that it is highly likely that both a sex offence charge and a violent offence charge would be laid by police, and the violence charge would likely result in conviction.
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Item # 4 – Prior Non-Sexual Violence – Any Convictions
The Basic Principle: A meta-analytic review of the literature indicates that having a history of violence is a predictive factor for future violence. See Hanson and Bussière (1998), Table 2 – Item “Prior Violent Offences.” The presence of non-sexual violence predicts the seriousness of damage were a reoffence to occur and is strongly indicative of whether overt violence will occur (Hanson & Bussière, 1998). Additionally, Andrews and Bonta (2010) found that having a criminal history is one of the “Big Four” predictors of future criminal behaviour. In English data, convictions for prior non-sexual violence were specifically predictive of rape (forced sexual penetration) rather than all kinds of sex offences (Thornton & Travers, 1991). In some English datasets this item has also been predictive of reconviction for any sex offence. Analyses of additional datasets confirm the relationship between prior non-sexual violence and sexual recidivism (Helmus & Thornton, 2015). Information Required to Score this Item: To score this item the evaluator must have access to an official criminal record as compiled by police, court, or correctional authorities. Self-report of criminal convictions may not be used to score this item except in specific rare situations, please see sub-section “Self-report and Static-99R” in the Introduction section (pages 8 to 9). The Basic Rule: If the offender’s criminal record shows a separate conviction for a non-sexual violent offence prior to detection for the index offence, you score the offender a “1” on this item. If the offender’s criminal record does not show a separate conviction for a non-sexual violent offence prior to detection for the index offence, you score the offender a “0” on this item. This item refers to convictions for non-sexual violence that are dealt with on a sentencing occasion that pre-dates and is separate from the index sex offence sentencing occasion/cluster (specifically, prior to detection for the index sex offence). A separate non-sexual violence conviction is required to score this item. These convictions can involve the same victim as the index sex offence or they can involve a different victim, but the offender must have been detected for this non-sexual violent offence before detection for the index offence. All non-sexual violence convictions are included, providing they were detected for the offence prior to the index sex offence.
In other words, to score this item, an evaluator should identify all non-sexual violent convictions where the behaviour was committed prior to the detection for the last component of the index sex offence. These non-sexual violent convictions can then be classified as either “index” non-sexual violence or “prior” non-sexual violence. If the offender was detected for the index sex offence after detection/sanction for the non-sexual violence, then the non-sexual violence would be counted as a “prior” (with some exceptions for prior offences; see pages 41 to 44). If not, it would be counted as part of the index. Both adult and juvenile convictions count in this section.
Anything that counts as a conviction or sentencing date (defined on pages 28 to 37) would count on this item. See also pages 38 to 44 for examples of separating the index offence from prior sentencing dates. Included are: Abduction Aggravated Assault Arson Assault Assault Causing Bodily Harm
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Assault Peace/Police Officer Attempted Assault Cause Bodily Injury Attempted Abduction Attempted child stealing Attempted Robbery Any ‘attempt’ at a violent offence would count Battery Car Jacking Child Abuse Compelling the commission of an offence Criminal Harassment Cruelty to Animals Extortion False Imprisonment Felonious Assault Forcible Confinement Give Noxious Substance (alcohol. narcotics, or other stupefacient in order to impair a victim) Grand Theft Person (“Grand Theft Person” is a variation on Robbery and may be counted as Non-sexual violence) Home Invasion Juvenile Non-sexual Violence convictions count on this item Kidnapping Murder “PINS” Petition (Person in need of supervision). There have been cases where a juvenile has been removed from his home by judicial action under a “PINS” petition due to violent actions. This would count as a conviction for Non-sexual violence (if the evaluator is convinced based on Clear and Convincing Evidence that this removal was directly due to the criminal behaviour). Robbery Threatening/Menacing Stalking (non-sexual) Using/Pointing a Weapon/Firearm in the Commission of an Offence (but NOT possessing a weapon or unsafe storage of weapons) Violation of a Domestic Violence Order (Restraining Order) (a conviction for) Wounding
Note: If the conviction was Battery, Assault, Forcible Confinement, Kidnapping, or Murder and the evaluator knew that there was a sexual component, this would count as a sex offence and as a non-sexual violence offence. This means that non-sexual violent offences are non-sexual in the offence name, but may have been sexual in the behaviour (note that this is different than Static-2002R coding rules, where the behaviour must also be non-sexual).
Unlike sex offences (which are classified as “sexual” based on the motivation), this item (and the following item) requires that the name of the conviction must refer to a violent offence – it is not judged on the offender’s motivation or the particular circumstances of the offending.
When determining if a conviction not listed above should be counted as non-sexual violence, review the relevant legal definition of the offence name. If the definition includes a mandatory component involving some sort of intentional force, touching, threats, and/or the behaviour directly and intentionally leads to concern for one’s safety (except in the cases of dangerous driving or negligence), then count as violent.
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Note that intention is important in the legal definition of the conviction. An offence may cause the victim to fear for their safety, but to count the offence as violent, the legal definition of the offence must require that the offender’s behaviour intentionally caused fear for safety. For example, if an offender breaks into a house not knowing that the victim was home and startles the victim, there was no intent to cause fear for safety.
Excluded are: Arrest/charges (and their equivalents) do not count Convictions overturned on appeal do not count Non-sexual violence that occurs after the index offence cluster does not count Institutional rules violations cannot count as non-sexual violence convictions Do not count impaired driving, driving accidents, or convictions for Negligence causing Death or Injury.
Weapons offences Weapons offences do not count unless the weapon was used in the commission of a violent or a sex offence. For example, an offender might be charged with an offence and then in a search of the offender’s home the police discover a loaded firearm. As a result, the offender is convicted, in addition to the original offence, of unsafe weapons storage. This would not count as a conviction for non-sexual violence as the weapons were not used in the commission of a violent or sex offence. A conviction for possession of a firearm or possession of a firearm without a licence or improper storage of a firearm would generally not count as a non-sexual violent offence. A conviction for pointing a firearm would generally count as non-sexual violence as long as the weapon was used to threaten or gain victim compliance. Intent to harm or menace the victim with the weapon must be present in order to score a point on this item. Similarly, if an offender was carrying a weapon while committing an offence, it would only count as a violent offence if the offender revealed or mentioned the weapon to threaten or gain victim compliance.
Resisting arrest “Resisting Arrest” does not count as non-sexual violence. In Canadian law this charge could apply to individuals who run from an officer or who hold onto a lamppost to delay arrest. If an offender fights back he will generally be charged with “Assault a peace/Police officer” which would count as non-sexual violence.
Convictions that are coded as only “sexual” Sexual Assault, Sexual Assault with a Weapon, Aggravated Sexual Assault, and Sexual Assault causing Bodily Harm are not coded separately as non-sexual violence – these convictions are simply coded as sexual Assault with Intent to Commit Rape (U.S. Charge) – A conviction under this charge is scored as only a sex offence – Do not code as non-sexual violence. Convictions for “Sexual Battery” (U.S. Charge) – A conviction under this charge is scored as only a sex offence – Do not code as non-sexual violence.
Situations considered both a sex offence and a non-sexual violence offence An offender may initially be charged with one count of Sexual Assault of a Child but plea-bargains this down to one Forcible Confinement and one Physical Assault of a Child. In this instance, both offences would be considered sex offences (they could be used as an index offence or could be used as priors if appropriate) as well; a risk point would be given for non-sexual violence (index or prior as appropriate).
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If you have an individual convicted of Kidnapping/Forcible Confinement (or a similar offence) and it is known, based on the Balance of Probabilities, this was a sex offence - this offence may count as the index sex offence or you may score this conviction as a sex offence under prior sex offences, whichever is appropriate given the circumstances. These convictions would also count as non-sexual violence.
For Example
Criminal Record for Joe Smith
Date Charge Conviction Sentence July 2000 Forcible Confinement Forcible Confinement 20 Months incarceration and 3 years probation
If the evaluator knows that the behaviour was sexual this conviction for Forcible Confinement would count as one sex offence (either for “priors” or an “Iindex”) and one Non-Sexual Violence (either “prior” or “index”)
However, were you to see the following:
Criminal Record for Joe Smith
Date Charge Conviction Sentence July 2000 1) Forcible Confinement 1) Forcible Confinement 20 Months incarceration and 3 years probation 2) Sexual Assault 2) Sexual Assault
If the evaluator knows that the Forcible Confinement was directed toward the victim of the sex offence it counts; if it is against an incidental or accidental victim then it does not count (see section on identifying victims) even if the behaviour is instrumental to the sex offence being carried out. For example, forcible confinement of the victim while committing the sex offence would count as two sex offences (either for “priors” or an “index”) and one Non-Sexual Violence (either “prior” or “index”). In contrast, forcible confinement of the victim’s boyfriend in another room would count only as non-sexual violence (the Sexual Assault would still count as a sex offence).
Military If an “undesirable discharge” is given to a member of the military as the direct result of a violent offence (striking an officer, or the like) this would count as a non-sexual violence conviction and as a sentencing date (Item #6). However, if the member left the military when he normally would have and the “undesirable discharge” is equivalent to a bad job reference, this offence would not count as non-sexual violence or as a sentencing date.
Murder – with a sexual component A sexual murderer who only gets convicted of murder would get one risk point for non-sexual violence, but this murder would also count as a sex offence.
Revocation of conditional release for “Lifers”, Dangerous Offenders, and others with indeterminate sentences If a “lifer”, Dangerous Offender, or other offender with an already imposed indeterminate sentence has been revoked (returned to prison from conditional release in the community without trial) for a non- sexual violent offence that happened prior to the index sex offence (or index cluster) this revocation can
Page 130 of 212 62 stand as a conviction for non-sexual violence if that non-sexually violent act were sufficient that it would generally attract a separate criminal charge for a violent offence. Note: the evaluator should be sure that were this offender not already under sanction that it is highly likely that a violent offence charge would be laid by police, and the violence charge would likely result in conviction.
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Item # 5 – Prior Sex Offences
The Basic Principle: This item and the others that relate to criminal history and the measurement of persistence of criminal activity are based on a firm foundation in the behavioural literature. As long ago as 1911, Thorndyke stated that the “the best predictor of future behaviour, is past behaviour.” Andrews and Bonta (2010) found that having a criminal history is one of the “Big Four” predictors of future criminal behaviour. Specific to sex offenders, a meta-analytic review of the literature indicates that having prior sex offences is a predictive factor for sexual recidivism. See Hanson and Bussière (1998), Table 1 – Item “Prior Sex Offences.” Information Required to Score this Item: To score this item you must have access to an official criminal record as compiled by police, court, or correctional authorities. Self-report of criminal convictions may not be used to score this item except in specific rare situations, please see sub-section “Self-report and Static-99R” in the Introduction section. The Basic Rule: This is one of only two items in Static-99R that is not scored on a simple “0” or “1” dichotomy (the other is the age item). From the offender’s official criminal record, charges and convictions for prior sex offences are summed separately. Charges that are not proceeded with or which do not result in a conviction are counted for this item. Convictions are counted as both a charge and a conviction. If the record you are reviewing only shows convictions, this item may be scored on the basis of the convictions only. Charges and convictions are summed separately and these totals are then transferred to the chart below. Note: For this item, arrests for a sex offence are counted as “charges.”
Prior Sex Offences
Charges Convictions Final Item Score None None 0 1-2 1 1 3-5 2-3 2 6+ 4 3
Whichever column, charges or convictions, gives the offender the higher final score is the column that determines the final score. Examples are given later in this section. See pages 28 to 37 for more information about what counts as a charge versus a conviction and under what circumstances (e.g., institutional rule violations, parole/probation/conditional release violations).
Do not count the Index Sex Offence The index sex offence charge(s) and conviction(s) are not counted, even when there are multiple offences and/or victims involved, and the offences occurred over a long period of time. See pages 38 to 44 for more information and examples on separating index and prior offences. Count all sex offences prior to the Index Sex Offence All pre-index sexual charges and convictions are coded, even when they involve the same victim, or multiple counts of the same offence. For example, three charges for sexual assault involving the same victim would count as three separate charges. Remember, “counts count” for this item. If an offender is
Page 132 of 212 64 charged with six counts of Invitation to Sexual Touching and is convicted of two counts you would score a “6” under charges and a “2” under convictions. Convictions do not take priority over charges (although this item can be scored on the basis of convictions where information on charges is not available). Each conviction is also counted as a charge. Generally when an offender is arrested, they are initially charged with one or more criminal charges. However, these charges may change as the offender progresses through the criminal justice system. Occasionally, charges are dropped for a variety of legal reasons or “pled down” to obtain a final plea bargain.
In some cases a number of charges are laid by the police and as the court date approaches these charges are “pled-down” to fewer charges. When calculating charges and convictions you count the number of charges that go to court. Arrest sheets may include more charges than the prosecutor feels comfortable proceeding with in court. Use the charges that are still in place at the time the trial begins or just prior to the plea bargain.
In other cases the police may charge an offender with a serious sex offence (Aggravated Sexual Assault) and the prosecutor decides to pursue two (or more) lesser charges (Assault). Once again, you count the charges that go to court and in a case like this the offender would score as having more charges than were originally laid by the police. In the event that no charges go to court (i.e., they are dismissed before getting to initial court processing), you count one charge. Do not include proceedings in which the only authority of the court was to determine whether charges go forward (e.g., Just Cause Hearings or arraignments) – you would count the final charges that went forward (or if no charges went forward, you would count one charge). When scoring this item, counting charges and convictions, it is important to use an official criminal record. One incident can result in several charges or convictions. For example, an offender perpetrates a rape where he penetrates the victim once digitally and once with his penis while holding her in a room against her will. This may result in two convictions for Sexual Battery (Sexual Assault or equivalent) and one conviction of False Imprisonment (Forcible Confinement or equivalent). So long as it is known that the False Imprisonment was part of the sex offence, the offender would be scored as having three (3) sexual charges, three (3) sexual convictions, and an additional risk point for a conviction of non-sexual violence [the False Imprisonment] (Either “index” {Item #3} or “prior” {Item #4} as appropriate).
Note, however, that not all charges and convictions that are part of the sentencing occasion for a sex offence will count as sexual. To count them as sexual, they should be part of the sexual motivation of the offence, or clearly part of the commission of the sex offence. For example, an offender is convicted of Breaking and Entering, Theft, and Rape, and the offence was that he broke into a house, stole some items, and also sexually assaulted the resident. In this example, the Breaking and Entering and Theft were not part of the sex offence and would not be counted as sex offence charges or convictions. If the offender was also convicted of Forcible Confinement for keeping the victim in the house to facilitate the sexual assault, the Forcible Confinement would be counted as a sex offence charge and conviction. If, however, he locked the victim’s boyfriend in the bathroom while he committed the sex offence, the Forcible Confinement would not be counted as sexual. If there is evidence that a sex offence charge has been pled down to solely a non-sexual charge/conviction then it can count as a sex offence charge and conviction. For example if there is evidence the intent of the Break and Enter was to steal panties but this was pled down only to a Break and Enter conviction, then the Break and Enter is counted as a sexual charge and conviction.
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For additional information in scoring this item, please review earlier sections defining sex offences (pages 20 to 28), index offences/clusters (pages 38 to 44), and what counts as a charge versus a conviction/sentencing date (pages 28 to 37).
The following is an example of counting charges and convictions.
Criminal History for John Jack
Date Charges Convictions Sanction July 1996 Lewd and Lascivious with Child (X3) Lewd and Lascivious with Child (X3) 3 Years Sodomy Sodomy (dismissed) Oral Copulation Oral Copulation (dismissed) Burglary Burglary (dismissed) May 2001 Sexual Assault on a Child
To determine the number of prior sex offences you first exclude the index offence. In the above case, the May 2001 charge of Sexual Assault on a Child is the index offence. After excluding the May 2001 charge, you sum all remaining sex offence charges. In this case you would sum, {Lewd and Lascivious with Child (X3), Sodomy (X1), and Oral Copulation (X1)} for a total of five (5) previous sex offence charges. You then sum the number of prior sex offence convictions. In this case, there are three convictions for Lewd and Lascivious with Child. These two sums are then moved to the scoring chart shown below. The offender has five prior charges and three prior convictions for sex offences. Looking at the chart below, the evaluator reads across the chart that indicates a final score for this item of two (2).
Prior Sex Offences
Charges Convictions Final Score None None 0 1-2 1 1 3-5 2-3 2 6+ 4 3
Charges and convictions are counted separately – the column that gives the higher final score is the column that scores the item. It is possible to have six (6+) or more charges for a sex offence and no convictions. Were this to happen, the offender’s final score would be a three (3) for this item.
Any disposition that results in a sentencing date is considered equivalent to a conviction. Please see pages 28 to 37 for further definitions of what counts as charges versus convictions.
Arrests count In some instances, the offender has been arrested for a sex offence, questioning takes place but no formal charges are filed. If the offender is arrested for a sex offence and no formal charges are filed, a “1” is coded under charges, and a “0” is coded under convictions. If the offender is arrested and one or more formal charges are filed, the total number of charges is coded, even when no conviction ensues. If an offender is questioned about a sex offence but is not arrested, then this would not count as a charge.
Coding “crime sprees” Occasionally, an evaluator may have to score Static-99R on an offender who has been caught at the end of a long line of offences. For example, over a 20-day period an offender breaks into five homes, each of
Page 134 of 212 66 which is the home of an elderly female living alone. One he rapes, one he attempts to rape but she gets away, and three more get away, one with a physical struggle (he grabs her wrists, tells her to shut up). The offender is subsequently charged with Sexual Assault, Attempted Sexual Assault, Break and Enter with Intent (X2), and an Assault. The question is, do all the charges count as sex offences, or just the two charges that are clearly sexual? Or, does the evaluator score the two sex charges as sex charges and the assault charges as non-sexual violence? Note as well that all of these would have to be prior to the index sex offence to count for this item. In cases such as this, code all five offences as sex offences - based upon the following thinking: 1) From the evidence presented this appears to be a "focused" crime spree – We assume the evaluator has little doubt what would have happened had the women not escaped or fought back. 2) Our opinion of "focus" is reinforced by the exclusive nature of the victim group, "elderly females." This offender appears to want something specific, and, the very short time span - 20 days – leads us to believe that the offender was feeling some sexual or psychological pressure to offend. 3) An attempted contact sex offence is scored as a contact sex offence for the purposes of Static-99R. Charges such as Attempted Sexual Assault (Rape) and Invitation to Sexual Touching are coded as contact sex offences due to their intention. See Item #7 for more information on contact versus non- contact sex offences. 4) We recommend that if the evaluator, based on “the Balance of Probabilities" (not "Beyond a Reasonable Doubt") - is convinced that offences were sexually motivated, then these actions can be counted as sex offences. 5) Please also read sub-section “Similar Fact Crimes” (page 27) in the “Definitions” section.
Note that the Assault would also count as a non-sexual violent offence (in addition to a sex offence).
Counting probation, parole and conditional release violations If an offender violates probation, parole, or conditional release with a sexual misbehaviour, these violations are counted as charges and may or may not count as convictions (see explanation on pages 29 to 31 for more detail on when they can count as a sex offence).
Post-index offences Offences that occur after the index sentencing occasion do not count for Static-99R purposes. Post-index sex offences create a new index offence (and would prompt a re-scoring of the scale). Post-index violent and non-violent offences should be considered “external” risk factors and would be included separately in any report about the offender’s behaviour. Technical violations after conviction for an index sex offence are also not considered anywhere in Static-99R scoring. For more information on post-index offences, see pages 40 to 41.
Static-99R is intended to summarize the offender’s risk of sexual reoffence on the day of their first opportunity to reoffend after the index offence (e.g., release from prison for the index sex offence, conviction date if they received a non-custodial sentence, or date of charge if there was no conviction). No matter how much time has passed since then, the score still summarizes what their risk was like on that day. Events occurring after that point in time may be relevant for risk management and supervision, but they would be considered as separate from Static-99R assessment.
Also note that the offender’s risk on the day of release from the index sex offence (which is measured by Static-99R) is not necessarily the same as their risk upon first opportunity to reoffend after committing the index sex offence. In the case of historical offenders, they may have been in the community for decades after committing the index offence before they were detected for it. Static-99R, however, specifically speaks to their risk on the day they are released from the sanction (or charge) associated with the index
Page 135 of 212 67 sex offence. Although historical offenders were included in the development and validation datasets for Static-99R, if the offender was in the community offence-free for decades after committing the index sex offence but before being detected for it, that may be something to discuss in a report, external to the Static-99R score. For example, post-index sex offences: Consider a case where an offender commits a sex offence, is apprehended, charged, and released on bail. You are assigned to evaluate this offender but before you can complete your evaluation he commits another sex offence, is apprehended and charged. Because the offender was apprehended, charged, and released this does not qualify as a crime “spree.” He chose to reoffend in spite of knowing that he was under legal sanction. These new charges and possible eventual convictions would be considered separate crimes. In a situation of this nature the new charges would create a new sex offence and become the new index offence. If these charges happened to be the last sex offences on the offender’s record – the most recent charges would become the index and the charge on which he was first released on bail would become a “prior” sex offence. For example, post-index violent offences: Consider a case where an offender in prison on a sex offence commits and is convicted of a serious violent offence. This violent offence would not be scored on either Item #3 (Index Non-Sexual Violence convictions) or Item #4 (Prior Non-Sexual Violence convictions) but would be referred to separately, outside the context of Static-99R assessment, in any subsequent report on the offender.
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Item # 6 Prior Sentencing Dates
The Basic Principle: This item and the others that relate to criminal history and the measurement of persistence of criminal activity are based on a firm foundation in the behavioural literature. As long ago as 1911 Thorndyke stated that the “the best predictor of future behaviour, is past behaviour.” Andrews & Bonta (2010) found that having a criminal history is one of the “Big Four” predictors of future criminal behaviour. Prior Sentencing Dates is a convenient method of coding the length of the criminal record. Information Required to Score this Item: To score this item you must have access to an official criminal record as compiled by police, court, or correctional authorities. Self-report of criminal convictions may not be used to score this item except in specific rare situations, please see sub-section on Self-report and Static-99R in the Introduction section. The Basic Rule: If the offender’s criminal record indicates four or more separate sentencing dates prior to the latest detection for at least part of the index sex offence, the offender is scored a “1” on this item. If the offender’s criminal record indicates three or fewer separate sentencing dates prior to the index offence, the offender scores a “0” on this item. Count the number of distinct occasions on which the offender was sanctioned for criminal offences. The number of charges/convictions does not matter, only the number of sentencing dates. Court appearances that resulted in complete acquittal are not counted, nor are convictions overturned over on appeal. The index sentencing date or most recent sentencing date is not included when counting up the sentencing dates.
Multiple convictions that cluster together into a single sentencing occasion (see pages 38 to 44 for further examples of clusters and disentangling priors) are counted as one sentencing date, even if they span multiple dates. To count a conviction (or its equivalent) as a distinct, prior sentencing date, the offender has to commit a new offence after being detected for the previous offence. For additional information on identifying prior offences, see pages 41 to 44. If the offender is on some form of conditional release (parole/probation/bail etc.) purely “technical” violations do not count as new sentencing dates. For example, if an offender had a condition prohibiting drinking alcohol, a breach for this would not be counted as a new sentencing date. Even if a conditional release violation could potentially be charged as a new crime, unless it extends the offender’s sentence (in jurisdictions that have that option: see section on parole/probation violations on pages 29 to 31), or the individual receives a new sentence it cannot count as a sentencing occasion.
Institutional rule violations do not count as a sentencing date, even when the offence was for behaviour that could have resulted in a legal sanction if the offender had not already been incarcerated. Count: Juvenile offences count (if you know about them – please see section on the use of self-report in the Introduction, pages 8 to 9) Anything that counts as a conviction will count as a sentencing date. See pages 28 to 36 for further examples of what counts as a conviction. Sentencing dates prior to the index sentencing date (it can be tricky to disentangle index from prior offences; see some examples on pages 42 to 22).
Do Not Count: Stayed charges do not count as sentencing dates (but a stayed sentence does count) Institutional disciplinary actions/reports do not count as sentencing dates
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Arrests and charges do not count as sentencing dates The offences must be of a minimum level of seriousness. The offences need not result in a serious sanction (the offender could have been fined), but the offence must be serious enough to permit a sentence of community supervision or custody/incarceration (as a juvenile or adult). Driving offences generally do not count, unless they are associated with serious penalties, such as driving while intoxicated, dangerous driving, or reckless driving causing death or injury. Generally, most offences that would be recorded on an official criminal history would count – but the statute, as written in the jurisdiction where the offence took place, must allow for the imposition of a custodial sentence or a period of community supervision (adult or juvenile). Only truly trivial offences are excluded; those where it is impossible to get a period of incarceration or community supervision. Offences that can only result in fines do not count. Graduated penalty offences, however, do count (e.g., where it is not possible to receive community supervision or custody on the first offence, but it is possible on subsequent offences). Sentences for historical offences received while the offender is incarcerated for a more recent offence (pseudo-recidivism) are not counted. For two offences to be considered separate sentencing dates, the second offence must have been committed after the offender was detected for the first offence.
Post-index offences Post-index offences are not counted as sentencing dates for Static-99R.
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Item # 7 - Any Convictions for Non-Contact Sex Offences
The Basic Principle: This item was intended as a behavioural indicator of illegal paraphilic interests such as exhibitionism, voyeurism, pedophilia, and some forms of fetishism (e.g., stealing underwear). Offenders with illegal paraphilic interests are at increased risk for sexual recidivism (Hanson & Bussière, 1998). As well, convictions for non-contact sex offences have been consistently related to increased sexual recidivism risk (Helmus & Thornton, 2015). Information Required to Score this Item: To score this item you must have access to an official criminal record as compiled by police or other law enforcement agencies, court, or correctional authorities. Self-report of criminal convictions may not be used to score this item except in specific rare situations, please see sub-section “Self-report and Static-99R”, pages 8 to 9 in the Introduction section. The Basic Rule: If the offender’s criminal record indicates a conviction for a non-contact sex offence, the offender is scored a “1” on this item. If the offender’s criminal record does not show a conviction for a non-contact sex offence, the offender is scored a “0” on this item. This category requires a conviction for a non-contact sex offence such as:
Possessing obscene material (child pornography, including written child pornography and drawings or paintings) Obscene telephone calls Voyeurism Exposure to others Illicit sexual use of the internet for unwanted sexual chat Sexual harassment (unwanted sexual talk) In certain jurisdictions “Criminal Trespass” or “Trespass by Night” may be used as a charge for voyeurism – these would also count Secretive peeping or watching others for sexual purposes (including secret recordings) Breaking into a house and stealing fetish items (women’s or children’s underwear) The conviction for a non-contact sex offence may be an index or prior offence, and it may be the only sex offence, or there may be contact sex offences on the offender’s record as well (in the same or in different sentencing occasions as the non-contact sex offence).
