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Oregon Aggravated Murder Statute Creates Liberty Interest

The Ninth Circuit Court of Appeals has held that Oregon’s aggravated murder statute creates a protected liberty interest in parole eligibility.

In 1982, Oregon state prisoner Douglas Miller was convicted of aggravated murder and sentenced to life imprisonment with a 30-year minimum under ORS 163.105(1).

Prisoners convicted of aggravated murder are not eligible for parole while serving the judicially-imposed mandatory minimum sentence. After 20 years, however, such prisoners are entitled to a “rehabilitation hearing” – referred to by the Oregon Board of Parole and Post-Prison Supervision (Board) as a “Murder Review Hearing” – to determine whether they are likely to be rehabilitated within a reasonable period of time.
“If the individual can make that showing, his sentence is converted to life imprisonment with the possibility of parole and he immediately becomes parole-eligible,” the Ninth Circuit noted.

“To be clear,” the provisions of ORS 163.105(3)-(4)(1981) “speak only to early eligibility for a parole hearing for persons convicted of aggravated murder; they promise nothing as far as being paroled after the hearing,” the Court of Appeals wrote.

In 2004, the Board held a rehabilitation hearing for Miller. “At the hearing, the Board engaged Miller in an extended discussion of the circumstances of his crime,” then “without elaboration” denied relief under ORS 163.105(4)(1981).

Miller’s state court appeals of the Board’s decision were rejected without comment. He then filed a federal habeas corpus petition under 28 U.S.C. § 2254. The district court rejected his claim that the Board’s decision deprived him of due process of law because it was not supported by “some evidence” in the record.

On appeal, the Ninth Circuit first addressed “whether Miller has a liberty interest in becoming parole-eligible early, that is, before the expiration of the minimum term of his sentence.” That issue turned upon the mandatory language of ORS 163.105.

The appellate court rejected the Board’s argument that ORS 163.105 does not create a protected liberty interest because Oregon prisoners bear the burden of proving the likelihood of rehabilitation. The Court of Appeals found nothing in Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1 (1979), Board of Pardons v. Allen, 482 U.S. 369 (1987) or McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002) which requires “that the evidentiary burden must be on the state to show that a prisoner is not entitled to parole – rather than on the prisoner to show that he or she is – in order for a liberty interest in parole to arise.”

Rather, the Court concluded, “the language of Oregon’s murder review statute ‘creates a presumption’ in favor of early eligibility for a parole hearing ‘when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest,’” citing McQuillion, 306 F.3d at 901.

The Ninth Circuit’s January 18, 2011 decision was issued just 26 days after unanimous en banc Oregon Supreme Court rulings in Janowski/Fleming v. Board of Parole, 349 Or. 432,245 P.3d 1270 (Or. 2010) and Severy/Wilson v. Board of Parole, 349 Or. 461, 245 P.3d 119 (Or. 2010). Although the ruling in Miller’s appeal does not make any reference to those state Supreme Court opinions, they clearly establish that the Ninth Circuit’s liberty interest holding was correct.

The appellate court then turned to the merits of Miller’s due process argument. Applying its recent rulings in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) and Pearson v. Muntz, 625 F.3d 539 (9th Cir. 2010), the Ninth Circuit found that under Oregon law, due process requires that “substantial evidence” – rather than “some evidence” – must support the Board’s orders. However, that aspect of the appellate ruling was reconsidered following the U.S. Supreme Court’s decision in Swarthout v. Cooke, 131 S.Ct. 1845 (2011) [PLN, March 2011, p.40].

Conducting a “substantial evidence” review of the Board’s order, the Court of Appeals affirmed the adverse Board decision. “The record demonstrates that the Board was swayed by two factors,” the Ninth Circuit stated. One of those factors was that “Miller’s offense was particularly callous and depraved.” Given “the callous nature of Miller’s crime,” the appellate court ultimately held that “a reasonable parole board could have concluded that he failed to demonstrate – by a preponderance of the evidence – that he was a suitable candidate for an early parole hearing.”

The overlooked recent Oregon Supreme Court ruling in Severy/Wilson, however, reveals a critical flaw in the Ninth Circuit’s reasoning. “The sole issue” at the hearing “shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time,” the state Supreme Court wrote in Severy/Wilson, citing ORS 163.105(2). “That determination pertains only to personal characteristics of the prisoner.... It does not focus ... on the offenses that the prisoner committed.” As such, both the Board and the Ninth Circuit erroneously based their decisions on the “callous and depraved” nature of the offense Miller committed 22 years earlier. The appellate court’s ruling was further undermined by its previous holdings in Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003) [PLN, June 2004, p.32] and its progeny, which held that reliance upon the immutable factor of the commitment offense may violate due process.

Following Swarthout v. Cooke, the Ninth Circuit issued a superseding opinion on April 25, 2011 that eliminated its “substantial evidence” analysis. The appellate court found, instead, that Miller had received all of the due process protections he was entitled to under Greenholtz. Once again, the Ninth Circuit ignored state court decisions that provided for greater protections than Greenholtz in the Oregon parole context, including Stogsdill v. Board of Parole, 342 Or. 332, 154 P.3d 91 (Or. 2007). See: Miller v. Board of Parole, 642 F.3d 711 (9th Cir. 2011).

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Related legal case

Miller v. Board of Parole