Earned Time Credit - 30% or 20%?

This wikilog article is a draft, it was not published yet.

by: Gmeyer • August 30, 2011 • no comments

What follows is a trip through the valley and into the weeds of the earned time sections of 2009 HB 3508 and 2010 SB 1007, which you, unfortunately, must understand in order to figure out whether your client will receive 30% or 20% earned time credit.

==THROUGH THE VALLEY: a quick drive through the basics ==

1. The rate of earned time credit and the crimes eligible for earned time were the subject of legislation in both the general 2009 Legislative Session and the February 2010 session.
2. Generally speaking, the 2009 Legislature bumped the earned time rate to 30% for most (but not all) crimes. That increase is set to sunset July 1, 2013.
3. The February 2010 Legislature reduced the earned time rate back to 20% effective February 17, 2010. That reduction sunset on July 1, 2011.
4. The 2011 Legislature session did not address the issue. Hence, by purview of the various sunset clauses, effective July 1, 2011 through July 1, 2013 the earned time rate is again 30% for certain (but not all) crimes.
5. For conduct committed on or after July 1, 2011 and before July 1, 2013, the following crimes are not eligible for the 30% rate:
   1. Rape in the third degree under ORS 163.355;
   2. Sodomy in the third degree under ORS 163.385;
   3. Sexual abuse in the second degree under ORS 163.425;
   4. Criminally negligent homicide under ORS 163.145;
   5. Assault in the third degree under ORS 163.165;
   6. Assault in the fourth degree under ORS 163.160(3);
   7. A Measure 11 crime listed under ORS 137.700;
   8. Subjecting another person to involuntary servitude in the second degree under ORS 163.263;
   9. Subjecting another person to involuntary servitude in the first degree under ORS163.264;
   10. Trafficking in persons under ORS 163.266;
   11. Coercion under ORS 163.275;
   12. Online sexual corruption of a child in the second degree under ORS 163.432;
   13. Online sexual corruption of a child in the first degree under ORS 163.433;
   14. Aggravated theft in the first degree under ORS 164.057, if: (i) The victim of the theft was 65 years of age or older at the time of the commission of the offense; and (ii) The value of the property stolen from the victim described in sub-subparagraph (i) of this subparagraph, in a single or aggregate transaction, is $10,000 or more;
   15. Treason under ORS 166.005;
   16. Abuse of a corpse in the second degree under ORS 166.085;
   17. Racketeering activities under ORS 166.720;
   18. Luring a minor under ORS 167.057;
   19. Assaulting a law enforcement animal under ORS 167.339;
   20. A sex crime as defined in ORS 181.594;
   21. Causing another person to ingest a controlled substance under ORS 475.908;
   22. Applying a controlled substance to the body of another person under ORS 475.910;
   23. Driving while under the influence of intoxicants under ORS 813.010;
   24. A person felony as defined by the Criminal Justice Commission; or
   25. An offense involving the use or threatened use of a firearm; or
   26. An attempt, conspiracy or solicitation to commit an offense described in this paragraph.
6. Additionally, the following actions are not eligible for the 30% increase:
   1. Criminal actions in which the parties stipulate the inmate shall be eligible at a maximum rate of 20%;
   2. Criminal actions in which the offender is convicted of an offense that was committed less than five years after the inmate completed servicing a sentence (including post-prison supervision) for a person felony, or a crime described in Paragraph 6 above.
7. Earned time will go back to 20% for all crimes effective July 1, 2013.
8. If you must know the gnarly details, follow me into the weeds:

==INTO THE WEEDS: the gnarly details ==

I. EARNED TIME PRIOR TO 2009 HB 3508:

A. Earned time under the guideline sentencing system:

1. Under the guideline sentencing system enacted in 1989, every inmate sentenced for a felony was eligible for a reduction in time for "appropriate institutional behavior." ORS 421.121(1) and (2). Until passage of 2009 HB 3508, the maximum amount of earned time credit was capped at 20%.
2. This 20% cap of earned time credit originally applied to all felony sentences, except that it could not shorten a prison sentence of less than six months. ORS 421.121(3). Hence, an inmate sentenced to a term of six months must serve the entirety of the sentence.
3. This earned time credit is available to an inmate sentenced to a mandatory minimum sentence under ORS 161.610(3) for use of a firearm during commission of a felony.