To count an offence in this item, it must meet the general definition of a sex offence (see pages 20 to 28) in addition to meeting the definition of a non-contact offence (see below). Note that if the offender has a Category “A” offence somewhere on their record, then Category “B” offences can be counted for this item (including offences without a sexual motive, such as public urination).
Anything that counts as a conviction or sentencing date would count for this item, if the behaviour was for a non-contact sex offence. See pages 28 to 36 for more examples of what counts as a conviction. The general definition of a non-contact sex offence is the following: Any illegal sexual act where the offender did not physically touch the victim or any physical touching that occurred was incidental to the offending, and either of the following:
1) The victim is actively coerced into nothing beyond perceiving (i.e., seeing, listening to) sexually offensive materials (e.g., seeing the offender masturbate, listening to an obscene phone call, viewing pornographic email attachments).
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OR
2) No attempt was made by the offender to make the victim aware of being victimized at the time. This latter category includes actions such as possession of child pornography and most voyeuristic behaviours including both live “peeping” and/or surreptitiously recording individuals in settings where privacy would normally be expected (e.g., audiotaping women urinating in public restrooms, hiding cameras in toilets).
By this rule, compelling the commission of a sex offence counts as a contact offence, even if there is no physical contact between the offender and the victim. Similarly, restraining and forcing a boyfriend to watch his girlfriend being sexually assaulted represents a contact sex offence because the boyfriend is being physically restrained or positioned in some way. Sending the boyfriend a videotape of his girlfriend being sexually assaulted represents a non-contact sex offence. Blackmailing a teenager to undress or masturbate represents a contact offence, whether or not the offender was present at the time, because the victim is coerced into participating in a sexual activity (not just perceiving it) and the offender deliberately made the victim aware of the victimization.
Note that the current definition is not identical to the definition described in the previous Harris et al. (2003) scoring manual. The reason for the change is to address inconsistencies in the previous scoring rules, particularly relevant to internet offences, which were rare when the original coding rules were developed. These types of offences require a more nuanced scoring rather than considering all internet sex offenders as one homogenous group. The results will generally mean lower scores for some internet offenders, which is consistent with their generally lower risk. This new definition also allows greater consistency and flexibility when applied to novel offences.
In cases where it is a judgement call the evaluator should consider that non-contact offences are often repetitive and more reflective of paraphilic interests and not reflective of behaviours designed to result in normative sexual contact (e.g., mutual genital sex.)
The definition of “non-contact” is based on the behaviour. For example, an offender convicted of “trespassing” for peeping would get the risk point. When the offence details are unknown, it is possible to score this item based on the names of the offences (e.g., Exhibitionism). When the offence details are unknown and the offence name does not exclusively restrict its scope to non- contact sex offences, the offender would receive a score of “1” if the offence name is usually used for non-contact sex offences (e.g., Gross Indecency was commonly used for exhibitionism in Ontario during the 1980s). In the case of "Criminal Trespass" or "Trespass by Night," the offence may be related to either voyeurism or break and enter. In these ambiguous circumstances, consider the nature of the case. For example, if the offender has numerous break and enter convictions (which were not sexually motivated) and denies a sexual motivation in the trespassing, you would likely not count it on the grounds that a non-sexual motive is highly plausible. However, if the offender has a lengthy sexual offending record or has a history of or interest in voyeurism, the trespass can be presumed sexual based on a Balance of Probabilities.
The offender must be convicted for a non-contact sex offence for it to count. Institutional rule violations, charges, and arrests do not count, nor do self-reported offences. The index offence(s) may include a conviction for a non-contact sex offence and this conviction can count as a non-contact sex offence.
If the offender is convicted in the same sentencing occasion of a contact sex offence such as lewd and lascivious behaviour with a child and a non-contact sex offence such as using an underage person for obscene matters, then the item is scored 1 since the offender committed a non-contact offence. Another example may occur if, during an investigation of child molestation, police seize the offender’s computer and find images of child pornography downloaded from the internet. The offender is subsequently
Page 140 of 212 72 convicted of Sexual Interference (the Canadian term for a sex offence involving a victim under 16 years old) and Possession of Child Pornography. A non-contact sexual conviction would be coded here for the pornography.
If the offender engages in both contact and non-contact offending (e.g., he exposes himself to the victim and then sexually assaults her) but is only convicted of the contact sex offence (e.g., Sexual Assault) he does not get a point for non-contact sex offences. There must be a separate conviction for the non-contact sexual behaviour. A common example of this is where an offender is investigated for child molestation and police discover child pornography on the offender’s computer, but the offender is only convicted for the child molestation (not for Possession of Child Pornography).
Attempted contact offences Sex offences in which the offender intended to make contact with the victim (but did not succeed) would be considered attempted contact offences and are coded as contact offences because of their intention (e.g., invitation to sexual touching, attempted rape).
Internet crimes None of the Static-99R samples had enough internet-only offenders to provide for meaningful analysis. As a result, determining how to score internet crimes on Static-99R requires interpretation beyond the available data.
Internet crimes can be roughly divided into two distinct groups because they seem to include elements of either contact or non-contact offences. For example, some offenders engage in sexual chat with minors on the internet without attempts to lure the minor into meeting them. We consider communicating with children over the internet for sexual purposes to be an inappropriate and socially harmful act in itself and, therefore, classify these acts with their historical precursors, such as indecent/obscene telephone calls, in the category of non-contact sex offences.
If the offender manipulates the victim into engaging in sexual acts (sending nude or partially nude pictures/videos; engaging in sexual activity either on camera or while in verbal contact with the offender) then it crosses into a contact/attempted contact offence (because the victim is being coerced into more than perceiving the offence). Judgements should be based on the intent of the offender and not the victim’s engagement. Clear and Convincing Evidence (for definition, see page 19) that the offender’s motivation was to manipulate the victim into doing more than just listening or talking, but engaging in a physical sexual event through threats, coercion, or in the case of children under the age of 16 years, manipulation should be considered a contact/attempted contact offence. The evidence needs to go beyond simply a request that is rebuffed. For example, an offender who requests the victim send a nude picture but is rebuffed and does not pursue it further would be considered non-contact. If the offender threatens to find and rape the victim or uses coercion such as offering payment or threatening to spread rumours or tell friends and family about their sexual conversations if they do not comply with sending the nude picture/masturbating, etc., this would cross over to attempted contact.
Other internet offenders will engage in sexual chat with minor victims and attempt to meet them for the purpose of engaging in illegal sexual activities. If the offender attempts to meet the victim then we consider that internet offence to be more similar to contact offences like rape and child molestation and should be scored as a contact/attempted contact offence. If the offender suggests a meeting but makes no attempts to follow through and attend a meeting, it should be coded as non-contact (the presumption being that the meeting is more of a fantasy, rather than something the offender is trying to accomplish).
Keeping in mind the general rules distinguishing contact and non-contact offences, viewing child pornography online is considered non-contact. However, paying to view a child being abused live, paying
Page 141 of 212 73 to have specific child pornography created, or directing a child to engage in sexual behaviour or another adult to sexually engage with a child during a live chat counts as a contact offence even though the offender is not physically present when the child is abused.
Written instructions to a child victim directing sexual activity would be considered non-contact unless the offender uses manipulation (e.g., threats) to engage the victim in sexual acts, at which point it crosses over into contact/attempted contact. Judgements should be based on the intent of the offender and not the victim’s engagement. Clear and Convincing Evidence that the offender’s motivation was to manipulate the victim into doing more than just reading the sexually explicit material, but engaging in a physical sexual event through threats, coercion, or, in the case of children under the age of 16 years, manipulation should be considered a contact/attempted contact offence.
Written instructions to another adult about how to sexually abuse a child would also be considered non- contact if the intent was limited to sharing of sexually explicit instructions with another adult. If this instruction was intended to result in another adult sexually abusing the victim it crosses over into a contact/attempted contact offence.
If you do not have this detail of information then assume the most common offence associated with the name of the offence (e.g., manufacturing child pornography is contact, possession of child pornography is non-contact).
Individuals whose only sexual convictions involve possessing/distributing child pornography and have no Category “A” offences are not scored on Static-99R. Internet child pornography offences are only counted when the offender also has at least one Category “A” offence involving an identifiable victim (see pages 21 to 25). Note, however, that it is possible to score Static-99R for sex offenders whose only sex offences are non-contact, as long as at least one of the non-contact offences are Category “A” offences, such as exhibitionism or voyeurism.
Pimping and prostitution related offences Pimping and other prostitution related offences (soliciting a prostitute, promoting prostitution, soliciting for the purposes of prostitution) do not count as non-contact convictions, even when the offender has a Category “A” sex offence on record.
Plea bargains Contact (or attempted contact) sexual behaviour that was pled down to a non-contact charge does not count as a non-contact sex offence conviction. Situations such as this may appear in the criminal record where charges for a contact offence are dropped and the non-contact charges appear simultaneously with a guilty plea. In this case the offence would not be a conviction for a non-contact sex offence because the behaviour indicated contact, but would still count as a conviction for the purposes of identifying the index or prior sex offences.
Revocation of conditional release for “Lifers”, Dangerous Offenders, and others with indeterminate sentences If a “lifer,” Dangerous Offender, or other offender with an already imposed indeterminate sentence is simply revoked (returned to prison from conditional release in the community without trial) for a non- contact sex offence that is of sufficient gravity that a person not already involved with the criminal justice system would most likely be charged with a non-contact sex offence, this revocation of conditional release would count as a conviction for a non-contact sex offence. The evaluator should be confident that were this offender not already under sanction that it is highly likely that a non-contact sex offence charge would be laid by police and a conviction would be likely.
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Items #8, #9, & # 10 – The Three Victim Questions
The following three items concern victim characteristics: Unrelated Victims, Stranger Victims, and Male Victims. For these three items the scoring is based on all available credible information, including self- report, victim accounts, and collateral contacts. The items concerning victim characteristics, however, only apply to sex offences in which the victims were children or non-consenting adults (Category “A” sex offences). Do not score victim information from non-sex offences or from sex offences related to prostitution/pandering, possession of child pornography, public sex with consenting adults, or other Category “B” sex offences. There is one exception to this rule: if the offence is for not disclosing HIV- positive status (a Category “B” sex offence), the victim of this offence is still counted. Victims of other Category “B” sex offences are not counted. Do not score victim information on sex offences against animals (Bestiality and similar charges). Victim items include all contact offences including sex with dead bodies (but not animals), and some non-contact offences with clear victims such as exposure to others, voyeurism, and Breaking and Entering with a sexual intent (e.g., stealing underwear).
The evaluator does not need to know the personal identity of the victim or victims. The offence must have a clear target (child or adult) even if the personal identity of that person is unknown to the evaluator or even the offender. For example, an offender who surreptitiously takes photographs underneath women's skirts (i.e., "upskirt" photos or videos) has identifiable victims (the women whose privacy he has violated) even if the personal identity of those women is never ascertained.
For internet offences, the victim is identified as whoever the offender believes he is in contact with (e.g., a female child), even if the person on the receiving end of the communication is actually an adult police officer.
In addition to all of the “everyday” sex offences (Sexual Assault, Rape, Invitation to Sexual Touching, Buggery (Sodomy), you also score victim information on the following charges: Illegal use of a minor in nudity-oriented material/performance Importuning (Soliciting for immoral purposes) Indecent exposure (When a specific victim has been identified) Sexually harassing telephone calls Voyeurism (When a specific victim has been identified)
You do not score Victim Information on the following charges: Compelling acceptance of objectionable material Deception to obtain matter harmful to juveniles Disseminating/Displaying matter harmful to juveniles Offences against animals Pandering obscenity Pandering obscenity involving a minor Pandering sexually-oriented material involving a minor Prostitution related offences
“Accidental victims” Occasionally there are “Accidental Victims” to a sex offence. An example of this occurred when an offender was raping a woman in her living room. The noise awoke the victim’s four-year-old son. The son wandered into the living room and observed the rape in progress. The victim instructed her son to return to his bedroom and he complied at once. The perpetrator was subsequently charged and convicted of “Lewd and lascivious act with a minor” in addition to the rape. In court the offender pleaded guilty to
Page 143 of 212 75 both charges. In this case, the four-year-old boy would not count as a victim as there was no intention to commit a sex offence against him. He would not count in any of the three victim items regardless of the conviction in court. A common example of an accidental victim occurs when a person in the course of his/her daily life or profession happens across a sex offence. Examples include police officers, park wardens, janitors, and floor walkers who observe a sex offence in the course of their duties. If a male officer were to observe an exhibitionist exposing himself to a female, the offender would not be given the point for “male victim” as there was no intention to expose before the male officer. The evaluator would not give the offender a point for “male victim” unless the offender specifically chose a male officer to expose himself to. In the same vein, a floor walker or janitor who observes an offender masturbating while looking at a customer in a store would not be counted as a “stranger victim” or an “unrelated victim.” In short, there has to be some intention to offend against that person for that person to be a victim. Merely stumbling upon a crime scene does not make the observer a victim regardless of how repugnant the observer finds the behaviour.
When the offender actively restrains another individual such that the individual is forced to witness a sexual crime, the individual is only counted in the victim items if there is evidence that forcing the individual to witness the sexual crime was sexually motivated. For example, if an offender forces a boyfriend to watch the sexual assault of his girlfriend due to expediency the boyfriend would not be counted as a victim of a sex offence (see item "Any Male Victim" on page 84 for further clarification).
Acquitted, found not guilty, or dismissed charges The criteria for coding victim information is “all credible information.” Please refer to the discussion of Standards of Proof in the Introduction Section (page 19) for more details. Scoring of victim items is guided by: “On a Balance of Probabilities, what is most likely to be true?” If the assessor, “On a Balance of Probabilities” feels that the offence more likely than not took place, the victims may be counted, even in the absence of formal charges. For the assessment, therefore, it may be necessary to review the cases in which the offender was acquitted, found “Not Guilty,” or where charges were not filed, and make an independent determination of whether it is more likely than not that there were actual victims. If, in the evaluator’s opinion, it was more likely that there was no sex offence the evaluator would not count the victim information. In the resulting report the evaluator would generally include a score with the contentious victim information included and a score without this victim information included, showing how it affects the risk assessment both ways. This decision to score acquittals and not guilty in this manner is buttressed by a research study in England that found that men acquitted of rape were more likely to be convicted of sex offences in the follow-up period than men who had been found guilty {with equal times at risk} (Soothill, Way, & Gibbens, 1980).
Child pornography Victims portrayed in child pornography are not scored as victims for the purposes of Static-99R. They do not count as unrelated, stranger, nor male victims. Only real, live, human victims count. If your offender is a child pornography maker and a real live child was used to create pornography by your offender or your offender was present when pornography was created with a real live child, this child should be scored as a victim on Static-99R victim questions. (Note: manipulating pre-existing images to make child pornography [either digitally or photographically] is not sufficient – a real child must be present). Making child pornography with a real child victim counts as a “Category A” offence and, hence, with even a single charge of this nature, Static-99R is appropriate to use. Note, however, that the offender does not need to be present to consider someone as a real child victim. If the offender watches a child being abused live on the internet or pays for specific child pornography to be created with a live child victim,
Page 144 of 212 76 this would be counted. If the child pornography existed on the internet before the offender came across it, the victims would not count, even though a live child was abused at some point in the past. The difference is that this offender has not directly participated in this abuse. The evaluator may, of course, in another section of the report make reference to the apparent preferences demonstrated in the pornography belonging to the offender.
Conviction, but no victim For the purposes of Static-99R, consensual sexual behaviour that is prohibited by statute does not create victims. This is the thinking behind Category “B” offences. Examples of this are prostitution offences and sexual behaviour in public places (Please see “Category “A” and Category “B” offences” in the Introduction section for a further discussion of this issue). Under some circumstances it is possible that in spite of a conviction for a sex offence, the evaluator may conclude that there are no real victims. An example of this could be where a boy (age 16 years) is convicted of Statutory Rape of his 15-year-old boyfriend (assume age of consent in this jurisdiction to be 16 years of age). The younger boy tells the police that the sexual contact was consensual and the police report indicates that outraged parents were the complainants in the case. In a scenario like this, the younger boy would not be scored as a victim, the conviction notwithstanding. Additionally, this behaviour would not be considered a sex offence for scoring purposes (e.g., would not be included in prior sex offences). If this was the offender’s only sex offence, Static-99R should not be used.
The criteria for deciding there was no victim for scoring purposes underlying a conviction for a statutory rape offence are as follows:
(a) The “alleged victim” states the sexual interaction was cooperative and has never claimed otherwise; (b) The offender had no pre-existing power relationship over the “alleged victim” (e.g., swim instructor, therapist); AND (c) If the “victim” was younger than the age of consent and of correspondingly approximately equal cognitive development to the offender and the offender was less than 3 years older than the person. If the “victim” was younger than the age of consent and the offender is obviously of a lesser cognitive developmental capacity, then the age difference between the offender and the victim can be up to 5 years. If there is no information available on the offender’s cognitive development, then the 3-year age difference applies.
Credible information Credible sources of information would include, but are not limited to, police reports, child welfare reports, victim impact statements or discussions with victims, collateral contacts, and offender self-report. If the information is credible (Children’s Protective Association, victim impact statements, police reports) you may use this information to code the three victim questions, even if the offender has never been arrested or charged for those offences. Please refer to the discussion of Standards of Proof in the Introduction Section for more information (page 19). For all information, the evaluator must make a determination of whether they believe, on a Balance of Probabilities that a sex offence occurred, in order to count the victim information.
An example of a collateral source that may be deemed not credible would include an ex-spouse with whom the offender is currently involved in heated divorce proceedings and whose motivation is likely to disparage the offender.
If there is a source of relevant information for which the degree of credibility is not clear, the evaluator’s report should generally include both a score with the contentious victim information included and a score
Page 145 of 212 77 without this victim information included, in this way showing how the information affects the risk assessment both ways.
Exhibitionism/exposing to others In cases of exhibitionism, the three victim items may be scored if there was a targeted victim, and the evaluator is confident that they know whom the offender was trying to exhibit to. If the offender exhibits before a mixed group, males and females, do not score Male Victim unless there is reason to believe that the offender was exhibiting specifically for the males in the group. Assume only female victims unless you have evidence to suggest that the offender was targeting males.
Example: If a man exposed to a school bus of children he had never seen before (both genders), the evaluator would score this offender one risk point for Unrelated Victim, one risk point for Stranger Victim, but would not score a risk point for Male Victim unless there was evidence the offender was specifically targeting the boys on the bus.
In cases where there is no sexual context (i.e., the psychotic street person who takes a shower in the town fountain) there are no victims regardless of how offended they might be or how many people witnessed the event.
Internet victims and intention If an offender provides pornographic material over the internet or engages in sexual discussions, the intent of the communication is important. In reality a policeman may be on the other end of the net in a “sting” operation. If the offender thought he was providing pornography to or engaging in sexual discussions with a child, even though the recipient is a police officer, the victim information is counted as if a child received it. In addition, when offenders attempt, over the internet, to contact face-to-face a “boy or girl” they have contacted over the internet, the victim information counts as the intended victim, even if they only “met” a policeman.
Intention is important. In a case where a child was pretending to be an adult and an adult “shared” pornography with that person in the honest belief that they were (legally) sharing it with another adult there would not be a victim.
Juvenile offences Victims of juvenile offences count for all three victim items.
Missing information The evaluator needs to know the pertinent victim characteristics (gender and relationship to offender) for at least one victim to score these items. If there are additional victims but their characteristics are unknown, the evaluator should always make a note of this missing information when reporting the total score. The evaluator should consider what the score would be with the most probable characteristics of the other victims. In most cases, it is plausible to assume that the characteristics of the other victims are consistent with known victims. In some situations, however, alternate characteristics are plausible. For example, if the known victim is related (e.g., the offender’s daughter) and the offender has a previous sex offence from when he had no children or stepchildren, the victim from this prior offence was probably unrelated. If the probable characteristics of the other victims would result in a different total score, the evaluator should report the total score both ways (with the missing information, as well as with the plausible characteristics of other victims).
Polygraph information Victim information derived solely from polygraph examinations is not used to score Static-99R unless it can be corroborated by outside sources or the offender provides sufficient information to support a new
Page 146 of 212 78 criminal investigation. Please refer to the discussion of polygraph information in the Introduction section for more information (page 18).
Prowl by night - voyeurism For these types of offences the evaluator should score specific identifiable victims. However, assume only female victims unless you have evidence to suggest that the offender was targeting males.
Sex offences against animals While the sexual assault of animals counts as a sex offence, animals do not count as victims. This category is restricted to human victims. It makes no difference whether the animal was a member of the family or whether it was a male animal or a stranger animal.
Sex with dead bodies If an offender has sexual contact with dead bodies, these people do count as victims. The evaluator should score the three victim questions based upon the degree of pre-death relationship between the perpetrator and the victim.
Stayed charges Victim information obtained from stayed charges should be counted.
Victims not at home If an offender breaks into houses (regardless of whether or not the victims are there to witness the offence) to commit a sex offence, such as masturbating on or stealing their undergarments or does some other sex offence – victims of this nature are considered victims for the purposes of Static-99R. Assume only female victims unless you have evidence to suggest that the offender was targeting males.
Do not count all household occupants as victims. Include only individuals who appeared to be the offender’s target victims. Count the offender’s intended victim as opposed to the actual victim. For example, if the offender masturbated with clothing that would presumably belong to a female (such as a thong) but in actual fact it belonged to a man, the victim would still be considered an adult female unless there was evidence indicating that the offender knew the item belonged to a male.
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Item # 8 – Any Unrelated Victims?
The Basic Principle: Research indicates that offenders who offend only against family members recidivate at a lower rate compared to those who have victims outside of their immediate family (Harris & Hanson, 2004; Helmus & Thornton, 2015). Having victims outside the immediate family is empirically related to a corresponding increase in risk. Information Required to Score this Item: To score this item use all available credible information. “Credible Information” is defined in the previous section “Items #8, #9, & #10 -The Three Victim Questions” (pages 74 to 78). The Basic Rule: If the offender has victims of sex offences outside their immediate family, score the offender a “1” on this item. If the offender’s victims of sex offences are all within the immediate family score the offender a “0” on this item. A related victim is one where the relationship is sufficiently close that marriage would normally be prohibited, such as parent, brother, sister, uncle, grandparent, stepbrother, and stepsister. Spouses (married and common-law) are also considered related, provided that they have been in this relationship for at least 2 years before the sexual abuse started. When considering whether step-relations are related or not, consider the nature and the length of the pre-existing relationship between the offender and the victim before the offending started. Step-relationships lasting less than two years would be considered unrelated (e.g., step-cousins, stepchildren). Adult stepchildren would be considered related if they had lived for two years in a child-parent relationship with the offender.
Time and jurisdiction concerns A difficulty in scoring this item is that the law concerning who you can marry is different across jurisdictions and across time periods within jurisdictions. For example, prior to 1998, in Ontario, Canada there were 17 relations a man could not marry, including such oddities as “nephew’s wife” and “wife’s grandmother.” In 1998 the law changed and there are now only five categories of people that you cannot marry in Ontario, Canada: grandparent, parent, child, sibling, and grandchild (full, half, and adopted). Hence, if a man assaulted his niece in 1997 he would not have an unrelated victim, but if he committed the same crime in 1998 he would technically be assaulting an unrelated victim. We doubt very much the change in law would affect the man’s choice of victim and his resulting risk of reoffence. As a result the following rules have been adopted. When considering whether someone is related or not please use the following guidelines (summarized below in a table). The guidelines hold for step-relations or adoptions, if they are more than two years in duration:
For the offender - all first degree relatives; all second degree relatives; third degree relatives within one generation (i.e., plus or minus one generation); fourth degree relatives of the offender's own generation.
For the offender's spouse - all first degree relatives; all second degree relatives; third degree relatives within one generation
For the offender's sibling's spouse - all first degree relatives; second degree relatives of the offender's own generation. All marital-like relationships (e.g., offender's sibling’s spouse) must also meet the two-year rule.
In the table below, underlined and italicized relationships are considered related for scoring purposes.
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1st degree 2nd degree 3rd degree 4th degree great-great generation 4 grandparents great- generation 3 grandparents grandparents great generation 2 uncle/aunt parent/parent's uncle/aunt generation 1 spouse offender sibling first cousin offender's generation child/child's nephew/niece generation 1 spouse grandchild great generation 2 nephew/niece great- generation 3 grandchildren great-great generation 4 grandchildren
1st degree 2nd degree 3rd degree great-grandparent generation 3 grandparents generation 2 parent/parent's spouse uncle/aunt generation 1 offender's sibling offender's spouse generation child/child's spouse nephew/niece generation 1 grandchild generation 2 great-grandchild generation 3
1st degree 2nd degree grandparents generation 2 parents generation 1 offender's sibling offender's generation sibling's spouse child generation 1 grandchild generation 2
Decisions about borderline cases (e.g., those not listed in the table above) should be guided by a consideration of the psychological relationship existing prior to the sexual assault. If an offender has been living with the victim in a family/paternal/fraternal role for two years prior to the onset of abuse, the victim and the offender would be considered related. Additionally, the two-year rule applies for relationships not generally considered related in the above tables. For example, although great- grandchildren are not generally considered related, if the offender and victim lived together for two or more years before the sexual offending started, then the victim would become related.
Blood relation known for less than 2 years
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In some families, the existence of certain family members has been hidden from other family members. If the offender is unaware that a victim is a family member, the victim counts as unrelated. If the offender and victim are blood relations (e.g., brother, half-sister, niece) and the offender is aware of the family relationship, the victim would be considered related for Static-99R scoring purposes, unless the offender sexually offended against this person within 24 hours of first meeting them (in this case, the victim would count as both an unrelated and a stranger victim). Given a blood relationship, it is not necessary that the offender and the victim have lived with each other for two years – just that the offender knew the relationship existed and did not sexually offend against this person within the first 24 hours of meeting them.
Becoming “unrelated” If an offender who was given up for adoption (removed etc.) at birth (e.g., mother and child having no contact since birth or shortly after) and the mother (sister, brother etc.) is a complete stranger that the offender would not recognize (facial recognition) as their family, these biological family members could count as Unrelated Victims. This would only happen if the offender did not know they were offending against a family member.
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Item # 9 - Any Stranger Victims?
