An eye on reform: Examining decisions, procedures, and outcomes

An eye on reform:

Examining decisions, procedures, and outcomes of the

Oregon Board of Parole and Post-Prison Supervision release process

Christopher M. Campbell, Ph.D.

Associate Professor of Criminology and Criminal Justice

Portland State University

Mieke de Vrind, J.D.

Staff Attorney, Criminal Justice Reform Clinic

Lewis & Clark Law School

Aliza B. Kaplan, J.D.

†

Professor of Law

Lewis & Clark Law School

Caroline Taylor

Lewis & Clark Law School (Class of 2022)

Project Period: 11/30/2020 – 08/31/2022

This study was funded by Arnold Ventures. The findings and opinions reported here are those of

the authors and do not necessarily reflect the positions of Arnold Ventures, Lewis & Clark Law

School, or Portland State University.

Christopher M. Campbell, Ph.D. Associate Professor in the Department of Criminology & Criminal Justice, College

of Urban and Public Affairs at Portland State University, Office: 503 725-9896, Email: cca[email protected]. All

questions regarding findings and analyses should be directed to Dr. Campbell.

†

Aliza B. Kaplan, J.D., Professor and Director, Criminal Justice Reform Clinic, Lewis & Clark Law School, 10101

S. Terwilliger Blvd. Portland, Oregon 97219, Phone: 503-768-6721, Email: akaplan@lclark.edu.

ACKNOWLEDGEMENTS

This project would not be possible without the support provided by multiple people and agencies.

Recognizing this, the authors would like to thank the current Oregon Board of Parole and Post-

Prison Supervision and the Oregon Department of Corrections and each of these agencies’ staff

members for their help with this project. We give special thanks to our staff contacts of Snake

River Correctional Institution (SRCI), Oregon State Penitentiary (OSP), Two Rivers Correctional

Institution (TRCI), Eastern Oregon Correctional Institution (EOCI), and Oregon State Correctional

Institution (OSCI). They ensured that the lockboxes used to collect the surveys were in a place

where participants could access them. At times this meant they needed to shuffle the 35lb and 96lb

boxes to multiple units. Without their help, the survey collection would not have been possible.

Over the course of this project, we met with officials from both of these agencies to discuss issues

of concern, data requests, and current practices and policy. We continue to appreciate their help,

and recognize that without their collaboration, much of this project would be an incomplete picture

of the system.

We would also like to thank Breanna Browning and Michelle Love for their help with

gathering data and interviews. A special thanks also goes to Molly Christmann for helping in the

survey administration and data input.

Finally, we give thanks to all of those who participated in our survey and interviews. The insight

gained from all of these conversations proved critical in capturing the scope of Oregon’s parole

process and areas ripe for reform.

 
 
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TABLE OF CONTENTS 
EXECUTIVE SUMMARY ................................................................................................................................ 1 
I.  INTRODUCTION .................................................................................................................................. 10 
II.  THE HISTORY OF PAROLE IN OREGON ............................................................................................ 10 
1905-1939 ........................................................................................................................................... 10 
1939-1969 ........................................................................................................................................... 12 
1969-1989 ........................................................................................................................................... 13 
1989-Present ....................................................................................................................................... 14 
III.  STAKEHOLDERS AND THE PAROLE PROCESS .................................................................................. 16 
The Parole Board .................................................................................................................................... 16 
Victims and Interested Parties................................................................................................................. 17 
Attorneys ................................................................................................................................................. 18 
Defense Attorneys ............................................................................................................................... 18 
Prosecutors .......................................................................................................................................... 18 
Victims’ Rights Attorneys .................................................................................................................. 19 
Prisoners, Petitioners, Parolees ............................................................................................................... 19 
Types of Hearings ................................................................................................................................... 20 
Murder Review ................................................................................................................................... 21 
Prison Term ......................................................................................................................................... 22 
Exit Interview ...................................................................................................................................... 23 
Parole Consideration ........................................................................................................................... 24 
Personal Review and Personal Interview ............................................................................................ 24 
Juvenile Parole Hearing ...................................................................................................................... 25 
Medical Release .................................................................................................................................. 25 
Process for Petitioner .............................................................................................................................. 26 
The Hearing ............................................................................................................................................ 27 
Decisions ................................................................................................................................................. 28 
IV.  WHERE PAROLE FITS IN THE MODERN LEGAL SYSTEM ................................................................ 29 
Legal Issues in Parole ............................................................................................................................. 29 
Due Process ......................................................................................................................................... 29 
Evidentiary Issues ............................................................................................................................... 29 
Exhibit O: administrative appeals and seeking judicial review .............................................................. 30 
V.  OVERVIEW: EMPIRICAL EXAMINATION OF PAROLE PROCESSES ................................................... 33 
Quantitative Data .................................................................................................................................... 33 
Table 1. Initial truncated sample release reason/status for Recidivism Dataset. ................................ 34 
Figure 1. Survey lock-box at OSP ...................................................................................................... 35 
Table 2. Sampling plan for the AIC survey. ....................................................................................... 36 
Qualitative Data ...................................................................................................................................... 36 
VI.  GOAL 1 FINDINGS: IDENTIFYING PATTERNS IN RELEASE DECISIONS ............................................ 38 
Patterns via Quantitative Analyses ......................................................................................................... 38 
Figure 2. Count of eligible convictions, parolee releases, and deaths in custody over time ............... 39 
Table 3. Descriptives of life with the possibility of parole CJRC data ............................................... 40 
Figure 3. Baseline predicted probability of release by months served ................................................ 42 
Table 4. Comparison of relative predictive accuracy of months to simulated parole date ................. 43 
Figure 4. Baseline predicted probability of release by race/ethnicity ................................................. 44 
Qualitative Analyses of the Board’s process, decision-making, and influences ..................................... 45 
Goal 1 Summary ..................................................................................................................................... 56 

 
 
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VII. GOAL 2 FINDINGS: DIFFERENCES ACROSS CASES BEFORE THE BOARD ........................................ 59 
Figure 5. Perceptions of the Board among eligible AICs ................................................................... 60 
Figure 6. Perceptions of the Board’s decision-making and process among eligible AICs ................. 61 
Goal 2 Summary ..................................................................................................................................... 62 
VIII. GOAL 3 FINDINGS: HOW THE BOARD’S HEARING PROCESS IMPACT ELIGIBLE PARTIES............ 64 
Figure 7. Perceptions decision-making and process among those with hearing experience ............... 65 
Goal 3 Summary ..................................................................................................................................... 69 
IX.  GOAL 4 FINDINGS: PAROLEE PERFORMANCE IN THE COMMUNITY ............................................... 69 
Figure 8. Percent of release type (PPS or parole) that failed supervision by recidivism type ............ 73 
Table 5. Model Balance Summary ...................................................................................................... 75 
Figure 9. Marginal probability of recidivism of PPS versus paroled in matched sample ................... 77 
Goal 4 Summary ..................................................................................................................................... 80 
X.  AREAS FOR REFORM AND POLICY RECOMMENDATIONS................................................................. 82 
More resources for the Parole Board ...................................................................................................... 82 
Improve data collection and rely on empirical evidence to help decision-making ................................. 84 
Codify and reify abstract expectations of the Board ............................................................................... 85 
Representation for hearings should be an opt-out procedure .................................................................. 87 
Standardize the approach to parolee supervision across the counties ..................................................... 88 
Provide more specific transparency for AICs and victims...................................................................... 88 
 
 

EXECUTIVE SUMMARY

In an effort to empirically explore and identify potential areas of reform that might exist in

the Oregon Board of Parole and Post-Prison Supervision (the Board) release process hearings and

decision-making process, the Criminal Justice Reform Clinic at Lewis & Clark Law School

(CJRC) launched a project funded by Arnold Ventures in November of 2020. This project aimed

to understand how incarcerated potential parolees (petitioners) and parolees in the community are

impacted by the Board’s process using a large-scale mixed method (qualitative and quantitative)

research study. Moreover, the purpose of the study is also to examine how the Board’s decisions

and processes may be related to certain outcomes (e.g., initial release and supervision failure).

Where possible, special attention is given to differences in race/ethnicity of the parolee and

subsequent outcomes of decisions and supervisions.

The key research goals of this study were to (1) determine if there are any patterns in Board

decisions to release an eligible person to parole supervision, (2) determine if there are any

differences across cases brought before the Board, (3) identify how the hearing and decision-

making process impact eligible parties/parolees, and (4) examine the degree to which release

decisions are accurate in determining a parolee’s likelihood to reoffend. Below are summaries of

each goal and a brief overview of the takeaway messages from each section.

Please note that the data and findings associated with each goal capture cases released over

the last several years. They encompass laws that have changed as well as many Board member

cohorts that have long since turned over during the analyzed timeframe. For this report, the Board

is examined and discussed as a living institution, the scope of which can be impacted depending

on who serves on it. Thus, none of the conclusions provided here are directed at any one cohort of

Board members, including the current Board. In fact, limited data were available on decisions

made by the current cohort for this report due to several reasons (e.g., COVID-19 disruptions and

lack of staffing resources). All findings and conclusions are drawn from data and reflections that

incorporate multiple Board cohorts and governor administrations. As a result, all recommendations

made here are focused on reforms to improve the fairness, transparency, and legitimacy of the

Board as an institution while maintaining the mission of public safety. Recommendations are

provided to emphasize the fact that the Board’s processes and policies transcend any single cohort

of Board members and culture, and the codification of data-driven policies is the best way to

safeguard fairness across Board cohorts.

Goal 1 Summary – Patterns in release

Data used for this goal captured 763 life-with-parole cases. The majority of releases were

relatively recent, with most occurring between 2004 and 2016. (see Figure 2). While time-served

and concurrent/consecutive violent convictions are the most important factors in predicting if a

parole-eligible person will be released, race/ethnicity is an added factor that yields some distinct

trends. Race/ethnicity and time-served/months to projected parole-eligibility date were the only

two measures able to predict release with 80% accuracy. It is possible that some of the differences

that arise between race/ethnic groups are products of the case-specifics and hearing information,

both of which still need to be analyzed. This does not mean specific Board cohorts or members

were expressing overt bias. Rather, the trends over time suggest the processes and expectations

which create the foundation of a Board’s decisions, appear to truncate the release probability for

certain racial/ethnic subgroups. More recent data that was descriptively analyzed highlights the

potential differences in the most recent Board cohort hearings. Specifically, this analysis shows

that recent efforts may have reduced racial/ethnic differences in the probability of release, but also

highlights how the Board’s process and decision-making is susceptible to member turnover. In

other words, without further codification, the positive steps made by one Board cohort could be

quickly undone by the next turnover.

Interviews highlighted three themes about how the Board decides between release or deny/

“flop” a petitioner: (1) clarity in criteria, (2) fairness and consistency, and (3) socio-political

pressures. Both victims and AICs need greater clarity and transparency about the Board’s decision-

making. This is not only critical for each party to understand a process of the justice system, but it

is also essential to ensure that the process is viewed as legitimate. Weaknesses in transparency can

lead to, and be exacerbated by, weaknesses in fairness and consistency. The fairness of decisions

must be relayed through transparent application of consistent criteria, especially in a prison setting.

Issues in fairness and consistency could be remedied via two efforts: Ensuring that AICs

and the victims

have some form of representation, and requiring key trainings for the Board. Legal

representation and/or support partners were highlighted as a critical factor to help people navigate

the process and communicate their thoughts and concerns. Trainings were discussed as a way to

increase fairness/interchangeability across cases and to increase consistency. Trainings should

include common philosophies and approaches used by Boards across the nation, how more

actuarial risk assessments (e.g., LS/CMI) could be integrated into decision-making, and how

rehabilitation (specifically cognitive behavioral therapy) works to change human behavior. Such

trainings are readily available through organizations like the National Institute of Corrections and

the Center for Effective Public Policy. The Academy of Criminal Justice Sciences also provides

updated information on the science behind rehabilitation and associated metrics.

It is important to note that the current Board cohort makes a concerted effort to have more

trainings and to make well-informed, evidence-based decisions. They frequently attend and present

at practitioner and academic conferences (Association of Paroling Agencies International [APAI])

to stay up-to-date with best practices, including on issues related to disparate outcomes among

racial subgroups by connecting with organizations that offer trainings and discussions of best

practices (e.g., Center for Effective Public Policy’s National Parole Resource Center). Another

example is “Trauma Informed Tuesdays” which is a webinar put on by APAI for all members,

where the Board and staff sign in to an informative discussion or presentation about trauma. These

steps are admirable and consistent with a Board focused on best practices. However, the focus of

the Board is dependent on the interests and scope of the Board’s sitting Chair and who is governor

at the time. Codifying this practice and expected trainings into a minimum expectation for all

Board cohorts would safeguard against turnover.

Finally, fairness and consistency were also noted to fluctuate with Board member turnover,

making issues inherently intertwined. Much of that is due to the lack of codified standards that a

potential Board member must meet, as well as the lack of on-boarding and ongoing training for

seated members. Oregon is one of 20 states that do not have statutory requirements for Board

member qualifications. Turnover and member selection, unaided by statutory standards and

training, leaves the Board susceptible to influence by socio-political pressures due to the (1)

Some may incorrectly believe that the presence of the district attorney is to be at the hearing on behalf of the victim.

The DA is instead at the hearing to represent the community from which the petitioner was convicted. Victims must

acquire their own representation, legal aid, or advocacy, although some advocacy is provided via the Board.

selection process for new members, (2) seated members’ concern over maintaining their position,

and (3) concern over next job opportunities when a member’s term on the Board ends. These could

be addressed by extending Board member terms by two years, installing a more robust selection

process for new members, and not allowing people to run for elected office while serving on the

Board.

Goal 1 Takeaway

Problem

Foundational processes and expectations have shown potential bias toward

release decisions.

Solution

Improve and solidify fairness by requiring transparent communication of decisions

and how criteria are applied for all parties who are subject to hearings.

Problem

Key areas susceptible to turnover include the clarity in criteria used, fairness

and consistency in decisions, and socio-political pressures.

Solution

Safeguard against dramatic change between Board cohorts by requiring a minimum

level of training for all new and seated members, as well as minimum qualification

standards for new members.

Problem

These areas can change dramatically with Board member turnover and

uncertainty among seated members.

Solution

Remove areas of concern that create potential bias in Board decisions by extending

Board member terms by two years, installing a more robust selection process for

new members, and not allowing people to run for elected office while serving on

the Board.

Goal 2 Summary – Differences across cases that come before the Board

This section examined differences between AICs who have and have not experienced

Board hearings. Such an analysis is important to identify policy areas to address and how to target

informational campaigns. A large proportion of AICs, regardless of hearing experience, reported

fearing the Board. Research has demonstrated for decades that fear often stems from a lack of

understanding, increased insecurity, and increased anxiety about a process, all of which are rather

common among AICs. Thus, with a high degree of fear, it is likely more information and resources

need to be available for those who are preparing for the Board. Moreover, fear can be an antithesis

to other factors such as respect and legitimacy, which are closely correlated. Legitimacy is

particularly important because the Board is a body that could greatly motivate AICs and released

parolees to change or seek more help in rehabilitation. A degradation in the legitimacy of the Board

could result in a similar degradation in willingness to follow rehabilitative suggestions and

recommendations made by the Board. To combat this, similar to Goal 1, greater clarity and

transparency may go a long way to bolstering the legitimacy of the Board.

It is important to recognize that those who have not experienced the Board often live

vicariously through those who have hearing experience. This means that if those who have gone

before the Board (especially those who are ultimately released) do not understand the process,

what the Board is looking for, and are unclear about how the Board reached its decision, then that

delegitimization will filter out to those who have not experienced the Board. To help alleviate such

issues among those who are hearing-experienced, policy makers and the Board should consider

including clear directional steps in documentation like the Board Action Forms (BAF). BAFs

currently include an explanation of the decision, similar to a court opinion, in the Discussion

section. While important to include, it does not provide much of a response to what the individual

explained in the hearing or what new information was incorporated. The Discussion section will

typically focus on the index crime and related behaviors in spite of the importance given to

“articulating the rehabilitative experience” or demonstrating remorse. This is not to say that the

goal is to ensure that the AIC is happy or particularly satisfied with the ruling. The important thing,

as noted by countless studies on procedural justice and legitimacy, is that the individual felt as

though they had a voice in a fair proceeding, and felt heard. Additionally, the BAF ends with a

finding/decision, with little guidance on what steps the AIC should explore to improve their

chances in the next hearing.

To lessen the influence hearing-experienced AICs have over those without hearing

experience, an effort could be made to help provide all petitioners with what they need, and answer

their questions in preparation for upcoming or past hearings. Several study participants provided

their written correspondence with a Board where members answered the individual’s questions

about how decisions are made or parts of the process. Such correspondence is a great example of

how the Board can bolster legitimacy and fairness in preparation for the hearing. AICs without

hearing experience could benefit from similar correspondence and preparation. Notices with

concise and clear information about the process, things that will be considered, and how best to

prepare could be sent to AICs on a recurring basis after the start of their parole eligibility.

Additional guidance on how to correspond with a Board and find representation for their hearing

would be helpful for all people as they approach their hearing date.

The current Board began a new practice in 2019 to attempt to address this shortcoming.

The Board provides suggestions to the petitioners about how they can improve for their next

hearing, such as writing their thoughts on remorse or programs in which to participate. Prior to

2019 it was up to the AIC to file for “Administrative Review,” which is a process of appeal, to

learn about the ultimate decisions. The 2019 practice of providing reasons has reportedly cut down

on the number of Administrative Reviews. While this is an important and positive practice, it

should be enshrined in policy to ensure that future Board cohorts follow suit.

Goal 2 Takeaway

Problem

Many AIC survey participants reported fearing the Board, which has been

shown to stem from poor understanding, increased insecurity, and increased

anxiety about a process. This can degrade the legitimacy and power of the

Board over behavior and facilitating change.

Solution

Require greater clarity and transparency through information campaigns regarding

hearings and decisions, as well as improve correspondence with petitioners outside

of the hearings, all to bolster legitimacy of the Board.

Problem

Petitioners who perceive the Board and its process as unfair weaken the

Board’s legitimacy, which then spreads to AICs without hearing experience.

Solution

Require that all petitioners receive regular, recurring notices with concise and clear

information about the process, areas considered by the Board, and how best to

prepare basis after the start of their parole eligibility.

Goal 3 Summary – Process impact eligible parties/parolees

This section examined only the perceptions reported by AICs with hearing experience. One

of the major findings from this goal is the need for more resources for the AICs and victims. The

provision of more resources is often a difficult recommendation for justice agencies to absorb. No

criminal justice agency has ever indicated that it had too many resources. Thus, when AICs report

that they lack the resources to be successful at parole hearings, this information likely falls on

unsympathetic ears. However, resources available for AICs often, if not always, run in tandem

with the resources needed by justice agencies. A remedy for each of the responses is a strong

informational/education campaign to inform all AICs of the appropriate statutes, how to prepare

for hearings, how to contact the Board, and how to secure rehabilitative programming. Information

campaigns spearheaded by the Board will require more resources for the Board in terms of

personnel and greater digitization of records.

Greater resources are clearly needed for the DOC as well. A dearth of rehabilitative

opportunities sets AICs up to fail when brought before the Board and infringes on the ability of

AICs to rehabilitate. Assuming the mission of the Board, and the DOC as a whole, is to reform

offenders rather than warehouse them, there must be a legislative effort to give these entities the

necessary resources. Such efforts would be a substantial step towards ensuring public safety.

