Family Sentencing Alternatives: Oregon's New Pilot Program
Oregon is the latest state to consider the possibility of diverting parents of minor children away from prison to enable them to serve their sentence in the community under supervision. On August 12, 2015, the Oregon Governor signed into law Chapter 830 of the Oregon Revised Statutes, which gave life to the Family Sentencing Alternative Pilot Program (FSAPP). The FSAPP has particular eligibility criteria, including that
- The person is likely to be sentenced to a prison term in the legal and physical custody of the Department of Corrections for at least one year;
- The person “has not previously been convicted of and is not currently being sentenced for:”
- A sex crime;
- Certain felony offenses (i.e. violent offenses) requiring a determinate sentence or a mandatory sentence; offences involving unlawful delivery of controlled substances, including specifically to minors; or offenses involving driving while under the influence of intoxicants; and
- The person before the court is “… the parent or legal guardian of a minor child and had physical custody of the child at the time of the offense.”
While the Oregon law is very similar to the Washington State law and is a good start, it is disappointing to see that Oregon legislators failed to recognize and avoid at least one glaring shortcoming of the Washington law. The emphasis on having “physical custody of the child at the time of the offense” is an outdated way of determining whether the individual before the court is critical to ensuring the well-being of the child. It is a round about way of asking whether the person before the court is a “primary caregiver”, which is also a misleading way of determining the significance of the parent’s role in the child’s life. The phasing of the Oregon, as well as the Washington, law fails to recognize the realities of modern day family structures.
In North American modern day families, it is now commonplace for one parent to not live with his child, and yet, the parent contributes essential elements (i.e. financial, emotional, and cultural) to the child’s well-being. Under the current Oregon law, such a parent would not be eligible for FSAPP. However, the removal of this parent would have a devastatingly damaging impact on the child's well-being. It is time for policymakers to catch up with the realities under which their constituents live. A more comprehensive definition of who is a parent must be developed from the eyes and hearts of children rather than from the outdated notions of the 1950s.