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Rehabilitation Finding Eliminates 30-Year Minimum Sentence for Aggravated Murder, but Oregon Parole Board Balks

In Oregon, a rehabilitation finding under ORS 163.105(3) eliminates the 30-year mandatory minimum sentence for state prisoners convicted of aggravated murder and requires the Board of Parole (Board) to immediately set a parole release date, according to two unanimous en banc decisions by Oregon’s Supreme Court.

In 1977 the Oregon legislature created the crime of aggravated murder, the state’s most serious offense. Offenders convicted of aggravated murder may be sentenced to death, life without parole or life imprisonment with a 30-year mandatory minimum.

Prisoners sentenced to a 30-year minimum are not eligible for a release date under the Board’s parole matrix system. After serving 20 years, however, they are entitled to receive a “rehabilitation hearing” – referred to by the Board as a “Murder Review hearing” – to determine whether they are likely to be rehabilitated within a reasonable period of time.
The timing of that hearing was increased to 25 years in 1995, then 30 years in 1999. The law in effect at the time of the prisoner’s commitment offense determines when the hearing is held.

“The sole issue” at the hearing “shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time.” ORS 163.105(2). “That determination pertains only to personal characteristics of the prisoner,” the Oregon Supreme Court explained. “It does not focus ... on the offenses that the prisoner committed.” Prisoners bear the burden of proving the likelihood of rehabilitation by a preponderance of the evidence. ORS 163.105(2)(a).

If the Board finds that a prisoner has failed to satisfy this burden, the prisoner may petition for another hearing at two-year intervals. In 2009, however, the Board was granted the authority to make a prisoner wait up to 10 years for sub-sequent hearings.

Should the Board find that a prisoner has satisfied the burden of proving a likelihood of rehabilitation, “it shall enter an order to that effect and the order shall convert the terms of the prisoner’s confinement to life imprisonment with the possibility of parole or work release.” ORS 163.105(3).

The Board first argued in the 1990s that a rehabilitation finding authorized, but did not require, the Board to override the 30-year minimum and set a parole release date for prisoners convicted of aggravated murder. The Oregon Supreme Court rejected that argument. See: Norris v. Board of Parole, 152 Or.App 57, 952 P.2d 1037 (1998), affirmed, 331 Or. 194, 13 P.3d 104 (2000), cert. denied.

The Board then took the position that it did not have the authority to override the 30-year judicially-imposed minimum sentence irrespective of a rehabilitation finding.

After dodging the issue for 12 years, the Oregon Supreme Court finally explained the effect of a rehabilitation finding under ORS 163.105. Applying a statutory construction analysis, the Court made several important conclusions.

First, ORS 163.105(2) “gives prisoners a right to a hearing after 20 years,” the state Supreme Court observed. “The timing of that hearing – the fact that such a hearing is to occur 10 years before the expiration of the 30-year minimum term – indicates that the legislature thought that some legal consequence would flow from a ‘likely to be rehabilitated’ determination.” Therefore, “the legislature intended a likely-to-be rehabilitated finding to have a substantive and practical legal effect at the time it was made.”

“If doubt remains, subsection (3) settles it,” the Court continued. In requiring conversion from a prohibition on parole to the possibility of parole, ORS 163.105(3)(1985) necessarily eliminates the 30-year minimum sentence. The “mandatory directive to the [B]oard implies that the conversion is to take place immediately, rather than 10 years in the future,” the Supreme Court found. “Once the conversion ... occurs, the prisoner ... is eligible for parole at that point.” A parole release date is then required to be set “in accordance with the parole matrix in place when the prisoner committed his offense,” the Court concluded.

Given that the petitioners’ applicable parole matrix range had expired several years earlier in the cases under consideration by the Supreme Court, the Court ordered the Board to “conduct a hearing in the immediate future” to set the peti-tioners’ parole release dates. See: Janowski/Fleming v. Board of Parole, 349 Or. 432, 245 P.3d 1270 (Or. 2010) (en banc).

For prisoners with multiple aggravated murder convictions, the Board’s longstanding position was that only the first conviction was considered at the rehabilitation hearing. If the Board found the prisoner capable of rehabilitation, he or she was then required to serve another 20 years before petitioning for a second rehabilitation hearing, and so on, depending on the number of convictions.

