Or. Admin. Code § 291-105-0072 - Deviation Sanctions for Major Violations

(1) Once the level of discipline has been determined according to the disciplinary grid, the Hearings Officer or functional unit manager or designee may deviate, either upward or downward, on major violations in formal hearings. This deviation of disciplinary segregation sanction, under no circumstances, may exceed 50 percent of the segregation sanction in the appropriate box on the grid. All deviated sanctions shall be supported by written substantial reasons outlining the mitigating or aggravating factors which support the deviation of disciplinary segregation sanction. All deviations of disciplinary segregation sanction shall be subject to review by the functional unit manager or designee.

(2) There may be only one deviation of disciplinary segregation sanction ordered for each sanction imposed. The Hearings Officer and functional unit manager or designee may not both order a separate deviation of disciplinary segregation sanction for one violation.

(3) Deviations of disciplinary segregation sanction may only be ordered for major violations.

(4) Substantial reasons will be separated into mitigating and aggravating factors.

(5) The following list of mitigating and aggravating factors may be considered when determining substantial reasons for a deviation of disciplinary segregation sanction. Other factors not listed may also constitute substantial reasons for mitigation or aggravation.

(a) Mitigating factors:

(A) The AIC acted under duress or compulsion (not sufficient as a complete defense).

(B) The AIC's mental capacity was diminished (excluding diminished capacity due to voluntary drug or alcohol abuse).

(C) The misconduct was principally accomplished by another, and the AIC exhibited extreme caution or concern for the victim.

(D) The victim (if any) was an aggressor or participant in the behavior associated with the misconduct.

(E) The AIC played a minor or passive role in the misconduct.

(F) The AIC cooperated with the department with respect to the current misconduct or any other misconduct by the AIC or other AICs.

(G) The degree of harm or loss attributed to the current misconduct was significantly less than typical for such misconduct.

(b) Aggravating factors:

(A) Threat of or actual violence toward a witness or victim.

(B) Persistent involvement in similar misconduct or repetitive assaults.

(C) Use of a weapon in the commission of the misconduct.

(D) Deliberate cruelty to victim.

(E) The AIC knew, or had reason to know, of the victim's particular vulnerability, such as, the age, disability, or ill health of victim, which increased the harm or threat of harm caused by the misconduct.

(F) The misconduct involved multiple victims or incidents.

(G) The misconduct was part of an organized operation.

(H) The misconduct resulted in a permanent injury to the victim.

(I) The degree of harm or loss attributed to the current violation was significantly greater than typical for such misconduct.

(J) The misconduct was motivated entirely, or in part, by the race, sex, color, religion, ethnicity, or national origin of the victim.

(K) The timing and location of the misconduct directly threatened the safety, security, or orderly operation of the facility significantly more than typical for such misconduct.

(c) No aspect of the misconduct that serves as a necessary element of misconduct may be used as an aggravating factor if that aspect is also used to impose discipline.

Notes

Or. Admin. Code § 291-105-0072

CD 8-1992, f. 3-27-92, cert. ef. 4-15-92; CD 9-1995, f. 5-23-95, cert. ef. 6-1-95; CD 16-1996, f. 11-13-96, cert. ef. 11-15-96; DOC 6-2002, f. 4-30-02, cert. ef. 5-1-02; DOC 9-2005, f. 7-22-05, cert. ef. 7-24-05; DOC 25-2020, amend filed 12/14/2020, effective 12/15/2020; DOC 10-2023, amend filed 05/23/2023, effective 5/23/2023

Statutory/Other Authority: ORS 179.040, 421.180, 423.020, 423.030 & 423.075

Statutes/Other Implemented: ORS 179.040, 421.180, 423.020, 423.030 & 423.075