What a Mess

Legislators face the consequences of letting prison inmates go free by mistake

By now, it’s a well-known comparison that making legislation looks a lot like making sausage. House Bill 4041 looks like a garbage disposal.

But Gov. Tina Kotek was quick to sign it on Thursday and for good reason.

She doesn’t need the kind of publicity that broke last summer, when it was discovered that the state Department of Corrections was slicing years off of prison sentences and releasing inmates who hadn’t completed their sentences — including those who had committed murder and rape. Many of them don’t want to go back, and others are now demanding early release.

HB 4041 was pitched as a “public safety omnibus bill” — meaning many separate issues gathered under one umbrella. It was filed by state Rep. Jason Kropf (D-Bend), chair of the House Judiciary Committee, at the request of the Oregon District Attorneys Association and Oregon Criminal Lawyers Association. Prosecutors and defense attorneys getting together on a legislative bill.

In order to try and get certain violent criminals back in prison and keep others in, the bill had to have something for everyone. Among the items:

• Inflation relief to property criminals by increasing the dollar amounts for what constitutes certain property crimes. Instead of less than $100, theft in third degree must now involve property less than $150; theft in the second degree has gone from more than $100 and less than $1,000 to at least $150 and less than $1,500; theft in the first degree has gone from $1,000 to $1,500 or more. Other adjustments were made for different degrees of criminal mischief.

• Increases punishment for eluding police. (This could be meaningless in Portland, where police are often urged not to give pursuit.)

• Decreases punishment for driving while suspended.

• Establishes a final time period for any felon to file a petition for “post-conviction relief” if they received a non-unanimous jury verdict.

• Requires the Department of Corrections to grant an additional 120 days of short-term transitional leave to certain persons released from custody due to a material error in sentence computation.

Sentence computation is the heart and soul of HB 4041, which was prompted by something called the “Torres-Lopez fix.”

“(It) is fraught with confusion, chaos and instability for everyone involved — crime victims, offenders, and every organization charged with maintaining our public safety system,” Larry Bennett, assistant director at the Department of Corrections, told legislators.

Last summer the Oregon Supreme Court ruled on a case involving a fellow named Abraham Torres-Lopez, an inmate with a long history of property and other crimes, who thought he had been cheated out of credit for time served.

Here he is:

Abraham Torres-Lopez/Courtesy Statesman Journal

Torres-Lopez was 19 when he was first placed on Salem Police Department’s Top 10 Most Wanted list. He was charged with nine felonies, including first-degree burglary and two counts of first-degree attempted burglary. Later, he racked up more charges for failure to appear and, in Clackamas County — DUI, giving false information to a peace officer, reckless driving and recklessly endangering another person.

Still later, there was another DUI, resisting arrest and two counts of harassment and eventually identity theft.

After years of committing crimes, Torres-Lopez finally earned a spot in prison. He was sentenced to five years, with credit for time served.

He had spent 125 days in Clackamas and Marion County jails before going to prison and believed he had not been given full credit for the two different stays in jail. The Department of Corrections gave him credit for 82 days.

Despite Oregon’s well-publicized “indigent defense crisis,” Torres-Lopez had no trouble finding a publicly-funded attorney to pursue his case.

A circuit court agreed with him, but the Court of Appeals reversed the lower court. Torres-Lopez’s attorney with Equal Justice Law in Portland appealed to the Oregon Supreme Court, which found in his favor.

The Oregon Supreme Court resolved two questions: Whether a trial court may grant pre-sentence incarceration credit for time served for unrelated conduct, even when the person has not yet been convicted or sentenced for that conduct. And, whether a person held in custody in a local jail awaiting resolution of a pending probation violation matter while serving an unrelated prison sentence is in “jail” for the purposes of pre-sentencing.

The Supreme Court held that a trial court may grant pre-sentence incarceration credit in both circumstances. In addition, the court found the legislature expressly authorized trial courts to order pre-sentence credit for time spent in jail awaiting resolution of a probation violation matter, even if the person was also serving a prison sentence for an unrelated crime.

The case was specific to Torres-Lopez, with its particular characteristics.

It was not announced as a precedent-setting case. But Matthew Lysne, a senior deputy attorney general in the Oregon Department of Justice made it one and ordered the Department of Corrections to go through and recalculate the sentences of most of Oregon’s 11,000 inmates.