B. Exceptions: There are exceptions to eligibility for an earned time credit reduction:

1. In 1988, the electorate adopted Ballot Measure 4, also known as "Denny Smith" after its chief petitioner, former Congressman Denny Smith. This recidivist statutory framework requires a determinate sentence for defendants being sentenced for any of 10 specifically enumerated crimes, if they have one or more prior convictions for any of those same 10 crimes. [ORS 137.635(2)]. By its terms, the inmate is ineligible for an earned time credit reduction. [ORS 137.635(1)]
2. In 1994, the electorate adopted Ballot Measure 11, which has been codified at ORS 137.700 for adults and at ORS 137.707 for juveniles. Under both provisions, by its express terms an inmate sentenced under a list of 22 enumerated crimes is ineligible for any earned time credit.
3. In 1997, the Legislative Assembly enacted 137.750, which requires the court to declare in open court whether the supervising agency may consider the offender for any form of early release or reduction in sentence. If the eligibility declaration does not affirmatively appear in the judgment, the supervisory authority must exclude the inmate from eligibility of earned time credit reduction. A trial court retains jurisdiction, however, to modify the judgment by ordering the inmate eligible for such reduction. [ORS 137.754].

II. 2009 HB 3508 [Chapter 660 (2009 Laws)]

A. Increase of maximum earned time to 30%:

In 2009, the Legislative Assembly enacted 2009 HB 3508, which increased the maximum earned time credit from 20% to 30% for most, but not all inmates serving sentences for crimes eligible for earned time. [Section 17] The increase was awarded both prospectively and retroactively.

B. Exceptions:

The increase in maximum earned time to 30% applied to all inmates serving sentences for crimes eligible to receive earned time, except for specific enumerated crimes. The sentences for those enumerated crimes continued to be eligible for earned time credits at the maximum rate of 20%:

1. Rape in the third degree under ORS 163.355;
2. Sodomy in the third degree under ORS 163.385;
3. Sexual abuse in the second degree under ORS 163.425;
4. Criminally negligent homicide under ORS 163.145;
5. Assault in the third degree under ORS 163.165;
6. Assault in the fourth degree under ORS 163.160(3);
7. A Measure 11 crime listed under ORS 137.700; or
8. An attempt to commit any of the crimes listed above.

C. Prospective application:

The increase in maximum earned time credit to 30% applied to inmates sentenced on or after July 1, 2009 for eligible crimes committed prior to July 1, 2013. [Section 49 (6)]

D. Retroactive application:

For inmates already serving sentences for crimes eligible for earned time at the 20% rate (except for the excluded crimes noted above), re-sentencing proceedings were held at which the court could determine whether an increase to the 30% rate was "appropriate." [Section 18 (7)(b)]

E. Sunset:

The increase in maximum earned time credit to 30% sunset for crimes committed on or after July 1, 2013, at which time the maximum credit returned to 20%. [Section 19]

III. 2010 SB 1007 [Chapter 2 (2010 Laws)]

A. Immediate return of maximum earned time credit to 20%:

In 2010, the Legislative Assembly enacted 2010 SB 1007 which declared an immediate "time-out" and returned the maximum earned time credit to 20% until July 1, 2011. The bill went into effect February 17, 2010. The rate of maximum earned time credit is scheduled to increase back to 30% on July 1, 2011 and decrease back to 20% on July 1, 2013 (the original sunset date of HB 3508).

