OAR 291-062-0130
Adult in Custody Eligibility
(1)
The department will identify AICs who are eligible to participate in alternative incarceration programs. To be eligible to participate in the program, an AIC must:(a)
Be sentenced to the legal and physical custody of the department and be subject to a term of post-prison supervision upon satisfaction of a term of physical confinement in a Department of Corrections facility;(b)
Be at least 18 years of age at the time of entry into the program, or may be under 18 years of age and have been convicted of a crime upon remand from juvenile court; and(c)
Be assigned Level 1 or Level 2 in accordance with the department’s rules on Classification (AIC) (OAR 291-104) and have no more than 36 months to serve at the time of program entry.(2)
An AIC is not eligible to participate in alternative incarceration programs during service of a sentence for conviction of a crime described in:(a)
ORS 163.095 (“Aggravated murder” defined) (Aggravated Murder),(b)
ORS 163.115 (Murder in the second degree) (Murder),(c)
ORS 163.118 (Manslaughter in the first degree) (Manslaughter I),(d)
ORS 163.235 (Kidnapping in the first degree) (Kidnapping I),(e)
ORS 163.355 (Rape in the third degree) (Rape III),(f)
ORS 163.365 (Rape in the second degree) (Rape II),(g)
ORS 163.375 (Rape in the first degree) (Rape I),(h)
ORS 163.385 (Sodomy in the third degree) (Sodomy III),(i)
ORS 163.395 (Sodomy in the second degree) (Sodomy II),(j)
ORS 163.405 (Sodomy in the first degree) (Sodomy I),(k)
ORS 163.408 (Unlawful sexual penetration in the second degree) (Unlawful Sexual Penetration II),(l)
ORS 163.411 (Unlawful sexual penetration in the first degree) (Unlawful Sexual Penetration I),(m)
ORS 163.415 (Sexual abuse in the third degree) (Sexual Abuse III),(n)
ORS 163.425 (Sexual abuse in the second degree) (Sexual Abuse II),(o)
ORS 163.427 (Sexual abuse in the first degree) (Sexual Abuse I),(p)
ORS 163.435 (Contributing to the sexual delinquency of a minor) (Contributing to the Delinquency of a Minor),(q)
ORS 163.525 (Incest) (Incest),(r)
ORS 164.325 (Arson in the first degree) (Arson I), or(s)
ORS 164.415 (Robbery in the first degree) (Robbery I).(3)
An AIC who is serving a sentence, including a sentence imposed under ORS 137.712 (Exceptions to ORS 137.700 and 137.707), for a crime listed in ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences), 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court), 163.095 (“Aggravated murder” defined), or 163A.005 (Definitions for ORS 163A.005 to 163A.235)(5) committed on or after January 1, 2009, is not eligible to participate in alternative incarceration programs.(4)
An AIC is not eligible to participate in alternative incarceration programs if the AIC is serving a sentence under the provisions of ORS 137.635 (Determinate sentences required for certain felony convictions).(5)
An AIC is not eligible to participate in alternative incarceration programs if the AIC is serving a sentence under ORS 161.610 (Enhanced penalty for use of firearm during commission of felony) until the AIC completes the minimum incarceration term imposed by the court less earned time under ORS 421.121 (Reduction in term of incarceration).(6)
An AIC is not eligible to participate in alternative incarceration programs if the AIC:(a)
Has an adult conviction for felony escape that was committed within three years prior to the time of program entry, or has a conviction for unauthorized departure from the legal and physical custody of the Department of Corrections or its authorized agents that was committed within three years prior to the time of program entry.(b)
Is serving non-sentencing guidelines prison terms (sentences with crime dates prior to November 1, 1989), or has unresolved criminal prosecutions, consecutive county jail terms, or any other circumstances that would conflict with the AIC’s release from prison upon satisfactory completion of an alternative incarceration program.(c)
Has a current detainer.(A)
AICs who are serving a sentence for a crime committed prior to January 1, 2009, and who have detainers lodged with the department after they have been selected and assigned to one of the programs, and the detainer is discovered after the AIC has completed approximately one-half of the program, may be permitted to continue their participation in the program at the discretion of the functional unit manager or designee based on program performance to date.(B)
AICs who are serving a sentence for a crime committed on or after January 1, 2009, and who have a current detainer from any jurisdiction that will not expire prior to the AIC’s calculated date of release to post-prison supervision are not eligible for and shall not be permitted to continue participation in an alternative incarceration program.(d)
Is currently assigned to special security housing for reasons of protective custody, and the AIC’s assignment to the program is otherwise determined by department officials to pose a threat to the safe, secure, and orderly operation and management of the program, including the safety of department staff or any AICs.(e)