Within this push for more resources is the reiterated need to improve the resources available to

AICs and victims. Specifically, AICs and victims need better resources related to ensuring

representation, pre-hearing information about the process and criteria, and ultimately more clearly

justified decisions and next steps. All of these elements would help to improve the overall

perception that hearing outcomes are forgone conclusions, while still providing ample voice to all

parties involved.

Goal 3 Takeaway

Problem

AICs report that they lack the resources to be successful at parole hearings

Solution

A remedy for each of the responses is a strong informational/education campaign

to inform all AICs of the appropriate statutes, how to prepare for hearings, how to

contact the Board, and how to secure rehabilitative programming. Information

campaigns spearheaded by the Board will require more resources for the Board in

terms of personnel and greater digitization of records.

Problem

Rehabilitation programs often required by the Board are not readily available

for petitioners.

Solution

Greater resources are needed for the DOC to ensure that the appropriate programs

expected by the Board are actually attainable. At a minimum this includes

incorporating the most efficacious domestic violence programs and sex offender

programs.

Problem

AICs and victims lack needed resources related to ensuring representation,

pre-hearing information about the process and criteria, and ultimately more

clearly justified decisions.

Solution

In addition to making a codified information campaign standard protocol, there

ought to be an “opt out” procedure for representation, making it required unless

otherwise stated by the petitioner or victim.

Goal 4 Summary – Identifying parolee needs in their likelihood to reoffend

Goal 4 examines how well paroling processes can predict recidivism and identify other

factors that might impact parolee performance in the community. An appropriate comparison

group was identified using the available Recidivism Dataset (described in the Overview and Goal

4 section). Using a more compatible comparison group, the analysis demonstrates that traditional

comparisons to recidivism rates among the post-prison supervision (PPS) population are naïve

estimates. Naïve estimates of parole success suggest that parolees are more likely to succeed

compared to the general PPS population. However, when an appropriate comparison group is

applied, the analysis shows that parolees struggle more than the PPS population. Specifically,

parolees have significantly more violations than those on PPS. Matched-group analyses also

suggest that given an otherwise average case, parolees have a substantively higher probability of

failure for every recidivism event except for reconvictions. This essentially means that if we were

to take two similar cases, one paroled and one released via determinate sentencing, those on parole

have a higher probability of failure following release.

These differences highlight a low risk population that is of the highest need in terms of

services. Perhaps the most obvious difference that parolees experience is that of age and the

difficulties in adjusting to a dramatically changed society than when the individual went into

custody over 20 years ago. Reintegration into a new world of technology after the loss of social

ties over the years was a major concern for several AICs and parolees alike. This can manifest in

parolees having a difficult time following the conditions of their community supervision following

decades in prison, demonstrating that the parolee population likely needs greater resources to

improve their reintegration chances. Another reason for the differences could be that parole

officers apply an exceptionally high degree of supervision and monitoring on those released via

parole. Known in the discipline as “supervision effects,” such a practice demonstrates how

parolees might experience greater scrutiny in the community than those on PPS. The degree of

scrutiny, however, can depend on the county to which the individual is released. One major way

that the Board can integrate decisions and foster standardization across county supervision

providers is to incorporate a discussion of criminogenic needs when considering an individual’s

potential success upon release or in exit interviews. Similarly, the Board can help to foster great

standardization and improve connectivity to release/supervision plans by incorporating the

LS/CMI into their decision-making and condition-setting protocol.

Goal 4 Takeaway

Problem

Paroled populations have the highest need for services, but it is overlooked by

erroneous comparisons to the general population on post-prison supervision.

Solution

Reporting of parolee recidivism should be completed via a matched-comparison

study, where parolees are compared to like cases and not the general PPS

population.

Problem

Community corrections supervision is far too idiosyncratic when it comes to

supervising parolees.

Solution

The Board should incorporate criminogenic needs and the LS/CMI when

considering potential success upon release and condition-setting protocol.

Abbreviated Recommendations

A number of recommendations have been derived from the data and analyses gathered for

this project. Readers are referred to the section on recommendations to provide greater detail for

each of the recommendations provided here as well as for the supporting evidence for each. These

areas of improvement fall into six key areas:

(1) More resources for the Board, (2) Improve data

collection and rely on empirical evidence to help decision-making, (3) Codify and reify abstract

expectations of the Board, (4) Representation for hearings should be an opt-out procedure, (5)

Standardize the approach to parolee supervision across the counties, and (6) Provide more specific

transparency for AICs and victims.

More resources for the Parole Board

The following are specific areas of recommended investment by the state:

1. Implement a parole-specific data management system/protocol that is directly integrated

into the DOC-400. Given the inherent dependence that exists between the Board and the

DOC operations, particularly when it comes to release plans and disciplinary reports, there

should be a much clearer, transparent, and direct process by which the Board and DOC can

share data points.

2. Conduct a workload study for the Board. More data points ought to be collected on the

Board’s work and caseload (e.g., how much time is spent on which tasks?).

3. Track “what works” when knowing what to look for in rehabilitation and reentry. Such

data needs to be tracked to provide more consistent information for the Board on a given

AIC coming before the Board.

4. Expedited and sustained digitization of data and files for the Board. The Board is woefully

behind when it comes to data digitization, as was indicated the Board’s current staff and

by past and present members. Temporary workers and supportive infrastructure could be

hired to help scan and digitize all paper-based information which would immensely aid the

digitization process.

5. Additional supporting personnel for the Board would aid in achieving additional

transparency and fairness. These positions could include the following:

a. An additional data management analyst to help provide more written context to the

Board’s reports, which are not immediately digestible by the public.

b. It is highly recommended that there is someone on the Board’s staff who can field and

respond to CorrLinks (email) and written correspondence from AICs to the Board.

c. Personnel related to the Board should be tasked with and specialized in aiding with

release plans – specifically working with release counselors and the county community

corrections staff.

d. A Board staff person should be tasked with briefing (prior to hearings) and de-briefing

(after hearings) AICs and victims involved in the hearings.

6. Consistent and ongoing training should be codified and required for all Board members.

Such training should include, but is not limited to, mandatory onboarding for all new

members and continuing education for seated members to take every three years.

These recommendations are provided numerically for the sake of ease in grouping and ease for reading. The list is

not provided in any particular order, and are not meant to be taken as a prioritized list.

7. All parties (Board members, AICs, and victims) should have adequate access to

trauma/grief counseling. The cases that come before the Board are inherently traumatic for

everyone involved.

Improve data collection and rely on empirical evidence to help decision-making

The following list of reform recommendations highlights how and why certain data and empirical

evidence should be better integrated into the Board's processes.

8. More targeted rehabilitative programming must be offered by the DOC, and it should be

offered in a capacity and frequency that will satisfy the needs of the petitioner population

and the Board’s decision-making. This is especially critical for those programs the Board

often expects to see participation in, such as more domestic violence and sex offender

programming.

9. Information needs to be collected on how the 10 factors are considered in each murder

review, and how the three core factors weighed into the decisions related to the Exit

Interviews specifically.

10. The DOC and the Board need to engage in clearer and more useful tracking of rehabilitation

information.

11. Use more actuarial risk information (e.g., LS/CMI and information about needs) and

sociological information about social network/situation to supplement psychological

evaluations. Currently, the Board relies on the Static-99 and one other dynamic tool for sex

offenses, and the HCR-20 primarily for psychological evaluations and Exit interviews, but

this should be expanded to include the LS/CMI (used in all counties to guide supervision

and rehabilitation planning). Specifically, the LS/CMI should be used to help guide the

process of setting conditions.

Codify and reify abstract expectations of the Board

The following recommendations are focused on ways to improve abstract definitions in order to

address interpretations and expectations that can change from Board to Board.

12. Define the purpose of punishment in Oregon. Regardless of the state, when it comes to

criminal prosecution and punishment, there will always be a constant need to balance the

goals of punishment – retribution, rehabilitation, incapacitation, and deterrence. However,

without a clear definition as to which goal is a priority in Oregon, the application of

punishment will forever be idiosyncratic. Doing this will help restore perceptions of

fairness, justice, legitimacy, and trust into the state, the corrections system, and the justice

system as a whole.

13. Clearly define the explicit relationship between rehabilitation, supervision success, and the

purpose of parole. Such definitions could minimize differences in interpretation between

members and cohorts. This is important because differences in such interpretations degrade

legitimacy and fairness in the system and thereby undermine decisions and power of the

Board.

14. Define what it means to have a “fair hearing.” This information can be included in a

briefing of AICs before they go to a hearing, as well as in a de-briefing after a hearing takes

place.

15. Define “demonstrating insight” and what it means to be “rehabilitated.” Defining these two

concepts can help to improve the rehabilitation of AICs as they seek to internalize what

rehabilitation means to them well in advance of the hearing.

16. Explicitly define the role and purpose of the DA in hearings. Without Board members who

are willing to interrupt or stop a DA from re-litigating the initial case, then at the very least,

the legitimacy, fairness, and interchangeability of hearing decisions are at risk of being

compromised.

Representation for hearings should be an opt-out procedure

Representation was identified in multiple findings as something that could be dramatically

important for AICs and victims. However, it is not currently set up as something that is easily

accessible. These two recommendations provide options to addressing this shortcoming.

17. Ensure that all parties involved in hearings are provided adequate representation if desired.

This should be in the form of an opt-out process. Parole-eligible AICs going before the

board should have automatic representation selected similar to how public defense counsel

is for indigent clients. Similarly, all victims should be assigned counsel to help them

navigate the parole process.

18. Greater investment should be made into representation. This may take the form of creating

an office of parole representation in the Oregon Office of Public Defense Services who can

help coordinate available counsel.

Standardize the approach to parolee supervision across the counties

19. Noted in multiple findings was the lack of consistency in supervision across county

jurisdictions. There are currently far too many idiosyncratic differences between counties

and their approach to supervision. Moving forward, it is recommended that the state

establish minimum requirements for how supervision should be completed, especially for

special populations. Funds from the Justice Reinvestment Act and gap analyses of services

available in each county can help structure additional protocols and support systems to help

counties achieve this.

Provide more specific transparency for AICs and victims

20. Relay expectations and justification information to AICs in a clear way. Generally, a larger

effort to provide more information can take the form of reform efforts completed by other

states. Similarly, improvements in transparency are important for victims. As noted by

victim advocates’ statements, there needs to be greater transparency in process and

decision-making before and after hearings.

I. INTRODUCTION

Following the 1970s “punitive turn” for the United States criminal justice system, many

states removed or restructured how parole boards were utilized. Several states opted to institute a

determinant sentencing system with semi-structured guidelines, removing most Board

discretionary power. Since the Board’s restructuring, states like Oregon added various

complexities to hearings and decision-making processes, creating a labyrinth of layered laws and

varying viewpoints of rotating members. Today, the Oregon Board of Parole and Post-Prison

Supervision (the Board) oversees the discretionary release of approximately 1,300 adults in

custody (AICs), none of whom have a guaranteed right to counsel to help navigate hearing

complexities.

In an effort to empirically explore and identify problem areas that might exist in the Board’s

hearings and decision-making process, the Criminal Justice Reform Clinic at Lewis & Clark Law

School (CJRC) launched a project funded by Arnold Ventures. This project aimed to understand

how incarcerated potential parolees and parolees in the community

are impacted by the process

using a large-scale mixed method (qualitative and quantitative) research study. Moreover, the

purpose of the study is also to examine how decisions and processes may be related to certain

outcomes (e.g., initial release and supervision failure). Special attention is given to differences in

race/ethnicity of the parolee and subsequent outcomes of decisions and supervisions.

The key research goals of this study are to (1) determine if there are any patterns in the

Board’s decision to release an eligible person to parole supervision, (2) determine if there are any

differences across cases brought before the Board, (3) identify how the hearing and decision-

making process impact eligible parties/parolees, and (4) examine the degree to which release

decisions are accurate in determining a parolee’s likelihood to reoffend.

II. THE HISTORY OF PAROLE IN OREGON

1905-1939

In 1905, the 23rd Oregon Legislative Assembly enacted two laws which created the

modern parole system. One of the bills signed into law, S.B. 233, provided for indeterminate

sentencing of people convicted of certain felonies and granted authority to the Governor

to parole

Broadly termed “parolees” to encompass all those eligible for a parole hearing at some point or have experienced a

hearing and have been released.

Understanding the difference between determinate and indeterminate sentencing is essential to understanding the

nature of parole. Determinate sentences have a defined period of time that the convicted person serves in custody, so

when that person receives their sentence, they know from the outset the amount of time they will remain incarcerated.

Determinate sentences cannot be altered by a parole board or other agency. Indeterminate sentences, however, provide

a range of time for a person to serve in prison (“5 to 10 years”). Indeterminate sentences set minimum terms of

incarceration for an individual to serve and allow that person’s release date to be determined by a body like a parole

board.

The indeterminate sentencing bill was a recommendation from the Governor at the time, George E. Chamberlain,

who said “there are in every prison many convicts suffering long sentences…who, if an opportunity were given them,

would endeavor to restore themselves to useful citizenship…The Governor should be permitted…to parole prisoners

for good conduct, and where in their opinion reformations appears to be complete.” Governor George E. Chamberlain,

Governor’s Message to the Twenty-third Legislative Assembly (1905).

the same people for good behavior after completing the statutory minimum period of confinement.

The other bill, S.B. 152, enabled the circuit courts to parole people convicted of violations of

Oregon law and supervise those same people during the parole period.

Before the enactment of

these two laws, a person in prison could leave by two means: serving the entirety of their sentence,

or receiving executive clemency from the Governor.

In the eyes of Governor George E.

Chamberlain, the goal of this new legislation was twofold: first, to allow petitioners release on

good behavior after serving a minimum period of confinement, and second, to provide an executive

check on the uneven administration of justice.

To administer the new parole system, the State Parole Board was established in 1911.

The Board consisted of three members: two appointed by the Governor, and the third held by the

superintendent of the Oregon State Penitentiary.

The Board reviewed all cases resulting in

indeterminate sentences, provided parole recommendations

to the Governor, and maintained

contact with persons released on parole.

Briefly, the Board expanded to a five person

membership; in addition to the superintendent of the Oregon State Penitentiary and the two

members appointed by the Governor, additional members included the secretary to the Governor

and the parole officer from the brand new office of parole.

The parole officer enforced the

conditions of parole and returned those who violated the conditions.

After two years of the five-

person Board, its membership returned to three members in 1917, the same year the Oregon

Legislative Assembly abolished minimum sentences for felonies other than murder and treason.

From 1911 to 1931, the Board, in its various formations, conducted reviews and offered

recommendations on the disposition of various prisoners. The Board received letters from judges,

spouses, sheriffs, and district attorneys. The Board also frequently interviewed petitioners. The

Board created reports including the petitioner’s name, crime, county, sentence, when received into

custody, minimum sentence, age, and any other crimes and prior board actions.

If a petitioner’s

1905 Or. Laws 318.

1905 Or. Laws 306.

The Governor’s clemency power derives from art. V § 14 of the Oregon Constitution which provides the power to

“grant reprieves, commutations, and pardons, after conviction, for all offences (sic) except treason…” OR. CONST. art.

V, § 14.

In his 1907 address to the Legislative Assembly, Governor Chamberlain remarked on the variations in sentencing

across the judicial districts of Oregon by concluding that “the administration of justice is uneven…It seems to me that

it is part of the duty of the executive branch of the government to equalize, where conditions warrant, this apparent

inequality in the administration of justice.” Governor George E. Chamberlain, Governor’s Message to the Twenty-

fourth Legislative Assembly (1907). The theme of rectifying the “uneven administration of justice” through parole

policy reforms spans the entirety of the parole system in Oregon; through the implementation of prison term hearings,

this search for equity often leads to longer periods of incarceration and more punitive sentencing schemes.

ARCHIVES DIV., OFFICE OF THE SEC’Y OF STATE, STATE OF OREGON, BD. OF PAROLE AND POST-PRISON SUP. ADMIN.

OVERVIEW (2006) [hereinafter BOPPPS ADMIN. OVERVIEW].

Id.

This process of investigation and providing reports and recommendations to the governor is more akin to the work

of a task force compared to the Board’s work today: conducting hearings and acting as the decision-maker for whether

a petitioner may serve the remainder of their sentence in the community.

Id.

For example, Frank Kodat, no. 8391, was convicted of burglary and received into the Oregon State Penitentiary. He

was sentenced to 5 years with no minimum; he had one prior burglary conviction. After coming for review by the

Board on November 13, 1923, December 6, 1923, and January 3, 1924, and then at the request of the Governor, the

term of confinement was continued, it was often for a month or up to six- occasionally continued

to the statutory “maximum.” As time went on, Board recommendations became more expansive

in volume and scope, including: a statement from the Warden of the penitentiary as to whether the

petitioner had a history of good conduct, more details from the prosecuting district attorney,

sometimes a letter from the prison physician attesting to the petitioner’s good health. The

recommendation also included a statement from the petitioner (when offered).

For example, Wm. P. Brown stated

If I am granted a parole I will do my best to uphold and live

according to the rules of my parole at the same time helping my

mother financially for she is aging and needs my help. On board ship

at sea I am enabled to save money via allotment thereby I am not

spending all I make as I was while ashore.

1939-1969

The State Parole Board and State Probation Commission were together replaced in 1939

with the brand-new State Board of Parole and Probation.

Along with its new name, the Board

underwent important changes during the late 1930s and 1940s. Significantly, the Board prepared

case history records for petitioners as a backward glancing view of whether they should be granted

parole or not.

The 40th Legislative Assembly granted the Board the authority to establish rules

and regulations about the conditions of parole, and to maintain work camps for parolees.

Additional legislation enacted in 1941 extended the responsibility and power of the Board to all

petitioners confined to jail or a penitentiary for six months or more,

and in the 1950s the Board’s

responsibilities grew to include supervision of all persons on probation, parole, or conditional

pardon within Oregon.

The size of the Board increased in 1959 to five members who served for

a term of five years; no more than two members were allowed to belong to the same political party,

and all incumbent members were terminated from their positions on the Board.

From its creation in 1955 until its abolishment in 1965, both the Chairman of the Board

and the Director of the Board sat on the “Corrections Classification Board,” a body designed to

“classify inmates for reducing disciplinary and administrative problems, and supervise the transfer

of petitioners between prisons.”

Upon the Corrections Classification Board’s termination and

disbandment in 1965, the Corrections Division was established as part of the state Board of Control

before moving to the Governor’s office and eventually the Department of Human Resources.

The Corrections Division provided administrative support to the State Board of Parole and

Probation, a function that continues to this day.

Board recommended Mr. Kodat receive a conditional pardon to Tom Coliucais to gain employment. Frank Kodat, No.

8391, February 1924. Parole Bd. Actions. Dept. of Corr. Or. State Archives.

Wm. P. Brown, No. 11590, January 1932. Parole Bd. Actions. Dept. of Corr., Or. State Archives.

Id.

1939 Or. Laws 515.

Id.

BOPPPS ADMIN. OVERVIEW, supra note 7.

1955 Or. Laws 841.

BOPPPS ADMIN. OVERVIEW, supra note 7.

Or. Admin. Histories, Or. State Archives 61 (1988) [hereinafter ADMIN. HISTORIES].

ADMIN. HISTORIES at 60.

1969-1989

In 1969, as part of a major governmental restructuring, the Board became a full-time

endeavor, but was reduced to a three-person membership. The Governor terminated the terms of

all incumbent members and appointed new members to four-year terms each of which required

Senate confirmation.

Oregon reformed its criminal code in 1973 based on the Model Penal Code, and in so doing

the law favored a presumption to parole.

In 1973, likely due to the enactment of the aggravated

murder statute, the State Public Defender

took on the additional responsibility of processing

parole appeals.

The adoption of HB 2013 significantly impacted the administration of parole in 1977.

