Senate Bill 819, Enacted in 2023, May Provide an Opportunity to Clear a Criminal Record for Clients Who Do Not Qualify for Expungement

Senate Bill 819 is an Oregon law that permits the resentencing of individuals convicted of any felony, except aggravated murder, if the district attorney from the sentencing county agrees and the court determines that the original sentence no longer serves the interests of justice.

SB 819 provides a broad range of options for relief from convictions or sentences. A court may:

• Completely dismiss the charges, which would nullify your conviction and free you from prison, supervision, reporting obligations, and any other consequences of the conviction.
• Dismiss the charges and file new ones for an alternative offense, followed by resentencing based on a plea to the new offense. This could lead to a reduced sentence or your release if you’ve already served the full sentence for the new charge.
• Overturn prior convictions that may have influenced your sentencing and resentence you without considering those convictions. This could also result in a reduced sentence or your release if the new sentence has already been fully served.
• Uphold your current conviction but issue a reduced sentence permitted by law, which could either shorten your sentence or lead to your release if you’ve already served the new term in full.

First, you must seek the support of the district attorney in the county where you were sentenced. The process for doing this will vary depending on the county. You must show the district attorney why your sentence no longer serves the interests of justice. This may be because:

• The time you have already served is sufficient to deter future crimes by you or others;
• You have been rehabilitated during your incarceration;
• You are unlikely or unable to commit future crimes;
• Continued incarceration would cause harm to others or the community;
• In retrospect, your original sentence was disproportionate to the crime or was otherwise unfair;
• The sentence would not, or could not, be imposed under current legal standards.

Key Factors for Seeking Relief

SB 819 highlights several key factors to consider when seeking relief, which should be addressed in your request to the district attorney. These include:

1. Disciplinary and rehabilitation record: Evidence of your rehabilitation can include your work record, participation in educational or therapeutic programs, involvement in religious or community programs, and any service to others.
2. Likelihood of future offenses: You must demonstrate that you are unlikely to commit future crimes or engage in violence, based on factors such as your age, time served, physical or mental condition, or rehabilitation. You may also need to show that the circumstances that led to your crime no longer exist, such as recovery from addiction or treatment for mental health issues.
3. Impact on the victim’s safety: Consider how your release might affect the victim (if any) in your case. If there has been reconciliation or if the victim is no longer in the picture (due to relocation or death), this may be relevant. However, do not contact the victim without legal guidance.
4. Time served: How much of your original sentence you have completed will also be considered.
5. Changed circumstances: You should present evidence that you are not the same person who committed the crime, or that the factors that contributed to it are no longer relevant. This might include recovery from addiction, treatment for mental illness, or stable housing or employment plans upon release.

Additional Factors That May Warrant Relief Under SB 819

SB 819 also clarifies that these are not the only factors that may warrant relief. Additional factors could include:

• Harm to others from your continued incarceration: If your imprisonment negatively affects family members, such as elderly or sick relatives or minor children, you should highlight this.
• Changes in sentencing laws: If laws have changed since your sentencing, and you can show that you would receive a lesser sentence today, this could be grounds for relief. Examples of cases that may entitle you to relief include:
  • Boyd narcotics delivery cases (State v. Hubbell, 314 Or. App. 844 (2021));
  • Arreola-Botello traffic stops (State v. Arreola-Botello, 365 Or. 695 (2019));
  • Merger issues (State v. Paye, 310 Or App 408 (2021)).
• Shifts in social norms: Social attitudes toward certain crimes or factors that contribute to criminal behavior may have evolved since your sentencing. For example, recent Supreme Court rulings have clarified how juvenile offenders differ from adults due to the continuing development of the brain until the mid-20s. If you were under 25 at the time of your offense, this evolving understanding may support your case for leniency, particularly if you were sentenced in adult court. Similarly, there is now greater recognition that drug addiction is a disease rather than a crime, which could make certain drug-related offenses eligible for leniency, especially given the decriminalization of some substances in Oregon.
• Unfair or excessive sentence: You may also seek relief if your original sentence was excessive or unfair compared to others convicted of similar offenses. This might involve demonstrating that you received a harsher sentence due to bias related to race, gender, or sexuality, or that your sentence did not accurately reflect your role in the crime, particularly in cases involving accomplice liability or felony murder.

Some counties may have additional requirements or request more information.

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