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Oregon Bulletin

February 1, 2011

 

Board of Parole and Post-Prison Supervision
Chapter 255

Rule Caption: Amends division 1 to update the established rulemaking procedures and agency rules notification guidelines.

Adm. Order No.: PAR 1-2011

Filed with Sec. of State: 1-11-2011

Certified to be Effective: 1-11-11

Notice Publication Date: 12-1-2010

Rules Amended: 255-001-0005, 255-001-0010, 255-001-0016

Subject: Division 1 is being amended to update the rulemaking procedures and to add guidelines regarding how the Board will provide notice of rule changes.

Rules Coordinator: Michelle Mooney—(503) 945-0914

255-001-0005

Notice of Rulemaking: Time and Manner

(1) Prior to the permanent adoption, amendment, or repeal of any rule, the chairperson of the Board or the chair’s designee shall give notice of the proposed action at least 21 days prior to the effective date:

(a) In the Secretary of State’s Bulletin referred to in ORS 183.360;

(b) By providing a copy of the notice to the legislators specified in ORS 183.335(14) at least 49 days before the effective date of the rule; and

(c) By providing a copy of the notice at least 28 days prior to the effective date to persons on the Board mailing list established pursuant to ORS 183.335(7); and

(d) By providing a copy of the notice to:

(A) Oregon State Bar Bulletin;

(B) Associated Press;

(C) Release Services, County Community Corrections Offices, State of Oregon Department of Corrections;

(D) Oregon District Attorneys Association;

(E) Oregon Criminal Defense Attorneys Association;

(F) All County Public Defender Offices;

(G) All County Law Libraries;

(H) Attorney General’s Office;

(I) State Public Defender;

(J) Oregon Supreme Court Law Library;

(K) University of Oregon Law Library;

(L) Northwestern School of Law, Lewis and Clark College;

(M) College of Law, Willamette University;

(N) American Civil Liberties Union;

(O) The Oregonian, Portland, Oregon;

(P) Pendleton Eastern Oregonian, Pendleton, Oregon;

(Q) The Statesman Journal, Salem, Oregon;

(R) Medford Mail Tribune;

(S) The Register Guard, Eugene, Oregon; and

(T) Others upon formal written request of the Board.

(2) When the Board has filed a temporary rule with the Secretary of State’s Office, the Board shall provide a copy of the certificate and order and a copy of the temporary rule to the persons on the Board’s mailing list, and to those listed in subsection (1)(c) of this section.

(3) Notwithstanding subsection (2) of this section, when the Board has filed a temporary rule with the Secretary of State’s Office, newspapers and media service shall only receive a copy of the certificate and order.

(4) Notice pursuant to subsection (1) and (2) of this section shall be provided via electronic transmission, such as e-mail or other electronic technology. Notice via non-electronic means will be available upon request and upon payment of an annual fee of $15.00. The Board will make reasonable accommodations for individuals with disabilities.

Stat. Auth.: ORS 183.335 & 183.360

Stats. Implemented: ORS 183.335 & 183.360

Hist.: 2PB 1-1979, f. & ef. 2-1-79; 2PB 2-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 1-1994, f. & cert. ef. 4-4-94; PAR 2-1994, f. 8-1-94, cert. ef. 8-15-94; PAR 1-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 1-2011, f. & cert. ef. 1-11-11

255-001-0010

Rulemaking Procedure

(1) The Board shall adopt all new and revised rules in accordance with the provisions of ORS Chapter 183, the Oregon Attorney General’s Model Rules of Procedure and ORS 192.610 to 192.710. The Board will use only those sections of the Model Rules which relate to rulemaking.

(2) The Board shall hold a business meeting, pursuant to Division 20, to consider proposed change(s) in its rules. Public notice of the meeting, and of the intent to consider rule change(s), shall be made pursuant to ORS 192.640(1).

(3) The Board, in its discretion, may limit participation by inmates in the proposed adoption, amendment or repeal of any rule to written submissions.

Stat. Auth.: ORS 183.335(1), ORS 183.335(3)(b), ORS 183.335(3)(c), ORS 192.610(1) – 192.710

Stats. Implemented: 1999 SB 2222

Hist.: 2PB 1-1979, f. & ef. 2-1-79; 2PB 2-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 1-1994, f. & cert. ef. 4-4-94; PAR 8-1999, f. & cert. ef. 11-15-99; PAR 1-2011, f. & cert. ef. 1-11-11

255-001-0016

Obtaining Copies of Board Rules

(1) The Board shall provide a free copy of its rules to all Oregon Department of Corrections institution law libraries and to any state agency or legislative entity that requests a copy. The Board has the discretion to determine the method of delivery in all cases. Rules will be provided in electronic format to institution libraries.

(2) Others who desire copies of Board rules shall make their requests in writing.

(a) The Board will charge a fee consistent with OAR 255-015-0015 to cover the costs of filling the request. The Board must receive payment in advance. Inmates who request copies of rules shall send authorization to withdraw funds from their inmate trust account and the Board shall verify that the account contains sufficient funds to cover the cost before providing copies.

(b) There will be no cost for copies of rules in electronic format.

Stat. Auth.: ORS 137.551 & 144

Stats. Implemented: ORS 192.800 - 192.810

Hist.: 2PB 2-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 1-2011, f. & cert. ef. 1-11-11

 

Rule Caption: Adopting rules to establish procedures for identifying and supervising offenders deemed sexually violent and dangerous.

