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Oregon Bulletin

December 1, 2012

Board of Parole and Post-Prison Supervision, Chapter 255

Rule Caption: Amends rules and exhibits governing procedures for predatory sex offender designation.

Adm. Order No.: PAR 5-2012(Temp)

Filed with Sec. of State: 11-15-2012

Certified to be Effective: 11-15-12 thru 5-13-13

Notice Publication Date:

Rules Amended: 255-060-0011, 255-060-0016

Subject: Update the administrative rules relating to predatory sex offender designation to specify that the Board shall use the Static-99R (Exhibit Q-l), which has been approved by the Department of Corrections as required by ORS 181.585(2), effective November 14, 2012. Improve readability of rule and remove grammatical and other non-substantive errors.

Rules Coordinator: Shawna Harnden—(503) 945-0913

255-060-0011

Procedures for Predatory Sex Offender Designation for Offenders on Parole and Post-Prison Supervision

(1) For purposes of this rule, a predatory sex offender is defined as a person who exhibits characteristics showing a tendency to victimize or injure others and has been convicted of one or more of the following offenses: Rape in any degree, Sodomy in any degree, Unlawful Sexual Penetration in any degree or Sexual Abuse in any degree, or has been convicted of attempting to commit one or has been found guilty except for insanity of one of these crimes. In determining whether an inmate or offender is a predatory sex offender under this rule, the Board shall use the Static-99R (Exhibit Q-l) and definitions (Exhibit Q-2), which have been approved by the Department of Corrections as required by ORS 181.585(2). The Board may also consider any other evidence that the offender exhibits characteristics showing a tendency to victimize or injure others.

(b) All exhibits referenced in this rule are filed with the rule and are available at the Secretary of State’s office, the Board’s website, or on request from the Board.

(2) Predatory sex offender designations made by the Board for inmates or offenders released from a Department of Corrections institution before November 14, 2012, are not included in this rule. Those designations are governed by the rules in effect when the designation was made.

(3) Subject to the procedures set forth in this rule, the Board will make a finding that an offender is a candidate for predatory sex offender designation, if the offender scores six or more points on the Static-99R and has been convicted of a qualifying offense or has been found guilty except for insanity of a qualifying offense.

(4) Offenders who score six or more points on the Static-99R, and have been identified as a candidate for predatory designation, must be told. They must be provided with a copy of the Static-99R, the Notice of Rights (Exhibit PSO-5) and the Notice of Rights to File Written Objections form (Exhibit Q-3).

(a) The offender should submit any Written Objections (Exhibit Q-4) to the Static-99R score within three business days after signing the Notice of Rights (Exhibit Q-3).

(b) Unless the offender waives the right to submit Written Objections, no sooner than three days after providing the Notice of Rights, the supervising officer will forward the Static-99R, Notice of Rights and Written Objections, if submitted, to the Board. The supervising officer must also include a written report explaining why the offender should be considered for predatory designation. Other materials that support the offender’s Static-99R score shall be included.

(c) Upon receipt of the required documents, the Board will review them to verify the accuracy of the score, obtain supporting documentation if necessary, and determine if there is sufficient information to conduct an evidentiary hearing for purposes of determining whether the offender should be designated a predatory sex offender. The Board will prepare a file memo that verifies the index offense, qualifying conviction, and each point awarded on the Static-99R. The file memo will address offender’s written objections. If the Board determines there is sufficient information in the documents, it will forward them to its hearings officer, who will schedule an evidentiary hearing.

(5)(a) The supervising officer or the Board’s hearings officer will provide the offender with: the documentation submitted by the supervising officer; the Static-99R; the memo prepared by the Board; and the Notice of Rights regarding an evidentiary hearing (Exhibit PSO-5).

(b) Unless the offender waives their right to an evidentiary hearing, a hearing will be held. Refusal to participate in the notice of rights process will be considered a waiver.

(c) The sole purpose of the evidentiary hearing will be to determine whether the offender exhibits characteristics showing a tendency to victimize or injure others.

(6)(a) At the evidentiary hearing, the hearings officer will consider the written report submitted by the supervising officer, the Static-99R, and any additional evidence supporting the Static-99R score or otherwise indicating that the offender exhibits characteristics showing a tendency to victimize or injure others.

(b) The offender may present evidence rebutting claims made in the supervising officer’s written report, challenge the Static-99R score, or rebut other evidence that the offender exhibits characteristics showing a tendency to victimize or injure others.