Sentence calculations in Oregon are so complex that even attorneys and judges can find the subject confusing. Inmates, with a lot of time on their hands, can contemplate loopholes. Even though a judge can deliver what sounds like a straightforward sentence, it is later massaged with various guidelines, departures, categories and formulas by interested parties and attorneys.

Officials at the Department of Corrections did as they were told and recalculated the sentences of most Oregon inmates. They found errors in about 400 cases and started letting inmates out of prison — in some cases years before their sentences were completed. Nobody told the District Attorneys who prosecuted these inmates or the judges who sentenced them or the victims.

Karen Garrison of Jackson County, had been abducted, strangled and sexually abused as a teenager and had listened in court when Joaquin Cowart, 47, was sentenced in 2021 to 12 years for child sex abuse as part of a plea bargain he agreed to. His projected release date was in 2029.

This past summer she saw him “less than a mile from my house,” she told the Senate Judiciary Committee at a public hearing on HB 4041.

Cowart had been sentenced to four consecutive three-year sentences, or 12 years altogether. In the recalculation, the 3 and a half years he spent in jail before sentencing was applied to each count, instead of the overall total sentence, thus moving up his official release date. The difference between consecutive sentences and concurrent sentences can be significant.

Jackson County District Attorney Patrick Green successfully challenged that miscalculation, and Cowart is back in prison.

At the same legislative hearing was Natalia Hernandez, 25, who had been in prison for delivering meth and heroin, as well as unlawful use of a firearm. (She didn’t volunteer her crimes to legislators, and they didn’t ask.)

Her sentence was recalculated, and she was released on Aug. 12, 2025.

“I was so scared to be released without support that I actually begged to stay and complete AIP (Alternative Incarceration Program). I was told I had already served past my lawful time and that I had to leave,” Hernandez said.

She reunited with family, entered sober living in Milwaukie, got a full-time job manufacturing joint and bone replacements and attended NA and AA meetings every week.

Hernandez set about changing her life for good — marrying her boyfriend, getting pregnant and planning to move to Alabama.

In November, she received a call saying there was a warrant for her arrest. Unbeknownst to her, the DOC was now trying to correct some of the recalculations the Oregon DOJ had ordered them to make.

“I did not understand how this could be happening, but I knew I could not run. So, I turned myself in,” she said.

Hernandez filed an appeal and was released again by order of the Supreme Court. She is working and still in sober living but fears she will land back in prison so she asked Senate Judiciary Committee not to pass HB 4041.

Senate Judiciary did, in fact, pass it and recommended it to the full Senate. Because the short legislative session was winding down, and the committee had a long agenda, deliberation among committee members was not extensive.

The House Judiciary Committee heard similar testimony from the public two weeks earlier and had more time for discussion.

“How does it affect the victims of these crimes?” asked Rep. Thuy Tran (D-NE/SE Portland). Then, as if thinking out loud, she praised the changes addressing inflation theft.

“From that perspective … the bill overall will decrease suffering from folks who because of circumstances, lack of housing, lack of job … wealth disparity … go steal stuff vs. victim of heinous crime where people have to pay for these crimes in prison.”

Tran complained that the paperwork was arriving so close to the start of the meeting that there was inadequate time to study all the amendments (at least eight).

Rep. Kevin Mannix (R-North Salem/Keizer) explained: “We have a mess that was created years ago in terms of how to deal with earned time.”

HB 4041 was a fair way to deal with it today, he said.

Rep. Willy Chotzen, (D-SE Portland) works as a public defender and was opposed. The legislative branch and state should not have the power to put somebody back in prison after they have been released from custody, he said. It’s like imprisoning somebody for conduct in the past.

Mannix replied, “Someone has been sent to jail for a particular crime, but the jailer unlocks the jail and lets them out early by mistake … they have already been found guilty. … The sentence was already there.”

Under HB 4041, the cases involving inmates who were released without serving their full sentences would be returned to the sentencing court to determine whether the person is lawfully subjected to further incarceration. There are at least 20 or so freed felons that are considered serious safety risks.

Rep. Tom Andersen (D-South Salem) said there were “Good people on all sides,” but he agreed with Chotzen.

Tran noted that both sides — the guilty people released and their victims — can all seek legal recourse.

“I support my colleagues and will be a no also,” she said.

Committee Chair Kropf called for a quick recess.

Back in session, Tran said on reflection that while she agreed with her colleagues, “the state needs to own up to its mistake.”

She was also looking at other parts of HB 4041, particularly those that decrease penalties for certain property crimes. Why shouldn’t thieves have some relief from inflation? How much is $100 worth now?