The Basic Principle: Research shows that having a stranger victim is related to sexual recidivism. See Hanson and Bussière’s (1998) Table 1 – Item “Victim Stranger (versus acquaintance)” and Helmus and Thornton (2015). Information Required to Score this Item: Use all credible information to score this item. “Credible Information” is defined in the section “Items #8, #9, & #10 - The Three Victim Questions” (pages 74 to 78). The Basic Rule: If the offender has victims of sex offences who were strangers at the time of the offence, score the offender a “1” on this item. If the offender’s victims of sex offences were all known to the offender for at least 24 hours prior to the offence (or vice versa), score the offender a “0” on this item. If the offender has a “stranger” victim, Item #8, “Any Unrelated Victims,” is always scored as well. A victim is considered a stranger if the victim did not know the offender (or vice versa) 24 hours before the offence. Victims contacted over the internet are not normally considered strangers unless the criminal behaviour occurs less than 24 hours after initial communication. For stranger victims, the offender can either not know the victim or it can be the victim not knowing the offender. In the first case, where the offender does not know the victim (the most common case), the offender may choose someone who they are relatively sure will not be able to identify them (or they just do not care) and offends against a stranger. However, there have been examples where the offender “should” have known the victim but just did not recognize them. This occurred in one case where the perpetrator and the victim had gone to school together but the perpetrator did not recognize the victim as someone they knew. In cases like this, the victim would still be a stranger victim as the offender’s intention was to attack a stranger. The criteria for being a stranger are very high. Even a slight degree of knowing is enough for a victim not to be a stranger. If the victim knows the offender at all for more than 24 hours, the victim is not a stranger. For example, if the victim was a convenience store clerk and they recognized the perpetrator as someone who had been in on several occasions to buy beer, the victim would no longer be a stranger victim. If a child victim can say they recognize the offender from around the neighborhood and the perpetrator has said “Hi” to them on occasion, the child is no longer a stranger victim.
The evaluator must determine whether the victim “knew” the offender twenty-four hours (24) before the assault took place. The criteria for “know/knew” is quite low but does involve some level of interaction. They do not need to know each other’s names or addresses. However, simply knowing of someone but never having interacted with them would not be enough for the victim to count as “known.”
In another common example, the offender and the victim may go to school together. If they know of each other (i.e., could recognize and identify names) but have never interacted, they would still be considered strangers. Recall though that the threshold for interaction is low – having said ‘hello’ once (even in primary school) would be enough to make them not strangers.
The reverse case In cases of “stalking” or stalking-like behaviours the offender may know a great deal about the victim and their habits. However, if the victim does not know the offender when they attack, this still qualifies as a stranger victim. The “24 hour” rule also works in reverse – there have been cases where a performer assaulted a fan the first time they met. In this case, the victim (the fan) had “known of” the performer for years, but the
Page 151 of 212 83 performer (the perpetrator) had not known the fan for 24 hours. Hence, in cases such as this, the victim would count as a stranger because the perpetrator had not known the victim for 24 hours prior to the offence.
Internet, e-mail, and telephone Sometimes offenders attempt to access or lure victims over the internet. This is a special case and the threshold for not being a stranger victim is quite low. If the offender and the victim have communicated over the internet (e-mail, skype, message boards) for more than twenty-four (24) hours before the meeting where the criminal behaviour occurred, the victim (child or adult) is not a stranger victim. To be clear, this means that if an offender contacts, for the first time, a victim at 8 p.m. on a Wednesday night, their first face-to-face meeting must start before 8 p.m. on Thursday night. If this meeting starts before 8 p.m., and they remain in direct contact, the sexual assault might not start until midnight – as long as the sexual assault is still within the first face-to-face meeting – this midnight sexual assault would still count as a stranger assault. If they chat back and forth for longer than 24 hours, the victim can no longer be considered a stranger victim for the purposes of scoring Static-99R. It is possible in certain jurisdictions to perpetrate a sex offence over the internet, by telephone or e-mail and never be in physical proximity to the victim. If the offender transmits sexually explicit/objectionable materials over the internet within 24 hours of first contact, this can count as a stranger victim; once again the “24 hour rule” applies. However, if the perpetrator and the victim have been in communication for more than 24 hours prior to the sending of the indecent material or the starting of indecent talk then the victim can no longer be considered a stranger.
When the interaction is based on a totally false identify, it is possible, however, to change from acquaintance to stranger in the face-to-face meeting. For example, the offender interacts with the victim posing as a 16 year old boy but is actually a 45 year old male. From the victim’s perspective, meeting the 45 year old would be equivalent to meeting a stranger. Do not count as strangers individuals who mildly misrepresent themselves as younger, richer, and more good looking than they actually are. Only count individuals as strangers when there is no plausible expectation that their false identify could be maintained in a face-to-face meeting.
Becoming a “stranger” again It is possible for someone who the offender had met briefly before to become a stranger again. It is possible for the offender to have met a victim but to have forgotten the victim completely (over a period of years). If the offender believed he was assaulting a stranger, the victim can be counted as a stranger victim. This occurred when an offender returned after many years’ absence to his small hometown and assaulted a female he thought he did not know, not realizing that they had gone to the same school. It can also occur on the internet when an offender known to the victim disguises himself and offends against the victim and she did not know who he was.
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Item # 10 - Any Male Victims?
The Basic Principle: Research shows that offenders who have offended against males recidivate at a higher rate compared to those who do not have male victims (Helmus & Thornton, 2015). Having male victims is correlated with measures of sexual deviance and is seen as an indication of increased sexual deviance; see Hanson and Bussière (1998), Table 1. Information Required to Score this Item: To score this item use all available credible information. “Credible Information” is defined in section “Items #8, #9, & #10 - The Three Victim Questions” (pages 74 to 78). The Basic Rule: If the offender has male victims of sex offences (non-consenting adults or child victims), score the offender a “1” on this item. If the offender’s victims of sex offences are all female, score the offender a “0” on this item. Included in this category are all sex offences involving male victims. Possession of child pornography involving boys, however, does not count unless the offender created the child pornography (or had it created) using a real live child. Although a child pornography collection focusing on males would be an indicator of sexual interest in males, this is not scored in this item because victims of Category “B” offences are not counted and were not included in the development and validation research for Static-99R. However, this information may be helpful to discuss in the risk assessment report, external to the Static- 99R score.
Exhibitionism to a mixed group of children (girls and boys) would not count unless there was clear evidence the offender was targeting the boys. Contacting male victims over the internet does count.
If an offender assaults a transvestite or transgender person in the mistaken belief the victim is a female (may be wearing female clothing), do not score the transvestite or transgender person as a male victim. If the offender knew or thought he was assaulting a male before the assault (or if he continued to sexually assault him after discovering he was a male), score a male victim. In some cases a sex offender may beat up or contain (lock in a car trunk) another male in order to sexually assault the male’s date (wife, etc.). If the perpetrator simply assaults the male (non-sexual) in order to access the female you do not count him as a male victim on Static-99R. In order for the male to count as a victim of a sex offence, there must be evidence that the assault/restraint of the male was sexually motivated. For example, if the perpetrator involves the male in the sex offence by tying him up and making him watch a rape (forced witness), there would need to be additional signs of sexual motivation for the male victim to count, such as self-admitted fantasies, preparing for forced witnesses as part of offence planning, or statements made to the forced witness during the offence that suggested a sexual motivation in the presence of the male witness.
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Scoring Static-99R & Computing the Risk Estimates
Using the Static-99R Coding Form (Appendix C), sum all individual item scores for a total risk score based upon the ten items. This total score can range from “-3” to “12.” Risk levels associated with each score are noted at the bottom of the Coding Sheet.
Once a total score is obtained, the “Evaluators’ Handbook” is used to interpret the score. It includes information on communicating both relative (e.g., percentiles, risk ratios) and absolute (e.g., recidivism estimates) risk, as well as suggested reporting paragraphs for reporting Static-99R scoring results (Phenix, et al., 2016). Evaluators are encouraged to periodically check for updates, which are posted at www.static99.org.
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Appendix A: Self-Test
1. Question: In 2010, Mr. Smith is convicted of molesting his two stepdaughters. The sexual abuse occurred between 2005 and 2009. While on conditional release in 2015, Mr. Smith is convicted for another sex offence. The offence related to the abuse of a child that occurred in 2000. Which conviction is the Index offence?
Answer: This is an example of an index cluster. The 2010 and 2015 convictions would both be considered part of the index offence. Neither would be counted as a prior sex offence. The 2015 conviction is pseudo-recidivism because the offender did not reoffend after being charged with the 2010 offence.
2. Question: In April 2016, Mr. Jones is charged with sexual assault for an offence that occurred in January 2016. He is released on bail and reoffends in July 2016, but this offence is not detected until October 2016. Meanwhile, he is convicted in September 2016, for the January 2016 incident. The October 2016 charge does not proceed to court because the offender is already serving time for the September 2016 conviction. You are doing the evaluation in November. What is the Index offence?
Answer: The October 2016 charge is the index offence because the offence occurred after Mr. Jones was charged for the previous offence. The index sex offence need not result in a conviction.
3. Question: In January 2007, Mr. Dixon moves in with Ms. Trembley after dating since March 2006. In September 2009, Mr. Dixon is arrested for molesting Ms. Trembley’s daughter from a previous relationship. The sexual abuse began in July 2008. Is the victim related?
Answer: No, the victim would not be considered related because when the abuse began, Mr. Dixon had not lived for two years in a parental role with the victim.
4. Question: At age 15, Mr. Miller was sent to a residential treatment centre after it was discovered he had been engaging in sexual intercourse with his 12 year old stepsister. Soon after arriving, Mr. Miller sexually assaulted a fellow resident. He was then sent to a secure facility that specialized in the treatment of sex offenders. Charges were not laid in either case. At age 24, Mr. Miller sexually assaults a cousin and is convicted shortly thereafter. Mr. Miller has how many prior sex offences?
Answer: For Item #5, Prior Sex Offences, score this as 1 prior charge and 0 prior convictions. Although Mr. Miller has no prior convictions for sex offences, there are official records indicating he has engaged in sex offences as an adolescent that resulted in custodial sanctions on two separate occasions. However, only count one charge in total for all social service interventions for sexual offences committed between 12 and 15 years old (see page 34). Note that this is a change from the previous version of the Static-99 Coding Rules – Revised 2003 (Harris et al., 2003) which would have allowed this scenario to be scored as 2 charges and 2 convictions. The change is to create more consistency between the scoring of juvenile and adult offences. Here, these sanctions do not meet the typical threshold of a conviction (e.g., proof Beyond a Reasonable Doubt, due process). The index offence at age 24 is not counted as a prior sex offence.
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5. Question: Mr. Smith was paroled from a non-sexual offence in January, 2012, and returned to prison in July 2012 for violating several conditions of parole for behaviour that included child molestation, lewd act with a child, and contributing to the delinquency of a minor. Once back in prison he sexually assaulted another prisoner. Mr. Smith has now been found guilty of the sexual assault against the inmate and the judge has asked you to contribute to a pre-sentence report. How many Prior Sex Offence (Item #5) points would Mr. Smith receive for his parole violations?
Answer: 1 charge and no convictions. Probation, parole and conditional release violations for sexual misbehaviours are counted as one charge, even when there are violations of multiple conditions of release.
6. Question: Mr. Moffit was charged with child molestation in April 2007 and absconded before he was taken into custody. Mr. Moffit knew about the charges when he left. He travelled to another jurisdiction where he was arrested and convicted of child molesting in December 2012. He served 2 years in prison and was released in 2014. He was apprehended, arrested and convicted in January of 2016 for the original charges of Child Molestation he received in April 2007. Which offence is the Index offence? Answer: The most recent offence date, December 2012 becomes the index offence. In this case, the offence dates should be put back in chronological order given that he was detected in 2007 and continued to offend. The April 2007 charges and subsequent conviction in January of 2016 become a prior sex offence.
7. Question: While on parole, Mr. Jones, who has an extensive history of child molestation, was found at the county fair with an eight-year old male child. He had met the child’s mother the night before and volunteered to take the child to the fair. Mr. Jones was in violation of his parole and he was returned to prison. He subsequently got out of prison and six months later sexually reoffended. You are tasked with the pre-sentence report. Do you count the above parole violation as a prior sex offence charge? Answer: No. Being in the presence of children is not counted as a charge for prior sex offences unless an offence is imminent. In this case, Mr. Jones was in a public place with the child among many adults. An incident of this nature exhibits “high-risk” behaviour but is not sufficient for a charge of a sex offence.
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Appendix B: References
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Babchishin, K. M., Blais, J., & Helmus, L. (2012). Do static risk factors predict differently for Indigenous sex offenders? A multi-site comparison of the original and revised Static-99 and Static-2002 scales. Canadian Journal of Criminology and Criminal Justice, 54, 1-43. doi:10.3138/cjccj.2010.E.40
Babshishin, K. M., Hanson, R. K., & Blais, J. (2016). Less is more: Using Static-2002R subscales to predict violent and general recidivism among sexual offenders. Sexual Abuse: A Journal of Research and Treatment, 28(3), 187-217. doi:10.1177/1079063215569544
Barbaree, H. E., & Blanchard, R. (2008). Sexual deviance over the lifespan: Reduction in deviant sexual behavior in the aging sex offender. In D. R. Laws & W. T. O’Donohue (Eds.), Sexual deviance: Theory, assessment, and treatment (pp. 37- 60). New York: Guilford Press.
Barbaree, H.E., Langton, C.M., & Peacock, E.J. (2006). Different actuarial risk measures produce different risk rankings for sexual offenders. Sexual Abuse: A Journal of Research and Treatment, 18, 423–440. doi:10.1177/107906320601800408
Boccaccini, M. T., Murrie, D. C., Mercado, C., Quesada, S., Hawes, S., Rice, A. K., & Jeglic, E. L. (2012). Implications of Static-99 field reliability findings for score use and reporting. Criminal Justice and Behavior, 39, 42-58.
Bonta, J., Blais, J., & Wilson, H. A. (2014). A theoretically informed meta-analysis of the risk for general and violent recidivism for mentally disordered offenders. Aggression and Violent Behavior, 19, 278- 287. doi:10.1016/j.avb.2014.04.014 1359-1789
Caldwell, M. F. (2010). Study characteristics and recidivism base rates in juvenile sex offender recidivism. International Journal of Offender Therapy and Comparative Criminology, 54, 197-212.
Chaffin, M. (2008). Our minds are made up, don’t confuse us with the facts: Commentary on policies concerning children with sexual behavior problems and juvenile sex offenders. Child Maltreatment, 13, 110 – 121.
Chaffin, M., Letourneau, E. J., & Silovsky, J. F. (2002). Adults, adolescents and children who sexually abuse children: A developmental perspective. In J. Briere, L. Berliner & T. Reid (Eds.) The APSAC handbook on child maltreatment (2nd ed., 205-232). Thousand Oaks, CA: Sage.
Fernandez, Y., Harris, A. J. R., Hanson, R. K., & Sparks, J. (2014). STABLE-2007 coding manual: Revised 2014. Ottawa: Public Safety Canada.
Grubin, D. (1998). Sex offending against children: Understanding the risk. Police Research Series, Paper 99. London: Home Office.
Hanson, R. K. (2001). Note on the reliability of Static-99 as used by the California Department of Mental Health evaluators. Unpublished report. Sacramento, CA: California Department of Mental Health.
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Hanson, R. K. (2002). Recidivism and age: Follow-up data on 4,673 sexual offenders. Journal of Interpersonal Violence, 17, 1046-1062.
Hanson, R. K., Babchishin, K. M., Helmus, L., & Thornton, D. (2013). Quantifying the relative risk of sex offenders: Risk ratios for Static-99R. Sexual Abuse: A Journal of Research and Treatment, 25, 482-515. doi:10.1177/1079063212469060
Hanson, R. K., Babchishin, K. M., Helmus, L. M., Thornton, D., & Phenix, A. (2016). Communicating the results of criterion-referenced prediction measures: Risk categories for the Static-99R and Static-2002R sexual offender risk assessment tools. Psychological Assessment. Advance online publication. doi:10.1037/pas0000371
Hanson, R. K., Bourgon, G., Helmus, L., & Hodgson, S. (2009). The principles of effective correctional treatment also apply to sexual offenders: A meta-analysis. Criminal Justice and Behavior, 36, 865- 891. doi:10.1177/0093854809338545
Hanson, R. K., Bourgon, G., McGrath, R., Kroner, D., D’Amora, D. A., Thomas, S. S., & Tavarez, L. P. (2016). A five-level risk and needs system : Maximizing assessment results in corrections through the development of a common language. New York: The Council of State Governments Justice Center.
Hanson, R. K., & Bussière, M. T. (1998). Predicting relapse: A meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348-362.
Hanson, R. K., Harris, A. J. R., Helmus, L., & Thornton, D. (2014). High risk sex offenders may not be high risk forever. Journal of Interpersonal Violence, 29, 2792-2813. doi: 10.1177/0886260514526062
Hanson, R. K., Helmus, L., & Harris, A. J. R. (2015). Assessing the risk and needs of supervised sexual offenders: A prospective study using STABLE-2007, Static-99R and Static-2002R. Criminal Justice and Behavior, 42, 1205-1224. doi:10.1177/0093854815602094
Hanson, R. K., Lloyd, C. D., Helmus, L., & Thornton, D. (2012). Developing non-arbitrary metrics for risk communication: Percentile ranks for the Static-99/R and Static-2002/R sexual offender risk tools. International Journal of Forensic Mental Health, 9, 11-23. doi:10.1080/14999013.2012.667511
Hanson, R. K., Lunetta, A., Phenix, A., Neeley, J., & Epperson, D. (2014). The field validity of Static- 99/R sex offender risk assessment tool in California. Journal of Threat Assessment and Management, 1, 102-117. doi:10.1037/tam0000014.
Hanson, R. K., & Morton-Bourgon, K. E. (2009). The accuracy of recidivism risk assessments for sexual offenders: A meta-analysis of 118 prediction studies. Psychological Assessment, 21, 1-21. doi:10.1037/a0014421
Hanson, R. K., Phenix, A., & Helmus, L. (2009, September). Static-99(R) and Static-2002(R): How to interpret and report in light of recent research. Preconference workshop presented at the 28th Annual Research and Treatment Conference of the Association for the Treatment of Sexual Abusers, Dallas, TX.
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Hanson, R. K., Sheahan, C. L., & VanZuylen, H. (2013). Static-99 and RRASOR predict recidivism among developmentally delayed sexual offenders: A cumulative meta-analysis. Sexual Offender Treatment, 8, 1-14.
Hanson, R. K., & Thornton, D. (1999). Static-99: Improving actuarial risk assessments for sex offenders. User Report 99-02. Ottawa: Department of the Solicitor General of Canada. Department of the Solicitor General of Canada website, www.sgc.gc.ca
Hanson, R. K., & Thornton, D. (2000). Improving risk assessments for sex offenders: A comparison of three actuarial scales. Law and Human Behaviour, 24, 119-136.
Hanson, R. K., Thornton, D., Helmus, L., & Babchishin, K. M. (2016). What sexual recidivism rates are associated with Static-99R and Static-2002R scores? Sexual Abuse: A Journal of Research and Treatment, 28, 218-252. doi:10.1177/1079063215574710
Harris, A. J. R., & Hanson, R. K. (2004). Sex offender recidivism: A simple question (User Report 2004- 03). Ottawa, ON: Public Safety and Emergency Preparedness Canada.
Harris, A. J. R., Phenix, A., Hanson, R. K., & Thornton, D. (2003). Static-99 coding rules: Revised 2003. Ottawa, Canada: Department of the Solicitor General of Canada.
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Appendix C: Static-99R Coding Form and Comments
Coding Form Preamble
In some situations an item score may be tentative due to uncertainty about a decision (e.g., anticipated age at release) or insufficient or conflicting information (e.g., victim information) and it may make sense to complete separate coding sheets for both alternatives and clearly discuss the reason for the different scores and the associated impact on Static-99R results in all reports.
During audits of Static-99R scoring sheets the most commonly identified error is mechanical (e.g., incorrect summing of item scores). Consequently it is strongly recommended that evaluators sum the item scores and check the total at least twice. A mechanized process, such as specialized scoring software or an excel spreadsheet into which item scores may be entered and then summed electronically can be helpful to minimize mathematical errors.
Interestingly, Hanson, Helmus, and Harris (2015) found a meaningful difference between those community supervision officers who completed all the assessments requested of them and those officers who sent incomplete information (e.g., a STABLE score without a Static score). Among officers who completed all assessments, the predictive accuracy of Static-99R was very high (AUC = .80) and significantly higher than the Static-99R assessment of officers with incomplete assessment packages (AUC = .68). The lesson here is clear - commitment to the assessment can greatly improve your ability to predict sexual recidivism. Consequently, we recommend requiring evaluators to attest to the completeness of their scoring by signing the score sheet. Organizations may want to consider including a standard statement such as the one at the bottom of the coding form on the following page.
