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Prosecutors challenge early release from probation

Next month, the District Attorney’s Office will be the first in the state to bring the issue before a court.
By Kyle Spurr

The Daily Astorian

Published on October 29, 2015 9:00AM

District Attorney Josh Marquis listens during a status hearing in August.

The Daily Astorian/File Photo

District Attorney Josh Marquis listens during a status hearing in August.

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The Clatsop County District Attorney’s Office is challenging a state law that allows those on felony probation to be released early for complying with terms of their supervision.

The earned discharge process, created by the state Legislature in 2013, is meant to reward people, often drug court graduates, who have paid their restitution and completed treatment programs. People have to serve at least half of their sentence before becoming eligible.

However, Clatsop County District Attorney Josh Marquis said the law actually gives probation officers more authority over sentences than judges or prosecutors.

Besides the question of authority, Marquis said, there is an issue of victims’ rights. A victim is not informed about the consideration of earned discharge, cannot give input into the process and only finds out from the district attorney.

“The real question is what is the effect on the actual sentence orders and on the actual victims,” Marquis said.

Next month, the District Attorney’s Office will be the first in the state to bring the issue before a court.

Chief Deputy District Attorney Ron Brown recently filed motions challenging earned discharge in three local cases. The cases involved people on probation for driving under the influence of intoxicants and first and second-degree attempted assault convictions.

Each case will be brought before Clatsop County Circuit Court Judge Philip Nelson.

In the motions, Brown argues, earned discharge is unconstitutional because it negates the court’s “inherent discretion” over probation sentences.

“It does not allow for input either from the district attorney or the court and the ultimate decision-maker is the supervisory authority,” Brown wrote. “It is our position that such a mechanism and ultimate decision is unconstitutional since it abrogates the court’s role in making the ultimate decision about length of probation, purpose of probation and whether to continue probation.”

Carrying out the law

Lt. Kristen Hanthorn, who oversees the Clatsop County Parole and Probation Division, said earned discharged was a decision made by the Legislature and is enforced by the state Department of Corrections. The state sends reports with every offender who may be eligible for earned discharge. The parole and probation office reviews the reports and makes a decision.

Only a small percentage of the probation population are eligible for earned discharge, Hanthorn said, out of the approximate 380 felony offenders in the county.

“We are just carrying out the law,” she said. “Any changes to the law would have to go through the Legislature again.”

Marquis claims parole and probation offices have an incentive to reduce sentences since funding is provided by the state even if a sentence is shortened.

In response, Hanthorn explained that her office’s budget is based on the number of felony offenders and it does receive funding for a whole sentence, even if shortened.

The consistent funding was meant to not penalize the probation office for effectively serving people, she said.

In addition, Hanthorn said, her office is actually paid much less for the remainder of a sentence if it is shortened. She insists the motivation is not monetary.

“Everybody has their role to play in the justice system,” she said. “We are just playing our role in the whole system.”

Problem in the process

The earned discharge process started a few months ago as part of the state law.

Although he opposed it from the beginning, Marquis said, the law started out reasonably by supporting people for good behavior. The problem is in the details of the administrative rules developed since the law was enacted, he said. The rules are what give authority to the probation officers and keep victims in the dark, he said.

“The process is the problem,” he said.

Generally, the District Attorney’s Office supports people being rewarded for successfully completing probation. A main concern is with violent offenders and the fact that a person’s criminal history is not considered for earned discharge.

“It’s doesn’t seem to matter how bad the crime is or the person’s criminal history,” Marquis said.


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