Concerns about prison overcrowding and a lack of uniform sentencing in the 1970s culminated in

HB 2013, which established the Advisory Commission on Prison Terms and Parole Standards.

The Commission proposed adopting guidelines to mitigate ad hominin variation in parole release

decisions.

The guidelines set forth two meanings of determining a prison term: a “severity rating”

of the commitment offense and a “history/risk assessment” based on an Adult in Custody’s

criminal history.

The severity rating and history/risk assessment would intersect on an X-Y axis

(“the matrix”), and the point of intersection set forth a range of time for a person to serve in

prison.

The implementation of the matrix reflected “a concern with disparity, lack of due process

protections, and a rejection of rehabilitation as the main criterion for parole release.”

While implementation of prison term guidelines was meant to increase uniformity in

sentencing, the result of that uniformity included a boom to Oregon’s prison population. By 1985,

a report authored by the Oregon Prison Overcrowding Project (OPOP) found that Oregon State

Penitentiary operated at 153% of its single-cell capacity and Oregon State Correctional Institute

operated at 206% of single-cell capacity.

OPOP understood the booming prison population as an

Or. Rev. Stat. 144.015.

Or. Rev. Stat. 144.175 provided in 1975 that “unless the board is of the opinion that… release should be deferred

or denied because…” RICHARD KU, U.S. DEP’T OF JUST., NATIONAL INSTITUTE OF JUSTICE, AMERICAN PRISONS AND

JAILS VOLUME IV: SUPPLEMENTAL REPORT – CASE STUDIES OF NEW LEGISLATION GOVERNING SENTENCING AND

RELEASE. 122 (1980).

The State Public Defender is the former name of the Criminal Appellate Division of the Office of Public Defense

Services, which also now includes a Juvenile Appellate Division in addition to divisions which manage contracting

for trial-level public defense and administration.

ADMIN. HISTORIES at 307.

ADMIN. HISTORIES at 107.

Id.

Adult in Custody is the statutory term for someone incarcerated at a correctional institution in Oregon. Supra note

1 at 1.

Id.

Id. at 109.

OR. PRISON OVERCROWDING PROJECT, PUNISHMENT & RISK MGMT. AS AN OR. SANCTIONING MODEL, EXEC.

SUMMARY (1985) [hereinafter OPOP]. Oregon State Penitentiary (OSP) is Oregon’s oldest prison facility, operating

as “The Territory Jail” beginning in April 1842. The location moved several times before its current siting in Salem

in 1866. OSP is a maximum-security facility with 2,242 bed capacity. OSP houses all 37 AICs sentenced to death and

awaiting execution in the state. Santiam Correctional Institution (SCI) was built in 1946 as a part of the Oregon State

Hospital in Salem, before it was sold to the Fairview Home in 1960 and renamed the Frederic Prigg Cottage. The

Cottage was used in 1977 to alleviate some prison overcrowding, was converted into a release center in the 1980s,

and finally became SCI in 1990. Oregon State Correctional Institute (OSCI), also in Salem, became operational in

intersection of two variables: how many people were sentenced to serve time in prison, and for

how long did they stay before release.

At the time of OPOP’s report, Oregon’s population was

approximately 2.684 million people (United states Census bureau) and its prison population was

3562. Today Oregon’s population is estimated to be roughly 4.2 million, and its prison population

as of February 1, 2022 is 11,993 people.

Crime rates in the United States increased throughout the 1970s, with violent crime rates

rising from 36 victimizations per 1,000 persons age 12 and older in 1973 to 39 victimizations per

1000 persons age 12 and older in 1981.

According to a report by the Criminal Justice

Commission in Oregon, violent crime increased by 680% from 1960 to 1979.

Rising crime rates

in the 1970s and the continued public perception of increasing crime throughout the 1980s eroded

public confidence in rehabilitative justice models.

1989-Present

The loss of public faith in rehabilitation fortified punitive criminal justice reforms in the

1980s and 1990s. In 1989, the Oregon Legislature changed the sentencing structure for criminal

convictions and moved from the indeterminate sentencing scheme to a determinate sentencing

structure outlined in sentencing guidelines. The guidelines were a state-level implementation of

the (then new) federal Felony Sentencing Guidelines and apply to crimes committed on or after

November 1, 1989.

Since November 1, 1989, the only people whose sentences fall within the

paroling function of the Board’s jurisdiction are people convicted of murder or aggravated murder

and those sentenced as dangerous offenders.

1959 with capacity for 880 AICs. Eastern Oregon Correctional Facility (EOCI) welcomed its first AICs on June 24,

1985. Prior to that, the facility had been used as a state mental hospital. EOCI has a maximum capacity for 1,682

AICs, split between 596 dormitory-style beds, 897 cells, 99 Disciplinary Segregation Unit beds, and 8 infirmary beds.

Powder River Correctional Facility (PRCF) is a 336-bed transition and reentry facility in Baker City which opened on

November 9, 1989—one week after Oregon’s sentencing scheme switched from indeterminate to determinate.

Columbia River Correctional Institution (CRCI) opened in 1990 in Northeast Portland. CRCI includes a drug and

alcohol treatment program in a separate 50-bed dormitory away from the general population. CRCI has 595 total beds.

Now closed, Oregon acquired Shutter Creek Correctional Institution in 1990. It had capacity for 260 AICs. Snake

River Correctional Institution (SRCI) opened in 1991 with 648 beds. An additional 2,352 beds were constructed for

$175 million, the largest state general funded public works project to date at the time. Two Rivers Correctional

Institution (TRCI) in Umatilla had a phased opening from December 1999 to September 2001. It has capacity for

1,632 AICs. Coffee Creek Correctional Facility (CCCF) opened in October 2001 as a minimum-security facility; a

medium-security facility within the same complex opened in April of 2002. CCCF houses the state’s intake center for

adults in custody and contains 1,684 beds. Warner Creek Correctional Facility (WCCF) opened in September 2005

with 496 beds. Finally, Deer Ridge Correctional Institution (DRCI) is distinguished as Oregon’s newest prison,

opening its minimum-security facility in September 2007 and its medium-security facility in February 2008 in Madras.

The facility has capacity for 1,867 adults in custody. See Oregon Corrections Division website, accessed 2.8.2022

Id. at 7.

U.S. CENSUS BUREAU, INTERCENSAL ESTIMATES OF THE TOTAL RESIDENT POPULATION OF STATES: 1980 TO 1990

(1996).

MICHAEL R. RAND, U.S. DEPT. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, VIOLENT CRIME TRENDS, NCJ-107217

(1987).

CRIMINAL JUSTICE COMM’N, LONGITUDINAL STUDY OF THE APPLICATION OF MEASURE 11 AND MANDATORY

MINIMUMS IN OREGON (2011).

See REPORT OF THE GOVERNOR’S TASK FORCE ON CORRECTIONS (1976).

1989 Or. Laws 1301.

During the same period of transition in sentencing schemes, a citizens’ initiative in 1994

(“Measure 11”) established mandatory-minimum sentences for certain felonies.

Because

mandatory-minimum sentences disallow judicial discretion for the imposition of criminal penalties

after conviction, the measure shifted sentencing discretion from judges who imposed sentences

upon conviction to prosecutors who could select charges that come with statutorily-mandated

sentences if a criminal defendant is convicted.

Proponents of Measure 11 argued that the

mandatory-minimums provided both “predictability of sentences” for crime victims and the

community at large, and “comparable sentences”

for convictions of the same offense regardless

of the sentencing judge. Even though the true “death” of parole occurred through the imposition

of the sentencing guidelines, Measure 11 further blunted parole as a release mechanism by 1)

instituting longer

minimum periods of confinement for people convicted of murder or aggravated

murder, and 2) excluding people convicted of Measure 11 offenses from using accrued “good

time” to discount the length of their sentences.

In 1996, Oregonians voted by a 2-1 margin to amend the State Constitution’s provision on

principles of criminal punishment to be “protection of society, personal responsibility,

accountability for one’s actions and reformation” and repeal the provision that criminal

punishment be based on “reformation, and not of vindictive justice.”

The same year, Oregonians

also voted to incorporate into the State Constitution a provision providing for crime victims’

rights.

What Measure 11 did for people convicted of certain felonies by requiring them to serve

mandatory-minimum sentences, the sentencing guidelines likewise prescribed presumptive

sentences based on a person’s criminal history and conviction at issue; both schemes replaced a

sentencing ceiling

with a sentencing floor.

As should be apparent from a comprehensive history of parole administration in Oregon,

the functionality of the criminal legal system, and a parole system specifically, is entirely

incumbent upon who sees themselves as its stakeholders. Today, the primary stakeholders in the

parole system include the Board, crime victims and interested parties, petitioners seeking relief or

release, and attorneys (defense attorneys, prosecutors, and victims’ rights attorneys).

OREGON STATE LIBRARY, 1994 Voters’ pamphlet, State of Oregon general election (2000).

Mandatory-minimum sentences operate differently than determinate sentences. Determinate sentences imposed

under the new sentencing guidelines assign crime severity ratings based on the class of offense, in addition to

consideration of a defendant’s criminal history; mandatory-minimum sentences are prescribed by statute based on the

specific offense, and do not take into consideration a defendant’s prior criminal history.

Id.

OREGON STATE LIBRARY, 1994 Voters’ pamphlet, State of Oregon general election (2000).

Id.

OREGON STATE LIBRARY, 1996 Voters’ pamphlet, State of Oregon general election.

See OREGON STATE LIBRARY, 1996 Voters’ pamphlet, State of Oregon general election. The Oregon Supreme Court

later held the amendment invalid, Armatta v. Kitzhaber, 327 Or 250 (1998), because the measure included two or more

amendments which each required votes independent of one another. Art. I, § 42 of the Oregon Constitution provides

the state constitutional foundation for crime victims’ rights. OR. CONST. art. I § 42.

Language such as “up to” or “no more than.”

Language such as “at least” or “defendant shall serve…”

III. STAKEHOLDERS AND THE PAROLE PROCESS

The Parole Board

At least three and no more than five members, one of whom must be a woman, compose

the Parole Board.

The Governor appoints members of the Board to serve four-year terms.

Membership to the Board is subject to confirmation by the Senate,

unless membership falls below

three people at which time the Governor may appoint a member to serve the remainder of the

unexpired term with immediate effect.

The Director of the Oregon Department of Corrections

(DOC) is an ex officio nonvoting member of the Board and does not count towards the “at least

three, no more than five, at least one woman” requirement of board membership composition.

The Governor selects a board member to serve as chairperson and another as vice chairperson;

each has specific duties and powers to aid in the administration of the Board’s work.

The Board

counts amongst its current membership former a former prosecutor, a former banker, and former

parole and probation officer.

Like other state agencies, the Board’s budget is set by the Oregon Legislature on a biennial

basis. The Board’s proposed budget for the 2021-2023 biennium was $10,769,785. The budget

represents a 24% increase from the 2019-2021 budget.

The Board publishes three main types of

documents relating to statistics and reports on its website. The Board publishes budgetary

information going back to 2015.

The Board also provides its Annual Performance Report going

back to 2014, and its Affirmative Action Plan going back to 2017.

ORS 144.005(1).

ORS 144.005(2)(a).

ORS 144.015.

ORS 144.005(2)(b).

ORS 144.005(5).

ORS 144.025.

OR. BD. OF PAROLE & POST-PRISON SUP., 2021-23 LEGISLATIVELY ADOPTED BUDGET.

This information includes the agency’s requested budget, the Governor’s budget, and the legislatively adopted

budget, in addition to any reduction plans.

OR. BD. OF PAROLE & POST-PRISON SUP., STATISTICS AND REPORTS,

https://www.oregon.gov/boppps/Pages/Statistics.aspx (last visited Apr. 30, 2022).

Victims and Interested Parties

Victims

have a constitutional

and statutory

right to receive notice in advance of and

be present at parole hearings. Other individuals with a “substantial interest in the case”

may also

be entitled to participate. Because most judgments imposing criminal sentences contain boilerplate

language prohibiting contact between a petitioner and victim, parole hearings are often the first-

time petitioners face the victims of their crime(s) since sentencing. Parole hearings are also often

the first opportunity a victim will have to learn about how the petitioner has used their time in

prison. Victims receive copies of documents submitted for the Board’s consideration prior to

hearings.

The Board considers victims important stakeholders in the process and employs a victim’s

advocate to assist victims navigate the parole process. On its website, the Board states explicitly

that it does not “want to contribute to [victim’s] pain”

The Board states: “we encourage you to

participate only to the extent appropriate for you and to seek information as needed.

Options to participate include: attending the hearing and speaking at the hearing, attending

a hearing and choosing to not participate, submitting a written statement in advance of the hearing,

and asking a written statement to be read into the record at the hearing. Victims services staff are

available to discuss the appropriate option depending on the needs of the victim.

Chapter 255 of the Oregon Administrative Rules contains administrative rules relevant to the Board of Parole and

Post-Prison Supervision. Or. Admin. R. 255-005-0005(59) defines victims broadly as

(a) Any person determined by the prosecuting attorney, the court or the Board to have suffered direct financial,

psychological, or physical harm as a result of a crime that is the subject of a proceeding conducted by the State

Board of Parole and Post-Prison Supervision.

(b) Any person determined by the Board to have suffered direct financial, social, psychological, or physical harm

as a result of some other crime connected to the crime that is the subject of a proceeding conducted by the State

Board of Parole and Post-Prison Supervision. The term “some other crime connected to the crime that is the

subject of the proceeding” includes: other crimes connected through plea negotiations, or admitted at trial to

prove an element of the offense. The Board may request information from the District Attorney of the

committing jurisdiction to provide substantiation for such a determination.

as a result of some other crime connected to the sentence for which the offender seeks release that is the subject

of a proceeding conducted by the State Board of Parole and Post-Prison Supervision. The term “connected to

the sentence for which the offender seeks release” includes other crimes that were used as a basis for: a departure

sentence, a merged conviction, a concurrent or a consecutive sentence, an upper end grid block sentence, a

dangerous offender sentence, or a sentence following conviction for murder or aggravated murder. The Board

may request information from the District Attorney of the committing jurisdiction to provide substantiation for

such a determination.

OR. CONST. art. I, § 42.

Or. Rev. Stat. 114.750.

Or. Admin Rule 255-030-0026 (f).

See generally Or. Admin. R. 255-030-0035(3) (providing that “[t]he Board must receive any information pursuant

to this section [relating to hearing procedures] at least fourteen days prior to the hearing. The Board may waive the

fourteen-day requirement.”).

https://www.oregon.gov/boppps/Pages/Victim-Services.aspx

Id.

Attorneys

Three main types of attorneys that operate within the context of parole: defense attorneys

who represent petitioners (typically they are only provided to the petitioner in one type of hearing),

prosecutors from the committing jurisdiction, and victims’ rights attorneys.

Defense Attorneys

A petitioner only has a right to counsel at a parole hearing in limited circumstances. In the

majority of hearing types, including Parole Consideration, Exit Interview, Parole Hearing and

Personal Interviews, the petitioner is not entitled to counsel. The petitioner may hire a private

attorney, bring a support person, or can represent themselves. In most instances, the petitioner

appears on their own, pro se.

If the petitioner is appearing for a Murder Review hearing, they are entitled to counsel.

Attorneys appointed to represent petitioners in Murder Review hearings receive a flat fee payment

of $1,900.

There are very few attorneys that represent petitioners regularly before the Board. In

most cases, the work requires 50-70 hours to do well. As a result, parole defense attorneys are

compensated far less than even their public defense counterparts. The complexity of the case is

not a consideration for the compensation provided. And there is no funding available for experts,

investigators, administration, mental health evaluations, or travel which is available in all public

defense cases.

The work of a parole defense attorney is complex. Attorneys representing petitioners must

walk a delicate tightrope when advocating for their clients’ best interests; attorneys must make a

record of objectionable evidence submitted to the Board, direct the Board to relevant case law for

each hearing and legal issue, and must do so while understanding that the Board sits both as

factfinder and decisionmaker.

To be effective, attorneys representing petitioners must understand their clients’ crime

narrative, motivations behind the crime of commitment, and life in Oregon DOC custody for the

decades preceding the hearing. The attorney has to build a relationship of trust and candor with

their client to learn about the client’s life, probe for more information where appropriate, and work

with the client to tell their story in a way that is both digestible for the Board and consistent with

the client’s personal sense of truth.

Prosecutors

Prosecutors from the jurisdiction where the petitioner was sentenced may appear at parole

hearings.

The Board’s rules allow prosecutors to submit written and oral statements for the

Board’s consideration. The same rules specifically allow prosecutors to comment on their views

regarding the petitioner before the Board and the crime at issue.

Prosecutors may submit information related to the underlying crime, including police

reports and witness statements temporally related to the crime. Historically, prosecutors have

provided information from arrest reports where the petitioner was never convicted, their own

See Or. Rev. Stat. 163.105(2)(b); Or. Rev. Stat. 144.317; Or. Rev. Stat. 144.343.

OR. BD. OF PAROLE & POST-PRISON SUP., STATUTES & ADMINISTRATIVE RULES, ATTORNEY FEES FOR APPOINTED

COUNSEL, https://www.oregon.gov/boppps/Pages/Statutes.aspx (last visited Apr. 30, 2022). Prior to 2020, defense

attorney were paid up to $1500 per case.

Or. Admin. R. 255-030-0026(4)(b).

closing arguments from trial decades prior, photos of the crime scene in the underlying murder,

and discussion of their own personal experience of representing the State in the underlying crime.

Victims’ Rights Attorneys

While the majority of victims participate in parole hearings through the prosecutor’s office,

some choose to utilize a victims’ rights attorney to navigate the parole process. Like the

prosecutors, the victims’ rights advocate may speak at the conclusion of the hearing and offer

information about the impact of the crime on the victim’s family and community.

Petitioners

The primary way to identify petitioners in the parole system is to categorize them based on

offense or sentence. Petitioners within the parole system currently can be grouped into three

distinct categories. The first category consists of “legacy” parole cases; that is, petitioners who

committed their crimes prior to November 1, 1989, before Oregon abolished its parole system.

While legacy cases can include non-homicide felonies, the commitment offense for many legacy

cases is usually homicide. This is partially attributable to the long minimum sentence imposed for

criminal homicide.

The second category of people within the parole system pertains to people convicted of

murder.

The penalty for someone found guilty of aggravated murder is set forth in Oregon’s

Constitution.

Like many other serious felonies, a conviction of murder carries with it a

mandatory-minimum sentence that a petitioner must serve prior to petitioning for a Murder Review

hearing.

The third category of petitioners within the parole system is people sentenced as dangerous

offenders. Dangerous offender sentences were in place prior to the change from indeterminate to

Despite combing the Board’s website for publicly available information, websites for the Department of Corrections

and Criminal Justice Commission, and private institutions’ data studies, very little information is available regarding

current demographics of petitioners within the parole system. In some cases, a petitioner could commit the offense at

issue before November 1, 1989, have the offense constitute murder, and be sentenced as a dangerous offender; such a

petitioner would belong to each easily identifiable categorization of parole cases. However, DOC statistics do not

necessarily aid in parole analysis. The Department of Corrections publishes population demographics annually.

Relevant here, DOC breaks down population demographics by offense “group.” However, it is not clear if the offense

group “homicide” includes manslaughter (which would not be an offense subject to parole). DOC’s profile for Adults

in Custody likewise provides data on how many Adults in Custody were sentenced as dangerous offenders in each

correctional facility but does not delineate the underlying conviction for each dangerous offender sentence. Finally,

DOC frequently measures community members released on parole or post-prison supervision but provides no

breakdown within those demographics for how many are released on parole compared to post-prison supervision. OR.