Page 162 of 212 Static-99R Score to Oregon Sex Offender Notification Levels
Static 99R Score Risk Level Oregon Notification Levels -3, -2 I – Very Low Risk -1, 0 II – Below Average Risk Level 1 1, 2, 3 III – Average Risk 4, 5 IVa – Above Average Risk Level 2 6 and higher IVb – Well Above Average Risk Level 3
Page 163 of 212 255-060-0018 Offenders Eligible for Sexually Violent Dangerous Offender Designation (1) “Sexually violent dangerous offender” is a person who is being released from custody after serving a sentence of incarceration as a result of conviction for an offense listed in subparagraph (a) of this paragraph, who has psychopathic personality features, sexually deviant arousal patterns or interests and a history of sexual assault, and who the State Board of Parole and Post-Prison Supervision or local supervisory authority finds presents a substantial probability of committing an offense listed in subparagraph (a) of this paragraph. (a) The offenses to which this rule applies are: (A) Rape in the first degree and sodomy in the first degree if the victim was: (i) Subjected to forcible compulsion by the person; (ii) Under 12 years of age; or (iii) Incapable of consent by reason of mental defect, mental incapacitation or physical helplessness; (B) Unlawful sexual penetration in the first degree; and (C) An attempt to commit a crime listed in (1) or (2) of this subparagraph. (b) “History of sexual assault” means that a person has engaged in unlawful sexual conduct that: (A) Is not related to the crime for which the person is currently on parole or post-prison supervision; and (B) Seriously endangered the life or safety of another person or involved a victim under 12 years of age. (2) Every six months the Department of Corrections will provide the Board of Parole and Post-Prison Supervision with a list of offenders who have a history of sexual assault as defined in (1)(b) above, are serving a sentence of incarceration as a result of conviction for an offense listed in (1)(a) above, and who are within six months of release from custody. (3) When any offender convicted as a “dangerous offender” under ORS 161.725 and 161.735 is granted a firm release date by the Board of Parole and Post-Prison Supervision or is otherwise within six months of release from custody, Board of Parole and Post-Prison Supervision staff will screen the offender to determine if the offender’s record reveals that the offender was convicted of an offense listed in (1)(a) and has a history of sexual assault as described in (1)(b). (4) If Board staff determines that an offender has the qualifying conviction and history of sexual assault, the Board of Parole and Post-Prison Supervision will make a finding that the offender is eligible for designation as a sexually violent dangerous offender. (5) The Board may designate an offender as a sexually violent dangerous offender only if the offender: (a) Participated in or refused to participate in a psychological evaluation ordered by the Board of Parole and Post-Prison Supervision; and, (b) Requested an evidentiary hearing in accordance with these rules or waived entitlement to such a hearing. (6) An offender who has been identified as eligible for designation as a sexually violent dangerous offender designation will receive notice of the offender’s eligibility for designation and of the offender’s right to request a hearing before the Board of Parole and Post-Prison Supervision to present evidence why the sexually violent dangerous offender finding should not be made. (7) The Board of Parole and Post-Prison Supervision will provide the offender with a copy of the SVDO-1, Notice of Rights, prior to the evidentiary hearing. Upon receipt of the Notice of Rights the offender may request an evidentiary hearing or waive his or her right to the hearing. (8) The Board of Parole and Post-Prison Supervision must receive and review the signed SVDO-1 Notice of Rights before an evidentiary hearing is conducted or waived to determine a SVDO finding. A refusal to participate in the hearings process shall also constitute a waiver of the right to a hearing. (9) The Board of Parole and Post-Prison Supervision will consider any written objections to the psychological evaluation that are submitted by the offender. An offender may elect to waive the right to submit written objections. (10) The purposes of the evidentiary hearing are to: (a) Determine whether the offender meets the criteria of a sexually violent dangerous offender as defined in OAR 291- 202-0210(1)(a) & (b), and; (b) Determine if there is a substantial probability of offender’s committing one of the offenses listed in OAR 291-202-
Page 164 of 212 0210(1)(a). (11) At the conclusion of the evidentiary hearing, the Board of Parole and Post-Prison Supervision will determine whether the offender should be designated as a sexually violent dangerous offender. A finding that an offender is a sexually violent dangerous offender may be made by two Board of Parole and Post-Prison Supervision members, except in the case of an offender who has been sentenced to life imprisonment or convicted of a crime involving the death of a victim, pursuant to ORS 144.054. (12) When an offender eligible for designation as a sexually violent dangerous offender has waived the right to an evidentiary hearing, the Board of Parole and Post-Prison Supervision will make the determination whether to designate the offender a sexually violent dangerous offender based on all the information in the record, including any psychological evaluations. (13) A finding that an offender is a sexually violent dangerous offender will be contained in the offender’s original order of supervision or an amended order of supervision. (14) The community corrections agency supervising an offender found to be a sexually violent dangerous offender shall subject the offender to intensive supervision as defined in OAR 255-005-0005(26). Statutory/Other Authority: ORS 144.637 Statutes/Other Implemented: ORS 144.635 History: PAR 2-2011, f. & cert. ef. 1-11-11
255-060-0020 Out-of-State Parole Release Hearing Procedures An inmate in the Department of Corrections’ custody who is housed in an out-of-state facility may receive a teleconference exit interview in conformance with rule 255-060-0006. Statutory/Other Authority: ORS 144.098, 144.125 Statutes/Other Implemented: ORS 144.098, 144.125 History: PAR 5-1998, f. & cert. ef. 11-9-98; PAR 6-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 6-1988, f. & ef. 5-19-88; 2PB 13-1985, f. & ef. 5-31-85; 2PB 1-1979, f. & ef. 2-1-79
255-060-0030 Exit Interview Board Review Packet The exit interview Board Review Packet shall contain: (1) Institution face sheet; (2) All Board Action Forms since the prison term hearing, if any; (3) Psychiatric and/or psychological evaluations (previous 6 months); (4) Correspondence; (5) Field parole analysis report, a pre-sentence investigation report or comparable report; (6) Court orders; (7) Misconduct reports; and (8) Release plan. (9) Inmate’s Notice of Rights and Board of Parole & Post-Prison Supervision Procedures. Statutory/Other Authority: ORS 144.096, 144.098, 144.185 Statutes/Other Implemented: ORS 144.096, 144.098, 144.185 History: PAR 6-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 2-1990, f. & cert. ef. 4-5-90; PAR 6-1988, f. & ef. 5-19-88
DIVISION 62 SETTING OF PAROLE DEFERRAL PERIODS
255-062-0006 When Parole Deferral Periods May Occur (1) After the Board denies a petition for change in terms of confinement of an inmate convicted of aggravated murder or
Page 165 of 212 murder, the Board may not hold a subsequent hearing that is less than two years, or more than 10 years, from date petition is denied. (2) After the Board denies a firm parole or post-prison supervision release date for certain inmates, the Board may not hold a subsequent hearing to consider granting a release date in less than two years, or more than 10 years, from date on which release on parole or post-prison supervision is denied. (3) Upon finding that it is not reasonable to expect that the inmate would be granted a change in the terms of confinement, or not reasonable to expect that the inmate would be granted a firm release date, following two years, the Board will deliberate and select a deferral date of between two and 10 years from the date of the decision, or from the date of the inmate’s current projected parole release date or current parole consideration date. Statutory/Other Authority: ORS 183.335, 144.228, 144.232, 163.105, 163.115, 2009 OL Ch. 660 Statutes/Other Implemented: ORS 144.228, 144.232, 163.105, 163.115, 2009 OL Ch. 660 History: PAR 9-2010, f. & cert. ef. 9-29-10; PAR 6-2010(Temp), f. 7-2-10, cert. ef. 7-6-10 thru 1-1-11
255-062-0011 Type of Hearing Eligible for a Deferral of More than Two Years OAR 255-062-0006 applies to the following hearings: (1) Murder Review Hearing: If the State Board of Parole and Post-Prison Supervision denies a petition for a change in the terms of confinement filed by an inmate under ORS 163.105 or 163.115, the Board may not grant the inmate a subsequent hearing that is less than two years, or more than 10 years, from the date the petition is denied. (2) Exit Interview Hearing: Crime Commitment Date prior to 11/01/1989 — but on or after 10/4/1977: If the State Board of Parole and Post-Prison Supervision concludes, applying ORS 144.125(3), that an inmate suffers from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board may not defer the projected parole release date for less than two years, or more than 10 years, from the date of the hearing, unless the inmate would be held beyond the maximum sentence. (3) Exit Interview Hearing: Crime Commitment Date on or between 1/29/1977 and 10/3/1977: If the State Board of Parole and Post-Prison Supervision finds, based on the doctor’s report and diagnosis, coupled with all the information that the Board is considering, and applying OAR 254-050-0015 (1977), ORS 144.180, and pursuant to 144.175(1), (2), that deferral of the inmate’s projected parole release date is necessary, the Board may not defer the projected parole release date for less than two years, or more than 10 years, from the date of the hearing, unless the inmate would be held beyond the maximum sentence. (4) Exit Interview Hearing for inmates who were convicted of aggravated murder committed on any date, and who have been found by the Board to be likely to be rehabilitated within a reasonable period of time, or who were convicted of murder committed on or after June 30, 1995: If the State Board of Parole and Post-Prison Supervision concludes, applying ORS 144.125(3), that an inmate suffers from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, the Board may not defer the projected parole release date for less than two years, or more than 10 years from the date of the hearing. (5) Parole Consideration Hearing: If the State Board of Parole and Post-Prison Supervision finds, pursuant to ORS 144.228, that an inmate who was sentenced as a dangerous offender under 161.725 remains a danger, and that the inmate cannot be adequately controlled with supervision and mental health treatment which are available in the community, the Board will conduct the next review hearing no less than two years, or more than 10 years, from the current parole consideration date. (6) Parole Hearing: Crime Commitment Date before 1/29/1977: If the State Board of Parole and Post-Prison Supervision finds that there is not a reasonable probability that an inmate will, after parole, remain outside the institution without violating the law, and that the inmate’s parole release is not compatible with the welfare of society, the Board may not grant the inmate a subsequent hearing that is less than two years, or more than 10 years, from the date parole is denied, unless the deferral period would exceed the maximum sentence imposed by the court. Statutory/Other Authority: ORS 144.228, 144.232, 163.105, 163.115, 2009 OL Ch. 660
Page 166 of 212 Statutes/Other Implemented: ORS 144.228, 144.232, 163.105, 163.115, 2009 OL Ch. 660 History: PAR 8-2014, f. & cert. ef. 9-2-14; PAR 9-2010, f. & cert. ef. 9-29-10; PAR 6-2010(Temp), f. 7-2-10, cert. ef. 7-6- 10 thru 1-1-11
255-062-0016 Factors to be Considered in Establishing a Deferral Period Longer Than Two Years Following an interview and consideration of all the information presented at the hearing, the Board may find by majority vote of the members participating in the hearing, that it is not reasonable to expect that the inmate would be granted a change in the terms of confinement, or it is not reasonable to expect that the inmate would be granted a firm release date before the end of a specified deferral period, not to exceed ten years, based on one or more of the following non- exclusive factors: (1) A determination by the Board, based on the psychological evaluation and all the information available at the hearing, that the inmate has a mental or emotional disturbance, deficiency, condition, or disorder predisposing him/her to the commission of any crime to a degree rendering the inmate a danger to the health or safety of others; (2) Infractions of institutional rules and discipline; (3) Commission of crimes subsequent to the crime of conviction; (4) Inmate’s failure to demonstrate understanding of the factors that led to his/her criminal offense(s); (5) Inmate’s demonstrated lack of effort to address criminal risk factors of psychological or emotional problems; (6) Inmate’s demonstrated lack of effort to address criminal risk factors of substance abuse problems; (7) Failure to seek and maintain appropriate work or training; (8) Inmate’s failure to seek out and benefit from programming including but not limited to sex offender treatment, batterers intervention programs, anger management, cognitive therapy, and victim impact panels where available; (9) Inmate’s inability to experience or demonstrate remorse or empathy; (10) Demonstrated poor planning and foresight; (11) Demonstrated impulsivity; or (12) Demonstrated lack of concern for others, including but not limited to any registered victims. (13) Refusal to participate in Board-ordered psychological evaluation(s) and/or refusal to participate in Board hearing. (14) The inmate is serving a concurrent sentence over which the Board does not have release authority, and which has a release date ten or more years from the projected parole release date on the Board sentence. Statutory/Other Authority: ORS 144.228, 144.232, 163.105, 163.115, 2009 OL Ch. 660 Statutes/Other Implemented: ORS 144.125, 144.228, 144.232, 144.280, 144.185, 163.105, 163.115, 2009 OL Ch. 660 History: PAR 6-2013, f. & cert. ef. 11-27-13; PAR 1-2013, f. & cert. ef. 2-15-13; PAR 9-2010, f. & cert. ef. 9-29-10; PAR 6- 2010(Temp), f. 7-2-10, cert. ef. 7-6-10 thru 1-1-11
255-062-0021 Request for Interim Hearing (1) When the Board defers the inmate’s next hearing for more than two years from the date a petition is denied or from the current projected parole release date, current parole consideration date, or current parole hearing date, the inmate may submit a request for an interim hearing not earlier than the date that is two years from the date the petition is denied or from the current projected parole release date, current parole consideration date, or current parole hearing date, and at intervals of not less than two years thereafter. The inmate bears the burden of producing evidence sufficient to convince the Board that an interim hearing is warranted. (2) Such petitions must conform to the following format: (a) Petitions must be created by any process that makes a clear, legible, black or dark blue image, written on standard 8 ½” x 11” white or light blue paper, with margins of at least 1” on each side. Handwritten petitions will be accepted, although typed documents are preferred. All writing shall be legible and capable of being read without difficulty. (b) In no more than one page, a summary outlining how the inmate qualifies for an interim hearing. (c) From the date of the last hearing to the petition date, a current copy of the following documents:
Page 167 of 212 (A) Oregon Corrections Plan; (B) Earned time computation form; (C) Spending Account; (D) Disciplinary Reports, if any. (d) In no more than 10 pages, any supporting facts, information or documents relevant to the criteria outlined in OAR 255-062-0016, or other factors specific to how the inmate has demonstrated a significant change or progress toward rehabilitation; the inmate may should list certificates earned and dates of programs completed instead of submitting copies of certificates. (e) Although reference to rules, codes, or laws may be appropriate, the Board will not accept or consider additional pages or exhibits including copies of codebooks, manuals, other manuscripts, certificates, news articles, legal opinions, or other materials not directly related to the inmate’s reformation. (f) If the petition does not conform to the format rules above, the petition will be denied. (3) The Board shall consider the request for an interim hearing by file pass. (4) At its discretion, the Board may request additional information from the inmate. (5) If a petition is denied, the inmate may petition again no earlier than two years from the date of the denial. Statutory/Other Authority: 2009 OL Ch. 660, ORS 144.228, 144.232, 163.105, 163.115 Statutes/Other Implemented: ORS 144.228, 144.232, 163.105, 163.115, 2009 OL Ch. 660 History: PAR 9-2010, f. & cert. ef. 9-29-10; PAR 6-2010(Temp), f. 7-2-10, cert. ef. 7-6-10 thru 1-1-11
255-062-0026 Interim Hearing Finding If the Board finds, based upon a properly-submitted request for an interim hearing, that there is reasonable cause to believe that the inmate may be granted a change in the terms of confinement or a firm release date, the Board shall conduct a hearing as soon as is reasonably convenient. An interim hearing may be granted by a majority of the Board. Statutory/Other Authority: ORS 144.054, 144.228, 144.232, 163.105, 163.115, 2009 OL Ch. 660 Statutes/Other Implemented: ORS 144.228, 144.232, 163.105, 163.115, 2009 OL Ch 660 History: PAR 9-2010, f. & cert. ef. 9-29-10; PAR 6-2010(Temp), f. 7-2-10, cert. ef. 7-6-10 thru 1-1-11
255-062-0031 Final Orders (1) When the Board grants an inmate a hearing that is more than two years from the date a petition is denied or from the current projected parole release date, current parole consideration date, or current parole hearing date, and when the Board denies a petition for an interim hearing, the Board shall issue a final order. (2)(a) The order shall be accompanied by findings of fact and conclusions of law. (b) The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the board’s order. Statutory/Other Authority: ORS 144.228, 144.232, 163.105, 163.115, 2009 OL Ch. 660 Statutes/Other Implemented: ORS 144.228, 144.232, 163.105, 163.115, 2009 OL Ch. 660 History: PAR 9-2010, f. & cert. ef. 9-29-10; PAR 6-2010(Temp), f. 7-2-10, cert. ef. 7-6-10 thru 1-1-11
DIVISION 65 RESTITUTION AND SUPERVISION FEES
255-065-0005 When Restitution, Fines and Fees are Ordered: Payment Schedule (1) For a crime committed after October 4, 1977, when the court sentences a person to pay restitution pursuant to ORS 137.106 and defers any portion of that payment until after release from imprisonment, the Board shall order restitution as a parole or post-prison supervision condition. The court order must specifically order restitution for a specific amount to a specific party.
Page 168 of 212 (2) For a crime committed after November 1, 1981, when the court sentences a person to pay a compensatory fine pursuant to ORS 137.101 and defers any portion of that payment until after release from imprisonment, the Board shall order a compensatory fine as a parole or post-prison supervision condition. The court order must specifically order a compensatory fine for a specific amount. (3) When the court has sentenced a person to pay attorney fees pursuant to ORS 161.665 and defers any portion of that payment until after release from imprisonment, the Board may order payment of attorney fees as a parole or post-prison supervision condition. The court order must specifically order attorney fees for a specific amount. (4) In establishing and supervising a schedule for the resumption of payments, the Board shall consider: (a) The offender’s financial resources, including salary, savings, and liquid assets not including place of residence, or those tools or vehicles essential to personal livelihood; (b) The burden that will impose in light of the person’s overall obligations (e.g., family and necessary living expenses); (c) Ability to pay installment or other conditions to be set by the Board; and (d) The rehabilitation affect of the payment and the method of payment. (5) Normal payments shall range up to twenty (20) percent of a person’s take-home salary without voluntary payroll deductions, unless significant savings or liquid assets not including place of residence or tools or vehicle essential to personal livelihood permit larger amounts. (6) The Board shall provide to the sentencing court a copy of the schedule of payments and any modifications. Statutory/Other Authority: ORS 137.101, 137.106, 144.102, 144.275, 161.665, 423.570 Statutes/Other Implemented: ORS 137.101, 137.106, 137.551, 144, 161.665 History: PAR 5-1998, f. & cert. ef. 11-9-98; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; 2PB 14-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; Reverted to 2PB 1-1979, f. & ef. 2-1-79; 2PB 6-1981(Temp), f. & ef. 11-4-81; 2PB 1-1979, f. & ef. 2-1-79
255-065-0015 Supervision of Payments: Conditions; Default; Effect on Discharge (1) The offender shall make payments of restitution, compensatory fines, or attorney fees to the clerk of the court of the county of sentencing. (2) The supervising officer shall establish the method and manner of payment for the Board’s approval. (3) If the offender has not made total payment of restitution or compensatory fines by the completion of the designated minimum period of supervision, the Board shall continue the offender on parole until the offender completes payment or until his/her sentence expires, whichever occurs first. (4) If the offender has not made total payment of attorney fees by the completion of the designated minimum period of supervision, the Board may continue the offender on parole until the offender completes payment or until his/her sentence expires, whichever occurs first. (5) The Board may require a person to pay restitution as a condition of post-prison supervision imposed for an offense other than the offense for which the restitution was ordered if the person: (a) Was ordered to pay restitution as a result of another conviction; and (b) Has not fully paid the restitution by the time the person has completed the period of post-prison supervision imposed for the offense for which the restitution was ordered. Statutory/Other Authority: ORS 137.101, 137.106, 144.102, 144.275, 161.665, 423.570 Statutes/Other Implemented: ORS 137.551, 144 History: PAR 5-1998, f. & cert. ef. 11-9-98; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; 2PB 14-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; Reverted to 2PB 1-1979, f. & ef. 2-1-79; 2PB 6-1981(Temp), f. & ef. 11-4-81; 2PB 1-1979, f. & ef. 2-1-79
255-065-0020 Establishment of Supervision Fees: Criteria, Disbursement of Fees (1) When a person is placed on parole or post-prison supervision, subject to supervision by either the Department of
Page 169 of 212 Corrections or a community corrections program established under ORS 423.500 to 423.560, the person shall pay a monthly fee to offset the costs of supervising parole or post-prison supervision. Fees are payable according to the terms set forth in ORS 423.570. (2) The supervision fee shall be at a rate established by the supervising community corrections program In no case shall the fee be less than twenty-five dollars ($25) per month. If the community corrections program fails to establish the amount of the fee, the fee shall be $25. (3) The Board shall order the payment of the supervision fee as a parole or post-prison supervision condition and intentional and willful failure to pay the fee may be grounds for revocation of parole and post-prison supervision or, in the case of parole, extension of the supervision period. (4) In cases of financial hardship or when otherwise advisable in the interest of the released person’s rehabilitation, the community program director or the Director of the Department of Corrections, whichever is appropriate, may waive or reduce the amount of the fee. (5) Fees collected shall be transferred to the Department of Corrections or retained by the county as provided by statute. Statutory/Other Authority: ORS 137.101, 137.106, 144.102, 144.275, 161.665, 423.570 Statutes/Other Implemented: ORS 137.551, 144 History: PAR 5-1998, f. & cert. ef. 11-9-98; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 4-1989, f. & ef. 11-1-89; PAR 6-1988, f. & ef. 5-19-88; 2PB 14-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; 2PB 6-1981(Temp), f. & ef. 11-4-81
DIVISION 70 CONDITIONS OF PAROLE AND POST-PRISON SUPERVISION
255-070-0001 Conditions Not Limited by Exhibit J (1) The Board may order parole conditions pursuant to OAR 255-070-0015. (2) The Board shall approve post-prison supervision conditions pursuant to OAR 213-011-0001. (3) Conditions of parole and post-prison supervision are not limited to those shown in Exhibit J. (Attached)
Statutory/Other Authority: ORS 144.102, ORS 144.106, ORS 144.125, ORS 144.140, ORS 144.185, ORS 144.270, ORS 144.275, ORS 144.343, ORS 163A Statutes/Other Implemented: ORS 144.102, ORS 144.270 History: PAR 1-2019, amend filed 05/13/2019, effective 05/29/2019; PAR 8-2018, temporary amend filed 11/19/2018, effective 12/01/2018 through 05/29/2019; PAR 2-2018, amend filed 08/02/2018, effective 08/02/2018; PAR 5-2009, f. 12-31-09 cert. ef. 1-1-10; 2PB 15-1985, f. & ef. 5-31-85; 2PB 1-1986(Temp) , f. & ef. 11-3-86; PAR 2-1987, f. & ef. 4-1- 87; PAR 5-1988(Temp), f. & ef. 4-15-88; PAR 6-1988, f. & ef. 5-19-88; PAR 8-1988, f. & ef. 7-1-88; PAR 17-1988, f. & ef. 10-18-88; PAR 2-1990, f. & cert. ef. 4-5-90; PAR 4-1990, f. 6-29-90, cert. ef. 7-1-90; PAR 3-1992, f. & cert. ef. 4-15-92; PAR 4-1992(Temp), f. & cert. ef. 4-30-92; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1993, f. & cert. ef. 10-15-93; PAR 5- 1993(Temp), f. & cert. ef. 12-3-93; PAR 1-1994, f. & cert. ef. 4-4-94; PAR 3-1994, f. 11-9-94, cert. ef. 12-1-94; Administrative correction 8-14-97; PAR 5-1998, f. & cert. ef. 11-9-98; PAR 2-1999, f. & cert. ef. 1-15-99; PAR 6- 1999(Temp), f. & cert. ef. 9-15-99 thru 3-12-00; PAR 9-1999, f. & cert. ef. 11-15-99; PAR 5-2000, f. & cert. ef. 5-22-00; PAR 6-2001(Temp), f. 12-10-01, cert. ef. 1-1-02 thru 6-29-02; PAR 3-2001, f. & cert. ef. 2-29-02; PAR 5-2002(Temp), f. & cert. ef. 4-15-02 thru 10-11-02; PAR 8-2002, f. & cert. ef. 6-17-02; PAR 4-2003(Temp), f. & cert. ef. 6-13-03 thru 12-9- 03; PAR 6-2003, f. & cert. ef. 10-10-03; PAR 1-2004, f. & cert. ef. 1-14-04; PAR 4-2006, f. & cert. ef. 4-5-06; PAR 1- 2009(Temp), f. 4-9-09, cert. ef. 4-10-09 thru 10-7-09; Administrative correction 10-22-09
Page 170 of 212 EXHIBIT J (OAR 255-070-0001)
(Statutory/Other Authority: ORS 144.102, 144.106, 144.125, 144.140, 144.185, 144.270, 144.275, 144.343, 163A) (Statutes/Other Implemented: ORS 144.102, 144.270)
GENERAL/SPECIAL PAROLE AND POST-PRISON SUPERVISION CONDITIONS
Parole/Post-Prison Supervision is subject to all listed “General Conditions” and any designated “Special Conditions”. Prior to release, the Board may modify the conditions at any time. After Parole/Post-Prison Supervision has commenced, conditions may be added upon your signed consent or after you have an opportunity to be heard. Your opportunity to be heard may be oral or in writing.
Parole or Post-Prison Supervision may be revoked for violation of any of these conditions and you may be returned to custody when parole or post-prison supervision is not in your best interest or the best interest of society.
The Board may, at its discretion, sanction violations of Parole or Post-Prison Supervision Conditions. Sanctions may include returning you to the custody of the Department of Corrections.
The following definitions apply to this Exhibit: 1. "Offender" means persons released to parole or post-prison supervision. 2. "Parole Officer" shall also mean the supervising officer under the Post-Prison Supervision system.
Other definitions as defined in Oregon Administrative Rule 255-005.
GENERAL CONDITIONS
GC-1. Pay supervision fees, fines, restitution or other fees ordered by the Court or the Board.
GC-2. Not use or possess controlled substances except pursuant to a medical prescription.
GC-3. Submit to testing for controlled substance or alcohol use if the offender has a history of substance abuse or if there is a reasonable suspicion that the offender has used alcohol or controlled substances.
GC-4. Participate in a substance abuse evaluation, treatment, or aftercare as directed by the supervising officer and follow the recommendations of the evaluator or treatment provider, if there are reasonable grounds to believe there is a history of substance abuse.
GC-5. Remain in the State of Oregon until written permission to leave is granted by the Department of Corrections or a county community corrections agency. Offender automatically waives extradition if offender absconds from supervision and leaves the State.
GC-6. If physically able, find and maintain gainful full-time employment, approved schooling, or a full- time combination of both.
Page 1 of 4 Conditions of Supervision 03/26/2019
Page 171 of 212 GC-7. Change neither employment nor residence without prior permission from the Department of Corrections or a county community corrections agency.
GC-8. Permit the supervising officer to visit the offender or the offender's residence or work site, and to conduct a walk-through of the common areas and of the rooms in the residence occupied by or under the control of the offender.
GC-9. Consent to the search of person, vehicle or premises upon the request of a representative of the supervising officer if the supervising officer has reasonable grounds to believe that evidence of a violation will be found, and submit to fingerprinting or photographing, or both, when requested by the Department of Corrections or a county community corrections agency for supervision purposes.
GC-10. Obey all laws, municipal, county, state and federal.
GC-11. Promptly and truthfully answer all reasonable inquiries by the Department of Corrections or a county community corrections agency.
GC-12. Not possess weapons, firearms, or dangerous animals.
GC-13. Report as directed.
GC-17. Submit to a risk and needs assessment as directed by the supervising officer and follow reasonable recommendations resulting from the assessment.
GC-18. Be under the supervision of the Department of Corrections and its representatives or other supervisory authority and abide by their direction and counsel.
SPECIAL CONDITIONS
SC-1. Offender shall be evaluated by a mental health evaluator and follow all treatment recommendations.
SC-2. Offender shall continue to take any psychiatric or psychotropic medication that was prescribed prior to or at the time of release from custody until otherwise directed by a physician. At the direction of the parole officer, the offender shall undergo a psychiatric evaluation and take any medications recommended. The offender shall comply with a medication monitoring program at the request of the parole officer.
SC-3. Without prior written approval of the PO, a prohibition against contacting a person under 18 years of age.
SC-4. Without prior written approval of the PO, a prohibition against being present more than one time at or on property adjacent to a place primarily intended for the use by persons under 18 years of age or places where they regularly congregate.
SC-5. Offender shall submit to random polygraph tests as part of a sex offender surveillance program. Failure to submit to the tests may result in return to custody. Specific responses to the tests shall not be the sole basis for return to custody. Page 2 of 4 Conditions of Supervision
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SC-6. Offender shall enter and complete or be successfully discharged from a recognized and approved sex offender treatment program at the direction of the PO, which may include polygraph and/or plethysmograph testing. The offender shall abide by all rules and conditions of the sex offender treatment program. Offender shall abide by a prohibition of sexually deviant materials, activities or behavior that the offender may use for the purpose of deviant sexual arousal, unless otherwise allowed by the PO in writing.
SC-7. Offender shall pay court ordered restitution to the clerk of the court of the county of sentencing (ORS 137.106, OAR 255-065-0005).
SC-8. If required to report as a sex offender under ORS 163A, report to Oregon State Police, a chief of police, a county sheriff, or the supervising agency when supervision begins, within 10 days of a change in residence and once a year within 10 days of the offender’s date of birth.
SC-9. Offender shall not possess or use intoxicating beverages.
SC-10. Other: Special conditions may be imposed that are not listed above when the Board of Parole and Post-Prison Supervision determines that such conditions are necessary.
SC-11. Offender shall have no contact direct or indirect with those listed below:
SC-12. Consent to search of computer or other electronic equipment upon the request of the PO or their representative, if the PO has reasonable grounds to believe that evidence of a violation will be found.
Sex Offender Package: (a) Agreement to comply with a curfew set by the board, the supervisory authority or the supervising officer. (b) A prohibition against contacting a person under 18 years of age without the prior written approval of the board, supervisory authority or supervising officer. (c) A prohibition against being present more than one time, without the prior written approval of the board, supervisory authority or supervising officer, at a place where persons under 18 years of age regularly congregate. (d) In addition to the prohibition under subparagraph (C) of this paragraph, a prohibition against being present, without the prior written approval of the board or supervising officer, at, or on property adjacent to, a school, child care center, playground or other place intended for use primarily by persons under 18 years of age. (e) A prohibition against working or volunteering at a school, day care center, park, playground or other place where persons under 18 years of age regularly congregate. (f) Entry into and completion of or successful discharge from a sex offender treatment program approved by the board, supervisory authority or supervising officer. The offender shall abide by all rules and conditions of the sex offender treatment program. The program may include polygraph and plethysmograph testing. The person is responsible for paying for the treatment program. (g) A prohibition against direct or indirect contact with the victim, unless approved by the victim, the person's treatment provider and the board, supervisory authority or supervising officer.
Page 3 of 4 Conditions of Supervision
Page 173 of 212 (h) Unless otherwise indicated for the treatment required under subparagraph (F) of this paragraph, a prohibition against viewing, listening to, owning or possessing sexually stimulating visual or auditory materials that are relevant to the person's deviant behavior. (i) Agreement to consent to a search of the person or the vehicle or residence of the person upon the request of a representative of the board or supervisory authority if the representative has reasonable grounds to believe that evidence of a violation of a condition of post-prison supervision will be found. (j) Participation in random polygraph examinations to obtain information for risk management and treatment. The person is responsible for paying the expenses of the examinations. The results of a polygraph examination under this subparagraph may not be used in evidence in a hearing to prove a violation of post-prison supervision. (k) Maintenance of a driving log and a prohibition against driving a motor vehicle alone unless approved by the board, supervisory authority or supervising officer. (l) A prohibition against using a post-office box unless approved by the board, supervisory authority or supervising officer. (m) A prohibition against residing in a dwelling in which another sex offender who is on probation, parole or post-prison supervision resides unless approved by the board, supervisory authority or supervising officer, or in which more than one other sex offender who is on probation, parole or post- prison supervision resides unless approved by the board or the director of the supervisory authority, or a designee of the board or director. As soon as practicable, the supervising officer of a person subject to the requirements of this subparagraph shall review the person’s living arrangement with the persons’ sex offender treatment provider to ensure that the arrangement supports the goals of offender rehabilitation and community safety.