This ridiculous process was finally put to rest in a ruling in a companion case issued jointly with Janowski/Fleming. In “cases in which the prisoner simultaneously was ordered to serve more than one consecutive 30-year mandatory minimum sentence ... the prisoner is entitled to a rehabilitation hearing on the combined sentences – his entire ‘minimum period of confinement’ – after he has served 20 years in prison,” the Supreme Court stated. “It defies logic to conclude that the legislature intended the [B]oard to require the offender to make that precise showing again 20 years later.” See: Severy/Wilson v. Board of Parole, 349 Or. 461, 245 P.3d 119 (Or. 2010) (en banc).

In an unrelated case, the Ninth Circuit Court of Appeals found that Oregon’s aggravated murder statute creates a protected liberty interest in parole eligibility. That January 2011 ruling came less than a month after the Oregon Supreme Court’s decisions in Janowski/Fleming and Severy/Wilson. [See: PLN, Oct. 2011, p.26].

Three months following the Supreme Court’s unanimous en banc decisions, however, the Board continued to drag its feet, telling prisoners and their families that it was discussing its options with legal counsel.

On March 25, 2011 the Board held a public meeting to discuss the Supreme Court’s decisions related to parole eligibility for prisoners convicted of aggravated murder. The Board members candidly admitted that they “disagree[d] with the ruling,” and noted the Board had always intended that aggravated murderers serve their entire 30-year minimum sentence before becoming eligible for a rehabilitation hearing.

The Board members informed prisoners and their families that paroling aggravated murderers was not imminent. The Board noted that it had the authority to defer parole release on the basis of a finding that the prisoner suffers from a severe emotional disturbance – a finding that runs counter to the rehabilitation finding. Board members also observed that a 2009 law allows them to defer release on parole for up to ten years at a time.

Despite being told by the Oregon Supreme Court to establish prisoner release dates pursuant to Board rules and statutes that were in effect at the time of the prisoners’ offenses, the Board members declared they would not see any of the prisoners affected by the December 2010 state Supreme Court rulings until the Board adopted new rules.

Salem attorney Andy Simrin attended the March 25, 2011 hearing, and offered to write the new rules for the Board. Of course they declined.

The Supreme Court had suggested that its decisions may affect around 75 offenders. During the March 25, 2011 hearing, however, the Board claimed that only 31 prisoners had received the requisite rehabilitation finding and would be affected by the ruling. On April 25, 2011, the Board reported that two of those 31 prisoners had since died.

As the Board expresses its disagreement with the state Supreme Court and ignores its own statutory mandate, prisoners convicted of aggravated murder continue to sit in prison. On April 12, 2011 the Board posted a notice about the Supreme Court’s decisions on its website, which made its feelings and intentions abundantly clear.

“It has been the Board’s position, historically, that it does not have the authority to override the minimum sentence and that the intent of the trial courts as well as the legislature was that the prisoner should serve the minimum 30 year term before being considered for a parole even if they have been found capable of rehabilitation after 20 years,” the Board stated.

“The court concluded that upon finding a prisoner capable of rehabilitation, the Board was simultaneously overriding the minimum sentence and declaring him a candidate for release prior to the expiration of his minimum sentence,” wrote the Board. “It cannot be emphasized strongly enough that such a result has never been the intent or the practice of the Board.”

The Board acknowledged that it was required to hold a rehabilitation hearing for each of the affected prisoners convicted of aggravated murder, but defiantly said it may choose to deny parole to those prisoners rather than set a parole release date.

“In sum, the Supreme Court did not order any prisoner to be released,” the Board noted, accurately. “However, the court has allowed certain prisoners, convicted of aggravated murder, to be considered for release into the community sooner than many – including the Board – anticipated.”

The Board members further stated that they had “never delayed anything purposefully and wanted to ensure the public and the inmates that they are moving forward as fast as they can while being consistent with public safety and their responsibility to the public and the inmates.”

While it may be true that the Board is “moving forward” to comply with the mandate of the Oregon Supreme Court, it is doing so only with great reluctance.

Additional sources:; Oregon Board of Parole, Board Business Meeting Minutes (March 25, 2011)

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Related legal cases

Janowski/Fleming v. Board of Parole

Severy/Wilson v. Board of Parole

Norris v. Board of Parole

Norris v. Board of Parole