DEP’T OF CORR., Research & Statistics, https://www.oregon.gov/doc/research-and-requests/Pages/research-and-

statistics.aspx (last visited Apr. 30, 2022). Despite having a multi-billion-dollar budget, it is not DOC’s obligation to

track these statistics for public usage. And unfortunately, while collating this information would benefit community

stakeholders and the Board, the Board does not have adequate funding to track this information and make it publicly

available.

Including Aggravated Murder under Or. Rev. Stat. 163.095, Murder in the First Degree under Or. Rev. Stat. 163.107,

and Murder in the Second Degree under Or. Rev. Stat. 163.115.

Art. I, § 40 provides that “Notwithstanding sections 15 [explaining the foundational principles of criminal law to be

“protection of society, personal responsibility, accountability for one’s actions and reformation”] and 16 [relating to

excessive bail and fines, cruel and unusual punishments, and the power of juries to determine facts] of this Article,

the penalty for aggravated murder…shall be death upon unanimous jury findings as provided by law and otherwise

shall be life imprisonment with minimum sentence…” OR. CONST. art. I, § 40.

determinate sentencing.

To sentence someone as a dangerous offender, the State must allege in

its indictment and prove beyond a reasonable doubt that a defendant 1) is dangerous; 2) suffers

from a severe personality disorder indicating a propensity toward criminal activity; and 3) an

extended period of confinement is necessary to protect the public from the person being

sentenced.

The will be a new fourth category of petitioners within the parole system over the coming

years for those who were juveniles at the time of their offense and convicted in adult court. Under

S.B. 1008 which went into effect in January 2020, these AICs will be eligible for a new juvenile

parole release hearing.

Types of Hearings

The Board holds various types of hearings with petitioners consistent with its role in

administering parole in Oregon. All parole board release hearing are open to the public.

The

following details the various types of hearings conducted by the Board, along with the

consequences of each hearing and the questions at issue in each. Hearings have different legal and

factual standards, but the areas of inquiry by the Board remains somewhat consistent: Board

members generally ask questions regarding a petitioner’s crime of commitment, with particular

emphasis on the personal motivations and environmental circumstances which caused the

petitioner to commit the crime; members also inquire regarding a petitioner’s programming

history, employment, disciplinary record within the institution, parole plan and support network,

and physical and mental health status. While the legal outcome of each hearing is different, the

process is often fairly similar.

As opposed to other states where an individual appears before a parole board and it decides

whether or not to release in one hearing,

those eligible for release through one hearing are a

minority of those appearing before the Board.

Most must go navigate a bifurcated or even

trifurcated process. For example, for those sentenced to “Life,” after they serve their minimum,

they must first be successful in a Murder Review hearing, whether the petitioner has to prove by

the preponderance of the evidence that they are likely to be rehabilitated within a reasonable period

of time.

Then, if successful, the Board calculates their prison term, and determines a projected

parole release date. Then, the Board holds another hearing, an Exit Interview, and orders a

psychological evaluation where the Board must determine whether or not the potential parolee has

a “present severe emotional disturbance” or whether they have a “present severe emotional

disturbance that can be adequately controlled in the community.”

If the individual has additional

consecutive sentencing guidelines sentences, they also must go through another hearing, where the

Board applies a risk assessment to determine the term of their incarceration. For those who appear

See 1971 Or. Laws 743.

Or. Rev. Stat. 161.725; Or. Rev. Stat. 161.735.

Or. Admin. R 255-033-0010.

Or. Admin R. 255-030-0026.

See: “A life prisoner shall be considered for parole for the first time at the initial parole consideration hearing. At

this hearing, a parole date shall be denied if the prisoner is found to be unsuitable for parole under § 2281(c).” Cal.

Code Regs. tit. 15, § 2280.

Release hearings include: Parole Consideration, Personal Interview, Parole Hearings, Juvenile Parole Hearings,

Medical Release, and Exit Interviews in limited circumstances.

Or. Rev. Stat. 163.105 (2).

Or. Rev. Stat. 144.125 (3)-(4).

before the Board for multiple hearings prior to their release, the process is lengthy, arduous, and

extremely duplicative.

Unfortunately, the rules and statutes that apply often do not illuminate the actual reality or

procedures for the hearings. The legal standard may be so vague, the petitioner may not understand

how to reasonably prepare. Or, if the standard is more defined, the questions from the Board may

completely deviate from the standard at issue.

As an example, the CJRC represented multiple clients in the Prison Term context. The

experiences from hearing to hearing could not have been more opposite. In one, the Board reduced

the prison term by a significant margin, and the hearing lasted approximately an hour. For another,

the Board duplicated the Murder Review hearing process. The hearing was extensive and was

focused primarily on the underlying crime. Although the law seems to suggest the Board can honor

mitigation evidence and reduce terms by a significant margin, the Board did so for one client and

did not for another, even though both provided significant mitigation material and evidence of

rehabilitation. Understanding this difference in practice is extremely important.

Murder Review

A Murder Review hearing occurs for petitioners convicted of aggravated murder or

murder.

The Murder Review hearing is the most transparent hearing in terms of governing statute

and administrative rules. After a petitioner serves the minimum period of confinement

for their

murder conviction, they may petition the Board to hold a Murder Review hearing.

At the hearing,

the petitioner must prove by a preponderance of evidence that they are “likely to be rehabilitated

within a reasonable period of time.”

This is the only question at issue during a Murder Review

hearing. This is the only type of release hearing where a petitioner is also afforded the right to have

an attorney appointed on their behalf if they cannot afford one otherwise.

Attorneys appointed to

represent petitioners receive payment from the Board.

The Board determines whether a petitioner has met their burden of proof by using a ten-

factor non-exclusive list outlined in OAR 255-032-0020.

The Board’s questions for the petitioner

See Or. Rev. Stat. 163.105; Or. Rev. Stat. 163.107.

See Or. Admin. Rule 255-032-0010.

See Or. Rev. Stat. 163.105(2); Or Rev. Stat. 163.107(3)(a).

Or. Rev. Stat. 163.105(2).

Or. Rev. Stat. 163.105(2)(b); ORS 163.107(3)(b).

Or. Rev. Stat. 163.105(2)(b). and refer to section on in report

The ten factors are

(1) The inmate’s involvement in correctional treatment, medical care, educational, vocational or other training

in the institution which will substantially enhance his/her capacity to lead a law-abiding life when released; (2)

The inmate’s institutional employment history; (3) The inmate’s institutional disciplinary conduct; (4) The

inmate’s maturity, stability, demonstrated responsibility, and any apparent development in the inmate

personality which may promote or hinder conformity to law; (5) The inmate’s past use of narcotics or other

dangerous drugs, or past habitual and excessive use of alcoholic liquor; (6) The inmate’s prior criminal history,

including the nature and circumstances of previous offenses; (7) The inmate’s conduct during any previous

period of probation or parole; (8) The inmate does/does not have a mental or emotional disturbance, deficiency,

condition or disorder predisposing them to the commission of a crime to a degree rendering them a danger to

the health and safety of the community; (9) The adequacy of the inmate’s parole plan including community

support from family, friends, treatment providers, and others in the community; type of residence,

neighborhood or community in which the inmate plans to live; (10) There is a reasonable probability that the

often thematically follow the ten-factor list. If successful at the Murder Review hearing, the Board

will convert the terms

of a petitioner’s confinement from life without the possibility of parole to

life with the possibility of parole, post-prison supervision, or work release.

If individuals are

denied relief, they are deferred for anywhere from two to 10 years, where they would have an

opportunity to appear before the Board again.

Prison Term

Depending on the nature of the offense for which a petitioner is committed to Oregon DOC

custody, when the petitioner enters a DOC facility, and the petitioner’s sentence, the Board also

conducts a “Prison Term” hearing.

A Prison Term hearing sets a projected parole release date,

or provides an opportunity for the Board to choose not to set a parole release date

depending on

the law at the time the offense was committed.

Prison Term hearings are one of the most technical kinds of hearings that the Board

conducts. Calculating a petitioner’s prison term involves assigning numerical values to a

petitioner’s crime and personal history through a series of exhibits to the Board’s rules, and then

ascertaining where the crime and personal history intersect on the matrix.

First, the Board will assign the petitioner’s crime of commitment a “crime severity rating.”

Each crime in the Oregon Revised Statutes has a corresponding class rating from 1 to 8, with a

rating of 8 being the most severe. Aggravated murder does not have a corresponding class rating.

Exhibit A to the Board’s rules contains the crime severity ratings.

After assigning the crime

severity rating, the Board then turns to Exhibit B - Part 1, the “Criminal History/Risk Assessment

under Rule 255-35-015.” Exhibit B assigns numerical values to personal history categories

including a petitioner’s number of prior convictions, number of prior incarcerations, period in the

community of being “felony conviction free” before the commitment offense, age at the time of

the behavior which led to the commitment offense, prior failures to comply with a term of release,

and documented substance abuse problems preceding the crime of commitment.

Because assigning the numerical values in Exhibit B can be so confusing, the Board sets

forth additional instructions for how to code a petitioner’s history in Exhibit B - Part 2. Part 2

inmate will remain in the community without violating the law, and there is substantial likelihood that the

inmate will conform to the conditions of parole.

Or. Admin. R. 255-032-0020.

A prison term is different from a petitioner’s sentence; the prison term is part of the person’s sentence. A prison

term refers to how long a person convicted of a felony must serve in a correctional facility. A person’s sentence refers

to all of the conditions and requirements imposed on that person by a judge after conviction.

Or. Rev. Stat. 163.105(3).

Or. Admin. R. 255-030-0100.

The matrix guidelines allow someone with both a poor criminal history (0-2) and a murder conviction with certain

facts (stranger to stranger; cruelty to; prior conviction of murder or manslaughter; evidence of significant planning or

preparation) to receive a prison term of 288 months to Life. This means the Board can find someone likely to be

rehabilitated in a reasonable period of time at a Murder Review hearing, and still keep that person in prison for the

remainder of that person’s natural life.

OR. BD. OF PAROLE & POST-PRISON SUP., TYPES OF HEARINGS, https://www.oregon.gov/boppps/Pages/Board-

Hearings.aspx#hearingtypes (last visited Apr. 30, 2022).

OR. BD. OF PAROLE & POST-PRISON SUP., EXHIBIT A (1992).

Id.

provides guidance to petitioners and their attorneys for what will count towards a petitioner’s

individual history/risk score.

Once a petitioner has a crime severity rating and a criminal history/risk assessment score,

the Board then turns to Exhibit C, the “Time to be Served Under Division 35 - 255.” The

intersection of where the Crime Severity Rating and the Criminal/History Risk Assessment Score

intersect on the matrix show a range, in months, from which the Board can set a prison term.

100

After determining a raw score on the matrix provided in Exhibit C, the Board may then

determine by a vote of the panel hearing the prison term case, or by a vote of the full Board, to add

to or reduce the prison term based on a series of aggravating and mitigating factors.

101

Aggravating

or mitigating factors may weigh in favor of or against a petitioner depending on when the crime

of commitment took place.

102

As an example, consider the following scenario. A petitioner convicted of murder serves a

statutory minimum before petitioning the Board for a Murder Review hearing. At the Murder

Review hearing, the petitioner successfully proves by a preponderance of evidence that they are

likely to be rehabilitated within a reasonable period of time. The petitioner then goes before the

Board for a Prison Term hearing where the Board considers the petitioner’s entire criminal history

to set a prison term and future release date. In this scenario, even though the petitioner has already

proved their rehabilitation, their prison term will be set based primarily on facts which took place

prior to the petitioner’s rehabilitation.

Exit Interview

Exit Interviews are exactly what the name suggests: a hearing held before a petitioner’s

release into the community or to other consecutive sentences. A petitioner may come to the hearing

from a variety of different procedural contexts, but essentially, the Board reviews materials to

determine whether the petitioner has a “present severe emotional disturbance such as to constitute

a danger to the health and safety of the community.”

103

Or, in the alternative, if the Board finds

the “prisoner has a present severe emotional disturbance such as to constitute a danger to the

health or safety of the community, but also finds that the prisoner can be adequately controlled

with supervision and mental health treatment and that the necessary supervision and treatment are

available, the board may order the prisoner released on parole subject to conditions that are in the

best interests of community safety and the prisoner's welfare.”

104

Prior to the hearing, the petitioner is mandated to provide the Board a parole plan.

105

The

petitioner is not entitled to counsel for the hearing, so they must prepare for the hearing themselves,

Or. Bd. of Parole & Post-Prison Sup., Exhibit B (1992).

100

For example, for a Crime Severity Rating of “7” and a Criminal History/Risk Assessment Score of “Fair” (3-5),

the matrix range is between 156-193 months. The Board can set a prison term at or above 156 months, and at or below

192 months. See OR. BD. OF PAROLE & POST-PRISON SUP., Exhibit C (1992).

101

See generally OR. BD. OF PAROLE & POST-PRISON SUP., EXHIBIT D (1992); OR. BD. OF PAROLE & POST-PRISON

SUP., EXHIBIT E-1 (1992); OR. BD. OF PAROLE & POST-PRISON SUP., EXHIBIT E-2 (1992).

102

For example, the Board may consider evidence of “sustained effort to make restitution or reparation” as a mitigating

factor for petitioners whose crimes were committed on or after July 1, 1988. OR. BD. OF PAROLE & POST-PRISON SUP.,

EXHIBIT E-2 (1992).

103

Or. Rev. Stat. 144.125 (3)(a).

104

Id. at (3)(b).

105

Or. Rev. Stat. 144.125 (4).

hire counsel, or utilize a support person. The petitioner will undergo a Board-ordered

psychological evaluation, which will include information from the petitioner’s childhood onwards.

Currently, the Board-ordered psychological evaluations include, but are not limited to, the

Personality Assessment Inventory, Violence Risk Assessment, and Historical Clinical Risk

Management-20, Version 3. The petitioner may employ an additional psychological expert at their

expense.

During an Exit Interview, the Board may review the petitioner’s release plan, psychiatric

or psychological reports, conduct while incarcerated, post-sentencing report or any other relevant

report, and victims’ statements.

106

Like Murder Review hearings, prior to an Exit Interview, the

petitioner receives a packet of information including evaluations, reports, and other relevant

documents.

107

Parole Consideration

For those sentenced as “dangerous offenders,” the Board holds Parole Consideration

hearings.

108

The hearing assesses whether the petitioner is no longer dangerous, or in the

alternative, whether they remain dangerous but can be controlled with supervision, mental health

treatment, and if the requisite supervision and mental health treatment are available.

109

Two

different sets of rules and laws govern the hearings depending on when the petitioner was

convicted.

110

If the Board determines the petitioner meets either ground, it sets a parole release

date.

Personal Review and Personal Interview

The Board may hold a “Personal Review” hearing to determine if a petitioner’s prison term

warrants reduction based on outstanding conduct and achievement by the petitioner during

confinement.

111

Personal Review hearings occur only when the Board receives a positive

recommendation for reduction in a petitioner’s prison term from DOC.

112

Petitioners sentenced for

aggravated murder or as dangerous offenders are not subject to personal reviews, along with those

who have come before the Board previously and were denied parole.

113

The procedures hearing

mirror the Prison Term hearing process or may be conducted administratively.

114

The Personal Interview Hearing is a completely discretionary hearing. The Board’s notice

of rights to petitioners describes the hearing as “a discretionary hearing scheduled by the Board to

review the progress of an inmate,” however the Board does not cite any statutory authority

governing the hearing.

115

The Board has the ability to affirm the parole release date, move up the

106

Or. Admin. R. 255-060-0006.

107

Or. Admin. R. 255-060-0030.

108

Dangerous Offenders are sentenced under ORS 161.725 and 161.735.

109

Or. Admin. R. 255-037-0005; Or. Admin. R.255-036-0005.

110

Division 36 applies to those convicted of crimes before November 1, 1989. Division 37 applies to those occurring

on or after that date.

111

Or. Admin. R. 255-040-0005.

112

Or. Admin. R. 255-040-0005(4).

113

Or. Admin. R. 255-040-005(5).

114

Or. Admin R. 255-040-0010(1)(2)

115

Or. Admin. R. 255-030-0013.

release date, or release the petitioner. The hearings range in subject and in scope, but ultimately

concern the same themes discussed in other hearing types.

Juvenile Parole Hearing

The Juvenile Parole hearing is a new parole hearing for those convicted in adult court for

crimes committed as juveniles. In 2019, the Oregon Legislature enacted S.B. 1008 which

abolished sentences of life imprisonment without the possibility of release or parole.

116

The bill

also created a process for people who were under 18 at the time of their commitment offense to

have a hearing in front of the Board after serving 15 years of their sentence. During the hearing,

the Board determines whether, in “consideration of the age and immaturity of the person at the

time of the offense and the person’s behavior thereafter, the person has demonstrated maturity and

rehabilitation” such that the Board should release the person on parole.

117

The factors at issue in a

Juvenile Parole hearing mirror the Murder Review process, with additional considerations for

youth status.

118

At the time of this writing, a Juvenile Parole hearing has not been conducted.

Medical Release

Within the Board’s webpage relating to statutes and administrative rules, a drop-down

menu under “Board Policies” has a tab titled “Early Medical Release.”

119

Though not a form of

parole hearing per se, the Board may release certain individuals or categories of individuals who

are either “suffering from a severe medical condition including terminal illness; or elderly and

permanently incapacitated in such a manner that the petitioner is unable to move from place to

place without the assistance of another person.”

120

Neither the statutory authority under which the

Board may grant early medical release, nor the administrative rule specifying the process for such

release

121

, provide guidance on what constitutes a severe medical condition, terminal illness, or

incapacitation of mobility which would render a petitioner eligible to seek early medical release.

Additionally, those convicted of mandatory minimum crimes or murder are ineligible for release

through this mechanism, therefore limiting those who can access this remedy to a small portion of

the custodial population.

116

S.B. 1008, 80th. Leg. Assembly, Reg. Sess. (Or. 2019).

117

Id.

118

Or. Admin R. 255-033-0030.

119

STATUTES & ADMINISTRATIVE RULES, supra note 66.

120

STATUTES & ADMINISTRATIVE RULES, EARLY MEDICAL RELEASE,

https://www.oregon.gov/boppps/Pages/Statutes.aspx (last visited Apr. 30, 2022).

121

Under administrative rules promulgated by the Board and incorporated into the Oregon Administrative Rules, a

request for early medical release must include

(a) A medical authority’s report, which attests to validity of the condition with reasons why continued

incarceration would be cruel and inhumane; and

(b) The institution superintendent’s recommendation; and

an earlier date is compatible with the best interests of the inmate and society; and

(d) The Governor’s commutation for those sentenced to life in prison or death for aggravated murder.

Or. Admin. R. 255-040-0028.

The rule governing medical release requires a person, who is either seriously ill or unable

to move about without assistance of another person, to collate together medical documentation and

recommendations from the superintendent of a correctional facility and the Director of the DOC.

122

Process for Petitioner

For many of the hearing types, the procedures are fairly similar. Appearing at the Board

can pose immense challenges for petitioners. Information about the parole process is not

disseminated widely in the prisons, and petitioners must rely on others who go through the parole

process or informal parole preparation workgroups facilitated by other AICs to learn what to

expect and how to prepare for their hearings. Due to the length between sentencing and completion

of their minimum sentence, many AICs may not even understand how to petition the Board for the

hearing they are afforded. For some, it is difficult to even understand whether or not they are

parole-eligible.

Months before eligibility, AICs must petition the Board in order to schedule their hearing.

In response, the Board will set a hearing date and provide its draft Board file to the AIC or to their

attorney (if they have Murder Review hearings and are appointed one or if they hire a private

attorney).