Has less than ten months to serve from the first day of program entry. AICs that have between nine and ten months to serve may participate in alternative incarceration programs with the functional unit manager’s or designee’s approval.(f)
Is serving a parole or post-prison supervision violation sanction pursuant to ORS 144.108 (Recommitment to prison for certain violations)(3)(b).(7)
For sentences imposed for crimes committed prior to January 1, 2009, an AIC is not eligible to participate in alternative incarceration programs if the AIC is serving a sentence under the provision of ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences) or ORS 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court) until completion of the mandatory minimum incarceration term. For sentences imposed for crimes committed on or after December 5, 1996, the AIC is eligible after completion of the mandatory minimum incarceration term only upon order of the sentencing court as ordered in a judgment pursuant to ORS 137.750 (Sentencing requirements concerning defendant’s eligibility for certain types of leave, release or programs).(8)
For sentences imposed for crimes committed prior to January 1, 2009, an AIC is eligible to participate in alternative incarceration programs if the AIC, on or after April 1, 1995, commits and is convicted of:(a)
Assault II as defined in ORS 163.175 (Assault in the second degree)(1)(b) (Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon);(b)
Kidnapping II (ORS 163.225 (Kidnapping in the second degree)); or(c)
Robbery II (ORS 164.405 (Robbery in the second degree)) unless the sentencing court notwithstanding ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences) and 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court) has imposed a lesser sentence pursuant to ORS 137.712 (Exceptions to ORS 137.700 and 137.707) and (for crimes committed on or after December 5, 1996, and prior to January 1, 2009) only upon order of the sentencing court as directed in the judgment pursuant to ORS 137.750 (Sentencing requirements concerning defendant’s eligibility for certain types of leave, release or programs).(9)
For sentences imposed for crimes committed prior to January 1, 2009, an AIC is not eligible to participate in alternative incarceration programs if the AIC on or after October 23, 1999, commits and is convicted of Manslaughter II as defined in ORS 163.125 (Manslaughter in the second degree), unless the sentencing court notwithstanding ORS 137.700 (Offenses requiring imposition of mandatory minimum sentences) and 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court) has imposed a lesser sentence pursuant to ORS 137.712 (Exceptions to ORS 137.700 and 137.707) and only upon order of the sentencing court as directed in the judgment pursuant to ORS 137.750 (Sentencing requirements concerning defendant’s eligibility for certain types of leave, release or programs).(10)
An AIC is not eligible to participate in alternative incarceration programs if the AIC is serving a sentence under the provisions of ORS 161.725 (Standards for sentencing of dangerous offenders) or ORS 161.737 (Sentence imposed on dangerous offender as departure from sentencing guidelines) (dangerous offenders) for a crime committed on or after November 1, 1989. An AIC shall not be allowed to participate in alternative incarceration programs even after completion of the required minimum incarceration term (determinate sentence) even if the Board of Parole and Post-Prison Supervision finds that the person is no longer dangerous or finds that the person remains dangerous but can be adequately controlled with supervision and mental health treatment and sets a post-prison supervision release date.(11)
If otherwise eligible under Oregon law, any person sentenced for a crime committed on or after December 5, 1996, and prior to January 1, 2009, may be considered for alternative incarceration programs only upon order of the sentencing court as directed in the judgment pursuant to ORS 137.750 (Sentencing requirements concerning defendant’s eligibility for certain types of leave, release or programs).(12)
If otherwise eligible under Oregon law, an AIC sentenced for a crime committed on or after January 1, 2009, may be considered for nonprison leave and release to post-prison supervision only upon order of the sentencing court as directed in a judgment pursuant to ORS 421.508 (Determination of eligibility for program)(4).(13)
An AIC is not eligible for an alternative incarceration program during the current admission if he or she previously participated in another alternative incarceration program in the same custody cycle.(14)
An AIC is not eligible for an alternative incarceration program who:(a)
Scores a six or higher on the Static 99-R and Definitions risk assessment tool (Attachments A and B);(b)
Has a predatory sex offender designation; or(c)
Is classified as a Tier III sex offender pursuant to OAR 255-085-0020 (Sex Offender Risk Assessment Methodology).
Source:
Rule 291-062-0130 — Adult in Custody Eligibility, https://secure.sos.state.or.us/oard/view.action?ruleNumber=291-062-0130.