Page 4 of 4 Conditions of Supervision
Page 174 of 212 255-070-0003 Offender Return to County of Residence (1) Unless the Board waives the condition, the Board shall order as a condition of parole or post-prison supervision that an offender reside for the first six months in the county where the offender resided at the time of the offense that resulted in the imprisonment. (2)(a) The Board or the Department of Corrections may establish the county of residency by obtaining the last address of record at the time of the offense from all of the available information in the following records: (A) An Oregon driver's license, regardless of its validity; (B) The Department of Revenue; (C) The Department of State Police, Bureau of Criminal Identification; (D) The Department of Human Resources; or (E) The Department of Corrections. (b) If the records do not disclose the county of residency, the Board or the Department shall find the offender resided in the county where she or he committed the crime. (c) If the offender is serving multiple sentences, the county of residence shall be determined according to the date of the last arrest resulting in a conviction. (d) In determining the offender’s county of residence for purposes of this rule, the Board may not consider offenses committed by the offender while the offender was incarcerated in a Department of Corrections facility. (3) Upon motion of the Board, an offender, a victim, or a district attorney, the Board may waive the residency requirement after finding: (a) The offender provided proof of a job with no set ending date in a county other than the established county of residence; (b) The offender poses a significant danger to the victim; (c) The victim or victim's family poses a significant danger to the offender residing in the county of residence. (d) The offender has a spouse, registered domestic partnership, or biological or adoptive family, residing in other than the county of residence, who will be materially significant in aiding in the rehabilitation of the offender and in the success of the parole or post-prison supervision period; (e) The Board requires that the offender participate in a treatment program which is not available in the county of residence; (f) The offender desires release to another state or another state has a detainer; or (g) Other good cause. Statutory/Other Authority: ORS 144.270(5) Statutes/Other Implemented: History: PAR 2-2008, f. & cert. ef. 4-9-08; PAR 1-2007, f. & cert. ef. 2-1-07; PAR 10-1999, f. & cert. ef. 11-15-99; PAR 5- 1999(Temp), f. & cert. ef. 9-15-99 thru 3-12-00; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 6-1991, f. & cert. ef. 10-15-91; PAR 4-1989, f. & ef. 11-1-89
255-070-0015 Establishing Conditions (1) The Board may order an exit interview prior to the inmate’s release date to review the inmate’s case and set or approve conditions. See Division 60 for exit interview procedures. (2) If the Board decides to waive an exit interview, it shall specify the parole condition(s) prior to release and shall include the conditions on an order of supervision. (3) If the Board decides to waive an exit interview, it shall specify, in an order given to the offender upon release from incarceration, the post-prison supervision condition(s). (4) Once the Board establishes the conditions, the Board may amend the conditions and issue an amended order by: (a) Considering a requested modification administratively, if the amendment is requested before the inmate’s release on
Page 175 of 212 parole or post-prison supervision or if a condition is deleted after release; and (b) Citing to a hearing, if the amendment is requested after release and the offender does not consent in writing to the addition of conditions. (5) The Hearings Officer may amend the conditions, after a hearing, unless the offender waives the hearing. The Hearings Officer shall send notice of the amendment to the Board. (6) If the offender waives the right to a hearing and consents in writing to the addition of conditions, the supervising officer may amend the conditions. The officer shall send notice of the amendment to the Board. (7) If the Board does not override the Hearings Officer or supervising officer amended conditions, the Board shall issue an amended order of conditions, however, the condition is in effect from the date the supervising officer or Hearings Officer orders it. (8) The Board or the Hearings Officer shall conduct a hearing under section (4) and (5) of this rule applying rules governing violation hearings in division 75. (9) When a supervisory authority requests amended conditions before the inmate is released on parole or post-prison supervision, the supervisory authority shall submit the request in writing or by teletype to the Board prior to the release date. (10) An offender may appeal the conditions of parole or post-prison supervision pursuant to the procedures of division 80. Statutory/Other Authority: ORS 144.096, 144.098, 144.102, 144.106, 144.125, 144.185, 144.270, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.125, 144.185, 144.270, 144.343 History: PAR 5-1998, f. & cert. ef. 11-9-98; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1992(Temp), f. & cert. ef. 4-30-92; PAR 2-1990, f. & cert. ef. 4-5-90; PAR 6-1988, f. & ef. 5-19-88
DIVISION 75 PROCEDURES FOR RESPONSES TO PAROLE AND POST-PRISON SUPERVISION CONDITIONS VIOLATIONS FOR OFFENDERS UNDER THE JURISDICTION OF THE BOARD OF PAROLE AND POST-PRISON SUPERVISION OR LOCAL SUPERVISORY AUTHORITY
255-075-0001 Definitions (1) Administrative Sanction means local, structured, or intermediate sanctions as those terms are used in OAR 291-058- 0010 et al, and may include periods of local confinement in jails, restitution centers, treatment facilities, or similar facilities. (2) Sanction Authority means: (a) The Board or its designee for: (A) Any felony offender who received a sentence of more than twelve (12) months in the custody of the Department of Corrections; or (B) Any felony offender who received a sentence of twelve (12) months or less but who also has an additional sentence(s) of greater than twelve (12) months. (i) If an offender is on post-prison supervision for multiple sentences which include a sentence that exceeds twelve (12) months (“Board case”) and a less than twelve (12)-month sentence (“Local Supervisory Authority case”), the Board will maintain jurisdiction of the post-prison supervision of the Local Supervisory Authority case until the Board’s active involvement in the Board case(s) expires. Following expiration of the Board’s case(s), the Board will maintain jurisdiction over the post-prison supervision of the Local Supervisory Authority case(s) until an offender is re-released following revocation of the post-prison supervision for the Local Supervisory Authority case(s), or until the Local Supervisory Authority petitions to assume jurisdiction, whichever comes first. Jurisdiction will fall under the Local Supervisory Authority at that point. (ii) If the Board issued the order of post-prison supervision for an offender whose only sentence was twelve (12) months or less, jurisdiction will remain with the Board until petition by the Supervisory Authority to assume jurisdiction or upon
Page 176 of 212 re-release following revocation of the post-prison supervision for that sentence; whichever comes first. (b) The Local Supervisory Authority or its designee for any felony offender whose crime was committed after November 1, 1989, was sentenced by the court to twelve (12) months or less, and who does not have an additional sentence of more than twelve (12) months for a felony. Statutory/Other Authority: ORS 144.140 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346 & Ch. 51, OL 1997 (Enrolled SB 156) History: PAR 3-1998, f. 8-26-98, cert. ef. 8-27-98; PAR 2-1998(Temp), f. & cert. ef. 7-13-98 thru 1-9-99; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97
255-075-0002 Suspension of Parole or Post-Prison Supervision; Citation to Appear (1) When the supervising officer or other person informs the Sanction Authority of reasonable grounds to believe that a person has violated the conditions of parole or post-prison supervision, or that supervision is no longer in the best interests of the offender or the community, and that the revocation of parole or post-prison supervision may be justified or, in the case of parole only, an extension of parole may be justified, the Sanction Authority may: (a) Suspend the running of the sentence and the parole or post-prison supervision term and order the offender arrested and detained pending a violation hearing; or (b) Issue a citation to appear at a violation hearing without first suspending parole or the post-prison supervision term or ordering detention. (2) The Sanction Authority may issue a suspend and detain warrant or a citation to appear at a violation hearing. (3) The Sanction Authority may authorize, in writing, that its designated representative may issue citations to appear at a violation hearing. Statutory/Other Authority: ORS 144.025(3), 144.106, 144.331, 144.334 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 6-1992(Temp), f. & cert. ef. 6-24-92; PAR 4-1992(Temp), f. & cert. ef. 4-30-92; PAR 3-1989, f. 10-13-89, ef. 10- 16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1- 1984(Temp), f. & ef. 11-19-84
255-075-0003 Criteria for Allowing Offender to Remain in Community Pending Hearing In determining whether to allow an offender to remain in the community pending the violation hearing and final order, the Sanction Authority may consider: (1) The seriousness of the allegations and the risk to the offender or the community; (2) The likelihood of the offender absconding or failing to appear at the hearing; (3) The availability of resources in the community such as residence or employment; (4) Any recommendation by the parole and post-prison supervision officer. (5) The Sanction Authority may release offenders detained under a Sanction Authority warrant, after the violation hearing, when recommending local sanctions or intervention and continuance of parole or post-prison supervision. Statutory/Other Authority: ORS 144.331(2) Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 4-1993, f. & cert. ef. 10-29- 93; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1992(Temp), f. & cert. ef. 4-30-92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1- 1984(Temp), f. & ef. 11-19-84
Page 177 of 212 255-075-0004 Guidelines for “Best Interest” Return When the Sanction Authority determines that an offender’s release on parole or post-prison supervision is not in the best interest of the offender or in the best interest of society, the Sanction Authority may return the offender to custody. This type of return to custody may apply when: (1) The offender is suffering from an emotional or psychological disturbance which makes the offender dangerous to self or others if left in the community. The following behavior may indicate a dangerous emotional or psychological disturbance: (a) Showing a present capacity to carry out any statements or threats of violence against the offender or the community; or (b) Circumstances and conduct similar to that which led to the initial incarceration; or (2) The offender’s behavior cannot be adequately controlled if left in the community. (3) Best interest returns for offenders on post-prison supervision shall not exceed 90 days, and must be approved by the Sanction Authority. Statutory/Other Authority: ORS 144.270(2)(g), 144.350(2) Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88
255-075-0005 Hearing Requirement: Procedure (1) Except as otherwise provided by these rules, before the Board can revoke parole or extend active parole supervision for offenders whose crimes occurred on or after December 4, 1986, and before November 1, 1989 (BM10), the Board or Hearings Officer shall conduct a hearing. (2) When the offender waives the hearing and/or consents to the order, the Board need not conduct a hearing when the Board extends supervision for offenders whose crimes occurred on or after December 4, 1986 and before November 1, 1989 (BM10). (3) Except in the cases set forth in OAR 255-075-0015 and section (6) of this rule, the Sanction Authority shall impose administrative sanctions or shall initiate a hearing within fifteen (15) days of arrest or detention for the violation of parole or post-prison supervision conditions. (4) If an in-custody violation hearing and a final order cannot be accomplished within fifteen (15) days. a supervising officer or Hearings Officer shall request a non-bailable suspend and detain warrant from the Sanction Authority (5) A Hearings Officer can impose up to sixty (60) days of local confinement after conducting a violation hearing or if an offender waives the hearing. In doing so, the Hearings Officer may issue a final order subject to the approval of the Sanction Authority, but immediately effective. If the Hearings Officer recommends a sanction that exceeds sixty (60) days, it must be approved by the Supervisory Authority before being considered by the Sanction Authority. (6) If an offender consents to a sanction, intervention, or the recommendation of a revocation, a violation hearing is not required. A revocation involving a return to prison will require a future disposition hearing. If the offender contests any of the allegations, the offender may request a hearing. Statutory/Other Authority: ORS 144.106(3), 144.108, 144.331(2), 144.343, 144.350, 144.370 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 11-2006, f. & cert. ef. 10-30-06; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14- 97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1992(Temp), f. & cert. ef. 4-30-92; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1- 1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84; 2PB 1-1979, f. &
Page 178 of 212 ef. 2-1-79
255-075-0006 Method of Hearing The Hearing Officer may conduct hearings by teleconference or video conference. The Hearing Officer shall conduct hearings in person or by video conference in the following situations: (1) The alleged violations are contested and the offender or the offender’s attorney shows that the witness’s credibility, including observation of the witness’s demeanor is necessary; (2) Physical exhibits may be part of the record and viewing the exhibits is essential, and the exhibits can not be viewed in some other manner; (3) There are unusual circumstances not covered by this section, determined at the Hearing Officer’s discretion. Statutory/Other Authority: ORS 144.035(5), 144.343(1) Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84; 2PB 1-1982, f. & ef. 5-19-82; 2PB 7-1981(Temp), f. & ef. 11-4-81
255-075-0007 Designated Representative Conducts Hearing (1) The Sanction Authority or its designated representative shall conduct the probable cause and violation hearing. (2) “Designated representative” shall include those persons designated by the Sanction Authority, and trained and certified as Hearings Officers. Statutory/Other Authority: 144.331, 144.343, ORS 144.104(1) Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84
255-075-0015 When Offender in Another Jurisdiction: Return (1) The Sanction Authority may suspend parole or post-prison supervision and may order the offender's return to custody in Oregon without first conducting a hearing when: (a) The offender has, without permission, left the state to which the Sanction Authority released the offender on parole or post-prison supervision, and is in custody in another jurisdiction; (b) The offender is in custody in another correctional facility; (c) The offender has absconded from supervision and the offender's whereabouts are unknown; or (d) The offender has been convicted of a new crime. (2) Except as provided in ORS 144.345(2) and OAR 255-075-0005(6), the Sanction Authority or the Hearings Officer shall conduct a violation hearing after the offender returns to custody in Oregon. For purposes of these rules, the arrest date is the date the offender is returned to custody in Oregon. (3) Persons retaken and returned to this state from outside the state upon order or warrant of the Department of Corrections, the State Board of Parole & Post-Prison Supervision or the Governor, for violation of conditions of parole or post-prison supervision, shall be detained in a Department of Corrections facility or a local correctional facility pending any hearing concerning the alleged violation and ultimate disposition by the State Board of Parole & Post-Prison Supervision.
Page 179 of 212 (4) Persons retaken and returned to this state from outside the state upon order or warrant of a local supervisory authority for violation of conditions of post-prison supervision may be detained in a local correctional facility pending a hearing concerning the alleged violation and ultimate disposition by the local supervisory authority. Statutory/Other Authority: ORS 144.340, 144.345(2), 144.349 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 3-2000, f. & cert. ef. 1-25-00; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14- 97; PAR 3-1992, f. & cert. ef. 4-15-92; Reverted to PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 7-1991(Temp), f. & cert. ef. 10-15-91; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3- 14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84; 2PB 1-1979, f. & ef. 2-1-79
255-075-0025 Rights at Hearing (1) The designee of the Sanction Authority (eg. Hearings Officer) shall provide the offender a written notice of the hearing at least three (3) working days prior to the hearing. (2) The hearing notice shall include: (a) A Notice of Rights as provided in ORS 144.343(3) (Exhibit NOR-2); (b) A written statement of alleged violations; (c) Any documents or evidence which form the basis of the alleged violations; and (d) The date and location of the hearing. (3) The offender may elect to waive the three working day notification period prior to the hearing and begin the hearing immediately. (4) If the offender elects to waive the three working day notification period, the Hearings Officer shall obtain a written waiver or tape record the offender's verbal statement waiving the three working day notification period. (5) The Hearings Officer shall ascertain whether the offender has understood the allegations and the offender's rights and whether the offender can read, hear and understand the language of the proceedings. The Hearings Officer shall postpone the hearing if needed assistance is not readily available. Statutory/Other Authority: ORS 144.343(3) Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 4-2012, f. & cert. ef. 10-15-12; PAR 2-2012(Temp), f. & cert. ef. 6-28-12 thru 12-25-12; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1989, f. 10-13- 89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84; 2PB 1-1979, f. & ef. 2-1-79
Page 180 of 212 OREGON BOARD OF PAROLE AND POST-PRISON SUPERVISION OAR 255-075-0025
______Offender SID #
NOTICE OF RIGHTS
Hearing: You have been provided a copy of the violation report describing your violation behavior. You are entitled to a violation hearing. The purpose of the hearing is to determine whether there is probable cause to believe that you violated conditions listed on the violation report. If that finding is made the Hearings Officer may order or recommend a sanction or revocation that may include local detention, return to prison, or modification of conditions of supervision.
Waive a Hearing: You may waive the hearing in two ways: (1) voluntarily, by checking the appropriate box and signing your name on the back of this form; or, (2) involuntarily, by refusing to participate in your hearing. If you waive the hearing: • You admit violating one or more of the conditions alleged or you do not contest the allegations and neither admit nor deny them. • The Hearings Officer and, if applicable, the Board, will make findings based on the Supervising Officer’s Violation Report alone. There will be no other hearing. • If you voluntarily waive a hearing, you may offer an oral or written statement with reasons why the Hearings Officer or Board should not order sanctions, modifications of conditions, or return to prison.
Results of Hearing: Unless you waive your right to a hearing, an impartial Hearings Officer will conduct the hearing and will either: 1. Order a sanction or modification of conditions within the Hearings Officer’s authority. When the Hearings Officer’s order is the final order, it is immediately effective, but subject to override by the Board; or 2. Make findings, conclusions and recommendations to the Board. The Board may order a sanction, revocation that includes local detention or return to prison, or modification of conditions different from those recommended based upon the record of the hearing without another hearing or appearance.
Rights Before and During the Hearing: You have the right to: 1. Present relevant oral and written information; 2. Examine witnesses presenting evidence that you violated conditions of supervision, unless the Hearings Officer finds good cause not to allow you that opportunity; 3. Request witnesses who have relevant information regarding the alleged violations, unless the Hearings Officer finds good cause not to allow certain witnesses to testify; 4. Obtain an attorney at your own expense, or request an appointed attorney provided you cannot afford an attorney and (a) you did not violate the conditions and your claim has substantial merit, or (b) there are substantial reasons that justify or mitigate the violation that are complex and difficult to present without an attorney, or (c) you cannot speak effectively on your behalf.
Rights After the Hearing and Appeals: You have the right to: 1. Submit exceptions or arguments to the Hearings Officer’s findings, conclusions, and recommendations to the Board within 10 days of the Hearing Officer’s report (10-day waiting period); 2. Submit a request asking the Board to conduct administrative review of the Hearings Officer’s or Board’s final order within 45 days of the mailing date of the final order by using an Administrative Appeal Request form (Exhibit O) or by letter stating: “This is an administrative review request pursuant to Division 80 of Board rules”; and 3. If administrative relief is denied you may seek judicial review by petitioning the Oregon Court of Appeals within 60 days of the mailing date of the Board’s response to your request for administrative review.
See reverse side of this form. For further information, see ORS Chapter 144 and OAR 255, Divisions 70, 75, and 80. EXHIBIT NOR-2 Revised June 18, 2012 Page 1 of 2
Page 181 of 212 DECISIONS ABOUT RIGHTS
Hearing: I understand the rights contained in this notice and: □ I DO NOT want a hearing (Waive Hearing) □ I WANT a hearing
Three-Day Notice: I understand that a hearing will not be conducted less than three days from the date I am notified of my rights, the date, time and place of the hearing, and the allegations against me unless I waive that right. □ Not Applicable -- Hearing Waived □ I WAIVE the right to three days notice □ I WANT three days notice before the hearing
10-Day Waiting Period: When the Hearings Officer makes findings, conclusions, and recommendations to the Board, I understand that I have ten days to submit written exceptions concerning the report to the Board of Parole and Post-Prison Supervision (attention Sanctions Specialist). □ I WAIVE the 10-day waiting period to submit any written exceptions before the final decision is made □ I DO NOT WAIVE the 10-day waiting period. (A final decision by the Board will be delayed 10 days to allow you to submit written exceptions concerning the Hearings Officer’s report.)
Attorney: □ I have obtained my own attorney to represent me in this violation hearing. My attorney is: ______Phone: ______□ Not Applicable – Hearing Waived □ I DO NOT want an appointed attorney □ I WANT an appointed attorney Request for appointed attorney is: □ Allowed □ Denied by Hearings Officer Reason(s) for denial by Hearings Officer: □ Offender is not indigent; □ Offender IS indigent, BUT: □ There is not a timely and colorable claim offender has not committed the alleged violation; □ Reasons which justify or mitigate the violation are not complex or otherwise difficult □ Offender is capable of speaking effectively in his or her own behalf Witnesses : □ Not Applicable – Hearing Waived □ I DO NOT want witnesses □ I WANT witnesses at the hearing Allowed/Denied Name Address/Phone Why Denied by Hearings Officer □ □ ______□ □ ______□ □ ______
□ Understanding (if Hearing Waived): Having waived my right to a hearing, I consent to the modification of conditions and/or sanctions ordered by the Supervisory Authority or Hearings Officer as listed on the sanction report. I understand that the Board may within its authority override any sanction ordered by the supervising officer or Hearings Officer and impose a greater or different sanction, including revocation that may include local detention or return to prison, without another hearing or personal appearance.
Proposed sanction/revocation/modification: ______
I have read, or have had read to me, and fully understand and acknowledge this Notice of Rights and Decisions about Rights form.
