Expanding Judicial Discretion in Presentence Incarceration Credits:
State ex rel Torres-Lopez v. Fahrion (373 Or 816)

Introduction

On 10 July 2025 the Oregon Supreme Court, sitting en banc, delivered a landmark decision in State ex rel Torres-Lopez v. Fahrion. The case centres on ORS 137.370(4), the statutory provision that governs whether and when presentence incarceration credit (“PSC”) may be applied to a later prison sentence. Abraham Torres-Lopez, already serving a prison term arising out of a Clackamas County conviction, sought credit toward newly-imposed Marion County sentences for 125 days spent in two county jails. The Department of Corrections (DOC) refused, relying on its administrative rules and an astringent reading of the statute. The Marion County Circuit Court issued a writ of mandamus compelling DOC to apply the credit, but the Court of Appeals reversed. The Supreme Court has now reinstated the circuit court’s judgment, clarifying two critical questions:

• May a trial court award PSC for jail time attributable to unrelated conduct for which no conviction or sentence yet exists?
• May a court award PSC for time a defendant spends in a county jail on a pending matter while simultaneously serving a separate prison sentence in DOC’s legal custody?

The Court answered both questions “Yes,” fundamentally enlarging judicial discretion and curtailing DOC’s unilateral control over sentence computations.

Summary of the Judgment

Writing for a unanimous court, Justice Bushong reversed the Court of Appeals and held:

1. “Confinement for conduct” in ORS 137.370(4) includes periods of pre-trial or pre-revocation detention even when no sentence has yet been imposed for that conduct. The statute therefore reaches beyond classic “sentences for crimes.”
2. The statutory phrase “time served in jail” encompasses situations in which an offender, though technically in DOC’s legal custody on a prior sentence, is physically housed in a county jail awaiting resolution of a different matter.
3. The 2015 amendment giving courts authority to “expressly order otherwise” was intended to allow trial judges to override the default “no double credit” rule and grant PSC where justice and efficient sentencing require it.

Consequently, the 125 days in question—82 days preceding the Clackamas County sentencing and 43 days spent in Marion County jail after that sentencing but before probation revocation—must be credited against Torres-Lopez’s 60-month Marion County sentences, as the sentencing judge directed.

Analysis

A. Precedents Cited

• Nissel v. Pearce, 307 Or 102 (1988) – Previously interpreted ORS 137.320 and emphasised DOC’s primary role in sentence computation and the statutory prohibition on “double credit.” The Court distinguished Nissel, noting that ORS 137.370(4) was enacted after that decision and now explicitly authorises courts to “order otherwise.”
• State v. Wallace, 373 Or 122 (2024) – Cited for the modern text-context-history interpretive methodology.
• State v. Clemente-Perez, 357 Or 745 (2015) – Used to illustrate the surplusage canon; the Court rejected a reading that would render “conduct” superfluous.
• State v. Lane, 357 Or 619 (2015) – Confirmed that incarceration imposed on revocation of probation is a “sentence,” supporting the Court’s distinction between “crime” and “conduct.”
• Several statutory-construction decisions (PGE, Gaines, Turnidge, etc.) informed the textual and historical analysis.

B. Legal Reasoning

1. Textual parsing of ORS 137.370(4)
   The Court divided the operative language into two clauses: (i) “a sentence for a crime” and (ii) “conduct that is not directly related to the crime for which the sentence is imposed.” Because “conduct” appears unmodified by “sentence,” the legislature must have intended to reach pre-sentencing detentions arising from conduct yet to be adjudicated.
2. Surplusage avoidance
   Reading “sentence” into both “crime” and “conduct” would make “conduct” redundant, since probation-revocation and parole-violation detentions are separately enumerated. The Court therefore construed “conduct” to stand on its own.
3. Legislative history (1995 & 2015)
   • 1995: HB 2492 added the original subsection (4). Testimony from ODAA and OCDLA shows the drafters’ intent to prevent DOC staff from mechanically granting credit on unrelated matters and to treat pre-trial detention on separate charges differently from “same episode” crimes.
   • 2015: HB 2310 inserted the prefatory phrase, “Unless the court expressly orders otherwise.” Legislative counsel and prosecutors testified that the change was to permit judges to allocate credit flexibly when defendants are in dual custody or when probation-violation holds overlap with new charges.
4. Physical vs. legal custody distinction
   ORS 137.320 recognises that a sentenced inmate may physically reside in a jail while legally belonging to DOC. The Court held that “in jail” in subsection (4) refers to physical location, not the formal custodian.
5. Policy coherence
   The judgment harmonises sentencing policy by ensuring that time actually spent behind bars counts somewhere, preventing inequitable “dead time” and supporting plea negotiations grounded in accurate custodial exposure.

C. Potential Impact

The decision re-balances the allocation of power between sentencing courts and the executive branch (DOC) in several ways:

• Sentencing Practice – Trial judges now have firm authority to grant PSC in multi-county or multi-case scenarios, including those involving overlapping probation violations, without fear that DOC will disregard their orders.
• Plea Bargaining Leverage – Defence counsel can negotiate with greater certainty that pre-trial or inter-county jail time can be credited, affecting risk-benefit calculations for early pleas.
• Administrative Revisions – DOC must update OAR 291-100-0080 and related policies to conform. Sentence-computation software will need logic changes to apply judicially-ordered credits even when “double credit” results.
• Broader Judicial Discretion – The ruling may influence courts in other jurisdictions grappling with similar “dual-custody” credit issues, even though statutory language differs.
• Litigation Pipeline – Expect increased mandamus or habeas filings where DOC refuses to honour PSC orders predating this decision.

Complex Concepts Simplified

• Presentence Incarceration Credit (PSC) – Days spent in custody before the sentence in question is imposed. Applied as a credit, those days are subtracted from the prison term, accelerating the release date.
• Concurrent vs. Consecutive Sentences – Concurrent sentences run at the same time; consecutive sentences run back-to-back. “Double credit” is relevant only when sentences are concurrent.
• Legal vs. Physical Custody – A defendant may legally belong to DOC, yet physically sit in a county jail to face other charges. Credit rules turn on physical location for subsection (4) purposes.
• Mandamus – A special writ forcing a public officer to perform a duty imposed by law. Used here to compel DOC to recalculate credits.
• “Conduct” vs. “Crime” – “Conduct” captures detention arising from an act that has not (or not yet) produced a conviction; “crime” presupposes an adjudicated offense.

Conclusion

State ex rel Torres-Lopez v. Fahrion reshapes Oregon’s sentencing landscape by affirming that:

1. Trial courts possess statutory authority to award PSC for holdings based on unrelated, unsentenced conduct.
2. PSC may also cover periods when the defendant is physically in a jail on one matter while legally serving a prison sentence on another.
3. Legislative amendments in 2015 intentionally empowered judges to override DOC’s default computations in the interest of fairness and clarity.

The ruling thus eliminates a major source of “lost” custody credit, promotes transparency in sentencing, and confirms the judiciary’s role as final arbiter in credit disputes. Going forward, defence counsel, prosecutors, and DOC alike must account for this expanded judicial discretion whenever overlapping sentences and dual custodial holds arise.