(c) After consideration of all the evidence presented at the evidentiary hearing, the hearings officer will submit a report to the Board with a recommendation as to whether the offender is exhibiting characteristics showing a tendency to victimize or injure others.

(7)(a) Upon receipt of the report and recommendation from the Board’s hearings officer, the Board will review the report and recommendation and determine whether the offender exhibits characteristics showing a tendency to victimize or injure others and is, therefore, a predatory sex offender.

(b) A finding that an offender is a predatory sex offender must be made by at least two Board members.

(c) The Board will issue an order of supervision containing the predatory designation. Upon receipt of the order, the offender’s supervising officer must present it to the offender and document that the offender received the order.

(8) Pursuant to ORS 181.586, the community corrections agency supervising an offender found to be a predatory sex offender shall notify anyone whom the agency determines is appropriate that the person is a predatory sex offender. The agency shall make this determination as required by ORS 181.586.

[ED. NOTE: Exhibits referenced are available from the agency.]

Stat. Auth.: ORS 144.050, 144.140, 181.585 & 181.586
Stats. Implemented:
Hist.: PAR 4-2000, f. & cert. ef. 2-15-00; PAR 1-2002(Temp), f. & cert. ef. 1-15-02 thru 7-13-02; PAR 4-2002, f. & cert. ef. 3-12-02; PAR 5-2003, f. & cert. ef. 10-10-03; PAR 2-2004(Temp), f. & cert. ef. 1-41-04 thru 7-11-04; PAR 7-2004, f. & cert. ef. 6-14-04; PAR 1-2006(Temp), f. & cert. ef. 3-20-06 thru 9-15-06; PAR 5-2006, f. & cert. ef. 6-14-06; PAR 6-2006(Temp), f. 6-14-06 cert. ef. 6-15-06 thru 12-11-06; PAR 9-2006, f. & cert. ef. 10-9-06; PAR 1-2008, f. & cert. ef. 1-11-08; PAR 3-2008, f. & cert. ef. 9-12-08; PAR 5-2012(temp), f. & cert. ef. 11-15-12 thru 5-13-13

255-060-0016

Procedures for Predatory Sex Offender Designation for Inmates

(1)(a) For purposes of this rule, a predatory sex offender is defined as a person who exhibits characteristics showing a tendency to victimize or injure others and has been convicted of one or more of the following offenses: Rape in any degree, Sodomy in any degree, Unlawful Sexual Penetration in any degree or Sexual Abuse in any degree, or has been convicted of attempting to commit one or has been found guilty except for insanity or one of these crimes. In determining whether an inmate or offender is a predatory sex offender under this rule, the Board shall use the Static-99R (Exhibit Q-l) and definitions (Exhibit Q-ll2), which have been approved by the Department of Corrections as required by ORS 181.585(2). The Board may also consider evidence that the inmate is behaving in a manner that is consistent with exhibitsing characteristics showing a tendency to victimize or injure others submitted in written reports prepared by an approved evaluator and a release counselor of any Department of Corrections institution.

(b) All exhibits referenced in this rule are filed with the rule and are available at the Secretary of State’s office, the Board’s website, or on request from the Board.

(2) Predatory sex offender designations made by the board for inmates released from a Department of Corrections institution before August 7, 2006 November 14, 2012, are not included in this rule. Those designations are governed by the rules in effect when the designation was made or when the inmate was released from custody.

(3) Subject to the procedures set forth in this rule, the Board will make a finding that an inmate is eligible a candidate for predatory sex offender designation, if the inmate scores six or more points on the Static-99R and has been convicted of a qualifying offense or has been found guilty except for insanity of a qualifying offense.

(4) A finding that an inmate or offender is a predatory sex offender may be made by one Board Member. The finding may only be made after the inmate has participated in a sex offender evaluation or refused participation in such an evaluation, and participated in an evidentiary hearing or waived participation in such a hearing to determine whether the offender is exhibiting characteristics showing a tendency to victimize or injure others. A finding that an offender is a predatory sex offender will be contained in the offender’s original order of supervision or an amended order of supervision. Inmates who score six or more points on the Static-99R, and have been identified as a candidate for predatory designation, must be told. They must be provided with a copy of the completed Static-99R, the Notice of Rights (Exhibit PSO-5) and the Notice of Rights to File Written Objections form (Exhibit Q-3).

(a) The inmate should submit any Written Objections (Exhibit Q-4) to the Static-99R score within three business days after signing the Notice of Rights.