The Board’s file serves as the evidence in the hearing, and typically includes the

petitioner’s judgment from sentencing, a post-sentencing investigation or report, criminal history,

descriptions of transactions from their institutional trust account, activity and conduct in custody,

past Board orders, any psychological evaluations conducted at the time of the offense, and a Board-

ordered psychological evaluation conducted for the hearing at issue when appropriate. For

petitioners sentenced as “dangerous offenders,” the file will also include additional information

from their correctional counselor and statements from the petitioner about their attitude towards

the district attorney and judge in their case. The file may also include past submissions from prior

hearings if the petitioner has appeared previously before the Board. The file will then be

disseminated to any additional parties. All parties end up the same record, unless any confidential

information is reviewed in advance of the case.

In Murder Review hearings or any other hearings where the petitioner has an attorney, the

attorney interviews the petitioner so they can draft a memorandum to the Board prior to the

hearing. Concurrently, the attorney prepares the petitioner for their hearing.

At a minimum, the attorney must interview the petitioner about their underlying offense,

criminal history, institutional behavior, programming, employment, mental and physical health,

and the petitioner’s release plan. It is almost always important to also learn about the petitioner’s

upbringing, family dynamics, and support system as well. The attorney must understand potential

legal issues inherent in the process and strategize on how best to address them. The attorney must

understand what areas of the petitioner’s case will be at issue in the Board hearing, and work to

help the petitioner explain those weaknesses to the Board in an effective manner. The attorney

must also support the client in constructing a narrative about their life, the harms they have

committed, and their subsequent transformation in custody. Not only is the attorney preparing the

122

The Director of Oregon DOC manages an agency with 4,700 employees and a biennial budget of $2,000,000,000.

The Director is also responsible for 14,700 incarcerated adults across fourteen prisons state-wide. OR. DEP’T OF CORR.,

DIV. & UNITS, OFFICE OF THE DIR., https://www.oregon.gov/doc/divisions-and-units/Pages/office-of-the-

director.aspx (last visited Apr. 30, 2022). It is not clear from the rule how the Director might come to know

incarcerated individuals well enough to provide (or decline to provide) a recommendation on early medical release.

memorandum for the Board, but the client must also experience the narrative as true, so they can

speak authentically to the Board when the time comes. The work is deep, complicated, and

nuanced. Often, petitioners have experienced significant trauma in their childhood, many have

struggled with addiction, and most have trauma related to the experience of perpetuating the harm.

An effective attorney facilitates a process by which the client can understand and communicate

their act of violence, take ownership and accountability for their harms, and explain why the act

of violence will never occur again.

If the petitioner does not have an attorney, their task is even harder as they are most likely

appearing alone. Thus, they may operate as their own attorney, and they must navigate this process,

prepare their memorandum and themselves for the Board with little or no information about what

is expected of them. The petitioner must understand the standard at issue, but also the implicit

criteria underneath the legal and factual standard. If any legal issues arise, the petitioner must be

aware of them.

To best prepare for their hearing, the petitioner must cultivate a deep sense of self-

awareness. The petitioner must prepare to demonstrate insight into the crime of commitment and

have an ability to communicate their internal experience of the crime, often 25 or 30 years ago. If

their childhood or young adult experience played a role in the crime, they must be prepared to

discuss their background. They must ready themselves to articulate their emotions, thoughts,

triggers, and behaviors – and be able to differentiate which ones are which. If they have struggled

with their disciplinary conduct in custody, they must explain why. If they have an addiction history,

they must provide their plan to prevent relapse. If mental health is a concern, they must describe

how they have sought treatment or developed appropriate coping skills. If anger is an issue, they

must describe anger management techniques that work for them in real time. If they are or have

been gang-involved, they should ready themselves to explain what they secured from gang

membership and why they are or are not gang involved today. Issues are varied and case-specific,

and all require significant skill for the petitioner. They also need to be ready to answer difficult

questions about remorse and accountability. They must understand the tone of the hearing and

approach the Board member’s questions with humility and appropriate expressions of

vulnerability.

In most cases, petitioners also need to have participated in numerous programs that allow

them to address anger, addiction, coping, trauma, remorse and accountability. They need to

metabolize and subsequently apply and communicate to the Board what they learned in these

programs. Unfortunately, many petitioners who go before the Board do not have access to

important programming that addresses these issues due to lack of availability in their facilities

and/or housing units among other things.

When a petitioner is afforded an attorney, the attorney plays the role of facilitator,

counselor, and legal counsel. When a petitioner is not afforded an attorney, the petitioner must

understand and fulfill the roles on their own, with a private attorney, or a support person.

The Hearing

At the hearing, the Board reads the notice of rights and explains the procedures of the

hearing. The attorney or petitioner may offer an opening statement. Then, the attorney or petitioner

may call witnesses or support persons on the petitioner’s behalf. After the attorney or petitioner is

done questioning each witness, the Board may ask questions of the witness. Then, the attorney will

conduct direct questioning of the petitioner. The end of direct questioning is the conclusion of the

attorney’s case in chief. This is followed by the Board asking questions of the petitioner. If no

attorney is involved, the Board goes straight into questioning the petitioner.

Generally, the Board asks questions related to the 1) institutional trust account, 2) physical

and mental health, 3) programming and reformation activities 3) the underlying crime and criminal

history 4) disciplinary conduct 5) release plan.

The questions range in subject, structure, and in tone. A Board member may extract out a

line from the materials submitted for the hearing and ask the petitioner to explain what it means,

offer a hypothetical, or simply ask a direct question. A question could be theoretical: What does

remorse mean to you? Or be more concrete: What is a skill you’ve learned in programming you’re

most proud of? A Board member may ask the petitioner if they would be open to feedback on the

petitioner’s responses or behaviors. A Board member may ask: What do you think the impact of

your crime is on the victim’s family or the community? or Why do you deserve this opportunity?

A Board member may be more aggressive in questioning with a client who appears defensive, and

may be softer if a client appears remorseful and reflective.

In any case, the petitioner’s ability to understand the questions and to respond appropriately

is often the most important aspect of the process. Thus, those with deficits or differences in the

ability to communicate are at a distinct disadvantage, even when well-meaning Board members

attempt to rephrase questions or re-direct the petitioner in those instances. The quality of

communication necessary, especially about the crime of commitment, is quite sophisticated.

After the Board finishes, the district attorney from the committing jurisdiction may speak.

If victims are present, they also have a right to participate. The attorney or petitioner may rebut or

comment on the victim and district attorney’s statements and offer a closing statement. The entire

hearing generally lasts from 2-6 hours.

Decisions

After a hearing, the Board issues its decision in a written document called a Board Action

Form (BAF). A BAF contains information about who was present at a parole hearing, how the

hearing was conducted, and most importantly, the decision of the Board on the relevant question

before it and the factual findings that support its decision. BAFs are numbered chronologically for

reference and contain boilerplate language for a petitioner and/or their attorney on the procedures

for administrative review.

The Board typically does not issue an oral decision immediately following the hearing but

may in limited circumstances. When it does, the oral decision will then be memorialized in the

BAF. The Board is mandated, by statute, to state in writing the detailed bases for its decisions.

123

The Board attempts to provide written decisions within 30-40 days after a hearing.

If the petitioner is successful, the decision tends to be brief. If the petitioner is unsuccessful,

the decision is longer. The BAF is structured as a memorandum, where the Board provides

“findings of fact,” “findings of ultimate fact” and “discussion” sections. For example, if a

petitioner is denied in their Murder Review hearing, the Board will apply the factors at issue in the

Murder Review hearing to the evidence presented to come to its conclusion. Petitioners may appeal

the decision through the administrative appeals process described later in this report.

123

Or. Rev. Stat. ORS 144.135

IV. WHERE PAROLE FITS IN THE MODERN LEGAL SYSTEM

Legal Issues in Parole

Due Process

The primary legal protection for petitioners within parole is the Due Process Clause of the

Fourteenth Amendment. The process due to petitioners in the parole context includes an

opportunity to be heard at a fair hearing, and a written rationale for the Board’s decision in a

particular case.

124

The Court of Appeals for the Ninth Circuit held in 2011 that the language of

Oregon’s murder review statute creates a vested liberty interest for petitioners, requiring the Board

in its process and decisions to conform with due process guarantees.

125

Where the language of a

rule or statute includes the words shall, subject to the following restrictions, and unless, prior

courts have identified vested liberty interests.

126

The liberty interest in parole, even though it is

created by the language of a rule or statute, is quite limited compared to the due process guarantees

of individuals pre-conviction.

Evidentiary Issues

Oregon Administrative Rule 255-030-0032 sets the parameters for evidence the Board may

consider in a hearing.

127

If an attorney finds a question or response objectionable, the attorney must

raise the objection to the Board contemporaneously to preserve the issue. Anything goes in terms

of Board questioning. The Board has significant discretion in what they may choose to admit.

Moreover, the Board itself must reviews its own decisions before a petitioner can appeal

a Board decision to a judicial body, attorneys who represent petitioners in parole face significant

124

See Swarthout v. Cooke, 562 U.S. 216 (2011), reh’g den, 563 U.S. 930 (2011).

125

Miller v. Oregon Bd. of Parole & Post Prison Sup., 642 F.3d 711, 716 (9th Cir. 2011).

126

OR. STATE BAR, MATTHEW J. LYSNE AND RYAN T. O’CONNOR, BARBOOKS, CRIMINAL LAW (2013 REV.), 26.2-1(A)

RELEASE ON PAROLE.

127

Or. Admin. R. 255-030-0032. The rule states

(2) Evidence of a type that reasonably prudent persons would commonly rely upon in the conduct of their serious

affairs shall be admissible in Board hearings, including:

(a) The information set forth in OAR 255-030-0035;

(b) Other relevant evidence concerning the inmate that is available.

(3) Reliable, probative, and substantial evidence shall support Board orders. Substantial evidence is found when

the record, viewed as a whole, would permit a reasonable person to make a particular finding.

(4) The Board may exclude evidence if it is:

(a) Unduly repetitious;

(b) Not of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs;

of the crime that is the subject of the proceeding before the Board;

(d) Provided by a person, other than a justice system official, without first hand knowledge of the character of

the inmate;

(e) Addressing only guilt or innocence; or

(f) Irrelevant or immaterial to the decision(s) to be made at that particular hearing.

(5) The Board may receive evidence to which the inmate objects. If the presiding Board member does not make

rulings on its admissibility during the hearing, the Board shall make findings on the record at the time a final

order is issued.

(6) Erroneous rulings on evidence shall not preclude Board action on the record unless shown to have substantially

prejudiced the rights of the inmate.

barriers advocating that only evidence which answers the relevant question in a hearing be

admitted. The evidentiary issues apparent in Board hearings create problems with few answers for

petitioners who seek judicial review of adverse Board actions.

Exhibit O: administrative appeals and seeking judicial review

Oregon Revised Statute 144.335 sets out the statutory authority for a person under the

Board’s jurisdiction to appeal one of its decisions.

128

To appeal a decision by the Board, a petitioner

must begin by seeking timely

129

administrative review.

130

Counsel is not appointed for navigating

the administrative review process, so under-resourced parole counsel either complete the Exhibit

O as a pro bono matter, or petitioner’s seek assistance from the law librarian at the correctional

facility. This is a crucial gap in representation for petitioners. If the issue at the hearing is not

properly preserved, or the petitioner fails to preserve the issue in the Exhibit O, the petitioner will

forfeit the issue.

Upon receipt of a request for administrative review, the Board may deny review, grant

review and then deny relief, or grant review and grant relief from the decision at issue.

131

The

Board considers the following criteria in accepting or denying requests for administrative review:

1) The Board action is not supported by evidence in the record; or

2) Pertinent information was available at the time of the hearing which, through no

fault of the offender, was not considered; or

3) Pertinent information was not available at the time of the hearing; or

4) the action of the Board is inconsistent with its rules or policies and the

inconsistency is not explained; or

5) The action of the Board is in violation of constitutional or statutory provisions or

is a misinterpretation of those provisions;

6) The action of the Board is outside its statutory grant of discretion.

132

If the Board grants relief from the BAF, the response to an Exhibit O will implement the relief

requested or specify how the Board will go about implementing relief.

133

After seeking administrative review and receiving a response from the Board, a petitioner

will have “exhausted their administrative remedies.” Exhaustion of administrative remedies is a

statutory prerequisite a petitioner must satisfy before they can appeal the Board’s decision to a

judicial body. A request for judicial review of an adverse decision by the Board begins with a

petition filed in the Oregon Court of Appeals which reviews the Board’s order on “the same basis

as provided in ORS 183.482(8),”

134

the section of the Oregon Administrative Procedures Act

setting forth the jurisdiction and scope of court authority for contested cases.

135

128

Or. Rev. Stat. 144.335.

129

Timely submission of a request for administrative review occurs on or before the 45

day after the mailing date of

the relevant BAF. See OAR 255-080-0005(1).

130

Or. Admin. R. 255-080-0005.

131

Or. Admin. R. 255-080-0005(5) and (6).

132

Or. Admin. R. 255-080-0010.

133

Id.

134

Or. Rev. Stat. 144.335(4).

135

The Oregon Legislature amended Or. Rev. Stat. 163.105(2) to no longer require murder review cases to “be

conducted in the manner prescribed for a contested case hearing under ORS 183.310 to 183.550…,” 2007 Or. Laws

1876, in response to the outcome in Larsen v. Bd. of Parole & Post-Prison Sup., 206 Or. App. 353 (2006) (holding

Although not subject to all of its provisions,

136

as an administrative agency the Board of

Parole and Post-Prison Supervision is subject to parts of Oregon’s Administrative Procedures Act.

Sections 7 and 8 of ORS 183.482 set forth the standards for review by the Court of Appeals of

contested cases from an administrative body. Under section 7, the Court of Appeals is limited to

the “closed universe” of the record that comes before it.

137

Because the Court of Appeals may not

substitute its judgment as to issues of fact, factual findings by the Board may only be set aside

when the Court finds that they are not supported by substantial evidence in the record.

138

The Court

articulated in Castro v. Bd. of Parole & Post-Prison Sup., 232 Or. App. 75, 85 (2009), that bare

conclusions, without logic or explanation, require reversal when those conclusions announce rather

than explain a decision.

Errors in procedure of the parole hearing require remanding the decision back to the agency

to satisfy procedural due process requirements,

139

but errors outside of procedure such as

consideration of irrelevant or unreliable evidence only enable the court to reverse the decision.

140

Once the Board provides a written explanation, including factual findings, for an adverse decision,

that decision is nearly set in stone. Petitioners face an uphill climb to challenge Board orders, and

when they are successful at the Court of Appeals, frequently find themselves in front of the Board

on the same issue only to receive the same result as before, just with procedures or findings that

support the decision.

that the statute as then written required aggravated murder review hearings to conform to the Administrative

Procedures Act). Since the Legislature repealed the requirement that hearings conform to the manner of a contested

case hearing in Or. Rev. Stat. 183.482, the Oregon Court of Appeals has not articulated the manner in which parole

hearings must proceed.

136

Or. Rev. Stat. 183.315(1) expressly exempts the certain provisions of the Oregon Administrative Procedures Act

(OAPA) from applying to the Board of Parole and Post-Prison Supervision in its functions under Or. Rev. Stat.

161.315 to 161.351 (relating to persons found guilty except for insanity of a crime). Interestingly, Or. Rev. Stat.

183.315(5) exempts certain provisions of the OAPA from applying to persons committed to DOC custody pursuant

to Or. Rev. Stat. 137.124. The exemptions include Or. Rev. Stat. §§ 183.415 to 183.430 (relating to notice of right to

hearing, procedure in contested case hearing, depositions or subpoena of material witness and discovery, hearing on

refusal to renew license; exceptions), 183.440 to 183.460 (including subpoenas in contested cases, subpoena by agency

or attorney of record of party when agency is not subject to ORS 183.440, evidence in contested cases, representation

of agencies at contested case hearings, representation of Oregon Health Authority and Department of Human Services

at contested case hearings, representation of persons other than agencies participating in contested case hearings, non-

attorney and out-of-state attorney representation of parties in certain contested case hearings, representation of home

care worker by labor union representative, examination of evidence by agency), 183.470 to 183.485 (regarding orders

in contested cases, preservation of orders in electronic format and fees, judicial review of agency orders, jurisdiction

for review of contested cases, procedure, scope of court authority, jurisdiction for review of orders other than contested

cases, procedure, scope of court authority, decision of court on review of contested case) and finally 183.490 to

183.500 (when an agency may be compelled to act, swarding costs and attorney fees when finding for petitioner, and

appeals). It is curious that an assortment of these provisions apply to the Board of Parole & Post-Prison Supervision,

but not petitioners under the Board’s jurisdiction. Case law in Oregon does not address how Or. Rev. Stat. 183.315(5)

pertains to petitioners seeking relief within the context of parole.

137

See Or. Rev. Stat. 183.482(7) (requiring that “Review…shall be confined to the record, and the court shall not

substitute its judgment for that of the agency as to any issue of fact or agency discretion.”).

138

Or. Rev. Stat. 183.482(8)(c) defines substantial evidence as enough evidence “to support a finding of fact when the

record, viewed as a whole, would permit a reasonable person to make that finding.”

139

Or. Rev. Stat. 183.482(7) (“The court shall remand the order for further agency action if the court finds that either

the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure

or a failure to follow prescribed procedure.”).

140

Or. Rev. Stat. 183.482(8)(a) “The court may affirm, reverse, or remand the order.”).

Due to the barriers associated with the review process, many issues are not preserved,

issues are not appealed, and thus there is rarely new parole caselaw. This means that the standards,

practices, and procedures never get clarified for those coming before the Board. Key insight that

drove the initiation of this project came from the navigation of the standards by the CJRC. From

2020-2022, the CJRC represented AICs in approximately 27 hearings before the Board. Each case

provided significant insight into challenges of the parole process. Later in this report, the Board’s

historical decision-making is assessed. It is noteworthy that the contemporary Board is not the

same the historical Board, but the same structures, procedures, and potential issues exist.

V. OVERVIEW: EMPIRICAL EXAMINATION OF PAROLE PROCESSES

In order to achieve each of the goals set for this project, several data points were collected

consisting of both quantitative and qualitative data.

141

Each of the goals required primary and

secondary data collection. It is important to reiterate that the data and findings associated with

them capture cases released over the last several years. They encompass ranging laws that have

changed as well as many Board member cohorts that have long since turned over during the

analyzed timeframe. For this study/report, the Board is examined and discussed as a living

institution, the scope of which can be impacted depending on who serves on it. Thus, none of the

conclusions provided here are directed at any one cohort of Board members, including the current

Board. In fact, limited data were available on decisions made by the current cohort for this report

due to several reasons (e.g., COVID-19 disruptions and lack of staffing resources). All findings

and conclusions are drawn from data and reflections that incorporate multiple Board cohorts and

governor administrations. As a result, all recommendations made here are focused on reforms to

improve the fairness, transparency, and legitimacy of the Board as an institution while maintaining

the mission of public safety. Recommendations are provided to emphasize the fact that the Board’s

processes and policies transcend any single cohort of Board members and culture, and the

codification of data-driven policies is the best way to safeguard fairness across Board cohorts.

Quantitative Data

Ideally, to fully address the research questions/goals, the datasets used would consist of all

aspects considered by the Board when making release decisions at both the murder review hearings

as well as the exit interviews, for every case. Unfortunately, for a number of reasons, including the

fact that the Board requires a great deal of updating and digitization resources, such a dataset does

not exist. The best datasets available for this project were two from the DOC and one primary data

collection effort. The two datasets from the DOC comprised of two different samples, and were

subsequently used for two different purposes.

