Oregon ramps up its clemency, record relief, and resentencing programs
Note: This is the second post in a series on state pardoning. The first discussed Governor Tony Evers’ reinvigoration of clemency in Wisconsin.
Oregon Governor Kate Brown, along with the state legislature, have reimagined how Oregon grants executive clemency, early release, and record relief. Brown has issued more pardons and commutations than any Oregon governor in recent history, according to Aliza Kaplan, the Director of the Criminal Justice Reform Clinic at Lewis and Clark University. In addition, Brown signed two bills into law this year that will significantly improve access to judicial remedies for people with a conviction record, thereby reducing the need for executive pardons. The bills, discussed in greater detail below, reduce barriers to record clearance via set-aside and sealing, and create a mechanism for prosecutors to agree to vacate a conviction or reduce a person’s sentence when it no longer serves the interests of justice.
In the first five years of her tenure, Governor Brown granted 20 pardons. From March 9, 2020, through November 2021, Governor Brown has granted 35 pardons. (This letter from the Governor to the state legislature covers the period from March 9, 2020 to June 25, 2021; according to Kaplan, Brown granted two more pardons between June and November.) Governor Brown pardoned people with a wide range of offenses, from murder, to DUI, narcotics possession, and other offenses. In at least one case pardon was granted based on a determination of innocence.
After granting just six conditional commutations in her first five years in office, Brown granted a total of 985 conditional commutations from March 9, 2020 through June 2020. (Unlike commutations in many other states, commutations in Oregon have typically included a term of supervised release and a condition allowing a return to prison in the event of additional criminal activity.) Of these 985 commutations, the Governor granted 32 in response to applications, 41 to individuals who were deployed to fight historic wildfires in the state and who met other criteria, and the rest to individuals identified by the Department of Corrections as appropriate for release on grounds related to COVID-19 (see detailed description below). In addition, in October 2021, Brown commuted lengthy sentences of 74 people who committed crimes before they had turned 18 but were excluded from a 2019 juvenile sentencing reform bill, making them eligible to petition for release after 15 years in custody.
Kaplan commented “we’re seeing that as we rethink a lot of the tough on crime philosophy, and laws of the eighties and nineties, we are questioning those policies…and asking what role rehabilitation and remorse should play…We’re also acknowledging that people can change and we show mercy, and we’re reuniting families and communities. All of this is behind the governor’s use of clemency, any governor’s use of clemency, to correct those injustices.”
Governor Brown’s use of clemency, and recent legislative reforms, reflect a growing political interest in forgiveness, reintegration, and record relief in Oregon. The rest of this post will discuss Oregon’s recent record clearing and resentencing reforms as well as specific categories of commutations (COVID-19-related, prisoners convicted as children, and firefighters).
Before 2021, Oregon’s complicated record clearance statute excluded many from the benefits of record relief, with only 5.5% of eligible individuals obtaining relief. “The impact of Oregon’s dysfunctional system [has been] felt most severely by its BIPOC community who are more likely to be arrested, charged and convicted,” according to Mary VanderWeele and Nikki Thompson, who worked to secure passage of the record reforms. “Black Oregonians are almost four times as likely to have a criminal record as their white counterparts.” Bipartisan reform legislation, signed by Governor Brown in August 2021, will align Oregon’s waiting period for record clearance with other states and public safety data. The bill also eliminates filing fees, limits the time for prosecutor objection to 120 days, and eliminates prior convictions as a bar to clearance of non-convictions. In 2019, Oregon also enacted a law expanding the effect of pardons as a rights restoration tool. Previously, a pardon in Oregon forgave the person for their prior convictions, and restored access to various fundamental rights. However, the pardon did not remove the conviction from their record. Now, pardons in Oregon result in an automatic clearance of the underlying conviction (those pardoned earlier than 2014 can petition to have their conviction cleared).
Also in 2021, Oregon enacted a new law that authorizes a person convicted of a felony and the district attorney to jointly petition a court to reconsider a sentence and/or conviction if it “no longer advances the interests of justice.” (Aggravated murder offenses are excluded as are cases where a conviction is eligible to be set aside and sealed under ORS 137.225.) See SB 819 (as yet uncodified). A joint petition may seek dismissal, the vacating of convictions, a plea to a new alternative offense, resentencing for the original conviction, and/or sentencing on a new offense. Certain offenses with a mandatory minimum require vacating the original conviction and a plea (and resentencing) to a new offense. In deciding whether to grant a petition, the court must hold a hearing and give victims an opportunity to make a statement, and may consider various post-conviction factors, including rehabilitation, risk of future violence, safety of the victim, the amount of time already served, and changed circumstances.
In June 2020, Governor Brown asked the Department of Corrections to perform a “case by case analysis” of prisoners particularly vulnerable to COVID-19 and those whose release date did not exceed two months. In December of 2020, Governor Brown adjusted the criteria on the latter program to include adults whose remaining sentences did not surpass six months. She had granted 912 commutations to prisoners as of June 2021, 567 of whom were deemed particularly vulnerable to COVID, and 345 of whom were nearing the end of their sentences and who met other criteria. Despite this seemingly high number, criminal justice advocates have criticized Governor Brown for failing to release prisoners en masse in order to protect them from the pandemic. Nonetheless, Kaplan believes that the governor should be credited for her commutations, noting that the pandemic has injected some urgency into her use of her constitutional power.
Commutations For Prisoners Convicted as Children
In November 2021, Governor Brown commuted the sentences of 74 people who committed crimes before they had turned 18 and are serving sentences of at least 15 years. They will now be able to petition the Board of Parole and Post-Prison Supervision for release after 15 years in custody. They had been excluded from a 2019 bill that drastically improved how Oregon sentences young people. The bill includes provisions to establish a “second look” which allows for review of rehabilitation status halfway through the sentence of juveniles convicted in adult court (allowing for the remainder of a term to be served on community supervision), presumes adjudication in the juvenile system absent a judicial determination otherwise, allows opportunities for judges to release youth before they are transferred to adult prisons, and eliminates life without parole for youth. The clemency order does not apply to individuals whose sentences extend beyond 2050. According to the Huffington Post, this parameter appears to be designed to exclude a specific person serving 112 years in prison for a high profile juvenile murder case, though it also impacts several other people. In December, Governor Brown took additional action to accomplish the immediate release of three individuals convicted of murder while juveniles, whose cases had been erroneously included among the November grants, “in recognition of their extraordinary rehabilitation and after receiving input from prosecutors and victim family members.”
Elizabeth Mera, the Governor’s press secretary, commented that “youth should be held accountable for their actions, but the fact is that adolescent brains are still growing and developing, especially in skills such as reasoning, planning, and self-regulation. Yet, too often our criminal justice responses do not take this into account.”
Governor Brown has also utilized commutations as a reward for prisoners who have volunteered to fight against wildfires, a growing threat in western states. In June, the Governor commuted the sentences of 43 prisoners who helped fight off historic wildfires in Oregon. California has also recognized the firefighting efforts of those serving time in prison, enacting a law that facilitates access to record clearance for former prisoner firefighters.
- Oregon ramps up its clemency, record relief, and resentencing programs - January 11, 2022
- Tony Evers revives pardoning in Wisconsin - October 19, 2021
- CCRC’s First Newsletter - September 28, 2021
- CCRC’s collection of scholarship on collateral consequences updated - August 27, 2021