(b) Unless the inmate waives the right to submit Written Objections, no sooner than three days after providing the Notice of Rights, the counselor will forward the Static-99R, Notice of Rights and Written Objections, if submitted, to the Board. Other available materials that support the inmate’s Static-99R score shall be included.

(c) Upon receipt of the required documents, the Board will review them to verify the accuracy of the score and obtain supporting documentation if necessary to determine if there is sufficient information to conduct an evidentiary hearing for purposes of determining whether the inmate should be designated a predatory sex offender. The Board will prepare a file memo that verifies the index offense, qualifying conviction, and each point awarded on the Static-99R. The file memo will address inmate’s written objections. If the Board determines there is sufficient information in the documents, the inmate will be scheduled for a sex offender evaluation.

(d) Refusal to participate in a sex offender evaluation will not exclude inmate from predatory consideration.

(e) Should the sex offender evaluation determine that the inmate is exhibiting characteristics showing a tendency to victimize or injure others the inmate shall be provided with a copy of the sex offender evaluation and the Board’s memo verifying the Static-99R points. Unless inmate waives the right to an evidentiary hearing, a hearing will be held. Refusal to participate in the notice of rights process will be considered a waiver.

(f) The sole purpose of the evidentiary hearing is to determine if the inmate exhibits characteristics showing a tendency to victimize or injure others.

(5) Subject to the procedures set forth below, inmates who score six or more points on the STATIC-99, and have been identified as eligible for predatory designation are required to participate in a sex offender evaluation to determine whether the inmate is exhibiting characteristics showing a tendency to victimize or injure others. Refusal to participate in such an evaluation will be used as evidence to determine whether the inmate is exhibiting characteristics showing a tendency to victimize or injure others.

(a) At the evidentiary hearing, the Board will consider the written report submitted by the sex offender evaluator, the Static-99R, and any additional evidence supporting the Static-99R score or otherwise indicating that the inmate exhibits characteristics showing a tendency to victimize or injure others.

(b) The inmate may present evidence rebutting claims made in the sex offender evaluator’s written report, challenge the Static-99R score, or rebut other evidence that the inmate exhibits characteristics showing a tendency to victimize or injure others.

(c) After consideration of all the evidence presented at the hearing, the Board will make a determination as to whether the inmate should be designated as a predatory sex offender.

(6) A finding that an inmate is a predatory sex offender must be made by at least two Board members.

(7) Subject to the procedures set forth below, inmates who score six or more points on the STATIC-99, and have been identified as eligible for predatory designation, have the right to be advised of their score and submit written objections to the Board before the Board makes a predatory sex offender finding. The Notice of Rights and Written Objections form for this rule are Exhibits Q-lll and Q-IV of the Board’s rules.

(a) Written objections must be received by a Department of Corrections’ institution or release counselor, or the Board within three days of the date the inmate signed the Notice of Rights (Exhibit Q-lll).

(b) The Board must receive and review the signed Notice of Rights (Exhibit Q-III) or written documentation that the inmate refused to sign the Notice of Rights before an evidentiary hearing is conducted or waived to determine a predatory sex offender finding.

(c) The Board must consider any written objections to the score on the STATIC-99 timely submitted by the inmate before an evidentiary hearing is conducted or waived to determine a predatory sex offender finding. The Board may find an inmate is eligible for predatory sex offender designation if there is evidence to support a score on the STATIC-99 of six or more points.

(d) Inmates may elect to waive their right to submit written objections. Any such waiver must be in writing. When inmates waive their right to submit written objections, the Board may find an inmate or offender is eligible for predatory sex offender designation if the inmate’s score on the STATIC-99 is six or more points.

(8) The sole purpose of the evidentiary hearing will be to determine whether the inmate is exhibiting characteristics showing a tendency to victimize or injure others. The Board shall receive the sex offender evaluation of the inmate, a copy of the STATIC-99, and any written objections from the inmate to consider at the hearing. The Board may receive a written report from a release counselor of any Department of Corrections institution indicating that the inmate is engaging in behavior that shows the inmate is exhibiting characteristics showing a tendency to victimize or injure others.

(a) Upon receipt of the abovementioned information, including the written report from a release counselor of any Department of Corrections institution, the Board will review it to determine whether it contains sufficient information to conduct an evidentiary hearing for purposes of determining whether the inmate should be designated as a predatory sex offender. If the Board determines there is sufficient information in the report, it will schedule an evidentiary hearing.