LWP Dataset. The first dataset is one compiled by the CJRC in a separate study and

partnership with Portland State University.

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The dataset consisted of 763 adults who were

convicted of murder, aggravated murder, and rape, with a penalty of life with the possibility of

parole (LWP), making them eligible to be considered for parole via board hearings. Conviction

dates within the data spanned from August 1978 to September 2019, when the information was

pulled to be analyzed. The PSU report provided to the CJRC comprises of descriptive statistics

discussing the sample characteristics which include the potential-parolee’s / parolee’s sex,

race/ethnicity, date of birth (used in calculating age), index/instant offense(s), county of

conviction, current status at the time of the data pull (i.e., incarcerated, died, released), as well as

if the person was released. Excluding the one case in which the person’s sentence was vacated and

40 deaths in custody, there were 107 releases since 1995. To make the initial sample was

appropriate to use to answer the questions at hand (e.g., Are there patterns in the Board’s release

decisions?), the 40 deaths in custody and one vacated case were removed. This left a total sample

size of 722.

141

All data collection and analyses were completed by or overseen by Dr. Campbell. Active CJRC attorneys were not

involved in the data collection or analyses, and were not allowed access to the data outside of the LWP dataset. This

was to maintain independence in the analysis and scientific findings.

142

Eve, C., Yajaira, J., Chynna-Lee, M., Journey, P., & MacKenzie, W. (2020). Oregon Probation and Parole Data,

1989-Present. Portland State University.

Recidivism Dataset. The other secondary dataset used was relied on largely to address Goal

4 – examine how accurate the Board’s release decisions are in determining a parolee’s likelihood

to reoffend. Similar to the LWP dataset, this is also from the DOC and consisted of all people

released from prison onto community supervision between 2011 and 2017, with at least a three-

year follow-up period for all cases. Initially, the sample size for this dataset consisted of 32,085

cases, with 28.8% being imprisoned for a person (i.e., violent) crime. In order to ensure that the

cases used would be most similar to those cases the Board would have authority over, the eligibility

criteria for this dataset required all cases to be (1) convicted as a person or sex crime as their most

serious offense (removed 19,069 cases), (2) spent at least five years in prison (congruent with

Ballot Measure 11 [BM11] mandatory minimum sentences, removed 8,296 additional cases), and

(3) must have no missing or problem data on key measures (e.g., gender, race/ethnicity, removed

five additional cases). This resulted in a dataset comprised of 4,715 cases broken out by the

person’s status when released in one of five ways listed in Table 1. These groups are essentially

comparison groups to which those who are paroled by the Board can be compared in their

community-based performance (i.e., recidivism behavior).

Table 1. Initial truncated sample release reason/status for Recidivism Dataset.

Release reason

Frequency

Percent

Analysis

Paroled - released through the parole process

2.20%

Included

Post-prison supervision (PPS) determinate sentence

4,154

88.16%

Included

Multiple supervision statuses

1.04%

Removed

Short-term trans-leave (STTL)

271

5.75%

Removed

Second look cases

1.59%

Removed

Sentence expiration – released without supervision

1.51%

Removed

Initial sample total

4,715

100.0%

From Table 1, only two statuses were determined to be particularly comparable – those

released directly due to the parole process, and those released to post-prison supervision (PPS) via

a determinate sentence. These two groups would receive similar supervision upon release. Given

the narrowing of the eligibility criteria discussed above, these two groups provided the foundation

from which the analysis could be conducted. Expanded upon further in the section on Goal 4, a

balancing technique was used to further reduce the sample included to only those cases with

characteristics that are most similar to the paroled cases are included.

The Recidivism Dataset also includes a host of information research has shown to be

helpful in predicting the likelihood of success on supervision. Specifically, this includes data on

releasee demographics, index offense details (e.g., length of stay, BM11 conviction, crime severity

score), prior community supervision information (e.g., prior revocations), criminal history (e.g.,

number of prior person convictions, or age at first arrest), misconduct and disciplinary segregation

information during the most recent incarceration, and visitation information (e.g., how often and

how many people came to visit the individual while incarcerated). Recidivism in this dataset is

captured in four dichotomous indicators if an event occurs within three years of release: Any

violation, rearrest for a new offense, reconviction, and reincarceration. Using arrest data, rearrests

were broken out further by person and property offenses.

Survey Dataset. The third quantitative dataset used was collected via primary data

collection, and was focused primarily on Goal 3 – identify how the hearing and decision-making

process impact eligible parties/parolees, but was also used in Goal 2. Using extant research, a

survey was developed and administered to parole-eligible AICs capture the perceptions of

individuals eligible

143

for parole toward the Board, perceived likelihood of release, and to reflect

on their experiences before the Board (if any) as well as the process. With great cooperation from

the DOC and the individual facility contacts, we successfully administered and collected AIC

surveys in a secure and orderly fashion across five facilities deemed as holding the most parole-

eligible AICs. A list of the targeted facilities and expected sample sizes are shown in Table 2.

Due to COVID-19 issues and spread, no facilities were allowing external researchers to

come in for face-to-face administration, which left mailing the surveys via the United States Postal

Service to be the only viable option. As in virtually all prisons across the nation, mail protocols

require DOC staff to open and read all mail sent to and from the AICs. Such protocols would

neither foster legitimacy to the study in the eyes of the AIC respondents, nor would it allow for us

to maintain confidentiality of our respondents. Thus, to ensure the administration/collection of the

survey maintain the confidentiality of the respondents, we worked with the DOC research staff to

allow for lock-boxes to be placed in the law library in each of the five facilities. Using funds from

the grant, we purchased six tamper-proof, lock-boxes ranging from 38 to 96 pounds.

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The size

of the boxes were based on estimates of the sample size needed at each facility. Initial estimates

based on the work of the CJRC assumed 10% of the DOC population is potentially LWP or

dangerous offender status, making them potentially eligible to be in a parole board hearing at some

point in their sentence. This suggested that there may be approximately 1,299 AICs who may fit

this eligibility, based on a 2020 DOC population report. From that, we estimated a random 40% to

target, plus an additional 10% to account for non-

response buffer, which put our initial estimate at

approximately 520 respondents across the five

facilities on which to base the box size.

While the boxes were being purchased, the

actual sample to target was identified with the help of

DOC research personnel. The research team provided

the location for anyone in the five targeted facilities

who were convicted of life with the possibility of

parole or dangerous offender status, producing a list of

710 individuals to be solicited for participation. The

survey and consent language informing the AICs about

the study and what to do upon completing the survey,

were mailed to each AIC identified. To increase

response rates, we offered $5 to be deposited into

participant accounts upon completion of the survey to

143

It is important to note that parole “eligibility” has a distinct definition in the law, identifying when someone is

actually allowed to be considered for release by the Board. For the purposes of this study, we label AICs as being

“eligible” for parole based on the type of offense committed and the fact that the person will be eligible for parole at

some point.

144

Coffee Creek Correctional Facility was initially part of the planned sample, but our contact went cold after

purchasing the lockbox.

Figure 1. Survey lock-box at OSP

use in the canteen. The boxes were shipped to the facilities weeks ahead of the surveys being

mailed. Surveys were mailed to the AICs by May 16, 2022 leaving the AICs roughly two weeks

to complete and submit the survey to the lockbox. On June 2, the boxes were shipped back to the

study Principal Investigator (PI, Dr. Campbell), thereby circumventing potential breaches in

confidentiality. All five boxes were received by June 16, 2022. It took roughly four weeks to

process and digitize the surveys were opened.

Table 2 shows the distribution of response rates across the targeted facilities. Of the 710

surveys sent, nearly 50% (354) were returned and completed. Response rates across the facilities

ranged from 42.5% (OSCI) to 57.2% (SRCI). Given the mailed administering of this survey, and

the solicited population, this is a rather sizable response rate. Eventually, the survey data will be

supplemented with administrative data from the DOC records (e.g., demographics, criminal

history, and disciplinary history). As of the writing of this report, we are still waiting to receive

the administrative data. Consequently, the findings reported here are focused only on the

information available in the two-page survey.

Table 2. Sampling plan for the AIC survey.

Solicited for

participation

Submitted

responses

Response

Rate

Total targeted and received survey solicitation

710

354

49.9%

Snake River Correctional Institution (SRCI)

173

57.2%

Oregon State Penitentiary (OSP)

245

114

46.5%

Two Rivers Correctional Institution (TRCI)

124

49.2%

Eastern Oregon Correctional Institution (EOCI)

52.3%

Oregon State Correctional Institution (OSCI)

42.5%

Qualitative Data

While quantitative data is important to capture prevalence, magnitude, and relational effects,

it falls short in providing context. To provide that necessary context to the quantitative data, we

attempted to collect qualitative information from three sources: (1) Board documentation, (2)

interviews with past and present Board members, and (3) interviews with parole-eligible AICs as

well as parolees. These were supplemented with a few hearing observations conducted by the PI.

Board Documentation. In an effort to learn more about nuanced yet potentially patterned

differences in parole hearing decisions, public records requests were submitted for the packet of

forms completed by the Board which includes: Board Action Forms (BAF), Board Review

Packets, and Exit Interviews. Working closely with the Board members and staff, a systematic and

feasible process was delineated to pull these records for the Board staff to redact. Our sample

consisted of a random sample of electronic versions only since 2017. To avoid the COVID

lockdown time period, we excluded those between March 2020 and December 2020. Three aims

guided this systematic process: To capture decisions made in the 2015-2017 range to overlap with

the Recidivism Dataset mentioned above; to capture decisions made just prior to the COVID-19

shutdown of March, 2020; and to capture decisions made since the pandemic shut-down.

Ultimately, we agreed on randomly pulling roughly 30 total cases with 10 during the overlapping

years, 10 just pre-Pandemic (2019), 10 post-Pandemic shutdowns (after December 2020). The

packets average 150 pages per packet. As of the writing of this report, we are still waiting for the

redacted packets. Because Goal 2 relies primarily on this dataset in particular, findings for this

goal will be limited.

Interviews. Between March and May, 2022, the PI interviewed seven Board members (past

and present), probing for focal concerns and perceptions of the process. Along with the Board

members, a few advocates/representatives of victims

145

were also interviewed. Over the same

period 10 interviews were completed of parole-eligible AICs and successfully paroled individuals

in the community. Using members of the parole defense team from CJRC, clients were approached

by CJRC attorneys and asked to participate in an interview. All interviews will be conducted by a

CJRC affiliate who is not directly working with the interviewee’s case. All interviewing CJRC

members completed CITI training for social science certification, and were trained by the PI on

how to conduct a social science interview and ensure that consent language is provided

appropriately. After the first interview, feedback was provided to the interviewers on how to

improve. The interviews were transcribed if recorded or field notes were collected and both were

analyzed for their relationships with the findings of the quantitative data and any other areas that

may provide greater context for the report.

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The term “victims” is used throughout to refer to both the direct victim (person who experienced the crime directly)

and indirect victims involved with the case (i.e., the victim’s family).

VI. GOAL 1 FINDINGS: IDENTIFYING PATTERNS IN RELEASE DECISIONS

To identify any patterns that might exist in release decisions by the Board, both quantitative

and qualitative analyses were conducted with the available data. For the quantitative data, a number

of procedures were used to test for the presence of relationships between measures. As this is

exploratory in nature (i.e., there is no driving hypothesis available due to limited or non-existent

scientific evidence of such relationships), only correlative analyses (e.g., t-tests and chi-square

tests) are used to assess the relationship between extra-legal factors (e.g., demographics), legal

factors (e.g., number of convictions), and the decision to release an individual to parole supervision

or postpone one’s release. For the qualitative data, the interviews were transcribed and examined

for patterns related to the topics that arose from the quantitative examination, as well as any

additional issues that the quantitative data could not capture.

Patterns via Quantitative Analyses

Trends in LWP data. As a baseline examination of the prevalence of releases, measures from

the LWP dataset were plotted over time. Figure 2 shows the annual counts of releases along with

the count of convictions with a penalty of life with the possibility of parole, over time. This figure

depicts a few notable trends. First, parole releases were quite rare leading up to 2006, when the

annual count reached six releasees. While releases continue to be a rather rare occurrence, there is

a clear, upward trend in releases among the Board over the last two decades, with the greatest

number of releases occurring between 2010 and 2014, peaking at 16 releases. While it appears that

there were rather few paroled people prior to 1995, the lack of releases has more to do with

missing/unrequested data than actual non-releases. Additionally, the large spike in convictions for

serious crimes (murder or aggravated murder) during 1989 was similar to that observed by much

of the country during the 1980s and early 1990s.

When examining a trend graph like this, we should think about what we expect to see given

some baseline assumptions about parole and the system. If the sentence of “life with the possibility

of parole” is indeed one that offers the possibility of redemption and rehabilitation, then we would

expect that the spikes observed among the conviction trends should be similar to the spikes seen

in the releasing trend to some degree, but to a lesser extent. That is to say, that once people have

served their time, and assuming they have made a successful effort to be rehabilitated, then we

should expect to see those people be released onto parole 20 years later. That being said, the graph

shows that parole is not really used in this way. Understandably, granting parole is a rather arduous

process, and prior to 2000, it was not uncommon for U.S. prison systems to offer far fewer

rehabilitative programming than what is seen today. The population that the Board must review is

also one that are among the most serious of crimes, making it particularly difficult to gauge if and

when someone is truly rehabilitated. In examining Figure 2, we see that the trends have some

similarities, but are not necessarily a lagged version of the same shape. That being said, it is

possible that the spikes in releases from 2009 to 2014 reflect the 1989 spike in convictions.

Similarly, the trough in releases from 2015 to 2019 may be reflecting the slight dip in convictions

from 1989 to 2001. More datapoints over time would help explain more of these trends.

Baseline relationships. Diving further into the LWP dataset, Table 3 provides a descriptive

breakdown of this dataset and the measures collected. Overall the sample consisted of individuals

who were 92.0% males, 68.8% White, and 23.7% coming from Multnomah County. The average

age at conviction was 38, with the average person spending 14.8 years incarcerated before their

release date or at the time the data was pulled.

Table 3 also provides a bivariate analysis of the proportion of those cases released compared

to those not released. Bivariate analyses are used to determine if there are relationships between

two measures, and do not account for other factors when gauging that relationship. The column

furthest to the right shows the associated p value with the chi-square or t-test, which tests for

statistical differences between the group released and those not released. These p values provide

an indication of strength of evidence against the null, being no relationship.

146

As p approaches

zero, there is a greater likelihood that there is a significant relationship between the row measure,

and release. From Table 3, there are several differences to highlight – Race/ethnicity, age/time-

served, OJD circuit of conviction, and other convictions the individual has in addition to the index crime

(i.e., the crime for which the person is incarcerated).

First, incorporating 722 LWP cases (first release in 1995), Hispanics make up a significantly

lower percentage of parolees (6.5%) than those denied parole/not released (15.6%, p = .013). Black

individuals also comprise a lower percentage of those released (9.4%) than not released (11.4%),

but to a lesser extent (p = .536). In contrast, White adults make up a notably higher proportion of

146

Cumming, G. (2010). Understanding, teaching, and using p values. International Conference on Teaching Statistics.

Cumming, G., & Calin-Jageman, R. (2016). Introduction to the New Statistics: Estimation, Open Science, and Beyond

(Reprint edition). Routledge.

Count

Released Convictions

Figure 2. Count of eligible convictions, parolee releases, and deaths in custody over time

parolees (76.6%) than those who are not released (67.5%, p = .059). This suggests that there may

race/ethnicity may be an important factor in the likelihood of release. Race/ethnicity has been

found to be a significant predictor in some analyses of parole board release decisions in other

jurisdictions,

147

but not in others.

148

Table 3. Descriptives of life with the possibility of parole CJRC data

Total

Not

Released

or t

Sample N

722

615

107

Male

92.0%

92.2%

90.7%

.588

Race / Ethnicity

Asian / Native Amer. / Pacific Isl.

5.8%

5.5%

7.5%

.427

Black

11.1%

11.4%

9.4%

.536

Hispanic

14.3%

15.6%

6.5%

.013

White

68.8%

67.5%

76.6%

.059

Avg age at conviction (standard deviation, SD)

38.3 (10.1)

40.9 (8.3)

23.0 (3.5)

<.001

OJD Circuit of Conviction

Lane

9.3%

9.1%

10.3%

.699

Marion

13.9%

15.0%

7.5%

.039

Multnomah

23.7%

21.6%

35.5%

.002

Clackamas

6.7%

7.2%

3.7%

.190

Washington

9.8%

10.6%

5.6%

.112

All others

36.7%

36.6%

37.4%

.874

Additional convictions at index

Other violent offenses (e.g., assault)

15.9%

16.4%

13.1%

.384

Murder or manslaughter

7.9%

8.9%

1.9%

.012

Rape / sexual assault

1.8%

2.0%

0.9%

.465

All other (e.g., property)

22.7%

22.1%

26.2%

.356

Avg years incarcerated (SD)

14.8 (8.7)

13.4 (8.4)

22.7 (6.8)

<.001

Second, and unsurprisingly, there is a clear, significant relationship between age, time-

served, and release. The average age at conviction is substantially lower among those who are

released (23.0) compared to those not released (40.9, p <.001). This coincides with time-served,

which is significantly related to release. As expected according to law (e.g., mandatory minimums

and truth-in-sentencing efforts of the 1990s), and according to prior scholarship (e.g., Morgan &

Smith, 2008), those who serve more of their sentence are more likely to be released. In this sample,

those who were released served an average of 22.7 years (standard deviation of 6.8 years) which

was significantly more of those who were not released (13.4 years, SD = 8.4).

Interestingly, two OJD circuits stood out as having a relationship to release at the bivariate

level – Circuit 3 (Marion County) and Circuit 4 (Multnomah County). Specifically, those convicted

in Circuit 3 comprised a significantly smaller proportion of releasees (7.5%) than those not

released (15.0%, p = .039). This is interesting because this circuit is one of the largest contributors

of cases in this dataset, second only to Circuit 4, which yielded the opposite relationship, making

up a greater proportion of releases (35.5%) than non-releases (21.6%, p = .002). This suggests that

147

Huebner, B. M., & Bynum, T. S. (2008). The Role of Race and Ethnicity in Parole Decisions. Criminology, 46(4),

907–938.

148

Morgan, K. D., & Smith, B. (2008). The Impact of Race on Parole Decision‐Making. Justice Quarterly, 25(2),

411–435.

the county of conviction may be important in how a potential-parolee is released. Discussions with

parole board members (past and present), suggest that this may be due to how involved a District

Attorney’s office is when it comes to objecting to a person being released on parole. If a Deputy

District Attorney (DDA), or even the original prosecutor of the case, comes to argue on behalf of

the victim and the state, then that may have more weight with some members. On the other hand,

other board members (past and present) cautioned that there are a multitude of factors that are

considered in these decisions, and the DDA’s statements are just one, smaller part.

Finally, people who were convicted of other violent crimes (particularly murder or

aggravated murder) in addition to the most serious crime made up a much lower percentage of

those released than those not released. Similar to the observation on age and time-served, this is

not surprising given that a primary concern of the Board is public safety, and multiple violent

crimes/convictions weighs heavily.

Complex relationships. To further examine the relationships discussed above, binary logistic

regressions were used to test the relationships while holding other measures constant. In other

words, the regressions allow us to know if the relationship between time-served and the likelihood

of release still holds when we account for other things, such as sex of the AIC. The models included

five measures: Sex, race, months served and its quadratic, and the type of additional convictions.

