The DOC is Doubling Intended Prison Terms
by: Jessbarton • February 1, 2012 • no comments
A few months back, I made some suggestions the De Muniz Commission could consider to reduce imprisonment costs. One of my suggestions was that the commission take steps to compel the Department of Corrections' Offender Information and Sentence Calculation unit (OISC) to abandon its "crabbed construction of ORS 137.370, which [denies] time-served credit * * * when everyone-and when I say everyone, I mean the prosecution, too-expected the defendants to get the credit."
That construction of ORS 137.370 was the most absurd OISC construction I'd ever heard. Until yesterday. Yesterday, I learned that the OISC construes consecutive-sentence phraseology in a way no one ever could have imagined, potentially costing the state untold millions of dollars annually.
Here's an example:
I have a former client who incurred two felony sentences. The judge imposed 20-month sentences on each and ordered that the defendant could earn time. The judge said the sentence on Count 1 "shall be consecutive to all previously imposed sentences," and the sentence on Count 2 "shall be concurrent to all previously imposed sentences."
At the time of sentencing the defendant was not serving any previously imposed sentences. Because the Count 1 sentence was the first sentence imposed, everyone assumed it wouldn't be consecutive because there wasn't anything to which it could be consecutive. After that, Count 2's sentence would be concurrent to Count 1's, so the defendant would serve 20 months. With full good time, he'd end up serving 16 months.
"Not so fast," said the OISC. Based on a legal opinion provided by its inestimable legal counsel, assistant attorney general Herb Lovejoy, OISC concluded that to ensure that the Count 1 sentence "shall be consecutive to all previously imposed sentences," the Count 3 sentence must be served first, and the Count 1 sentenced served second and consecutive to the Count 3 sentence.
This construction of the judgment magically doubled the length of the intended sentence from 20 months to 40. With full good time, it means the defendant must serve 32 months instead of 16. At the going average rate of over $43,404 to imprison one inmate for one year, the OISC/Lovejoy construction will cost the state upwards of $60,000 extra for this one inmate alone.
But hundreds of inmates could fall victim to this OISC/Lovejoy construction. Even if just 100 inmates are being victimized by the construction, its annual cost to the state would approach $6 million.
I just got off the phone with Merilee Nowak, who is a supervisor at OISC. I told her my first reaction when I learned of the OISC/Lovejoy construction was, "Seriously?" She said they were quite serious, and that the only way to make the Count 1 and 2 sentences concurrent (as the judge intended) is by amending the judgment (1) to delete from Count 1 the phrase "shall be consecutive to all previously imposed sentences"; or (2) to add the phrase "including count 1? to the Count 2 phrase, "shall be concurrent to all previously imposed sentences,"; or (3), do both (1) and (2).
Despite what OISC and Lovejoy think, in my former client's case, the judge wasn't trying to make the Count 1 and 2 sentences consecutive. As a simple habit or routine, he included in Count 1 a phrase that everyone thought was surplusage.
But for the criminal-defense bar, forewarned is forearmed. To OISC and Lovejoy, the phrase ain't surplusage. It means something- in my former client's case, as many as 20 extra months for him, and upwards of $60,000 extra dollars for the Oregon taxpayer.
So if you have a client on whom the judge intends to impose concurrent sentences, make sure that on Count 1 the judge doesn't include the pesky phrase "shall be consecutive to all previously imposed sentences." Because if the judge includes that phrase, your client will fall victim to the OISC/Lovejoy construction, and OISC will schedule your client to serve consecutive terms that the judge never intended.