______Signature of Hearings Officer or Representative Signature of Offender
______Printed Name of Hearings Officer or Representative Printed Name of Offender and SID #
Date: ______Date: ______EXHIBIT NOR-2 Revised June 18, 2012 Page 2 of 2
Page 182 of 212 255-075-0026 Waiver of Hearing (1) In all cases, the offender may waive the right to a hearing by signing a Notice of Rights form. A refusal to participate in the hearings process shall also constitute a waiver of the right to a hearing. (2) When the purpose of a hearing is to consider a parole or post-prison supervision violation, the waiver of the right to a hearing acknowledges that the offender violated the conditions in whole or in part and that the Sanction Authority may order local sanctions, may modify conditions of supervision may extend active supervision or that the Board may order return to prison, without further hearing. (3) When the purpose of the hearing is to modify parole or post-prison supervision conditions or, in the case of parole, to consider extending active supervision, the waiver of the hearing indicates acceptance of the modifications. (4) If the offender waives the right to a hearing, the offender may offer a written or verbal statement pertaining to the dispositional phase of the violation hearing. (5) If the hearing is conducted via teleconference or video conference, the offender shall submit written waiver of the right to a hearing to the Hearings Officer within five (5) days after the waiver. (6) The person delivering the Notice of Rights shall tape record or document in writing any statement made at the time of waiver. (7) If the offender waives the right to a hearing, the Hearings Officer or Supervising Officer shall submit to the Sanction Authority the following: (a) A Notice of Rights form; (b) Any written offender statements and/or a summary of oral statements; (c) The Hearing Summary, including a history of local interventions and sanctions ordered and a recommendation regarding disposition; (d) Any supporting information, including the supervising officer’s report and other documentary evidence submitted. Statutory/Other Authority: ORS 144.050, 144.140, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 3-1992, f. & cert. ef. 4-15- 92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 15-1988, f. & ef. 9-20-88; PAR 10-1988(Temp), f. & ef. 7-14-88; PAR 6- 1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84
255-075-0030 Board Rejection of Waiver If the Sanction Authority is not satisfied that the offender knowingly and intelligently waived his or her hearing rights or if it needs more information before making its decision, it may order a new hearing, to be conducted by the Hearings Officer or the Sanction Authority. Statutory/Other Authority: ORS 144.050, 144.140, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1- 1984(Temp), f. & ef. 11-19-84; 2PB 1-1979, f. & ef. 2-1-79
255-075-0031 Hearings Process (1) The Hearings Officer shall conduct the violation hearing reasonably near the place of the alleged violation or the place of confinement or may conduct the hearing by teleconference or video conference. (2) Unless the Hearings Officer finds good cause on the record, the parole and post-prison supervision officer shall
Page 183 of 212 present information and evidence at the hearing and arrange for the presence of witnesses for the state. The parole and post-prison supervision officer shall make dispositional recommendations. (3) The Hearings Officer shall make a tape recording of the hearing. Statutory/Other Authority: ORS 144.050, 144.106, 144.140, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84
255-075-0035 Representation/Ability to Pay Attorney Fees (1) In all cases, the offender is entitled to representation by an attorney at the offender's own expense. (2) For Board cases only, if the Hearings Officer or the Board deems the offender indigent, and unable to pay for an attorney, the offender is entitled to a Board appointed attorney if the Board or Hearings Officer further finds that the offender has made a timely and colorable claim that: (a) The offender has not committed the alleged violation; (b) There are substantial or complex mitigating circumstances which make revocation inappropriate even if the offender admits violation or it is a matter of record; or (c) The offender appears incapable or representing himself/herself. (3) For Board cases only, after a Board member has approved findings that there is a timely and colorable claim, the Hearings Officer may appoint an attorney. The Hearings Officer shall notify the Board of payment to be made to the appointed attorney. When the Board approves payment for a Board appointed attorney, it shall not exceed $100 per hour and $500 per case. The attorney shall send the Board a billing within 90 days of the violation hearing. (4) When the Hearings Officer or Board refuses to appoint an attorney, the Hearings Officer or Board shall state the grounds for refusal in the record. (5) For Local Supervisory Authority cases, the Local Supervisory Authority may set its own criteria for appointment of an attorney and shall set its own standards for payment of appointed attorneys. Statutory/Other Authority: ORS 144. 050, 144.140, 144.346 Statutes/Other Implemented: ORS 144.343 History: PAR 6-2012, f. & cert. ef. 11-15-12; PAR 3-2005, f. & cert. ef. 12-29-05; PAR 3-2001, f. & cert. ef. 2-6-01; PAR 1- 1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 6-1991, f. & cert. ef. 10-15-91; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 15-1988, f. & ef. 9-20-88; PAR 10-1988(Temp), f. & ef. 7-14-88; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1- 1984(Temp), f. & ef. 11-19-84; 2PB 1-1982, f. & ef. 5-19-82; 2PB 1-1979, f. & ef. 2-1-79
255-075-0036 Board Subpoenas; Witness (1) Offenders shall make their own arrangements for calling and presenting witnesses. However, upon the request of any party to the hearing, and upon a proper showing of the relevance and reasonable scope of the testimony to be offered, the Sanction Authority or Hearings Officer shall issue subpoenas requiring the attendance and testimony of witnesses. In addition, the Sanction Authority or the Hearings Officer may subpoena documents when relevant. (2) The Board shall reimburse fees and mileage as prescribed by law to witnesses appearing under subpoena, other than the parties, state officers or employees, provided the Hearing Officer or Sanction Authority certifies that the witness’s testimony was relevant and material to the hearing. (3) The offender may present witnesses who have relevant information, and has the right to confront the persons or witnesses who have presented information against the offender. (4) The Hearings Officer or Sanction Authority may deny confrontation of witnesses by the offender if that confrontation
Page 184 of 212 would subject the witness to the risk of harm. (5) If the Hearings Officer or Sanction Authority denies confrontation of witnesses, the Hearings Officer or Sanction Authority shall state the reason(s) for the decision and conduct an independent examination of the witness on the record. Statutory/Other Authority: ORS 144.347 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 3-1992, f. & cert. ef. 4-15- 92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84
255-075-0040 Compelling of Witnesses: Contempt The Sanction Authority or Hearings Officer or party requesting a subpoena, may seek contempt proceedings in the circuit court of any county against any person refusing to honor the subpoena. Statutory/Other Authority: ORS 144.050, 144.140, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 8-1992, f. & cert. ef. 10-9-92; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1- 1984(Temp), f. & ef. 11-19-84; 2PB 1-1979, f. & ef. 2-1-79
255-075-0042 Probable Cause; Preliminary Hearing; Deferral of Revocation Hearing (1) The Sanction Authority or Hearings Officer may use evidence received and the order of a court at a preliminary hearing or a conviction or other reliable, relevant information to establish that probable cause exists to believe that the offender has committed a violation of a condition of parole or post-prison supervision. (2) Should the offender waive the right to a preliminary hearing, the waiver shall constitute a waiver of a probable cause hearing. (3) When the Sanction Authority or Hearings Officer defers completion of a violation hearing until a trial is over and until the court or the parole and post-prison supervision officer notifies the Sanction Authority or Hearings Officer of the final disposition of the case, the Sanction Authority or Hearings Officer shall use a finding of probable cause to support the decision to suspend and detain an offender charged with the commission of a new crime. (4) Notwithstanding subsection (3) of this section, the Sanction Authority or Hearings Officer shall not extend a deferral following a finding of probable cause for a period greater than 120 days from the date of the preliminary hearing or waiver, unless the offender is released from jail pending final disposition of the case, or waives in writing further delay. Subsequent waivers shall not extend beyond 120 days. Statutory/Other Authority: ORS 144.050, 144.140, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 3-1992, f. & cert. ef. 4-15- 92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84; 2PB 1-1982, f. & ef. 5-19-82; 2PB 12-1981(Temp), f. & ef. 11-25-81
255-075-0045 Evidence; Subpoena of Documents (1) The Sanction Authority or Hearings Officer may receive the following as evidence at a violation hearing: (a) Oral testimony under oath;
Page 185 of 212 (b) Affidavits or other sworn statements; (c) Letters; (d) Documents; (e) Reports made in the course of official duty or professional practice (e.g., reports of law enforcement agencies, parole and post-prison supervision officers, doctors, psychologists, attorneys); (f) Uncertified copies of letters, documents, or reports shall be admissible in a revocation hearing if there is a reasonable showing by the person submitting the exhibit item that the copy is reliable; (g) Evidence of criminal activity even when charges have been dismissed, not brought, or the offender has been acquitted at trial; (h) Reliable hearsay evidence; or (i) Any evidence determined to be material, relevant, and reliable, regardless of its nature. (2) Upon the request of any party to the hearing, the Sanction Authority, or Hearings Officer, may issue a subpoena duces tecum upon a proper showing of relevant and reasonable scope of the documentary or physical evidence being sought. Otherwise, the offender shall make the offender’s own arrangements for presenting evidence. (3) The Sanction Authority or Hearings Officer may exclude documents or physical evidence upon making a finding that such evidence would pose a hazard to facility security or would not assist in the resolution of the allegation(s). The reason for exclusion shall be made part of the record. (4) The Sanction Authority or Hearings Officer may classify documents or physical evidence as confidential upon making a finding that revealing such evidence would pose a threat to the safety of the person providing the evidence. (5) The Sanction Authority or Hearings Officer shall make evidence received without disclosing the identity of the witness a sealed part of the record. (6) When a witness is unavailable, the Sanction Authority or Hearings Officer may receive statements in the form of documentary evidence. The Sanction Authority or Hearings Officer shall determine at an in-camera hearing the reliability and relevance of the absent witness’s statement. Statutory/Other Authority: ORS 144.050, 144.140, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1- 1984(Temp), f. & ef. 11-19-84; 2PB 1-1982, f. & ef. 5-19-82; 2PB 12-1981(Temp), f. & ef. 11-25-81; 2PB 1-1979, f. & ef. 2-1-79
255-075-0046 Postponement (1) The Sanction Authority or Hearings Officer with Sanction Authority approval, may postpone a hearing for good cause and for a reasonable period of time, which shall not exceed 120 days. (2) The criteria for “good cause” includes, but is not limited to: (a) The preparation of defense; (b) Illness or unavailability of the offender or other persons; (c) Gathering of additional evidence; or (d) Avoiding interference with an ongoing police investigation or pending prosecution. (3) The Sanction Authority, or Hearings Officer with Sanction Authority approval, may make a finding of a violation and defer disposition for a reasonable time which may exceed 120 days if such delay is reasonably necessary for the offender, the Sanction Authority or Hearings Officer to obtain information relevant to disposition decision. Statutory/Other Authority: ORS 144.050, 144.140, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB
Page 186 of 212 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84
255-075-0055 Reopening Hearings: Criteria; Procedure (1) After the completion of a violation hearing, the Sanction Authority or Hearings Officer may reopen a hearing if substantial new information is discovered which was not known or could not be anticipated at the time of the hearing and which would significantly affect the outcome of the hearing. (2) The Sanction Authority or Hearings Officer shall send the offender notice of the decision to reopen the hearing and the new information to be considered. The re-opened hearing shall conform to the procedures of this Division. Statutory/Other Authority: ORS 144.050, 144.140, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1979, f. & ef. 2-1-79
255-075-0056 Hearings Record (1) The hearings record shall include: (a) A Hearings Report Summary; (b) A written statement of alleged violations; (c) Supporting materials, including documentary evidence admitted; (d) A signed Notice of Rights; (e) The Order of Parole or Post-Prison Supervision; (f) A notice of time and place of hearing; (g) A tape recording of the advice of rights and the hearing; (h) the supervising officer's report, including recommended dispositions; (i) The history of supervision, local sanctions and modifications; and (j) If any, the written waiver of the offender’s right to three working days notice of the hearing. (2) The Hearings Officer shall retain the tape recording used in subsection (1)(g) of this rule for (4) four years. Statutory/Other Authority: ORS 144.343 Statutes/Other Implemented: ORS 144.096, 98, 102, 106, 108, 346, Ch. 525 OL 1997 History: PAR 6-2003, f. & cert. ef. 10-10-03; PAR 9-2002, f. & cert. ef. 6-17-02; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6- 1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84
255-075-0065 Ten Day Period for Offender’s Evidence and Exceptions (1) Within a reasonable time after the hearing, the Hearings Officer shall provide his or her report to the offender. (2) Unless the offender waives the right to respond, the offender shall have 10 days from the date the Hearings Officer mails the report to the offender to submit evidence and make written exceptions to the report for the Sanction Authority’s consideration. (3) If the offender waives the right to respond, the Hearings Officer shall include the waiver in the Hearings Officer’s report to the Sanction Authority. (4) When a Hearings Officer makes a final order pursuant to Board authority granted in writing, the offender shall not have a ten day period within which to submit evidence and written exceptions. The offender may appeal a Hearings Officer’s order under Division 80 of these rules.
Page 187 of 212 Statutory/Other Authority: ORS 144.343(7) Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 4-1992(Temp), f. & cert. ef. 4-30-92; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 1-1989(Temp), f. & ef. 4-19-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1- 1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84; 2PB 1-1979, f. & ef. 2-1-79
255-075-0067 Final Action: Authority to Impose Administrative (Local) Sanctions, Revoke Supervision or Modify Conditions of Supervision (1) If an offender waives a hearing after receipt and review of the notice of rights, as provided in OAR 255-075-0005(6) a supervising officer may order administrative sanctions, including a local confinement sanction not exceeding thirty (30) days. The Local Supervisory Authority’s designee may review the decision to order a local confinement sanction if the offender’s underlying sentence was for 12 months or less. The Board may review the decision if the underlying sentence was more than 12 months. (2) After a hearing, or if an offender waives a hearing after receipt of the notice of rights, as provided in OAR 255-075- 0005(6), a Hearings Officer or agency designee may order administrative sanctions, including a local confinement sanction not exceeding sixty (60) days. The Hearings Officer or agency designee shall send a copy of the final order and report to the Sanction Authority and, upon request, shall send the record of the hearing as described in OAR 255-075- 0056. The Hearings Officer or agency designee shall retain the record for four (4) years. (3) After a hearing, or waiver, the Board may order administrative sanctions for offenders originally sentenced to more than 12 months, and a Local Supervisory Authority designee may order administrative sanctions for offenders originally sentenced to 12 months or less. The Board or a Local Supervisory Authority designee ordered local administrative confinement sanction may not exceed ninety (90) days. (4) The Board (for offenders originally sentenced to more than 12 months) or the Local Supervisory Authority designee (for offenders originally sentenced to 12 months or less) may override any sanction ordered by a supervising officer, agency designee or Hearings Officer. (5) Administrative Sanctions, including local confinement shall be applied in accordance with the Department of Corrections rules for structured, intermediate sanctions, OAR 291-058-0010 et al., subject to jointly drafted revisions by the Department of Corrections and the Board. (6) If an administrative sanction is not sufficient to address the violation or to protect the public, the Sanction Authority may revoke supervision for a period(s) as set out in OAR 255-075-0079, or deny re-release for offenders on parole. (7) Conditions of supervision may be modified at any time by the Sanction Authority when necessary for the offender or public safety. If an offender objects to the modification, administrative review must be made within 45 days of the mailing date on the Board order or receipt of a written order by the Local Supervisory Authority. Statutory/Other Authority: ORS 144.106, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 2-2003, f. & cert. ef. 5-13-03; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14- 97; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1992(Temp), f. & cert. ef. 4-30-92
255-075-0070 Final Action: Procedure (1) When a case comes before the Board or Supervisory Authority or designee for decision, the Board or Supervisory Authority shall consider the Hearings Officer’s report, and the offender’s evidence and exceptions. The Board or Supervisory Authority or designee shall enter a decision, and shall record the decision in accordance with the sanction/intervention guidelines, OAR 291-058-0010 et al. The Board shall vote in accordance with Exhibit K. (2) The Board or Supervisory Authority may adopt or reject any or all the Hearings Officer’s findings and
Page 188 of 212 recommendations. The Board or Supervisory Authority may find a violation of conditions not alleged, if the evidence admitted at the hearing supports the finding and the evidence is uncontroverted. The final order shall indicate the findings adopted by the Board or Supervisory Authority. (3) A copy of the final order shall be forwarded to the offender with notice of the right to administrative and judicial review. (4) All final orders of the Board are subject to Administrative Review by the Board prior to seeking judicial review. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 144.125, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-2001, f. & cert. ef. 1-12-01; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14- 97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1992(Temp), f. & cert. ef. 4-30-92; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 1-1989(Temp), f. & ef. 4-19-89; PAR 17- 1988, f. & ef. 10-18-88; PAR 8-1988, f. & ef. 7-1-88; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3- 14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84; 2PB 1-1979, f. & ef. 2-1-79
255-075-0072 Re-release Order After Revocation (1) At the time of a revocation decision, the Sanction Authority shall make an order concerning re-release. (2) In the re-release order, the Sanction Authority may: (a) Continue parole or post-prison supervision pursuant to 255-075-0075 or 255-075-0080; or (b) Set the re-release date in accordance with rule 255-075-0079; or (c) The Board may defer the re-release decision pending a future disposition hearing for offenders on parole. (3) Upon notification that parole or post-prison supervision has terminated by operation of ORS 144.345(2), the Board shall apply subsection (2) of this rule. (4) Revocation of post-prison supervision stops the period of post-prison supervision from running while the offender is serving time in custody for a revocation sanction. The re-release order following a revocation sanction shall include a re- calculation of the post-prison supervision expiration date to account for the time the offender was in custody serving the revocation sanction. (5) The sum of the time actually served on the original incarceration sentence, all days served as a revocation sanction, and the time served in the community on post-prison supervision cannot exceed the maximum indeterminate sentence for the offense(s) for which the offender is on post-prison supervision. Statutory/Other Authority: ORS 144.346, 144.395 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 7-1999, f. 9-21-99, cert. ef. 9-22-99; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 3-1992, f. & cert. ef. 4-15-92; Reverted to PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 7-1991(Temp), f. & cert. ef. 10-15-91; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 1-1989(Temp), f. & ef. 4-19-89
255-075-0073 Return to DOC for a Period of Greater than 12 Months (1) Post-prison supervision may be revoked and an offender returned to the custody of the Department of Corrections for a sanction that exceeds 12 months when: (a) The offender is currently in violation of a condition of supervision; and (b) The offender scores at least a total of 44 points on the scale in Exhibit R of these rules; and (c) The community corrections agency supervising the offender and/or a hearings officer recommend a return to the Department of Corrections for a sanction exceeding 12 months; and (d) The Board finds that a sanction exceeding 12 months is appropriate.
Page 189 of 212 (2) This rule may only be applied to offenders serving a term of post-prison supervision for a felony crime committed on or after July 14, 1997, and the term of post-prison supervision: (a) Follows completion of a sentence to a term of imprisonment that exceeds 12 month;, or (b) Was imposed for a felony classified as crime category 8, 9, 10 or 11 of the sentencing guidelines grid; or (c) Was imposed as part of a sentence under ORS 137.700 or 137.707; or (d) Was imposed as part of a sentence as a dangerous offender under ORS 161.725 and 161.737; or (e) Is subject to ORS 144.103 (length of post-prison supervision for certain sex offenses). (3) A revocation hearing as described in OAR 255-075-0005 must be held when there is a recommendation under this rule. (4) A community corrections agency and/or hearing officer recommending a sanction under this rule must specifically state how the offender fits the requirements of this rule (including the score on the scale), what efforts have been made to manage the offender in the community and why the offender cannot be safely managed in the community. The recommendation may also contain any other information that may assist the board. (5) If a community corrections agency and/or hearing officer recommends a sanction under this rule, the board shall hold a hearing as described in OAR 255-075-0097 to determine whether a sanction exceeding 12 months is appropriate. After a hearing, the board can order a sanction of up to 24 months incarceration. The board must hold a subsequent hearing before it can order continued incarceration exceeding 24 months. The length of sanction imposed under this rule is determined by the board. (6) Subject to the requirements of this rule, an offender may be required to serve a sanction under this rule up to the post-prison supervision expiration date for any offense for which an offender was on post-prison supervision at the time the board ordered a sanction under this rule. When an offender is released from a sanction imposed under this rule, the offender must serve the balance, if any, of any post-prison supervision remaining up to the post-prison supervision expiration date. If the offender is not released prior to the post-prison supervision expiration date, the post-prison supervision will expire. The periods of post-prison supervision for all offenses for which an offender was on post-prison supervision at the time the board ordered a sanction under this rule continue to run while an offender is serving a sanction under this rule. (7) Board hearings under this rule will be conducted in the same manner that the board conducts future disposition hearings. The board may order a psychological evaluation for a hearing under this rule. The procedures for records, disclosure and notice outlined in divisions 15 and 30 shall govern these hearings. A panel may conduct the hearing and the board shall make decisions pursuant to OAR 255-030-0015. (8) In determining whether a sanction exceeding 12 months is appropriate or whether continued incarceration exceeding 24 months is appropriate, the board must consider the recommendation by the community corrections agency or hearing officer and may also consider the following: (a) The nature of the underlying conviction(s); (b) The offender’s criminal history; (c) The history and nature of violations of post-prison supervision or parole; (d) Findings made by a psychologist in a psychological evaluation; (e) Conduct in institutions or jails; (f) Programs completed in custody and/or in the community; (g) Treatment available in the community; (h) Release plans; (i) Victim’s statements, if any; and (j) Any indications of reformation and rehabilitation. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory Auth.: ORS 144.107 Statutory/Other Authority: Statutes/Other Implemented:
Page 190 of 212 History: PAR 3-2007, f. & cert. ef. 7-17-07; PAR 4-2001, f. & cert. ef. 3-12-01
255-075-0075 Parolees/Offenders Convicted of New Crime in This or Another Jurisdiction (1) If an offender has violated parole or post-prison supervision as a result of a conviction of a new crime and the court has ordered a prison term to the Department of Corrections, parole or post-prison supervision terminates without a violation hearing by operation of ORS 144.345(2). (2) Upon release from custody, if the Oregon sentence has not expired, Oregon supervision shall resume either in another jurisdiction under Interstate Compact or in Oregon. If, in preparing the re-release plan, the Department of Corrections cannot arrange supervision under Interstate Compact, the offender shall report for supervision. (3) The Sanction Authority shall make extradition decisions on a case-by-case basis in cooperation with the holding jurisdiction. (4) If the offender absconded supervision, the Sanction Authority shall count the inoperative time from the date the Sanction Authority issued its arrest and detention warrant to the arrest date in Oregon or if arrested out of state, upon return to Oregon custody. The Board shall forward the dates to the Department of Corrections for use in recalculating the sentence good time and expiration dates for those offenders under the Board’s jurisdiction. For those not under the Board’s authority, the inoperative time shall be calculated by the Supervisory Authority’s designee. Statutory/Other Authority: ORS 144.050, 144.140, 144.343 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 3-1992, f. & cert. ef. 4-15-92; Suspended by PAR 8-1991(Temp), f. & cert. ef. 11-6-91; PAR 7-1991(Temp), f. & cert. ef. 10-15-91; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 1-1989(Temp), f. & ef. 4-19-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1979, f. & ef. 2-1-79
255-075-0078 Commencement Date for Prison Term Following a Violation (1) The commencement date for a new commitment which is concurrent to an incarceration sanction for a violation of parole or post-prison supervision shall be the sentencing date for the new crime. (2) The commencement date for a new commitment which is consecutive to an incarceration sanction for a violation of parole or post-prison supervision shall be either the release date established for the violation or the sentencing date for the new crime, whichever is later. (3) Notwithstanding subsection (2) of this rule, when the new commitment is consecutive to a sanction for a violation, the Sanction Authority may treat the violation and the new commitment as if they were concurrent. If treated as concurrent, the commencement date for the new commitment shall be the sentencing date for the new crime plus adjustment for credit for time served. (4) If the offender is returned with a parole or post-prison supervision violation and a new sentence which is consecutive to the sentence for which the offender was on parole, the commencement date for the new conviction shall be the date parole was revoked, if so stated on the court order. Statutory/Other Authority: ORS 144.346, 144.395, 144.780, 144.783 Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: Reverted to PAR 8-1992, f. & cert. ef. 10-9-92; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 1-1989(Temp), f. & ef. 4-19-89; PAR 6-1988, f. & ef. 5-19- 88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84
255-075-0079 Guidelines for Re-release (1) For technical violation(s):
Page 191 of 212 (a) An offender whose parole has been revoked may serve further incarceration of up to 90 days for each revocation, except when re-release is denied pursuant to OAR 255-075-0096. (b) An offender sentenced to post-prison supervision who has been revoked and returned to custody may serve further incarceration of up to 90 days for each return, not to exceed the total revocation sanction days allowed in OAR 213-011- 0004. (2) For conduct constituting a crime: (a) An offender whose parole has been revoked may serve further incarceration of up to 180 days for each revocation, except when re-release is denied pursuant to OAR 255-075-0096. (b) An offender sentenced to post-prison supervision who has been revoked and returned to custody may serve further incarceration of up to 180 days, not to exceed the total revocation sanction days provided in OAR 213-011-0004. (3) For conduct constituting a crime and resulting in automatic revocation to the Department of Corrections, pursuant to ORS 144.345(2), an offender may serve further incarceration of up to 180 days. (4) Notwithstanding subsections (1)–(2) of this rule, offenders sentenced to life imprisonment for murder whose parole has been revoked may serve further incarceration to the sentence expiration date. Offenders sentenced to life imprisonment for aggravated murder whose parole has been revoked may serve further incarceration to the sentence expiration date. (5) Pursuant to OAR 253-005-0004(2) (9/1/89), an offender sentenced to lifetime post-prison supervision for murder committed on or after November 1, 1989 but before July 14, 1997, may serve further incarceration of up to 90 days for each technical violation, or 180 days for a criminal violation, without a limit on the total revocation days. (6) Notwithstanding subsections (1)–(2) of this rule, offenders sentenced as dangerous offenders for crimes committed on or after November 1, 1989 may serve repeated incarcerations of 180 days or more up to the sentence expiration date for any supervision violation. (7) Offenders sentenced as sexually violent dangerous offenders pursuant to ORS 137.765 for crimes committed on or after October 23, 1999, may serve repeated incarcerations of 180 days or more for any violation of post-prison supervision unless or until the post-prison supervision is terminated by a court. The Board may impose only a single sanction for all violations known as of the date of the sanction. (8)(a) The commencement date for the further term of incarceration as a result of the violation of conditions shall be the date of arrest or return to Oregon custody if arrested out of state for the violation which resulted in the revocation of parole or post-prison supervision. (b) The commencement date for the further term of incarceration as a result of termination of parole or post-prison supervision under ORS 144.345(2) (“autorevoke”) shall be the sentencing date, if no further action is taken by the Board. (c) If the jailer, hearings officer, or Board releases the offender from custody pending the violation hearing, the time spent outside actual custody does not count toward the further term of incarceration. (9) The Board and the Department of Corrections may develop other programs that create exceptions to the sanctions provided in this rule. (10) Notwithstanding subsections (1)–(7) of this rule, the Board may choose to postpone re-release on parole pursuant to divisions 50 and 60 of this chapter. (11) Notwithstanding subsections (1)–(8) of this rule, the Board may choose to deny re-release on parole pursuant to OAR 255-075-0096. (12) Administrative sanctions do not count toward the revocation sanction limits. Statutory/Other Authority: ORS 144.107, 144.108, 144.109, 144.120(4), 144.125, 144.232, 144.345, 144.346, 144.395, 161.735 Statutes/Other Implemented: ORS 144.085, 144.120(4), 144.245, 144.395, 144.780, 144.783 - 144.787 History: PAR 6-2014, f. & cert. ef. 6-19-14; Temporary suspended by PAR 3-2014(Temp), f. & cert. ef. 2-24-14 thru 8-13- 14; PAR 2-2014(Temp), f. & cert. ef. 2-14-14 thru 8-13-14; PAR 11-2004, f. & cert. ef. 11-2-04; PAR 5-2004(Temp), f. & cert. ef. 6-14-04 thru 12-10-04; PAR 2-2003, f. & cert. ef. 5-13-03; PAR 3-2000, f. & cert. ef. 1-25-00; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 8-1992, f. & cert.