(b) The Board will provide the inmate with a copy of the Notice of Rights (Exhibit Q-V) prior to the evidentiary hearing. Upon receipt of the Notice of Rights (Exhibit Q-V), the inmate may proceed with the evidentiary hearing or waive his or her right to the hearing. At the evidentiary hearing, the inmate will be given the opportunity to rebut claims made in the sex offender evaluation, STATIC-99, and any written report submitted by a release counselor. At the conclusion of the evidentiary hearing, the Board will make a determination as to whether the inmate should be designated as a predatory sex offender.

(9) Pursuant to ORS 181.586, the community corrections agency supervising an inmate or offender found to be a predatory sex offender shall notify anyone whom the agency determines is appropriate that the person is a predatory sex offender. The agency shall make this determination as required by ORS 181.586.

[ED. NOTE: Exhibits referenced are available from the agency.]

Stat. Auth.: 1999 OL Ch. 163, ORS 144.050, 144.140, 181.585 &181.586

Other Auth. V.L.Y v. Board of Parole & Post-Prison Supervision, 338 Or 44(2005)
Hist.: PAR 7-2006(Temp), f. & cert. ef. 8-7-2006 thru 2-2-07; Suspended by PAR 8-2006(Temp), f. & cert. ef. 8-30-06 thru 2-2-07; PAR 10-2006, f. & cert. ef. 10-30-06; PAR 4-2007, f. & cert. ef 7-17-07; PAR 3-2008, f. & cert. ef. 9-12-08; PAR 5-2012(Temp), f. & cert. ef. 11-15-12 thru 5-13-13


 

Rule Caption: Increase payment for Board-appointed attorney in supervision violation proceedings.

Adm. Order No.: PAR 6-2012

Filed with Sec. of State: 11-15-2012

Certified to be Effective: 11-15-12

Notice Publication Date: 8-1-2012

Rules Amended: 255-075-0035

Subject: The amendment increases the maximum payment to be made to attorneys appointed by the Board, pursuant to rule, to represent offenders in proceedings relating to violations of post-prison supervision or parole.

Rules Coordinator: Shawna Harnden—(503) 945-0913

255-075-0035

Representation/Ability to Pay Attorney Fees

(1) In all cases, the offender is entitled to representation by an attorney at the offender’s own expense.

(2) For Board cases only, if the Hearings Officer or the Board deems the offender indigent, and unable to pay for an attorney, the offender is entitled to a Board appointed attorney if the Board or Hearings Officer further finds that the offender has made a timely and colorable claim that:

(a) The offender has not committed the alleged violation;

(b) There are substantial or complex mitigating circumstances which make revocation inappropriate even if the offender admits violation or it is a matter of record; or

(c) The offender appears incapable or representing himself/herself.

(3) For Board cases only, after a Board member has approved findings that there is a timely and colorable claim, the Hearings Officer may appoint an attorney. The Hearings Officer shall notify the Board of payment to be made to the appointed attorney. When the Board approves payment for a Board appointed attorney, it shall not exceed $100 per hour and $500 per case. The attorney shall send the Board a billing within 90 days of the violation hearing.

(4) When the Hearings Officer or Board refuses to appoint an attorney, the Hearings Officer or Board shall state the grounds for refusal in the record.

(5) For Local Supervisory Authority cases, the Local Supervisory Authority may set its own criteria for appointment of an attorney and shall set its own standards for payment of appointed attorneys.

Stat. Auth.: ORS 144. 050, 144.140 & 144.346
Stats. Implemented: ORS 144.343
Hist.: 2PB 1-1979, f. & ef. 2-1-79; 2PB 1-1982, f. & ef. 5-19-82; 2PB 1-1984(Temp), f. & ef. 11-19-84; 2PB 1-1985, f. & ef. 2-28-85; PAR 1-1988(Temp), f. 3-11-88, ef. 3-14-88; PAR 6-1988, f. & ef. 5-19-88; PAR 10-1988(Temp), f. & ef. 7-14-88; PAR 15-1988, f. & ef. 9-20-88; PAR 3-1989, f. 10-13-89, ef. 10-16-89; PAR 6-1991, f. & cert. ef. 10-15-91; PAR 8-1992, f. & cert. ef. 10-9-92; PAR 11-1997(Temp), f. & cert. ef. 11-14-97; PAR 1-1998, f. & cert. ef. 5-11-98; PAR 3-2001, f. & cert. ef. 2-6-01; PAR 3-2005, f. & cert. ef. 12-29-05; PAR 6-2012, f. & cert. ef. 11-15-12

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, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

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