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Oregon: Life Sentence for Murder Unconstitutional During Eight-Month Period in 1999

The Oregon Court of Appeals has held that for crimes committed between February 17, 1999 and October 23, 1999 (aka “the McLain window”), the only permissible sentence for a murder conviction was 300 months in prison followed by lifetime post-release supervision.

From 1995 until February 17, 1999, the statutory punishment for murder in Oregon was life imprisonment with a 300-month minimum under ORS 163.115(5). However, the Oregon Board of Parole and Post-Prison Supervision (Board) had no authority to release an offender who had served the minimum sentence, resulting in a “true life” sentence because there was no possibility of parole.

On February 17, 1999, the Oregon Court of Appeals issued an en banc decision in State v. McLain, 158 Or.App 419, 974 P.2d 727 (Or. Ct. App. 1999), finding that the life imprisonment portion of the sentence for murder was unconstitutionally disproportionate because it resulted in greater punishment than the more serious offense of aggravated murder, which allowed for parole eligibility. As a result, McLain held that “the proper sentence for the defendant’s crime of murder was a mandatory determinate sentence of 300 months’ imprisonment (25 years) followed by a lifetime of post-prison supervision.”

On October 23, 1999, the Oregon legislature corrected the proportionality problem by amending the murder sentencing statute to provide for a 300-month minimum followed by parole eligibility. The legislature intended that the amendment would apply to any person convicted of murder regardless of when the crime occurred.

Thearone Giles committed a murder on August 26, 1999, during the McLain window, but was convicted on September 20, 2001 – after the 1999 amendment was enacted to resolve the proportionality issue addressed in McLain.

At Giles’ April 2010 resentencing hearing, the trial court imposed a sentence of life imprisonment with the possibility of parole following a 300-month minimum, based on the 1999 amendment. Giles appealed, asserting that the “life imprisonment” portion of his sentence violated state and federal ex post facto prohibitions.

The Oregon Court of Appeals agreed, holding that “when defendant committed his offense, ORS 163.115(5) had not yet been amended to correct its disproportionality; thus, ORS 163.115(5) was inapplicable.” As such, a 300-month sentence followed by a term of lifetime post-release supervision was the only applicable sentence that Giles could receive.

“Under the amended version of ORS 163.115(5)(a), defendant would be entitled to only the possibility of parole after serving a 300-month minimum. Accordingly, as applied to defendant, the amended version of ORS 163.115(5) would be an ex post facto violation,” the appellate court wrote. See: State v. Giles, 254 Ore.App. 345, 293 P.3d 1086 (Or. Ct. App. 2012).

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