Adm. Order No.: PAR 2-2011

Filed with Sec. of State: 1-11-2011

Certified to be Effective: 1-11-11

Notice Publication Date: 12-1-2010

Rules Adopted: 255-060-0018

Subject: Per ORS 144.637, the Department of Corrections and the State Board of Parole and Post-Prison Supervision, in consultation with local supervisory authorities, shall jointly adopt rules establishing (1) Procedures for identifying sexually violent dangerous offenders; and (2) Methods of intensive supervision for sexually violent dangerous offenders.

Rules Coordinator: Michelle Mooney—(503) 945-0914

255-060-0018

Offenders Eligible for Sexually Violent Dangerous Offender Designation

(1) “Sexually violent dangerous offender” is a person who is being released from custody after serving a sentence of incarceration as a result of conviction for an offense listed in subparagraph (a) of this paragraph, who has psychopathic personality features, sexually deviant arousal patterns or interests and a history of sexual assault, and who the State Board of Parole and Post-Prison Supervision or local supervisory authority finds presents a substantial probability of committing an offense listed in subparagraph (a) of this paragraph.

(a) The offenses to which this rule applies are:

(A) Rape in the first degree and sodomy in the first degree if the victim was:

(i) Subjected to forcible compulsion by the person;

(ii) Under 12 years of age; or

(iii) Incapable of consent by reason of mental defect, mental incapacitation or physical helplessness;

(B) Unlawful sexual penetration in the first degree; and

(C) An attempt to commit a crime listed in (1) or (2) of this subparagraph.

(b) “History of sexual assault” means that a person has engaged in unlawful sexual conduct that:

(A) Is not related to the crime for which the person is currently on parole or post-prison supervision; and

(B) Seriously endangered the life or safety of another person or involved a victim under 12 years of age.

(2) Every six months the Department of Corrections will provide the Board of Parole and Post-Prison Supervision with a list of offenders who have a history of sexual assault as defined in (1)(b) above, are serving a sentence of incarceration as a result of conviction for an offense listed in (1)(a) above, and who are within six months of release from custody.

(3) When any offender convicted as a “dangerous offender” under ORS 161.725 and 161.735 is granted a firm release date by the Board of Parole and Post-Prison Supervision or is otherwise within six months of release from custody, Board of Parole and Post-Prison Supervision staff will screen the offender to determine if the offender’s record reveals that the offender was convicted of an offense listed in (1)(a) and has a history of sexual assault as described in (1)(b).

(4) If Board staff determines that an offender has the qualifying conviction and history of sexual assault, the Board of Parole and Post-Prison Supervision will make a finding that the offender is eligible for designation as a sexually violent dangerous offender.

(5) The Board may designate an offender as a sexually violent dangerous offender only if the offender:

(a) Participated in or refused to participate in a psychological evaluation ordered by the Board of Parole and Post-Prison Supervision; and,

 (b) Requested an evidentiary hearing in accordance with these rules or waived entitlement to such a hearing.

(6) An offender who has been identified as eligible for designation as a sexually violent dangerous offender designation will receive notice of the offender’s eligibility for designation and of the offender’s right to request a hearing before the Board of Parole and Post-Prison Supervision to present evidence why the sexually violent dangerous offender finding should not be made.

(7) The Board of Parole and Post-Prison Supervision will provide the offender with a copy of the SVDO-1, Notice of Rights, prior to the evidentiary hearing. Upon receipt of the Notice of Rights the offender may request an evidentiary hearing or waive his or her right to the hearing.

(8) The Board of Parole and Post-Prison Supervision must receive and review the signed SVDO-1 Notice of Rights before an evidentiary hearing is conducted or waived to determine a SVDO finding. A refusal to participate in the hearings process shall also constitute a waiver of the right to a hearing.

(9) The Board of Parole and Post-Prison Supervision will consider any written objections to the psychological evaluation that are submitted by the offender. An offender may elect to waive the right to submit written objections.

(10) The purposes of the evidentiary hearing are to:

(a) Determine whether the offender meets the criteria of a sexually violent dangerous offender as defined in OAR 291-202-0210(1)(a) & (b), and;

 (b) Determine if there is a substantial probability of offender’s committing one of the offenses listed in OAR 291-202-0210(1)(a).

(11) At the conclusion of the evidentiary hearing, the Board of Parole and Post-Prison Supervision will determine whether the offender should be designated as a sexually violent dangerous offender. A finding that an offender is a sexually violent dangerous offender may be made by two Board of Parole and Post-Prison Supervision members, except in the case of an offender who has been sentenced to life imprisonment or convicted of a crime involving the death of a victim, pursuant to ORS 144.054.

(12) When an offender eligible for designation as a sexually violent dangerous offender has waived the right to an evidentiary hearing, the Board of Parole and Post-Prison Supervision will make the determination whether to designate the offender a sexually violent dangerous offender based on all the information in the record, including any psychological evaluations.

(13) A finding that an offender is a sexually violent dangerous offender will be contained in the offender’s original order of supervision or an amended order of supervision.

(14) The community corrections agency supervising an offender found to be a sexually violent dangerous offender shall subject the offender to intensive supervision as defined in OAR 255-005-0005(26).

Stat. Auth.: ORS 144.637

Stat. Implemented: ORS 144.635

Hist.: PAR 2-2011, f. & cert. ef. 1-11-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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