Page 192 of 212 ef. 10-9-92; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 6-1990(Temp), f. & cert. ef. 10-15-90; PAR 4-1989, f. & ef. 11-1-89; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 1-1989(Temp), f. & ef. 4-19-89
255-075-0080 Continuance on Parole or Supervision (1) The Sanction Authority may continue an offender on parole or post-prison supervision and order modification of conditions and/or sanction to time served. (2) The Sanction Authority may continue an offender on parole or post-prison supervision and order administrative sanctions as limited by OAR 255-075-0067. Statutory/Other Authority: ORS 144.106, 144.343, 144.345(1) Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 8-1992, f. & cert. ef. 10-9- 92; PAR 4-1992(Temp), f. & cert. ef. 4-30-92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84; 2PB 1-1979, f. & ef. 2-1-79
255-075-0085 Parole Violators with No New Commitment; Action Required Text in ORMSStatutory/Other Authority: Statutes/Other Implemented: History: Suspended by PAR 1-1989(Temp), f. & ef. 4-19-89; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84; Reverted to PAR 6-1988, f. & ef. 5-19-88; Sunset on 09-28-2017; 2PB 1-1979, f. & ef. 2-1-79
255-075-0096 Denial of Rerelease Consideration (1) Upon a finding of aggravation pursuant to Exhibit E or Exhibit H, the Board may deny rerelease on parole and set the parole release date up to two (2) days before the statutory good time date, or, in the case of murder or aggravated murder, require the parole violator to serve for life. This action requires the affirmative vote of a majority of members, except that if the result is life imprisonment, the full Board must vote unanimously. (2) Denial of rerelease on parole requires a future disposition hearing. (3) Cases in which the Board sets a parole violator within the guidelines set forth in rule 255-075-0079 and the result requires the parole violator to serve to the end of the sentence, do not require a majority vote of all members. (4) At any time after denial of rerelease, the Board may adjust the parole release date to accomodate changes in the good time date. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 144.085, 144.120(4), 144.245, 144.395, 144.780, 144.783 - 144.787 Statutes/Other Implemented: ORS 144.085, 144.120(4), 144.245, 144.395, 144.780, 144.783 - 144.787 History: PAR 10-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 4-1989, f. & ef. 11-1-93; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 1-1989(Temp), f. & ef. 4-19-89; PAR 8- 1988, f. & ef. 7-1-88; PAR 7-1988, f. & ef. 7-1-88; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14- 88; 2PB 1-1985, f. & ef. 2-28-85; 2PB 1-1984(Temp), f. & ef. 11-19-84
255-075-0097 Time for Future Disposition Hearing When the Board holds a future disposition hearing pursuant to OAR 255-075-0072(2) or 255-075-0096, the following timelines shall apply: (1) If the offender has a new conviction, the Board may schedule the future disposition hearing at the same time as the
Page 193 of 212 new prison term hearing. (2) If the offender has no new conviction or has no prison term hearing, the Board shall schedule the future disposition hearing within 60 days of return to the institution. Statutory/Other Authority: ORS 144.050, 144.140, 144.395 Statutes/Other Implemented: ORS 144.050, 144.140, 144.395 History: PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 1-1989(Temp), f. & ef. 4-19-89
255-075-0098 Restoration of Statutory and Meritorious Goodtime Upon recommendation of the superintendent of the institution, the Board may restore part or all of forfeited statutory and meritorious goodtime when: (1) There is no violation of parole; or (2) Parole is revoked on a best interest basis and there is no actual parole violation; or (3) Parole is revoked on a technical violation; or (4) Parolee is within 180 days of discharge; or (5) Parole is revoked for new criminal activity which is a misdemeanor or non person-to-person class C felony and: (a) The new criminal activity was already sanctioned at the local level; or (b) The criminal activity is not of the same nature as the crimes for which the parolee was on parole. (6) An offender ordered to serve a term of incarceration as a Revocation sanction for a post-prison supervision violation is not eligible for goodtime, earned-credit time, work release, transitional or temporary leave. Statutory/Other Authority: ORS 421.120, 144.108(3) Statutes/Other Implemented: ORS 144.096, 144.098, 144.102, 144.106, 144.108, 144.346, Ch. 525 OL 1997 (Enrolled SB 156) History: PAR 1-1998, f. & cert. ef. 5-11-98; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 10-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 18-1988, f. & ef. 12-6-88; PAR 6- 1988, f. & ef. 5-19-88; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88
255-075-0100 Future Disposition Hearing Packet The Future Disposition Hearing Packet shall contain: (1) Institution face sheet; (2) Revocation recommendation; (3) Final order of revocation; (4) Administrative action sheet; (5) Revocation hearing findings; (6) Board Action Form ordering parole or Board Action Form ordering post-prison supervision conditions; (7) Disciplinary report, when extension is recommended; (8) Recommendation regarding statutory and meritorious goodtime; (9) Correspondence; (10) Statements of imprisonment for violation; and (11) Face sheet from old parole analysis report or comparable report. (12) Inmate’s Notice of Rights and Board of Parole & Post-Prison Supervision Procedures. Statutory/Other Authority: ORS 144.185, 144.395 Statutes/Other Implemented: ORS 144.185, 144.395 History: PAR 10-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 18-1988, f. & ef. 12-6- 88; PAR 6-1988, f. & ef. 5-19-88
DIVISION 80
Page 194 of 212 ADMINISTRATIVE APPEAL
255-080-0001 Exhaustion of Remedies (1) A Board order is final and effective the date it is signed, however it is not final for purposes of the time period within which to appeal to the Court of Appeals until the inmate/offender exhausts his or her administrative review remedies. (2) An inmate/offender has exhausted his or her administrative remedies after complying with OAR 255-080-0005 and 255-080-0008, and after the Board denies review, or grants review and either denies or grants relief. The Board shall notify the inmate/offender that exhaustion has occurred and the time for judicial appeal of appealable orders shall run from the mailing date of the notice. Statutory/Other Authority: ORS 144.335 Statutes/Other Implemented: ORS 144.335 History: PAR 2-2017, f. 3-23-17, cert. ef. 4-5-17; PAR 4-2016(Temp), f. & cert. ef. 10-31-16 thru 4-28-17; PAR 13-2010, f. & cert. ef. 12-1-10; PAR 7-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 2-1991, f. & cert. ef. 2-20-91
255-080-0005 Procedure for Administrative Review (1) An offender may obtain administrative review of a final Board action by sending a request for review to the Board within forty-five (45) days after the mailing date on the Board's final action on the issue to be reviewed. (2) The Board will reject an untimely request for administrative review. Timeliness will be determined as follows for all Board actions except Orders of Supervision: (a) The request is physically received by the Board on or before the 45th day after the mailing date on the Board's final action on the reviewed issue; or (b) The request is delivered to the Board: (A) by mail in an envelope bearing a United States Postal Service (USPS) cancellation stamp, a USPS postage meter electronic imprint, sticker, or stamp, a postage meter sticker or stamp from a "postage evidencing system" that is regulated and approved for use by the United States Postal Service pursuant to 39 CFRs. 501, et seq., that is dated on or before the 45th day after the mailing date on the Board's final action: a postage evidencing system refers to postage by any method other than postage stamps and includes (but is not limited to) postage meters; or (B) by a parcel delivery service such as, or comparable to, United Parcel Service, Federal Express, or Airborne Express, that indicates the date on which the parcel delivery service received material for delivery to the Board, which date is on or before the 45th day after the mailing date on the Board's final action. (C) If the Board finds that the administrative review request was not: (a) placed in the mail on the date indicated on the postage meter sticker or stamp or (b) delivered to the parcel delivery service on the date indicated on the parcel delivery service receipt, the delivery rules in OAR 255-080-0005(2)(b)(A) and (B) shall not apply. (c) In the case of an inmate, if there is no legible USPS cancellation stamp or other postal mailing verification as defined in paragraph (2)(b) above, the request will be treated as timely if the inmate signed and dated the request and placed it in the institutional mailing system, following all applicable Department of Corrections rules, on or before the 45th day after the mailing date on the Board's final action. (3)(a) For Orders of Supervision (including Orders to Continue/Amend Supervision), an offender must request administrative review within forty-five (45) days after the date he or she received the order. The Board will reject a request for administrative review of an Order of Supervision as untimely unless: (A) The request is physically received by the Board on or before the 45th day after the date the offender received the order as determined by offender's signature on the order or other proof as stated in paragraph (3)(b); or (B) The request is delivered to the Board by mail in an envelope bearing a United States Postal Service (USPS) cancellation stamp or other postal mailing verification as defined in paragraph (2)(b) above, dated on or before the 45th day after the date the offender received the order as determined by offender’s signature on the order or other proof as
Page 195 of 212 stated in paragraph (3)(b). (b) The offender’s date of receipt may be established by: (A) The date the order was signed by the offender, or (B) If the offender did not sign the order, the Board will accept an electronic chronological entry or a note made by an employee of the Department of Corrections or of the supervisory authority as evidence of the date the offender received the Order of Supervision. (4) If the Board or its designee finds that the request is timely, and that it is consistent with the criteria as defined in rules 255-080-0010 and 255-080-0011, and meets the deadline requirements, the Board will respond to the request using the procedures outlined in OAR 255-080-0012. (5) When the Board or its designee grants review, the Board shall send the offender a written response. (a) If relief is denied, the response will explain the reasons for the decision. When relief is denied, the prior decision stands. (b) If relief is granted, the response will either implement the relief, or specify the Board action to be taken implementing relief. (6) When the Board or its designee denies review, the Board shall send the offender written notice of the specific reasons for denial. (a) When review is denied, the prior decision stands. [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 144.335 Statutes/Other Implemented: ORS 144.335 History: PAR 13-2010, f. & cert. ef. 12-1-10; PAR 12-2004, f. & cert. ef. 11-2-04; PAR 9-2004(Temp), f. & cert. ef. 9-3-04 thru 3-1-05; PAR 8-2004, f. & cert. ef. 6-14-04; PAR 7-2000, f. & cert. ef. 6-9-00; PAR 7-1997, f. 3-11-97, cert. ef. 3-14- 97; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 2-1991, f. & cert. ef. 2-20-91; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 4-1989, f. & ef. 11-1-89; PAR 18-1988, f. & ef. 12-6-88; PAR 8-1988, f. & ef. 7-1-88; PAR 6-1988, f. & ef. 5-19-88; 2PB 17-1985, f. & ef. 5-31-85; 2PB 1-1982, f. & ef. 5-19-82; 2PB 11-1981(Temp), f. & ef. 11-25-81; 2PB 1979, f. & ef. 2-1-79
255-080-0008 Specifications for Administrative Review Request (1) The request for administrative review shall be substantially in the form specified by the Board in Exhibit O, Administrative Review Request Form, and shall contain: (a) The name and SID # of the person requesting review. (b) The heading “Request for Administrative Review” (c) Identification of the Board action or order for which review is requested, by name of action (i.e., BAF #3, Order of Supervision, etc.) and date of action. (d) A plain and concise statement of the points for which the offender wants review, specifically identifying how the challenged Board action is alleged to be in violation of statutes or Board rules, or how it is alleged that the decision was not supported by evidence in the record, or in what other way the offender believes the Board’s action to be in error. A request for administrative review must concisely explain how the case fits the criteria for review listed in OAR 255-080- 0010. (e) The request must state, where applicable, what statute, administrative rule, or constitutional provision is alleged to have been violated, including the effective date of the law or rule. (2) The administrative review request shall be created by any process that makes a clear, legible, black or dark blue image; the Board will not accept text written in pencil, carbon copies, copies on slick paper, or copies darkened by the duplicating process. (a) All writing shall be legible and capable of being read without difficulty. (b) The request must be written on standard 8.5" x 11” white or light blue paper. (c) Each page shall have margins of at least 1” on all sides.
Page 196 of 212 (d) Any attachments to the review request shall be duplicated on standard 8.5" x 11” white paper and must be clear and legible. (e) Pages shall be consecutively numbered on the right side at either the top or bottom of the page. (3)(a) The request shall not exceed 8 pages. That limitation does not include additional documentation necessary to support the request. (Under most circumstances, no additional documentation will be necessary.) (b) Additional documentation in support of the request shall not exceed 10 pages. (c) Legal arguments relating to the challenged order must be incorporated into the 8-page administrative review request; any claims or allegations included solely in the “additional documentation” will not be considered by the Board in its response. (4)(a) An offender may request an exception to the limits in these rules, stating a specific reason for exceeding the prescribed limit(s). The request must reach the Board no fewer than fourteen days before the administrative review request is due. The Board, at its discretion, may permit the filing of a review request, and/or additional documentation that exceeds the page limits prescribed in subsection (2) of this rule. The Board may deny an untimely motion under this paragraph on the ground that the offender failed to make a reasonable effort to file the motion on time. (b) If the Board grants permission for a longer review request, or additional documentation in support of the request, the documents shall conform to the rules set forth above in section (1). (c) This rule does not create an exception to the timeliness requirements of OAR 255-080-0005. The offender is responsible for requesting an exception and filing his review request within 45 days as required by OAR 255-080-0005 [ED. NOTE: Exhibits referenced are available from the agency.] Statutory/Other Authority: ORS 144.335 Statutes/Other Implemented: ORS 144.335 History: PAR 7-2014, f. & cert. ef. 8-8-14; PAR 4-2014(Temp), f. & cert. ef. 3-27-14 thru 9-22-14; PAR 14-2010, f. & cert. ef. 12-1-10; PAR 13-2010, f. & cert. ef. 12-1-10
255-080-0010 Criteria for Granting a Review The criteria for granting a review are: (1) The Board action is not supported by evidence in the record; or (2) Pertinent information was available at the time of the hearing which, through no fault of the offender, was not considered; or (3) Pertinent information was not available at the time of the hearing, e.g., information concerning convictions from other jurisdictions; or (4) The action of the Board is inconsistent with its rules or policies and the inconsistency is not explained; or (5) The action of the Board is in violation of constitutional or statutory provisions or is a misinterpretation of those provisions. (6) The action of the Board is outside its statutory grant of discretion. Statutory/Other Authority: ORS 144.335, 183.482(8) Statutes/Other Implemented: ORS 144.225, 183.482(8) History: PAR 8-1992, f. & cert. ef. 10-9-92; PAR 2-1991, f. & cert. ef. 2-20-91; PAR 18-1988, f. & ef. 12-6-88; PAR 6- 1988, f. & ef. 5-19-88; 2PB 1-1979, f. & ef. 2-1-79
255-080-0011 Limitations on Requests for Administrative Review All administrative review requests will be screened by a Board member or a Board designee who shall deny further review of the following: (1) Administrative review requests determined to be untimely pursuant to rule 255-080-0005; (2) Requests in which the subject matter relates to a hearing or review and/or Board order other than the Board order being appealed;
Page 197 of 212 (3) Board orders that are not final; (4) Requests that fail to comply with the requirements of OAR 255-080-0008. Statutory/Other Authority: ORS 144.335 Statutes/Other Implemented: ORS 144.335 History: PAR 7-2014, f. & cert. ef. 8-8-14; PAR 4-2014(Temp), f. & cert. ef. 3-27-14 thru 9-22-14; PAR 13-2010, f. & cert. ef. 12-1-10; PAR 12-2004, f. & cert. ef. 11-2-04; PAR 9-2004(Temp), f. & cert. ef. 9-3-04 thru 3-1-05; PAR 7-2000, f. & cert. ef. 6-9-00; PAR 7-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 2-1991, f. & cert. ef. 2- 20-91
255-080-0012 Administrative Review Procedure (1) If the Board or its designee determines that the request for review is consistent with the criteria in OAR 255-080- 0010 and the limits of 255-080-0011, the Board may open the case for review. (2) The Board may open a case for reconsideration of a finding without receiving a request, without regard to time limits, and without opening all findings for review and appeal. (3) The Board may conduct the review using the following methods: (a) Administrative file pass, with the number of concurring votes required by OAR 255-030-0015; or (b) Other administrative action by the Board or its designee, e.g., to correct errors in the history risk score, crime category, credit for time served, inoperative time or adjusted commitment dates; or (c) Administrative hearing, in cases where review would cause an adverse result for the prisoner. (4) When the Board schedules an inmate/offender for an administrative review hearing and the inmate/offender has not received the Hearing Packet, the Board may proceed with the hearing, if the inmate/offender waives the right to adequate notice of the hearing and receipt of the Board Review Packet. (5) The Board shall send the inmate/offender written notice of the Board decision and findings. Statutory/Other Authority: ORS 144.335 Statutes/Other Implemented: ORS 144.335 History: PAR 7-2000, f. & cert. ef. 6-9-00; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 2-1991, f. & cert. ef. 2-20-91; PAR 18- 1988, f. & ef. 12-6-88
255-080-0015 Administrative Review Hearing Packet The Administrative Review Hearing Packet shall contain: (1) Institution face sheet; (2) Board Action Form granting administrative review; (3) All information attached to the Board Action Form granting review; (4) Administrative review request; (5) All Board Action Forms since the prison term hearing; (6) Psychological evaluations (last six months); (7) Correspondence; (8) Field parole analysis report or comparable report; (9) Court orders; and (10) Inmates’ Rights and Board of Parole and Post-Prison Supervision Procedures. Statutory/Other Authority: ORS 144 Statutes/Other Implemented: ORS 144 History: PAR 4-1989, f. & ef. 11-1-89; PAR 18-1988, f. & ef. 12-6-88; PAR 8-1988, f. & ef. 7-1-88; PAR 6-1988, f. & ef. 5- 19-88
DIVISION 85
Page 198 of 212 SEX OFFENDER NOTIFICATION LEVELS
255-085-0010 Definitions The following definitions apply to this Division: (1) “Adult male registrant” means a male registrant who was at least 18 years of age when he committed the sex crime. (2) “Board registered victim” means a victim, as defined in OAR 255-005-0005 who is registered with the Board. (3) “Category B registrant” means a person of any gender or age at the time of sex crime commission who is required to register as a sex offender based only on a conviction for a Category B sex crime. (4) “Category B sex crime” means any type of criminal offense within the scope of “Category B offenses” used to administer the Static-99R and listed on the Board’s website, and is also a sex crime for which reporting is required. (5) “Existing registrant” means a registrant for whom the event triggering the obligation to make an initial report under ORS 163A.010(3)(a)(A), 163A.015(4)(a)(A) or 163A.020(1)(a)(A), (2)(a)(A) or (3)(a)(A) occurred before January 1, 2014. (6) “Failed to participate” means the registrant has been out of compliance with ORS 163A.010-020 for more than 90 days; or a letter sent to the registrant’s latest address in the Oregon sex offender registry is returned “undeliverable”; or the registrant does not return a request for information from a classifying agency. (7) “Female registrant” means a female registrant, regardless of her age when she committed the sex crime. (8) “Other registrant” means a registrant who is not an adult male registrant. Other Registrant includes: female registrants; Category B registrants; and young male registrants. (9) “Predatory sex offender” means a person who exhibits characteristics showing a tendency to victimize or injure others and has been convicted of one or more of the following offenses: Rape in any degree, Sodomy in any degree, Unlawful Sexual Penetration in any degree or Sexual Abuse in any degree, or has been convicted of attempting to commit one or has been found guilty except for insanity of one of these crimes. (10) “Registrant” means a person convicted of a sex crime and required to register as a sex offender or found guilty except for insanity of a sex crime and required to register as a sex offender under ORS Chapter 163A. (11) “Risk assessment” means a sex offense-specific assessment of the person’s risk to sexually reoffend, using the risk assessment methodology in OAR 255-085-0020. (12) “Sex crime” has the definition contained in ORS 163A.005 (5). (13) “Young male registrant” means a male registrant who was 17 years of age or younger when he committed the sex crime offense. Statutory/Other Authority: ORS 163A.100, ORS 163A.115, ORS 144.050, ORS 144.140, ORS 163A.105, ORS 163A.110, ORS 163A.125 Statutes/Other Implemented: ORS 163A.100, ORS 163A.115, HB 2320 (2015), SB 767 (2017), ORS 163A.105, ORS 163A.110, Section 7, Chapter 708, Oregon Laws 2013, as amended by Section 27, Chapter 820, Oregon Laws (2015), ORS 163A.125 History: PAR 1-2020, amend filed 01/10/2020, effective 01/10/2020; PAR 6-2017, amend filed 12/20/2017, effective 12/20/2017; PAR 5-2017(Temp), f. 6-30-17, cert. ef. 7-1-17 thru 12-27-17; PAR 1-2017(Temp), f. & cert. ef. 3-21-17 thru 9-16-17; PAR 5-2016(Temp), f. 12-28-16, cert. ef. 1-3-17 thru 7-1-17; PAR 1-2016, f. & cert. ef. 1-27-16; PAR 3- 2015(Temp), f. & cert. ef. 8-27-15 thru 2-19-16
255-085-0020 Sex Offender Risk Assessment Methodology (1) For classification and community notification for adult male registrants, the classifying agency shall use the Static- 99R actuarial instrument on the Board’s website at http://www.oregon.gov/BOPPPS along with attending rules and research found on http://www.static99.org/, to conduct a sex offender risk assessment. Classifying agencies may score registrants using information from previous Static-99 or Static-99R assessments. Classifying agencies shall score and place each registrant into one of the following levels: (a) Notification Level 1: Low risk;
Page 199 of 212 (b) Notification Level 2: Moderate risk; or (c) Notification Level 3: High risk. (2) For classification of other registrants, the classifying agency shall assess registrants using the Level of Services/Case Management Inventory (LS/CMI) as supplemented by an independent sexual offense-specific evaluation report. This assessment shall be performed by an independent evaluator who is a licensed provider or Sex Offender Treatment Board-certified provider qualified to conduct sexual offense risk assessments. The independent evaluator will provide the classifying agency with a written report, and will provide information regarding the registrant’s risk for sexual re- offense as low, moderate, or high. Classifying agencies shall place the registrant into one of the following levels according to risk, giving due consideration to the evaluator’s assessment: (a) Notification Level 1: Low risk; (b) Notification Level 2: Moderate risk; or (c) Notification Level 3: High risk. (3) Automatic Assessments. Classifying agencies shall classify the following registrants as Level 3 sex offenders: (a) A person who was previously designated as a predatory sex offender between February 10, 2005 and December 31, 2013; (b) A person who is designated as a sexually violent dangerous offender under ORS 137.765; (c) A registrant who has failed or refused to participate in a sex offender risk assessment. Statutory/Other Authority: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, ORS 144.050, ORS 144.140 Statutes/Other Implemented: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, Section 7, Chapter 708, Oregon Laws 2013, as amended by Section 27, Chapter 820, Oregon Laws (2015), SB 767 (2017), HB 2320 (2015) History: PAR 1-2020, amend filed 01/10/2020, effective 01/10/2020; PAR 6-2017, amend filed 12/20/2017, effective 12/20/2017; PAR 5-2017(Temp), f. 6-30-17, cert. ef. 7-1-17 thru 12-27-17; PAR 1-2017(Temp), f. & cert. ef. 3-21-17 thru 9-16-17; PAR 5-2016(Temp), f. 12-28-16, cert. ef. 1-3-17 thru 7-1-17; PAR 1-2016, f. & cert. ef. 1-27-16; PAR 3- 2015(Temp), f. & cert. ef. 8-27-15 thru 2-19-16
255-085-0030 Assessments and Reassessments (1) Automatic Assessments. Classifying agencies shall classify the following registrants as Level 3 sex offenders: (a) A person who was previously designated as a predatory sex offender between February 10, 2005 and December 31, 2013; (b) A person who is designated as a sexually violent dangerous offender under ORS 137.765; (c) A registrant who has failed or refused to participate in a sex offender risk assessment. (2) Initial Assessments (a) When a person convicted of a crime described in ORS 163.355 to 163.427 is sentenced to a term of imprisonment in a Department of Corrections institution for that crime, the Board shall conduct a risk assessment of the person before the person is released from custody. (b) Subject to the procedures set forth in this rule, for a person described in ORS 163A.105(1) or 163A.105(4) who has not been assessed or classified prior to release, the Board shall conduct a risk assessment of the person within 90 days of either the person’s release from custody or after receiving notice of a person’s obligation to report in this state from the Department of State Police. (c) If a registrant classified as a level three sex offender under subsection 255-085-0030(1)(c) notifies the Board of a willingness to participate in a sex offender risk assessment, the Board shall perform the assessment. (d) For persons who were released from custody or whose initial obligation to register occurred on or after January 1, 2014, the Board shall conduct a risk assessment as soon as practicable. (3) Subsequent Assessments:
Page 200 of 212 (a) Upon conviction of a new qualifying sex offense after a previous classification, the classifying agency shall reassess the offender and may reclassify the offender if the risk assessment changes the notification level. (b) The Board may reassess or reclassify an existing registrant placed in one of the levels described in ORS 163A.100 if the Board determines that a factual mistake caused an erroneous assessment or classification. (4) Notifications and Objections: Objections that are not received within these timelines will not be reviewed, and the Board will proceed to final classification. (a) Registrants who are classified a Notification Level 2 or Level 3 sex offender may petition the Board for review. (b) The Board will provide to the Level 2 or Level 3 registrant the assessment, a Notice of Rights form, and a Written Objections form. Following this notification: (A) If the Level 2 or Level 3 registrant is supervised or in custody of the Department of Corrections, the Board must receive the Notice of Rights form, and the form for Written Objections or Waiver of Objections to the assessment, within thirty (30) days after the mailing date on the Notice of Rights. (B) If the Level 2 or Level 3 registrant is neither supervised or in custody of the Department of Corrections, the Board must receive the Notice of Rights form, and the form for Written Objections or Waiver of Objections to the assessment, within sixty (60) days after the mailing date on the Notice of Rights. Statutory/Other Authority: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, ORS 144.050, ORS 144.140 Statutes/Other Implemented: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, Section 7, Chapter 708, Oregon Laws 2013, as amended by Section 27, Chapter 820, Oregon Laws 2015, SB 767 (2017), HB 2320 (2015) History: PAR 1-2018, minor correction filed 03/07/2018, effective 03/07/2018; PAR 6-2017, amend filed 12/20/2017, effective 12/20/2017; PAR 5-2017(Temp), f. 6-30-17, cert. ef. 7-1-17 thru 12-27-17; PAR 1-2017(Temp), f. & cert. ef. 3- 21-17 thru 9-16-17; PAR 1-2016, f. & cert. ef. 1-27-16; PAR 3-2015(Temp), f. & cert. ef. 8-27-15 thru 2-19-16
255-085-0040 Reviews – Adult Male Registrants (1) Written objections trigger review consideration. Written objections are limited to presenting factual evidence regarding the Static-99R score and must be plain, concise, and directly related to specific items on the Static-99R that the Registrant claims were not scored correctly. Additional documentation in support of the request may be included and shall not exceed 10 pages. Documentation must be written clearly and legibly on standard 8.5" x 11” white paper, each page shall have margins of at least 1” on all sides, and pages shall be consecutively numbered on the right side at either the top or bottom of the page. All objections must be indicated on forms provided by the Board and any claims or allegations included solely in the supporting documents will not be considered. All writing shall be legible and capable of being read and photocopied without difficulty. (2) Criteria for Denying a Review: (a) Time for objections has passed; or (b) A Hearings Officer reviewed a timely written objection to an assessment and the Board issued a final order responding to the objection; or (c) A Notice of Rights form was submitted waiving review; or (d) Non-compliance with 255-085-0040(1); or (e) Information was already considered in a previous review. (3) Upon receipt of any timely submitted Written Objections, and compliance with 255-085-0040(1) and (2), a Board Hearings Officer will conduct a review of the objections and supporting documents. The Hearings Officer will consider relevant written objections from the registrant and make a determination as to whether the registrant’s score is accurate or should be changed. (4) If the Hearings Officer’s review reveals new information that changes the classification level and was not available at the time the registrant was provided the opportunity to make objections, a new notification will be made under 255-085-
Page 201 of 212 0030(3) in order to give the registrant the opportunity to object to that new information. Under this section, registrant objections are limited to the new information provided in this notification. (5) Upon completing the review, the Hearings Officer will submit to the Board a decision memo detailing the review, as well as any information considered by the Hearings Officer. Statutory/Other Authority: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, ORS 144.050, ORS 144.140 Statutes/Other Implemented: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, Section 7, Chapter 708, Oregon Laws 2013, as amended by Section 27, Chapter 820, Oregon Laws 2015, SB 767 (2017), HB 2320 (2015) History: PAR 1-2020, amend filed 01/10/2020, effective 01/10/2020; PAR 5-2019, temporary amend filed 10/08/2019, effective 10/08/2019 through 04/04/2020; PAR 6-2017, amend filed 12/20/2017, effective 12/20/2017; PAR 5- 2017(Temp), f. 6-30-17, cert. ef. 7-1-17 thru 12-27-17; PAR 1-2017(Temp), f. & cert. ef. 3-21-17 thru 9-16-17; PAR 1- 2016, f. & cert. ef. 1-27-16; PAR 3-2015(Temp), f. & cert. ef. 8-27-15 thru 2-19-16
255-085-0050 Reviews— Other Registrants (1) Written objections trigger review consideration. Written objections are limited to contesting factual findings in the assessment and must be plain and concise. Additional documentation in support of the objection may be included and shall not exceed 10 pages. Documentation must be written on standard 8.5" x 11” white paper, each page shall have margins of at least 1” on all sides, and pages shall be consecutively numbered on the right side at either the top or bottom of the page. All objections must be indicated on forms provided by the Board and any claims or allegations included solely in the supporting documents will not be considered. All writing shall be legible and capable of being read and photocopied without difficulty. (2) Criteria for Denying a Review: (a) Time for objections has passed; or (b) A Hearings Officer reviewed a timely written objection to an assessment and the Board issued a final order responding to the objection; or (c) A Notice of Rights form was submitted waiving review; or (d) Non-compliance with 255-085-0050(1); or (e) Information was already considered in a previous review. (3) Upon the Board’s receipt of relevant Written Objections, a Hearings Officer will complete a review of the LS/CMI, evaluator’s recommendation, evaluation report, and supporting documents. The review will verify the information, and the Hearings Officer will prepare a decision memo responding to the written objections, detail the finding of the evaluator, and make a determination as to whether the recommendation should be changed. (4) If the Hearings Officer’s review reveals new information that changes the classification level and was not available at the time that the registrant was provided the opportunity to make objections, a new notification will be made under 255- 085-0030(3) in order to give the registrant the opportunity to object to that new information. Under this section, objections are limited to the new information provided in this notification. (5) Upon completing this review, the Hearings Officer will submit to the Board a decision memo detailing the review, as well as any information considered by the Hearings Officer. Statutory/Other Authority: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, ORS 144.050, ORS 144.140 Statutes/Other Implemented: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, Section 7, Chapter 708, Oregon Laws 2013, as amended by Section 27, Chapter 820, Oregon Laws 2015, SB 767 (2017), HB 2320 (2015) History: PAR 1-2020, amend filed 01/10/2020, effective 01/10/2020; PAR 5-2019, temporary amend filed 10/08/2019, effective 10/08/2019 through 04/04/2020; PAR 2-2019, amend filed 07/23/2019, effective 07/23/2019; PAR 6-2017,
Page 202 of 212 amend filed 12/20/2017, effective 12/20/2017; PAR 5-2017(Temp), f. 6-30-17, cert. ef. 7-1-17 thru 12-27-17; PAR 1- 2017(Temp), f. & cert. ef. 3-21-17 thru 9-16-17; PAR 1-2016, f. & cert. ef. 1-27-16; PAR 3-2015(Temp), f. & cert. ef. 8-27- 15 thru 2-19-16
255-085-0061 Classification and Final Decision (1) The Board will make a final classification decision by reviewing the documents relied upon for the assessment, any Hearings Officer’s memos or documents, all timely submitted objections, and any relevant documents from a review, and will order the final classification level. (2) Following the Board decision, the Board shall send notice of the Board's final order to the registrant and any board registered victims. (3) The Board will notify the Department of State Police of the registrant’s final classification after the classification order. Statutory/Other Authority: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, ORS 163A.100, ORS 144.050, ORS 144.140 Statutes/Other Implemented: ORS 163A.100, ORS 163A.105, ORS 163A.110, ORS 163A.115, ORS 163A.125, ORS 163A.100, Section 7, Chapter 708, Oregon Laws 2013, as amended by Section 27, Chapter 820, Oregon Laws (2015), SB 767 (2017), HB 2320 (2015) History: PAR 6-2017, adopt filed 12/20/2017, effective 12/20/2017
DIVISION 87 RELIEF FROM REPORTING AND LEVEL RECLASSIFICATION PETITIONS AND HEARINGS FOR ADULT SEX OFFENDERS
255-087-0005 Purpose and Authority (1) Under Oregon Revised Statutes 163A.125, the Legislative Assembly provided that persons who are required to register as sex offenders may be relieved of that obligation or may be reclassified to a lower notification level. A person who is required to report as a sex offender under ORS 163A.010, 163A.015 or 163A.020 and who is classified as a level one sex offender under ORS 163A.100(1) may petition the Board of Parole and Post-Prison Supervision (Board) to relieve the person from the obligation to report as a sex offender. A person who is required to report as a sex offender and who is classified as a level two sex offender under ORS 163A.100(2) may petition the Board to reclassify the person as a level one sex offender under ORS 163A.100(1); and a person who is required to report as a sex offender and who is classified as a level three sex offender under ORS 163A.100(3) may petition the Board to reclassify the person as a level two sex offender under ORS 163A.100(2). (2) The Board is statutorily required to adopt rules to carry out the provisions of section 163A.125. These rules describe the processes that the Board will follow when it conducts hearings, notifies registrants of the results, and reviews objections. Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
255-087-0010 Definitions The following definitions apply to this Division: (1) “Board registered victim” means a victim of the registrant, as defined in OAR 255-005-0005, who is registered with the Board. (2) “Hearing packet” means information relevant to the purpose of the hearing, which may include: sexual offense history; criminal history; risk scoring sheet; notice of rights; Presentence Investigation (PSI), Post-sentence Investigation
Page 203 of 212 Report (PSR), Parole Analyst Report (PAR), or report of similar content; sentencing/judgment orders; Department of Corrections Inmate Face sheet; other relevant material selected at the Board's discretion. (3) “Reclassification” means the lowering of a registrant’s notification level from level three to level two, or from level two to level one, and the process that the Board uses to make those determinations. (4) “Registrant” means a person convicted of a sex crime and required to register as a sex offender or found guilty except for insanity of a sex crime and required to register as a sex offender under ORS Chapter 163A. (5) “Relief from registration” and “relief from reporting” mean the registrant’s obligation to report as a sex offender in Oregon is terminated. A person who has relief from registration does not have to register as a sex offender in Oregon. Additional definitions are found in Oregon Administrative Rules 255-005-0005 and 255-085-0010.
Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
255-087-0020 Determination of Eligibility for Relief from Sex Offender Reporting Not every registrant is eligible for relief from the obligation to register. The Board will determine eligibility before reviewing a petition for relief. (1) Forms – Registrants requesting eligibility to petition shall use forms provided by the Board. (2) Verification of eligibility – The Board will determine eligibility using the criteria in subsection (3) below. (3) Eligibility Criteria (a) Qualifications - Registrants who are classified as a level one sex offender and who live, work or go to school in Oregon, may petition the Board for relief from registration. (A) Five years after the date supervision for the sex crime is terminated or, if the person was not subject to supervision for the sex crime, five years after the date the person was discharged from the jurisdiction of the court. (B) Five years after date of re-classification from a level two sex offender to a level one sex offender. (b) Disqualifications – A registrant is not eligible for relief from reporting if the registrant: (A) Was convicted of any of the crimes in ORS 163A.115: Rape in the first degree; Sodomy in the first degree; Unlawful sexual penetration in the first degree; Kidnapping in the first degree as described in ORS 163.235(1)(e) or when the victim is under 18 years of age; or Burglary in the first degree when committed with the intent to commit any of the offenses listed in ORS 163A.005(5)(a) to (w); or equivalent crime in another state or jurisdiction. (B) Was classified as a level three sex offender based on the registrant’s designation as a Predatory Sex Offender between February 10, 2005 and December 31, 2013. (C) Was designated as a Sexually Violent Dangerous Offender (SVDO) under ORS 137.765. (D) After being convicted of a sex crime that required registration, was found guilty of a subsequent person felony or Class A person misdemeanor under ORS 163A.125. (E) Was initially classified by the Psychiatric Security Review Board (PSRB). (Registrants classified by the PSRB should refer to the PSRB for more information.) Page 3 of 8 (F) Has a sex crime conviction in a jurisdiction other than Oregon and the jurisdiction where the person was convicted would not permit a petition for relief from reporting as a sex offender. (4) Decision – Once the Board determines that the registrant is eligible for relief, the Board will review the registrant’s relief petition. Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
Page 204 of 212 255-087-0030 Petitions for Relief (1) Forms - Petitions must be submitted on forms provided by the Board. That restriction does not apply to additional documentation necessary to support the petition, as described below. (2) Submitting Materials (a) Petitions must be complete when submitted. Incomplete petitions may be returned and may be denied. Materials must be legible and able to be copied. (b) Petitions and accompanying documents shall be submitted to the Board by email, mail or via the Board’s website. (3) Required Information – The registrant shall provide as much information as possible to address the following criteria: (a) The nature of and degree of violence involved in the offense that requires reporting; (b) The age and number of victims of the offense that requires reporting; (c) The age of the registrant at the time of the offense that requires reporting; (d) The length of time since the offense that requires reporting and the time period during which the registrant has not reoffended; (e) The registrant’s performance on supervision for the offense that requires reporting; (f) Whether the registrant has participated in or successfully completed a court-approved sex offender treatment program or any other rehabilitative programs; (g) The registrant’s stability in employment and housing; (h) The registrant’s community and personal support system; (i) Other criminal and relevant noncriminal behavior of the registrant both before and after the offense that requires reporting; and (j) Any other relevant factors. (4) Accompanying Documents (a) Petitioners should include: (A) Supporting documents to all claims in the petition including: sexual offense history, criminal history, victim information, treatment records, employment verification, housing verification, community and personal support verification; (B) Records from out of Oregon criminal activity including, but not limited to: police reports; judgment orders; disposition orders; (C) Relevant records from supervision. (b) For any missing or incomplete documents, petitioners shall provide the following information: (A) The contents of the missing or incomplete documents; (B) The entity that created the documents and where the documents may currently be located; and (C) Actions that have been taken to locate the documents. Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
255-087-0040 Scheduling Hearings for Relief from Registration (1) After a determination of eligibility and upon receipt of a petition, the Board may complete a review and reassessment of the registrant’s sex offender notification level utilizing the Board’s risk assessment methodology. This reassessment will verify the information and determine the registrant’s sex offender notification level. (2) If the review changes the registrant’s classification level, and also reveals new information that was not available at the time that the registrant was provided the opportunity to make objections, notification will be made under 255-085- 0030(4) and registrant may object as provided in that rule. Under this section, objections are limited to the new information provided in this notification.
Page 205 of 212 (3) If the Board determines that the registrant is a level one sex offender, the Board will schedule a hearing. (4) The Board will provide the registrant, Board registered victims, and the district attorney with notice and a hearing packet at least 30 days before the hearing. This notice period can be waived. Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
255-087-0050 Determination of Eligibility for Reclassification of Sex Offender Notification Level Not every registrant is eligible for reclassification. The Board will determine eligibility before reviewing a petition for reclassification. (1) Forms – Registrants requesting eligibility to petition shall use forms provided by the Board. (2) Verification of eligibility – The Board will determine eligibility using the criteria in subsection (3) below. (3) Eligibility Criteria (a) Qualifications - Registrants who are classified a level three sex offender or level two sex offender and who live, work or go to school in Oregon, may petition the Board for reclassification: (A) Ten years after the date supervision for the sex crime is terminated; or, (B) if the person was not subject to supervision for the sex crime, ten years after the date the person was discharged from the jurisdiction of the court as provided in 163A.125(2)(e). (b) Disqualifications– A registrant is not eligible for reclassification if the registrant: (A) Was designated as a Sexually Violent Dangerous Offender (SVDO) under ORS 137.765. (B) After being convicted of a sex crime that required registration, was found guilty of a subsequent person felony or Class A person misdemeanor as provided in ORS 163A.125. (C) Was initially classified by the Psychiatric Security Review Board (PSRB). (Registrants classified by the PSRB should refer to the PSRB for more information.) (D) Previously was given a reclassification from level 3 sex offender to level 2 sex offender as provided in ORS 163A.125. (4) Decision - Once the Board determines that the registrant is eligible for reclassification, the Board will review the registrant’s petition for reclassification. Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
255-087-0060 Petitions for Reclassification (1) Forms (a) Petitions must be submitted on forms provided by the Board. That restriction does not apply to additional documentation necessary to support the petition, as described below. (b) Upon receipt of any qualifying petition, the Board will conduct a review of the sex offender notification level. (2) Submitting Petitions (a) Petitions must be complete when submitted. Incomplete petitions may be returned and the petition may be denied. Materials must be legible and able to be copied. (b) Petitions and accompanying documents shall be submitted to the Board by email or mail. (3) Required Information – The registrant shall provide as much information as possible to address the following criteria: (a) The nature of and degree of violence involved in the offense that requires reporting; (b) The age and number of victims of the offense that requires reporting; (c) The age of the registrant at the time of the offense that requires reporting; (d) The length of time since the offense that requires reporting and the time period during which the registrant has not reoffended;
Page 206 of 212 (e) The registrant’s performance on supervision for the offense that requires reporting; (f) Whether the registrant has participated in or successfully completed a court-approved sex offender treatment program or any other rehabilitative programs; (g) The registrant’s stability in employment and housing; (h) The registrant’s community and personal support system; (i) Other criminal and relevant noncriminal behavior of the registrant both before and after the offense that requires reporting; (j) The results of any previous reviews for reclassification under OAR 255-087-0060; and (k) Any other relevant factors. (4) Accompanying Documents (a) Petitioners should include: (A) Documents supporting claims in the petition including: sexual offense history, criminal history, victim information, treatment records, employment verification, housing verification, community and personal support verification; (B) Records from out of Oregon criminal activity including: police reports; judgment orders; disposition orders; (C) Relevant records from supervision. (b) For any missing or incomplete documents, petitioners shall provide the following information: (A) The contents of the missing or incomplete documents; (B) The entity that created the documents and where the documents may currently be located; and (C) Actions have been taken to locate the documents. Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
255-087-0070 Scheduling Hearings for Reclassification (1) After determination of eligibility and upon receipt of a petition, the Board will complete a reassessment of the registrant’s sex offender notification level utilizing the Board’s risk assessment methodology. The Board may schedule a hearing if the risk assessment shows the registrant as presenting a low risk of reoffending, and the registrant is classified as a level three or level two sex offender; or the risk assessment shows the registrant as presenting a moderate risk of reoffending and the registrant is classified as a level three sex offender. (2) The Board will provide the registrant, Board registered victims, and the district attorney with notice and a hearing packet at least 30 days before the hearing. This notice period can be waived. (3) A request for rescheduling a hearing must be made at least 30 days before the hearing. The Board has the discretion to grant or deny a request for rescheduling. Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
255-087-0080 Hearing Procedures for Relief and Reclassification Hearing Procedures (1) At the Board’s discretion, the Board may conduct any hearing in person, by teleconference call, by videoconference, or by any other electronic medium that ensures the registrant, the panel, and other participants the opportunity to hear and be heard. The registrant shall be present in person, by telephone or videoconference, or by any other electronic medium. The registrant must indicate how they will appear and if the registrant has witnesses, how the witnesses will appear. If a registrant refuses or fails to appear at a hearing, the refusal will be considered to be the registrant’s waiver of appearance and the petition will be denied. (2) Hearings may be conducted by a panel of one or more Hearings Officers and Board Members at the Board’s
Page 207 of 212 discretion. The panel may make the final decision. If the panel is more than two members, the final decision shall be made by a majority of all panel members. In the case of a tie, an additional Board Member may vote administratively after reviewing the material from the hearing. (3) The Board will allow at the hearing, evidence of a type that reasonably prudent persons would commonly rely upon in the conduct of serious affairs. The Board may exclude evidence if it is irrelevant or immaterial to the decision to be made at the hearing or is unduly repetitious. At its discretion, the Board may consider relevant material and additional written information and recommendations from those with a special interest in the case. The Board must receive any information submitted pursuant to this section at least 14 days prior to the hearing. The Board may waive the 14 day requirement. (4) Conduct of Hearing - The hearing shall be conducted by and under control of the Chair or designated representative. The Board may set reasonable time limits for oral presentation and may exclude or limit cumulative, repetitious, or immaterial matter. The Board may eject any disruptive person from a hearing. The Board may require all persons to leave the designated hearing area during deliberations. (5) If during the hearing the Chair or designated representative determines that more time or information is needed, the Board may decide whether to continue the hearing at another time. (6) Explicit instructions for the hearing, including answers to frequently asked questions, can be found on the Board website at http://www.oregon.gov/BOPPPS/. Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
255-087-0090 Final Decisions on Relief and Reclassification (1) The Board will make a final decision by reviewing the documents relied upon for the hearing, any relevant testimony at the hearing and all timely submitted relevant materials. (2) The Board shall enter an order relieving the person of the obligation to report as a sex offender under ORS 163A.010, 163A.015 or 163A.020 if the board determines, by clear and convincing evidence, that the registrant: is statistically unlikely to reoffend; and does not pose a threat to the safety of the public. (3) The Board shall enter an order reclassifying a registrant from a level three sex offender to a level two sex offender, or from a level two sex offender to a level one sex offender, if the Board determines, in addition to the registrant’s lower risk of reoffending, that a lower level of notification is sufficient to protect public safety. (4) Following the Board’s decision, the Board shall send notice of the Board's final order to the registrant and board registered victims. (5) If the petition is denied, the registrant may re-apply for eligibility to petition under OAR 255-087 after 36 months from the date of denial. (6) If relief or reclassification is ordered, the Board will notify the Oregon Department of State Police of the final order. Statutory/Other Authority: ORS 163A.105, ORS 163A.115, ORS 163A.125, ORS 144.005 Statutes/Other Implemented: ORS 163A.115, ORS 163A.125 History: PAR 7-2018, adopt filed 11/19/2018, effective 12/01/2018
DIVISION 94 ACTIVE AND INACTIVE PAROLE AND POST-PRISON SUPERVISION
255-094-0002 Definitions Releasing Authority means: (1) The Board or its designee for: (a) Any felony offender who received a sentence of more than twelve (12) months in the custody of the Department of
Page 208 of 212 Corrections; or (b) Any felony offender who received a sentence of twelve (12) months or less but who also has an additional sentence(s) of greater than twelve (12) months. (A) If an offender is on post-prison supervision for multiple sentences which include a sentence that exceeds twelve (12) months ("Board case") and sentence of twelve (12)-months or less ("Local Supervisory Authority case"), the Board will maintain jurisdiction of the post-prison supervision of the Local Supervisory Authority case until the Board's active involvement in the Board case(s) expires. Following expiration of the Board's case(s), the Board will maintain jurisdiction over the post-prison supervision of the Local Supervisory Authority case(s) until an offender is re-released following revocation of the post-prison supervision for the Local Supervisory Authority case(s), or until the Local Supervisory Authority petitions to assume jurisdiction, whichever comes first. Jurisdiction will fall under the Local Supervisory Authority at that point. (B) If the Board issued the order of post-prison supervision for an offender whose only sentence was twelve (12) months or less, jurisdiction will remain with the Board until petition by the Supervisory Authority to assume jurisdiction or upon re-release following revocation of the post-prison supervision for that sentence; whichever comes first. (2) The Local Supervisory Authority or its designee for any felony offender whose crime was committed after November 1, 1989, was sentenced by the court to twelve (12) months or less, and who does not have an additional sentence of more than twelve (12) months for a felony. Statutory/Other Authority: ORS 144.085, 1995 SB 1145, 1999 OL 163, 924 Statutes/Other Implemented: ORS 144.085 History: PAR 2-2010, f. & cert. ef. 2-26-10
255-094-0006 Period of Active Parole or Post-Prison Supervision (1) The minimum periods of active parole and post-prison supervision shall be: (a) Six (6) months for offenders whose crimes were committed on or after November 1, 1989, and whose crimes fall within sentencing guidelines crime categories 1, 2 and 3; (b) Twelve (12) months for offenders whose crimes were committed on or after November 1, 1989, and whose crimes fall within sentencing guidelines crime categories 4, 5, 6, 7, 8, 9 and 10; (c) For offenders whose crimes were committed after December 4, 1986, but prior to November 1, 1989, the period of active supervision shall be set by determining the equivalent sentencing guidelines crime category and applying sub- section (a) and (b) above, subject to the exceptions in section (2) below; (d) For offenders whose crimes were committed prior to December 4, 1986, the Releasing Authority shall apply the rules in effect at the time the crime was committed. (2) The following minimum periods of active parole and post-prison supervision are exceptions to section (1) of this rule: (a) Three (3) years for offenders sentenced as dangerous offenders under ORS 161.725 to 161.737; (b) Three (3) years for offenders sentenced for murder under ORS 163.115; (c) Three (3) years for offenders sentenced for aggravated murder under ORS 163.105; (d) Offenders sentenced for Rape I, Sodomy I, Sexual Penetration I, Sexual Penetration 2, Sex Abuse 2, and Attempts of these which occurred on or after September 29, 1991, shall serve active supervision to the expiration of the indeterminate sentence; (e) Offenders sentenced for Sex Abuse I or Attempted Sex Abuse I for crimes occurring on or after November 4, 1993, shall serve active supervision to the expiration of the indeterminate sentence; (f) Offenders sentenced for Sodomy II or Rape II for crimes occurring on or after October 23, 1999, shall serve active supervision to the expiration of the indeterminate sentence. (g) Offenders sentenced for Sex Abuse I or Attempted Sex Abuse I, for crimes which occurred on or after November 1, 1989, and prior to November 4, 1993, will serve active supervision in accordance with the period of post-prison supervision set by the sentencing court and the sentencing guidelines grid;
Page 209 of 212 (h) Offenders sentenced for Rape I, Sodomy I, Sexual Penetration I, Sexual Penetration 2, or Sexual Abuse I, which occurred on or after December 4, 1986, and prior to November 1, 1989, shall serve a minimum of 36 months active supervision or to expiration of the sentence which ever comes first; (i) Offenders sentenced for Robbery in the First Degree under ORS 164.415 which occurred on or after June 30, 1995, shall serve a minimum period of 36 months active supervision; and (j) Offenders sentenced for Arson in the First Degree under ORS 164.325 which occurred on or after June 30, 1995, shall serve minimum period of 36 months active supervision; and (k) Offenders sentenced as sexually violent dangerous offenders pursuant to Chapter 163 (1999 OR Laws) for crimes committed on or after October 23, 1999, shall serve active supervision for life. (3) Upon completion of the specified period of active parole or post-prison supervision, the supervisory authority shall place the offender on inactive supervision status subject to the exceptions in OAR 255-094-0010, and notify the Releasing Authority of the status change. (4) Upon revocation of supervision and rerelease to the community, the period of active supervision shall be as provided in OAR 255-094-0001(1) & (2) provided that the period of active supervision does not exceed the sentence expiration date. (5) After a rereleased offender has completed the minimum active supervision period as provided in OAR 255-094-0006 and has substantially fulfilled the conditions of supervision, the supervising officer may place the offender on inactive supervision. (6) Inmate/offenders found to be sexually violent dangerous offenders pursuant to OAR 255-060-0008(6) shall be subject to intensive supervision for the full period of parole or post-prison supervision as defined in OAR 255-005. Statutory/Other Authority: ORS 144.085, 1995 SB 1145, 1999 OL 163, 924 Statutes/Other Implemented: ORS 144.085, 1995 SB 1145, 1999 OL 163, 924 History: PAR 4-2018, minor correction filed 08/16/2018, effective 08/16/2018; Renumbered from 255-094-0000, PAR 2-2010, f. & cert. ef. 2-26-10; Reverted to PAR 2-2005, f. & cert. ef. 4-25-05; Renumbered from 255-094-0000, PAR 3- 2009(Temp), f. & cert. ef. 8-21-09 thru 2-16-10; PAR 2-2005, f. & cert. ef. 4-25-05; PAR 2-2001, f. & cert. ef. 1-12-01; PAR 4-2000, f. & cert. ef. 2-15-00; PAR 3-2000, f. & cert. ef. 1-25-00; PAR 8-1997, f. 3-11-97, cert. ef. 3-14-97
255-094-0010 Exceptions to Inactive Supervision and Return to Active Supervision (1) No sooner than thirty days prior to the expiration of the offender's active period of supervised parole or post-prison supervision or during a period of inactive supervision, the supervising officer or designee may send to the Releasing Authority a report on offenders who have not substantially fulfilled the supervision conditions, or who have failed to complete payment of restitution. The supervising officer or designee may request continuation on active supervision, or return to active supervision if it is in the community's or the offender's best interest. This report shall include: (a) An evaluation of the offender's compliance with supervision conditions; (b) The status of the offender's court ordered monetary obligations, including fines and restitution, if any; (c) The offender's employment status; (d) The offender's address; (e) Treatment program outcome; (f) Any new criminal activity; (g) Other relevant information; (h) A recommendation that the Releasing Authority extend the active supervision period or return the offender to active supervision. (2) After reviewing the report, if the Releasing Authority or its designated representative finds the offender has not substantially fulfilled the supervision conditions, or it is in the offender's or the community's best interest, the Releasing Authority may order that the offender remain on active supervision or return to active supervision for the remainder of the supervision period set by the sentencing court or set by law. The Releasing Authority shall send the offender notice
Page 210 of 212 of the continuation or return to active supervision. (3) Once extended or returned to active supervision, the supervising officer may place the offender on inactive supervision when the offender has substantially fulfilled the conditions of supervision and completed restitution payments, or active supervision is no longer in the best interest of the offender and the community. (4) When an offender being supervised in Oregon is placed on inactive supervision, the general and special conditions of supervision remain in effect with the following exceptions: (a) General condition #1: Pay supervision fees (fines, restitution or other fees previously ordered by the Releasing Authority remain in effect). (b) Special Conditions specifically deleted by the Releasing Authority. (5) An offender being supervised via Interstate Compact is not eligible to be placed on unsupervised status. Statutory/Other Authority: ORS 144.085, 1995 SB 1145 Statutes/Other Implemented: ORS 144.085, 1995 SB 1145 History: PAR 2-2010, f. & cert. ef. 2-26-10; Reverted to PAR 2-2005, f. & cert. ef. 4-25-05; PAR 3-2009(Temp), f. & cert. ef. 8-21-09 thru 2-16-10; PAR 2-2005, f. & cert. ef. 4-25-05; PAR 8-1997, f. 3-11-97, cert. ef. 3-14-97
255-094-0015 Return to Active Supervision (1) An offender is subject to arrest for violations of conditions of supervision while on either active or inactive supervision. (2) The Releasing Authority may return an offender to active supervision for the remainder of the supervision period set by the sentencing court or set by law when the Releasing Authority receives a report from the supervising agency showing good cause why the inactive status is no longer in the offender's best interest or the best interest or safety of the community. (3) If the supervising agency has good cause to return an offender to active supervision, and the whereabouts of the offender are unknown, the supervising agency may request a warrant from the Releasing Authority. (4) When an offender is returned to active supervision status, all general conditions plus all previously imposed special conditions shall be in effect. Statutory/Other Authority: ORS 144.085 & SB 1145, OL 1995 Statutes/Other Implemented: ORS 144.085 & SB 1145, OL 1995 History: PAR 2-2010, f. & cert. ef. 2-26-10; Reverted to PAR 2-2001, f. & cert. ef. 1-12-01; PAR 3-2009(Temp), f. & cert. ef. 8-21-09 thru 2-16-10; PAR 2-2001, f. & cert. ef. 1-12-01; PAR 3-2000, f. & cert. ef. 1-25-00; PAR 8-1997, f. 3-11-97, cert. ef. 3-14-97
255-094-0020 Sentence Expiration (1) During the pendency of violation proceedings, the running of the supervision period both active and inactive, the sentence is stayed, and the Releasing Authority retains jurisdiction over the offender until the proceedings are resolved. The Releasing Authority may grant credit toward the sentence for time the offender serves incarcerated pending the violation proceedings. (2) These rules shall not preclude more than one extension or renewal of active parole or post-prison supervision, however an extension or renewal period may not exceed the maximum sentence. (3) After expiration of the sentence of an offender on parole or post-prison supervision, the Releasing Authority shall send written notice of the expiration to the offender and the supervisory authority. (4) For offenders sentenced as sexually violent dangerous offenders pursuant to Chapter 163 (1999 OR Laws) for crimes committed on or after October 23, 1999, upon receipt of a court order resentencing the offender and terminating post- prison supervision, the Releasing Authority shall send written notice of the termination of post-prison supervision to the offender and supervisory authority. Statutory/Other Authority: ORS 144.085, 1995 SB 1145, 1999 OL 163
Page 211 of 212 Statutes/Other Implemented: History: PAR 2-2010, f. & cert. ef. 2-26-10; Reverted to PAR 4-2000, f. & cert. ef. 2-15-00; PAR 3-2009(Temp), f. & cert. ef. 8-21-09 thru 2-16-10; PAR 4-2000, f. & cert. ef. 2-15-00; PAR 3-2000, f. & cert. ef. 1-25-00; PAR 8-1997, f. 3-11-97, cert. ef. 3-14-97
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