149

The regressions revealed that after accounting for other factors available in this dataset, two

measures stood out as the most predictive of release – additional convictions for murder,

manslaughter, or rape, and months served. Specifically, being convicted of an additional violent

crime decreased a person’s odds of being released by 79.9% (odds ratio = .201, p = .023), compared

to having no additional convictions. In terms of time-served, the models indicated that for every

month incarcerated, the odds of release increase by 1.7% (odds ratio = 1.02, p = .010), or when

tested as years it equates to a 22.4% increase for each year incarcerated (odds ratio = 1.22, p =

.006).

Figure 3 plots the predicted probability of release for each case given the values of the five

measures in the model. Reference lines have been added to show where Ballot Measure 11 (BM11)

mandatory minimum months are set for rape/penetrative sexual assault (100 months, 8.3 years),

murder (300 months, 25 years), aggravated murder (360 months, 30 years). Although the majority

of the cases released were sentenced prior to BM11 taking effect, the minimum range provides a

good estimate of likely parole-eligibility marks for each case, given the most serious conviction.

This graph shows that there appear to be some tracks that diverge around 150 months (12.5 years)

to 200 months (16.7 years). These deviations suggest that some subgroups may possess different

probabilities that may influence their likelihood of release.

149

It is worth noting that multiple regressions were tested. The tests include those with 50 bootstrapped replications

of the standard errors and with inverse probability weights to account for the sparsity of releases (14.8%) in the data.

All models fit the data well according to standard diagnostics (e.g., Hosmer-Lemeshow test), and the pseudo R

ranged

from .20 to .25.

To dig slightly further into the potential differences between groups, a measure was created

that captures the simulated estimate of likely parole-eligibility date for each case, given the most

serious conviction (i.e., captures the reference lines shown in Figure 3). The new measure

(simulated months to parole eligibility), and its quadratic, were included in three logistic

regressions testing each interaction with the categorical measures (sex, race/ethnicity), and

additional conviction types. The relative predictive accuracy of each model was then assessed

using the saved predicted probabilities and a receiver operating characteristic area under the curve

statistic (AUC), which provides an estimate of accuracy. An AUC of .5 suggests a scale or model

is about 50% accurate in predicting a given binary outcome (e.g., release), which is no better than

a coin-flip. According to disciplinary standards of predictive accuracy, an AUC of .556 to .639 are

relatively weak, .639 to .714 is moderately strong, and anything over .714 is strong.

150

Table 4

provides each model’s AUC and the relative strength compared to the other three models using

the simulated parole date.

150

Rice, M. E., & Harris, G. T. (2005). Comparing effect sizes in follow-up studies: ROC Area, Cohen’s d, and r. Law

and Human Behavior, 29(5), 615–620.

Figure 3. Baseline predicted probability of release by months served

Table 4. Comparison of relative predictive accuracy of months to simulated parole date

Model

AUC

p value

1. Months to simulated date (M-SD), only

.794

2. Sex * M-SD

.798

.337

3. Race/Ethnicity * M-SD

.805

.068

.283

4. Additional Conviction * M-SD

.812

.030

.107

.506

Each of the model AUC statistics shown in Table 4 indicate that they all have a strong

degree of accuracy in predicting release. The first thing to highlight here is that the AUC for the

model using only the simulated months to projected parole date measure and its quadratic,

predicted release with 79.4% accuracy. This is rather remarkable because this is a measure

constructed solely from the BM11 statute. It does not account for any of the 10 factors the Board

is required to evaluate (OAR 255-032-0020), nor does it account for the three major factors used

in exit interview decisions.

When examining the other three factors in conjunction with the months to simulated date

measure, the models become incrementally more accurate, albeit in varying degrees. Including sex

as an interaction with the months measure, the accuracy only slightly increases from .794 to .798

(p = .337). Including the parole-eligibly/parolee race/ethnicity interaction increases the model’s

accuracy to 80.5%, which is a statistically notable change (p = .068). As expected, the largest

increase to 81.2% was interacting with the additional conviction type.

Next to the noted strength of the simulated measure, the most notable aspect of Table 4 is

the importance of race/ethnicity in predicting release when interacting with the simulated measure.

These findings suggest that across all the observed releases from 1995 to 2019, race/ethnicity may

have some degree of influence in the relative release decisions. To capture how the race/ethnic

groups differ in their predicted probability of release, the race/ethnicity model (Model 3 in Table

4) is plotted using years instead of months and shown in Figure 4, below. The different lines in

Figure 4 depict each racial/ethnic group’s baseline predicted probability as it relates to the

simulated time to parole-eligibility date measure. The reference line place at the x-axis value of

zero, signifies the simulated parole-eligibility date. Negative values to the left of zero signify

months/years before the simulated date. For example, a value of -5 would mean five years prior to

the simulated parole eligibility date.

The figure shows that while all subgroup probabilities of release increase as they approach

the simulated parole eligibility date, there appear to be different probability patterns by race/ethnic

subgroups. White AICs have a clear, smooth trend beginning near zero at 25 years out from the

simulated date and incrementally increasing as they approach the date, especially between 15 and

five years out, and then peaking at around 80% five years post the simulated date. In a more

emphasized increase, AICs who are of the Hispanic and Asian/Native American/Pacific Islander

subgroups follow a similar trajectory to one another in terms of their predicted probability of

release – virtually zero probability between 25 and 15 years out, and a steep increase in the

probability around five years out, and peaking about two to five years after the simulated date.

Perhaps most notable here is the trend of Black AICs, which has a more tempered arch, with a

steady, but less dramatic increase in the probability of release, and peaks around 60% in the few

years following the simulated date. It is important to note that this does not mean a specific Board

cohort or members were expressing overt bias. Rather, the trends and captured cases over time

suggest that the processes and expectations that create the foundation of a Board’s decisions appear

to truncate the probability of release for certain racial/ethnic subgroups.

In working with the Board to ensure the accuracy and scope of the findings, we were sent

more recent hearing information capturing hearings, which help to contextualize the recent efforts

made by the current Board cohort. From January 2019 through September 2022, the Board sat on

302 hearings with the majority split across three types: 42.7% being Exit Interviews with a

psychological evaluation, 27.5% being Murder Reviews, and 11.9% being Parole Consideration

hearings. Just under 200 (196) individual petitioners populated the hearings, consisting of 15.8%

Black petitioners, 3.1% Hispanic, 5.1% Indigenous, and 75.5% White. Since 2019, it appears as

though the probability of release for Black petitioners may have increased. In this recent dataset,

58.1% of Black petitioners were released which is slightly higher than that of White petitioners

(52.7%). Moreover, the proportions of the hearing populations remain constant if not slightly

greater – Black petitioners make up 17.8% and White petitioners make up 77.2% of all releases.

Before concluding anything from this most recent data pull, we must highlight that these

data are different from those analyzed in Figure 4. While they are capturing a similar population,

Figure 4. Baseline predicted probability of release by race/ethnicity

they were not pulled in the same way or even capture the same cases. As a result, we cannot say

that these new data negate or replace the conclusions made above regarding Figure 4. Furthermore,

the analyses used above are more robust than the descriptive analysis used in these last two

paragraphs. That being said, we can conclude two things. First, it appears that the most recent

Board cohort has improved the proportional probability of release for Black petitioners as they

now slightly outpace their proportion of the hearing population (17.8% compared to 15.8%,

respectively). Second, when juxtaposed with the analysis from the historical trends, the efforts of

the most recent Board cohort are a clear demonstration that decision-making are susceptible to

member turnover. If the probability of release for a subgroup can change to a meaningful degree

within the span of a cohort change, then the process and decision-making protocols is unlikely to

be consistent from cohort to cohort; thus, highlighting the volatility of a process that needs further

codification.

Qualitative Analyses of the Board’s process, decision-making, and influences

Sans the Board’s documentation and more complete data on those released versus denied,

there are a number of topics that arose across the interviews of parolees, AICs, past/present Board

members, and victims’ advocates. In order to unpack discernable differences across release

decisions, one area to examine is the criteria used by the Board to make such decisions. Among

the five primary hearing types (prison term, murder review, prison term reduction, parole

consideration, and exit interviews), the Board must address some question regarding if the AIC

has actually been rehabilitated. Thus, any patterns that may be observed in releases or decision-

making likely stems from the interpretation of rehabilitation and the accompanied criteria.

To address any question related to rehabilitation, there are a number of aspects the Board

must consider, most of which are laid out in OAR 255-032-0020 detailing the purpose of a murder

review hearing. Recall that the aspects include:

1. The AIC’s involvement in correctional treatment, medical care, educational,

vocational or other training;

2. Institutional employment history;

3. Institutional disciplinary conduct;

4. Maturity, stability, demonstrated responsibility, and any apparent development in

conforming personality;

5. Past use of narcotics or other dangerous drugs including alcohol;

6. Criminal history;

7. Conduct during prior probation or parole;

8. Having a mental or emotional disturbance, deficiency, condition or disorder

predisposing them to be a danger to the community;

9. Adequacy of the AIC’s parole plan (e.g., community support from family, friends,

treatment providers), as well as residence, neighborhood or community in which the

AIC plans to live; and

10. A reasonable probability that the AIC will remain in the community without violating

the law or the conditions of parole.

Although each of these are explicitly for murder reviews, for the most part they are the criteria

often considered regardless of the hearing. Some additional criteria are included for other hearings

like the exit interviews where the Board is expected to consider the psychological evaluation for

which the Board pays to have done for each AIC by a Board-appointed psychologist months before

the hearing.

In many ways, each of these listed are rather straightforward. Indeed, at first request to

interview past/present members of the Board, the solicitation was met with the following email

response: “After talking with the Board Members they are not interested in participating with in

an interview. The laws and rules the Board follows related to their release decisions can be found

in ORS 144 and OAR 255.” Certainly, the governing rules are extensive in areas, and outline many

aspects of decision-making. However, if there was no room for subjective thought and

interpretation of these criteria, in particular, there would be no need for a Board or hearings as it

could be an automated process. After discussions with the Board about the purpose of the study,

both past and present members were more willing to discuss these criteria and the subjective

interpretation of them among many other things. Similarly, both AICs and individuals recently

paroled were asked similar questions about how decisions are made and the criteria used.

Everyone interviewed (members, AICs, parolees, and advocates alike) recognized that part,

perhaps the largest part, of the Board’s purpose was steeped in public safety. Ensuring, to the best

of their ability, that those who are considered for release are not released until the risk to the public

is minimal by way of rehabilitation efforts.

151

Interviewees indicated that the manner in which the

Board concludes release or denial for two or more years (colloquially known as “flopping”) seems

to lean on three themes: (1) clarity in criteria, (2) fairness and consistency, and (3) socio-political

pressures.

Clarity in criteria

Interviewees were largely in agreement that the Board has come a long way in transparency

and clarity regarding how it makes decisions. Past Board cohorts and policies would leave both

the AIC and the victims largely “in the dark” about how the hearings were structured, how

decisions were made, what the next steps were, and why they were happening. With that being

said, all interviewees noted that there is still a lot of work to be done. Transparency in decisions in

the context of the Board can be understood as referring to the explanations that might accompany

hearing conclusions. The AIC and victims typically receive some form of documentation about

the decision, however, both parties have indicated that what is provided generally leaves a lot to

be desired. Specific issues in transparency were raised with knowing the criteria being used prior

to the hearing, and how such criteria were ultimately interpreted before participating in the hearing.

On the surface, we might expect that AICs would be the most critical of the Board, and

transparency related to the criteria used. While those AICs interviewed were indeed critical, they

were not without recognizing a number of important issues when it comes to the Board’s purpose

and criteria used. For instance, AICs highlighted how the job of a Board member is particularly

151

Although the interviews did not touch on compassionate release explicitly, interviewees did bring it up as a point

that ought to be a point of reform for the Board. For instance, one past/present member highlighted this directly, stating

“I do agree that the Board’s limited authority on medical releases needs to be reformed. So, for those who are truly

incapacitated, not able to care for themselves, and/or maybe near the end, creating a better process to move those

individuals out of prison and back into the community. DOC provides the same standard of health care as everyone

in the population, but they are not a nursing facility. They are not designed for all levels of care that some people may

need. So, I do think that system needs to be changed. Only about one person a year gets released, while many die in

custody who pose no risk to the community, but the DOC spends great amounts of time, energy, and money to care

for them only for them to die in prison. They probably could have been more comfortable, and spent that time in a

facility better equipped for that, and maybe even with family.” (25 years of experience working in criminal justice)

difficult, and that the onus of rehabilitation is largely an internal process for the person going

before the Board.

Murder is about as devastating of a crime as there is and it hurts a lot of people so

there are some political elements in their decision. If someone shows that they’re

not going to be a risk to the community but the victim’s family shows up and says

that they don’t want the AIC out, I feel like the Board is inclined to not let the AIC

out. As far as determining if someone is rehabilitatable, it’s a tough decision.

(White AIC, over 50 years old, experienced one hearing before the Board,

incarcerated over 25 years)

It’s our burden to provide proof that we’re rehabilitated. I take that very seriously.

If I’m willing to do the work, hopefully they’re willing to see that I have changed.

It’s so important to show that you’re willing to do the work. It took a lot of years

for me to figure out what I did what I did. It took a lot of classes and digging on a

personal level to figure out why I did what I did. (White AIC, over 45 years old,

experienced one hearing before the Board, incarcerated over 25 years)

However, interviewees could not speak about the Board making difficult decisions without also

noting concern over the criteria used. Concerns over transparency in criteria and decisions were

apparent in the way AIC thinks about the Board. As AICs highlight, the potential that the Board

may not be using the criteria in the ways expected is both possible and too disconcerting to

consider, and instead finding some solace in the belief in a just world and system.

It’s kind of hard to say what’s going on in another person’s mind, but I think that

it’s a very serious decision and if they make the wrong decision there are potential

victims who will suffer from the result. I think they do as much as humanly possible

to be fair, but I also feel like in anything involving human beings there are going to

be errors. We can’t separate our own internal bias and perceptions of the world

from decisions that we make, they are as much a part of us as our arms and legs

and anything else. I don’t think the is process is perfect, but I think that they work

they try to be as fair as they can possibly be to all parties. [Interviewer] Why do

you think that? Because that’s what I hope. I would hope that the individuals in

these positions aren’t just making arbitrary decisions, based on whether or not they

like the people sitting in front of them. It’s part of our justice system, and I choose

to believe that people will tend to be more fair than not. It doesn’t really do me any

good to think otherwise. (White AIC, over 50 years old, experienced one hearing

before the Board, incarcerated over 35 years)

Parolees also emphasized the Board’s purpose being an important one of public safety

generated via rehabilitation. Although, common points of skepticism and confusion were identified

as to how the Board reaches the conclusion about what it means to be rehabilitated. Parolees and

AICs noted that the reasons for the person’s recent release or deferment were not only unclear, but

with seemingly little emphasis placed on the rehabilitative efforts made:

When you go to prison, you have some choices to make, you know. Do I want to

better myself in the hopes of getting out of prison and being a member of the

community again? I was told when I was first incarcerated, “you do everything

you’re supposed to do, and you’ll be out in 20 years.” So, I did that. I dove right

in. I went to college. I got vocational trades. I learned marketable job skills. I had

a couple hiccups. Nothing major along the way. But, I really did things to change

me. I did programming, cognitive, anger management, you know, all that stuff. And,

when it came time to see the Parole Board, it’s like none of that mattered, ya know?

I feel that they don’t always weigh everything. A lot of it falls back to the crime,

then you’re put back on trial again. Between the [last two times] I went to the

Board, nothing changed in my life except that I did two more years in prison. (White

parolee, over 55 years old, experienced five hearings before the Board, incarcerated

over 30 years)

From my personal experience and from what I’ve heard from other men who have

been to the board, they kind of seem to harp on crime. At least that’s what they did

with me, and that’s what I’ve heard from other people as well. When I want to the

board, it wasn’t really a matter of what I’ve done to better myself, my plans to get

out of prison, it was more going over the facts of my case. (Latino parolee, over 40

years old, incarcerated over 20 years)

Other parolees emphasized confusion and frustration over not really understanding why the Board

released them in spite of being successful. Particularly highlighted by those released were passed

experiences at hearings where they felt attacked in questioning, and as a result, they would feel as

though they were giving up hope.

Similar concerns about transparency in criteria were shared by victim advocates. For

instance, one advocate explained how victims rely on the information they are provided by the

Board, but that such information is not readily accessible or clear.

For the victims that do participate in the hearings, I think it is important for them

to know that there are certain things that the Board is looking for. [Interviewer] Do

the victims or victim’s family know what the Board is looking for? No. Usually,

they don’t. That is one area that the Board has improved on, is their transparency

with the victims. Not too long ago, it was hard to get information out of the Board,

and it was really hard for victims who were unrepresented to get information. There

were times in which the Board would hold hearings and the victims wouldn’t even

be notified. If the victim calls the Parole Board, they can get more information

because they do have a victim advocate there, but it takes a very proactive victim

to get that. (Victim advocate)

Clarity for both victims and AICs are not only critical to provide so each party to

understand a process of the justice system, but it is also critical to ensure that the process is viewed

as legitimate. Social science has long demonstrated and established that transparency and clarity

in decision-making have profound impacts on the legitimacy of a public institution.

152

The Parole

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Board is one such entity that must rely on this relationship more so than others in the justice system

because it is well after the adversarial court process and the notorious slow process of reforming

Board mechanisms generally.

153

Such perceptions are closely linked to those of fairness and

consistency.

Fairness and consistency

To a large extent, weaknesses in transparency can both lead to and be exacerbated by

weaknesses in fairness and consistency. In order to ensure that involved parties accept the process

as being fair and consistent, there must be transparency in decision-making. On the other hand, in

order to ensure that discretionary decisions made via a systematic process are indeed fair and

consistent, there must be a clear and transparent way to document them to demonstrate that they

are based on the statutory criteria manifested in explicit ways within the case. Relaying the degree

to which decisions fair must be accomplished through exemplifying consistency in the criteria that

are made clear, especially in a prison setting. This notion of relaying fairness through consistency

has been demonstrated in various studies on prisoner perceptions of officials, disciplinary

proceedings, and punishment.

154

As discussed in the following section related to the survey findings and Goal 2, many of

those who have and have not experienced hearings, have significant concerns over fairness in

particular. This was apparent among interviewees as well, where the lack of fairness was expressed

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Organizations (Vol. 1–Book, Section, pp. 69–87). Lawrence Erlbaum Associates, Publishers.

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[Interviewer] How fair do you think the Board is in making their decisions? Not

really fair. There’s no concept of fairness. They’re plenary. They damn near do

what they want to do. It’s all so subjective. Parole Boards have very little oversight.

Prisoners don’t have a constitutional right to early release, but Oregon creates

liberty interests, so Oregon Parole Board can and should be held to a different

standard. (Black parolee, over 40 years old, experienced four hearings before the

Board, incarcerated over 25 years)

I feel they’re very poor at it. I was paroled [a few years ago] but was brought back

for a [low level technical violation] sanction after 18 months. I got [multiple] years

back in prison about that. If I was on post-prison supervision, would’ve only gotten

5-10 days. (Native American AIC, over 55 years old, experienced more than 10

hearings before the Board, incarcerated over 30 years)

The lack of fairness was also expressed among interviewees discussing the Board’s

expectations related to communication. One of the more frustrating issues among those who

experienced multiple hearings was the difficulty they had in “articulating their rehabilitation” or

“demonstrated insight” for the Board. These are common aspects the Board expects of all AICs at

hearings in order to be successful. According to Board members,

“Demonstrating insight” typically means that the AIC can articulate the lessons

they have learned through institutional programming. For instance, if the AIC has

taken anger management class, the Board would expect them to be able to

articulate something they learned from the class. It also means that the AIC can

demonstrate a baseline level of remorse for the harms they have caused, show

empathy for others, and take accountability for their past crimes. The Board also

understands that different crimes can involve different degrees of culpability for the

defendant, and there may be variations in language and cognitive abilities of AICs

who appear before the Board, and we strive to take those issues into consideration

when we deliberate cases. (Past/present Board member)

All interviewees discussed how “articulating their rehabilitation” or “demonstrated insight” were

both critical in the process and yet very difficult to achieve, often due to poor communication

skills.