“I put faith in judicial system to right the wrong that our state has done with regards to all these AICs (adults in custody) being released and captured … I think that is a requirement for us to proceed.”

Then Kropf weighed in.

“I can’t imagine what it is like to be brought back and forced into prison. I can’t imagine being a victim and testifying at their offender’s sentencing, hear the court impose a sentence … then hear that sentence significantly changed…,” he said.

“It’s the DOC’s responsibility to carry out that sentence — not modify it. … We are simply creating a process that needs to exist that does not exist.”

HB 4041 passed out of the House Judiciary Committee on a 5-3 vote. State Rep. Farrah Chaichi (D/Beaverton-Aloha) joined Chotzen and Andersen in opposition. Had Thuy not changed her mind, HB 4041 would have died on a tie vote.

The sentencing chaos — unleashed by an attorney in the Oregon Department of Justice — would have been allowed to continue.

So who runs the DOJ? Attorney General Dan Rayfield, whose office is supposed to defend criminal convictions.

Rayfield has been busy burnishing his national reputation suing President Trump.

Given the backdrop of this particular legislative session, HB 4041 disappeared in the stampede to pass several legislative bills protecting illegal immigrants and fighting perceived federal overreach. It didn’t even merit a press release.

In this legislative session, Democrats were more distraught about a 7-year-old girl and her immigrant parents being detained at Adventist Health Portland than violent felons being released by mistake from prison.

It’s been like this for more than two decades as Oregon’s increasingly progressive state legislature has tried to dismantle its own criminal justice system. And now politicians, social justice activists and media all collectively shrug and say “the system is broken,” as if it had a mind of its own.

Rep. Chotzen speaks for this tribe.

At the same Judiciary Committee meeting where he voted no on HB 4041, he also opposed House Bill 4096, which would have created the crime of aggravated felon in possession of a firearm when a person who has been convicted of a felony possesses three or more firearms or has certain prior convictions. The bill is intended to go after gun traffickers and was requested by Multnomah County District Attorney Nathan Vasquez.

Rep. Rick Lewis (R-Silverton) noted: “In the 10 years I’ve been in this building and the number of gun bills, this is the first one I can remember that actually went after criminals than law-abiding citizens.”

Chotzen wasn’t impressed.

“All this does is add more prison beds … longer prison sentences…,” he said. “Every dollar we spend on prison beds is not spent on education.” (Chotzen’s wife is a teacher.)

He even mentioned the public defense crisis.

The gun trafficking bill died on a 5-3 vote.

One legislator who has played a historic role in sentencing is Rep. Mannix. In his first legislative career, he authored Measure 11, passed overwhelmingly by voters in 1994. It established minimum mandatory sentences for certain violent crimes. The goal of Measure 11 was truth in sentencing and equal punishment of offenders.

While Measure 11 was popular with voters, legislators didn’t like being told what to do. They sought ways to tamper with it, even though they needed a two-thirds vote to make changes. In 2010, voters followed up by approving Measure 73 requiring minimum sentences for repeat sex offenders and drunk drivers.

In 2011, then-Gov. John Kitzhaber formed a special Commission on Public Safety tasked with finding ways to spend less money on corrections. The group initially didn’t even include a prosecutor. The chair was then-Oregon Supreme Court Chief Justice Paul DeMuniz.

The most revealing moment came in the first meeting when Craig Prins, then executive director of the Criminal Justice Commission, was reviewing data on the effects of Measure 11 and noted there had been a drop in crime after its passage. But he also commented that most crime victims are poor.

“The poor and destitute … have received the benefit of this drop in crime,” Prins said.

In other words, the legislative class didn’t benefit. Legislators lost revenue punishing offenders that they could have spent elsewhere.

Kitzhaber’s special commission eventually led to House Bill 3194 and something called the Oregon Public Safety Package. It overturned portions of Measure 11. See how the system works?

Could it be the DOJ and DOC weren’t initially that concerned over the sentence recalculations because it helped reduce the prison population?

It’s not as if legislators aren’t concerned about threatening behavior from criminals. One bill that passed the Senate, but didn’t make it to the House by the end of the session, was Senate Bill 1530. It would have expanded the crime of aggravated harassment to include threats against public officials in specified circumstances.

It passed the Senate 18-11, mostly along party lines with Democrats voting yes and Republicans, no.

Perhaps it will return next year in the longer session, if the Democrats are still feeling threatened.