B. Prospective application:

For eligible crimes committed on or after February 17, 2010 and before July 1, 2011, the maximum earned time credit is reduced from 30% to 20%. [Sections 5 and 6]

C. Retroactive application:

(1) In order to avoid having to re-sentence those inmates who already had a re-sentencing proceeding under HB 3508, those inmates who had been granted an increase in maximum earned time to 30% will continue to earn credit at that rate. [Section 7 and 8]

(2) Those inmates who are sentenced for crimes eligible for earned time on or after July 1, 2009 for crimes committed before February 17, 2010 are eligible for 30% earned time. [Section 6 (6)]

D. Ex post facto:

While not expressly addressed in HB 1007, those offenders who commit crimes that are eligible under HB 3508 for a maximum earned time rate of 30% between July 1, 2009 and February 17, 2010 are entitled to be sentenced with consideration of the court under ORS 137.750 for earned time at the 30% rate, regardless of when the sentence proceeding actually occurs. This guarantee is established under the Ex Post Facto Clauses of both the federal and state constitutions.

E. Suspends re-sentencing hearings under HB 3508:

Section 8 directs the Department of Corrections to stop sending notices of eligibility for increase of earned time and suspends any further re-sentencing proceedings pursuant to those notices.

F. Return to maximum earned time rate of 30% on July 1, 2011:

Section 1 and 2 increases the maximum earned time rate back to 30% for persons sentenced for crimes committed on or after July 1, 2011 but before July 1, 2013. However, the list of crimes ineligible for the 30% rate has been expanded beyond that originally set forth in HB 3508 [see below].

G. Expanded list of ineligible crimes for 30% maximum earned time rate:

When the maximum earned time credit rate increases to 30% on July 1, 2011, the following sentences will be ineligible for the increase to 30% but will continue to be eligible for earned time credit at the maximum rate of 20%:

1. Subjecting another person to involuntary servitude in the second degree under ORS 163.263;
2. Subjecting another person to involuntary servitude in the first degree under ORS 163.264;
3. Trafficking in persons under ORS 163.266;
4. Coercion under ORS 163.275;
5. Online sexual corruption of a child in the second degree under ORS 163.432;
6. Online sexual corruption of a child in the first degree under ORS 163.433;
7. Aggravated theft in the first degree under ORS 164.057, if:
8. The victim of the theft was 65 years of age or older at the time of the commission of the offense; and the value of the property stolen from the victim, in a single or aggregate transaction, is $10,000 or more;
9. Treason under ORS 166.005;
10. Abuse of a corpse in the second degree under ORS 166.085;
11. Racketeering activities under ORS 166.720;
12. Luring a minor under ORS 167.057;
13. Assaulting a law enforcement animal under ORS 167.339;
14. A sex crime as defined in ORS 181.594;
15. Causing another person to ingest a controlled substance under ORS 475.908;
16. Applying a controlled substance to the body of another person under ORS 475.910;
17. Driving while under the influence of intoxicants under ORS 813.010 (5); or
18. An attempt, conspiracy or solicitation to commit an offense described in this paragraph

Additionally, the following crimes and actions are not eligible for the 30% rate:

1. Criminal actions in which the parties stipulate the inmate shall be eligible at a maximum of 20%;
2. Criminal actions in which the offender is convicted of an offense that was committed less than five years after the inmate completed servicing a sentence (including post-prison supervision) for a person felony, or a crime described above;
3. Convictions for a person felony as defined by the Criminal Justice Commission;
4. Convictions for an offense involving the use or threatened use of a firearm; or
5. Convictions for crimes listed above which includes any sex crime as defined in ORS 181.594, and an attempt, conspiracy or solicitation to commit any of the listed offenses. [Section 1(b)].

H. Return to maximum earned time rate of 20%on July 1, 2013:

Section 3 and 4 reduces the maximum earned time rate to 20% for person sentenced for eligible crimes committed on or after July 1, 2013 (the sunset date of HB 3508).

I. Audit by Secretary of State:

Section 9 directs the Secretary of State to conduct an audit of the earned time program and report to the Legislative Assembly by July 1, 2011.