At some point it’s important and believes that it’s important to articulate what you

did and how you got to the point you did to show that you wouldn’t do it again. But

at the same time, the Board has a record of everything you’ve done and not

everyone has the ability to speak in front of a panel of people. When you can’t

communicate that, it can make them feel like they don’t know what to say. It feels

like this shouldn’t be something you have to practice— the Board makes it feel like

if you don’t practice, you’re going to fail. (White AIC, over 55 years old,

incarcerated more than 30 years)

[Interviewer] How important do you think it is to articulate your rehabilitation to

the Board? Man, that’s vital! There’s nothing more important. You know?

[Interviewer] What about what it means to “demonstrate insight” on your offense?

I know what it means to me. It’s reflected in how you live. Like the lessons you learn

from the destruction that you cause, that I caused, you know, I learned a lot of

lessons. […] I’ve grown into a person who regrets the harm I’ve caused in the past,

but understand that there’s nothing I can do about it to change it, but I can do good

from this moment forth. And that’s an insight that demonstrated it. But,

[demonstrating insight] an obscure fuckin term for them, it could be anything. It’s

100% subjective, and the Board has discretion to make subjective decisions all day

long. [Interviewer] And how would you describe your communications skills?

Uhhh poor. You know, room for improvement. (Black parolee, over 40 years old,

experienced four hearings before the Board, incarcerated over 25 years)

When considering the importance of “articulating rehabilitation” and “demonstrated insight,” the

potential that having poor communication skills may impact the fairness of hearing outcomes is

plausible. The issue was posited to past/present members to gauge their thoughts on the matter.

Interviewees indicated that it is certainly possible that poor communication skills could influence

decision-making and therefore impact fairness and consistency.

I can certainly see how they would be at a disadvantage. It is incumbent on me, as

a Board member, that if the question I was asking wasn’t answering the question I

wanted answered, then I needed to rephrase that. For some of our individuals who

come before us, I would recognize very quickly that I wrote my questions at a 12

grade level, and I need to reduce them to a 3

grade level. And to break them apart.

And not to ask three questions on top of one another. It’s hard enough for some of

us to track. (Past/present Board member with over 20 years of experience in

criminal justice)

Others noted that such a disadvantage is not only plausible, but may actually be present among

more cases than just those who may be intellectually disadvantaged. Such instances seem to

involve more privileged individuals exhibiting a sense of entitlement. One interviewee explained

that this is likely because other important characteristics that ought to be exhibited during the

hearings were related to being vulnerable and showing humility:

The other thing is, to be more successful before the Board, requires accommodation

of humility and vulnerability, and AICs have pointed this out before because

humility and vulnerability are not good things to show in a custodial environment.

I can understand that. I can wrap my mind around that. Sometimes people how had

more education, were more successful, were of a non-minority racial culture, really

struggled with the Parole Board. They were incredibly entitled, and they had a

mother who was a lawyer and a father who was a doctor, and maybe they were now

in their 50s, and they had a career. It galled them that anyone could hold them

accountable, or that they could be in this position. (Past/present Board member

with over 15 years of experience in criminal justice)

Past/present members also indicated that issues in fairness and consistency, particularly

among the “demonstrating insight” disadvantages, might be remedied via two efforts: Making sure

that both sides have some form of representation, and requiring key trainings for the Board. In

terms of representation, interviewees (AICs, parolees, members, and advocates alike) were all in

agreement that attorney representation and/or support partners were a critical factor to help people

navigate the process and communicate their thoughts and concerns.

I also see how for individuals who struggle to communicate, or are dealing with

disability, that’s where an attorney can be extremely helpful. Or that’s where the

AIC would bring someone else out to coach them or talk for them. I think that is a

really important piece. (Past/present Board member with over 15 years of

experience in criminal justice)

The role of an attorney can be very important in helping the AIC tell their story,

prepare for the hearing, highlight the AIC’s accomplishments, inform the Board

about what factors to focus on, provide explanations for why certain factors should

not weigh against the AICs that may not be apparent from the record, help the AIC

gather information for the hearing, and be a voice for the AIC if they get flustered

during a hearing. (Past/present Board members with over 30 years of experience

in criminal justice)

Certainly, there are a number of individuals who, especially if it is their first

hearing, can come across very defensive. A good attorney can help redirect their

response. [The AIC] can be argumentative with the Board, and they could use

someone on their team to say, “Can we take a time out? I need to talk to my client

for a second.” And as a board member, you’re saying “Absolutely.” Because you

know that if it continues the way it’s going, this individual doesn’t stand a chance.

And that doesn’t always have to be an attorney. I think it is good to have a support

person there. The support person can give us a description of a person from a

different lens. Sometimes it’s another AIC, saying “this person has been my

cellmate for the last 15 years, no one knows me better than he does.” And that can

be really helpful. (Past/present Board members with over 20 years of experience in

criminal justice)

In terms of training, multiple interviewees suggested that more training would benefit the

Board to increase fairness/interchangeability across cases, and to increase consistency. For

instance, past/present members discussed how there is no standardized training beyond

administrative functions necessary to serve as a member (e.g., understanding and using the DOC

data system). Any additional training is at the discretion of the Board’s chair. There have been past

member cohorts whose chair required that all Board members engage in a training provided by the

National Institute of Corrections. Such trainings have since become online, and familiarize

members with common philosophies and approaches used by Boards across the nation. Other

trainings could be considered that cover how more actuarial risk assessments (e.g., LS/CMI) could

be integrated into decision-making, and/or how rehabilitation (specifically cognitive behavioral

therapy) works to change human behavior. These types of trainings are available through

organizations (e.g., Center for Effective Public Policy) that partner with or are recognized by the

National Institute of Corrections or the Academy of Criminal Justice Sciences, could provide

updated information on the science behind rehabilitation and associated metrics.

Beyond trainings related to key functions of the board, other trainings were mentioned that

may benefit everyone involved in Parole Board hearings. Every violent case that comes before the

Board is quite tragic and impactful. Each deep with trauma shouldered by the victims, the AIC,

and via second hand, the Board as well. Multiple interviewees recognized that trauma-informed

training would substantially help the Board in how they improve the consistency in their approach

and questioning of AICs and approach to victims.

I also think that it is important for the Board to be very trauma-informed in their

proceedings and their questioning. Typically, we would think about that as just for

the victim or the victim’s family who is there for the hearing, which is important.

But this is also important for the person coming before the Board. It’s extremely

stressful. The Board has the ability to defer a person for between two and 10 years.

I don’t know of anything that I’ve ever faced in my life, where it’s a matter of how

I answer today could have a ten-year impact on my life. That’s a little stressful to

think about. So, being very clear in our articulation of the questions and be very

direct when the question is not being answered. Board members need to be creative

in their approach. So, a disadvantage for someone who can’t clearly articulate,

yes. But a greater responsibility for the Board member to find ways to get ways to

get the same information. If it can’t be obtained directly from them, then to seek it

out elsewhere. (Past/present Board members with over 30 years of experience in

criminal justice)

[Interviewer] Do you feel like there is any place for the Board to have a mandatory

trauma-informed care training? I think they should. Their interactions with the

victims are pretty limited. I think it would be really good for them to have an

understanding of the trauma and impact that something like a homicide has on

families for generations. And understanding the nature of that kind of trauma.

There is evidence that their brain is permanently changed from that kind of trauma.

I think it is important that anyone dealing with victims, even to the limited extent

that the Board does, to understand that. I think there should be training there for

the Board to understand how this trauma may have affected them. It is also

probably pretty traumatic for the Parole Board. I think they could probably use

that training to help cope with secondary trauma as well. (Victim advocate)

Perceptions of fairness and consistency became a central part of discussions with all

interviewees. In some ways it was expected that fairness was one of those central areas, because

two of the 15 to 16 questions asked to each interviewer were questions about fairness specifically.

Consistency was only alluded to in one question asking about interchangeability in decisions –

essentially, whether similar approaches and elements are considered the same way for similar

cases.

In an effort to address the shortcoming of a lack of trainings, the current Board cohort

makes a concerted effort to have more trainings and to make well-informed, evidence-based

decisions. They frequently attend and present at practitioner and academic conferences (American

Parole and Probation Association [APPA] and Association of Paroling Agencies International

[APAI]) to stay up-to-date with best practices, including on issues related to disparate outcomes

among racial subgroups by connecting with organizations that offer trainings and discussions of

best practices (e.g., Center for Effective Public Policy’s National Parole Resource Center).

Another example is “Trauma Informed Tuesdays” which is a webinar put on by APAI for all

members, where the Board and staff sign in to an informative discussion or presentation about

trauma. Additionally, they attend (and at times present at) conferences, workshops, and trainings

related to several salient topics for the Board.

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These steps are admirable and consistent with a

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These topics include, but are not limited to: What is Meaningful Review? Considering Children Sentenced to

LWOP (very timely discussion given the passage of Oregon SB 1008); Offender Risk: Necessary but Insufficient for

Understanding Parole Suitability (a review of risk assessments and parole decision-making); What is Discretionary

Parole for Lifers…An International Comparative Analysis (a review of international variations in discretionary parole

board processes for evaluating persons serving life-term sentences); Supervision of individuals who committed sexual

offenses; Domestic violence diversion programs; Native American Reentry Programs; Accountable, Independent,

Board focused on best practices. However, the focus of the Board is dependent on the interests and

scope of the Board’s sitting Chair and who is governor at the time. Codifying this practice and

expected trainings into a minimum expectation for all Board cohorts would safeguard against

turnover.

Socio-political pressures

Two areas in which fairness and consistency arose that was unexpected, was in questions

about the core foundation of the Board’s purpose and individual mission of past/present members,

as well as in response to a question about things to consider when there is turnover in the Board.

Through follow-up questions, it became apparent that the reason for this is because both the

purpose/mission of the members as it relates to fairness and consistency can be subjugated by the

process of turnover and seating new members, making issues inherently intertwined. Much of that

is due to the lack of codified standards that a potential Board member must meet, as well as the

lack of on-boarding and ongoing training for seated members.

Members and victims’ advocates highlighted how the Board is of course charged with

gauging a person’s rehabilitative progress and what that means for release. However, an underlying

assumption that must be present with a member – there must be a willingness to believe that people

who come before you can be rehabilitated, and are therefore releasable because they have served

their time and are no longer pose a threat to society. One past/present member indicated that the

potential for release is a cornerstone of parole in Oregon.

[Interviewer] What is the purpose or mission for you as a Parole Board member? I

think the first part of that answer for me, is that we have a system in Oregon that

ensures that just about everyone is going to get an opportunity for release. That’s

been designed through the parole system, whether we are seeing someone from the

1973 guidelines, the 1982, the ’87, ‘89, the ‘92 post, a Board member needs to

ensure that the statute allows an individual to present themselves and for the Board

to make a determination. Each and every Board member must take the time to learn

the rules and statutes that apply for a given individual, and what criteria have been

outlined and should be considered in making a determination regardless of the

hearing type.

Second, and yet equal to that, is the fact that we are part of a larger public safety

system. This is about public safety. Certainly, for me as a Board member, the best

way we achieve that is through behavior change. So, how are we as a system

allowing and creating the opportunity for that change to occur. It can be a

challenging balance to determine what change has been done while they are

incarcerated, and what’s in the community for them to continue that.

If my decision-making had to be based on the question “Are they 100% ready today

with no risk?”, well then nobody is getting out. Nobody. I would had to vote no on

every case. So, it’s about understanding that prison and supervision play a

combined role in creating that success. As a Board you’re trying to recognize have

they had enough of one to transition to the other so this individual can continue this

progress forward, or have they not taken advantage of their incarcerated time in

Ethical and Conflict-Free Decision-Making in Canada’s Parole System; Guidelines for "End Stage" Decision-

Making.; Parole in Terrorism Cases.

order to continue on to “phase 2” if you will, which is the supervised period back

in the community. (Past/present Board member with over 20 years of experience in

criminal justice)

The Board’s mission is one of community safety, and also to ensure that the

correctional system is working as it should and people we are sending to prison are

being appropriately rehabilitated and able to be released into the community. Often

the makeup of the Parole Board determines how closely they adhere to their

mission. In some iterations of the Parole Board, they have clearly thought about

community safety as their priority, and other iterations not as much. It is really

dependent who is on it at the moment. (Victim’s advocate)

The notion that potential release is a cornerstone expectation that all members should

recognize is one steeped in the existence of parole boards in the US dating back to 1870 when the

country began using such discretionary release systems.

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With this in mind, it begs the question

– without a codified baseline of minimum qualifications of who sits on the Board, and without a

standardized process to train the Board, how can this cornerstone assumption be guaranteed in the

transition of one Board cohort to the next? It seems as though the willingness of the Board to

consider release, and the manner by which they deliberate on the release criteria, can easily ebb

and flow depending on Board membership at a given time. Moreover, the potential of release and

the way criteria are considered can be eroded or severely swayed.

By statute (ORS 144.005) a new member is seated through an appointment by the governor,

and serves for four-year terms. There is a vetting and interviewing process that has been developed

over the years that relies on a hiring committee (which can include current and past members).

Such short terms, in a trauma-laden and often publicly-unpopular job, that essentially serves at the

pleasure of the governor, sets the stage for turnover to be rather common, and depend on who is

in the governor’s office.

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Turnover and member selection, unaided by standards and training,

allow the Board to influenced by socio-political pressures (e.g., politics

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) due to the (1) selection

process for new members, and for seated members (2) concern over maintaining the position

among members, and (3) concern over the next job after the person’s term on the Board.

These influences are not lost on AICs and parolees who experience multiple iterations of

the Board. Navigating the Board every two years or more, which may be a new cohort, can then

be confusing as the expectations and interpretation of the criteria can change with the membership

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Christianson, S. (1998). With Liberty for Some: 500 Years of Imprisonment in America. Northeastern University

Press.

Johnson, R., Rocheleau, A. M., & Martin, A. B. (2016). Hard Time: A Fresh Look at Understanding and Reforming

the Prison (4th edition). Wiley-Blackwell.

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See Duara, 2013, https://katu.com/news/local/parole-board-reverses-cancels-cop-killers-release

158

In the process of searching for information related to the Oregon Board, one news article found (Zaitz, 2012)

discussing the Board’s recent turnover. At the end of the article, the author noted that the Board’s chairman had been

elected as district attorney the prior spring. This suggests that the person was able to run a political campaign to be a

county district attorney, emphasizing efforts to “aggressively, effectively, and efficiently prosecute criminal activity,

support crime victims, and enforce the laws of Oregon with consistency and integrity,” while also acting as a member

of a body who is expected to vote on whether or not to allow people convicted of murder to be released into the

community. Without viewing the voting record, it is not possible to say that this campaign was related to the approach

to each case, but it is highly unlikely the two are not correlated. This example is discussed here to show that when

members concerned over their next job, particularly those who are motivated to serve in an elected role, the Board

decision-making is susceptible to socio-political pressures.

cohorts. For instance, in spite of being released, one parolee explained that he did not know how

the Board makes the decisions except that they were likely based on the Board’s concern of

political and social pressures.

Liability, first and foremost. They are concerned about making a mistake, and what

it might mean. So, they are sensitive to media. They are sensitive to victims. The

more attention they have on them, the more sensitive they become. I think they have

certain prisms or lenses, or they have a particular mold they try to fit everyone in

regardless of culture, regardless of education level, regardless of numerous

factors. Even though they have those ten-point criteria, they’re not really judging

everybody by those criteria fairly. There seems to be a profile of the people who get

passed the Parole Board. (Black parolee, over 40 years old, experienced four

hearings before the Board, incarcerated over 25 years)

It is important to note that although turnover as a concept is problematic due to the lack of

regulation to ensure consistent decision-making, this is not to speak about the current make-up of

the Board. That is not the purpose of this study or report. In fact, recent changes in the Board have

also been highlighted by some interviewees as being improvements.

I think the Board has changed for the better to be kinder and looking at people as

who they are now. I think they’re a good judge of character this time but something

has been done to make it feel like they’re not judging people and it seems like

they’re more willing to give a chance than they have been. (White AIC, over 45

years old, experienced four hearings before the Board, incarcerated over 25 years)

Goal 1 Summary

As we interpret these findings, it is important to keep in mind what is being represented by

the quantitative data in these graphs and tables. For instance, these data points are capturing cases

released over decades, and that laws as well as many Board members have changed over that

timeframe. Both factors have an influence on the Board’s decisions that are not directly observable

in these analyses. This means that the findings here cannot, and ought not, be pinned on any one

cohort of Board members. That said, the majority of releases occurred relatively recently, between

2004 and 2016 (see Figure 2). Additionally, if we were to include the unobserved measures (e.g.,

the 10 factors used in murder review hearings) not accounted for in the multi-variate models

discussed (e.g., Figure 4), they could only account for around 20%, at most, of the remaining

predictive accuracy left by these latter models. This suggests that while time-served and

concurrent/consecutive violent convictions are the most important factors in predicting if parole-

eligible person will be released, race/ethnicity are an added factor that yields some distinct trends.

It is possible that some of the differences that arise between race/ethnic groups are products of the

case-specifics and hearing information, both of which still need to be analyzed. This does not mean

specific Board cohorts or members were expressing overt bias. Rather, the trends over time suggest

the processes and expectations which create the foundation of a Board’s decisions, appear to

truncate the release probability for certain racial/ethnic subgroups. More recent data that was

descriptively analyzed highlights the potential differences in the most recent Board cohort

hearings. Specifically, this analysis shows that recent efforts may have reduced racial/ethnic

differences in the probability of release, but also highlights how the Board’s process and decision-

making is susceptible to member turnover. In other words, without further codification, the

positive steps made by one Board cohort could be quickly undone by the next turnover.

Interviewees indicated that the manner in which the Board concludes release or flop/denial

for two or more years seems to highlight three themes: (1) Clarity in criteria, (2) fairness and

consistency, and (3) socio-political pressures. Greater clarity and transparency are needed for both

victims and AICs as it relates to the Board’s decision-making is not only critical for the purpose

of each party to understand a process of the justice system, but it is also essential to ensure that the

process is viewed as legitimate. Weaknesses in transparency can both lead to, and be exacerbated

by, weaknesses in fairness and consistency. Relaying the degree to which decisions are fair must

be accomplished through exemplifying consistency in the criteria that are made clear, especially

in a prison setting.

Issues in fairness and consistency (e.g., “demonstrating insight” disadvantages), could be

remedied via two efforts: Ensuring that AICs and the victims (apart from the district attorney) have

some form of representation, and requiring key trainings for the Board. Attorney representation,

and/or support partners, were highlighted as a critical factor to help people navigate the process

and communicate their thoughts and concerns. Trainings were discussed as a way to increase

fairness/interchangeability across cases, and to increase consistency. Trainings related to common

philosophies and approaches used by Boards across the nation, how more actuarial risk

assessments (e.g., LS/CMI) could be integrated into decision-making, and how rehabilitation

(specifically cognitive behavioral therapy) works to change human behavior. Such trainings are

readily available through organizations like the National Institute of Corrections, the Center for

Effective Public Policy, or the Academy of Criminal Justice Sciences could provide updated

information on the science behind rehabilitation and associated metrics.