Re: 30% “EARNED TIME” UNDER SECTION 17 OF HB 3508

January 7, 2010

Dear Representative or Senator:

I write to encourage you to return “earned time” credits to a maximum of 20% (from 30%) in the February session of the Legislature.  Let me explain why.

1. Truth in Sentencing.

When a judge sentences an offender, that sentence should be the sentence served.  Taking 20% off the sentence is enough of a violation of truth in sentencing to give an offender motivation to behave and participate in programs.

“Earned time” was established at 20% in 1989, about 20 years ago, when Sentencing Guidelines were adopted. According to the Department of Corrections administrative rules, “earned time credits are designed to provide a minimum amount of time credits necessary to serve as adequate incentive for appropriate institutional behavior and program participation.” (Emphasis added.)  Think of it this way:  On a five year penitentiary sentence, with 20% earned time, an offender could get a full year off his or her sentence.  That is enough.
    
2. 20% Earned Time is Actually Generous.

 In the Federal system, earned time is a maximum of 15%.  In a presentation to the Oregon State Sheriff’s Association in November, 2009 Attorney General John Kroger stated that earned time in Oregon should be 15% as it is in the Federal system.

3. Hundreds of Violent Offenders are Eligible for Early Release Hearings.
 
Front page articles in Newspapers and stories  on T.V. and Radio shows have reported on numerous cases of violent offenders being considered for the 30% earned time.  For example, the title of the front page article in the Oregonian on December 5, 2009 by Bryan Denson and Lisa Grace Lednicer was, “Law Intended to Save Tax Money Cuts Prison Time for Violent Inmates.” 
Increasing earned time to 30% was only supposed to apply to non-violent low risk offenders.  Obviously, the new law missed its target. Furthermore, it’s impossible to hit the target by just excluding the over 40 person crimes currently eligible for the 30%.  Why?  Because the prior violent criminal records of the offenders are not considered by the new law either. So, if the offender has a prior murder conviction and is currently eligible for a hearing for early release on a burglary, then they get the hearing.

4. Victims of Crime are Traumatized Again by this New Earned Time Law.

“It’s hard to believe that we even have to put the victim through this where a driver kills someone and flees the scene.” Eugene Register Guard quoting Lane County Chief Deputy District Attorney, Patty Perlow, October 24, 2009 when she speaks about the new earned time law.

And the victim in the case referred to by Ms. Perlow  is quoted in the paper as saying after receiving a letter notifying her of the early release hearing, “To even see Robert Berryhill’s (the offender’s) name in front of me again was horrifying,”…”I’m trying to move forward with my life, and that letter just ruined me.  I got totally ungrounded for two or three days.”

This is not an isolated incident.  Victims all around the state have been and continue to be traumatized again by this new earned time law.
 
5. Most Important Evidence in Hearings is excluded by the New Law.

The District Attorney and/or the victim of the crime can ask for a hearing to protest the granting of the additional 10% “earned time.” BUT …AND IT IS A BIG BUT, the new earned time law prohibits the District Attorney from offering any evidence as to the question:  Did the inmate “earn” the reduction.  How the offender has behaved in prison is the critical question and the District Attorney can’t offer any evidence on that point!

6. Oregon’s New Earned Time Law is based, in part, on a Washington State Study that is not comparable.

The State of Washington study excluded all violent offenses, all sex offenses, all crimes against persons, all residential burglaries, did not use randomized samples of offenders and only concluded that the recidivism rate of the early released offenders is decreased by 3.5 percent. The study also estimates “… that 4.7 property crimes per offender are incurred in Washington as a result of the decreased incarceration rate.”  On a financial basis the study concludes that letting out these nonviolent offenders saves $15,359 minus the cost of the additional crimes of $8179 for a net savings per offender of $7,179.  While we certainly need a cost effective Criminal Justice System, we certainly shouldn’t op into 4.7 new felony crimes to save $7179.
   
7. The $6 million Savings Isn’t.  And Most of the Savings have Already Occurred for this Biennium.

Preliminary indications are that the $6 million estimated savings is significantly too high.  You should get actual estimated numbers for the February session. And remember, the courts and the District Attorneys offices were not given any money to process what amounted to a significant extra workload that is still continuing today.  This turned out to be a cost shift not a savings. The indigent defense system was given state money to process the cases so this has to offset the actual estimated savings. I understand that most of the cases where offenders have been or will be released in this biennium have been processed.  Therefore, whatever the savings for this biennium are, they have already occurred.  If the idea was to save money this difficult financial biennium, then the legislature has pretty much maximized the savings now so going back to 20% earned time saves nothing more in this biennium. In short, the relatively small future savings, if there truly is any at all, is far overshadowed by the problems with this new law.

The simple solution, the one that makes the most sense and the one that best protects the public from crime is to return to earned time of 20 % for sentencing guidelines sentenced offenders.

Sincerely,

Doug Harcleroad
Attorney at Law