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Oregon Judge Invalidates Governor’s Clemency Grant to Dozens Sentenced to Life as Juveniles, Halting Parole Hearings

by Mark Wilson

On March 1, 2022, a lawsuit challenging clemency orders by Oregon Gov. Kate Brown (D) was mostly rejected in Marion County Circuit Court. However, in ruling on the commutations for former offenders sentenced as juveniles, Judge David Leith decided in favor of district attorneys and ruled that the governor’s orders improperly delegated her power to the state Board of Parole and Post-Prison Supervision (BPPS).

The commutations in question were issued to offenders whose crimes were committed as juveniles before Senate Bill 1008 passed in 2019. That law aims to keep teens accused of the most serious crimes out of prison and in the juvenile system, where they have better access to rehabilitation. It also allows those convicted as teens the opportunity to go before BPPS, but it does not cover convictions before 2020. [See: PLN, Jan. 2020, p.20.]

At the height of the “tough-on-crime” movement in the 1990s, some 47 states amended juvenile crime laws. Oregon was one, overwhelmingly passing Measure 11, which required adults and juveniles as young as 15 to serve 100% of new, harsh mandatory-minimum sentences for serious crimes committed on or after April 1, 1995.

Ultimately, the U.S. Supreme Court recognized that juveniles are less culpable than adults and more capable of rehabilitation. It invalidated mandatory life-without-parole (LWOP) sentences for juveniles, finding them unconstitutional for all but rare children who are “irreparably depraved.” See: Miller v. Alabama, 567 U.S. 460 (2012). It then made that decision retroactive, saying those already given LWOP sentences as juveniles should be offered parole. See: Montgomery v. Louisiana, 577 U.S. 190 (2016). However, a new more conservative majority on the Court then knee-capped both rulings, saying a court justify a juvenile’s LWOP sentence without finding “permanent incorrigibility.” See: Jones v. Mississippi, 141 S. Ct. 1307 (2021).

Meanwhile, Oregon enacted some of the broadest and most progressive reforms for juvenile offenders, extending them “Second Look” eligibility—provided under O.R.S. 420A.203 to those convicted as juveniles after serving half of sentences projected to end before they reach 27—and prohibiting new LWOP sentences for anyone who was under 18 years old at the time of committing an offense with SB 1008.

Under that law, all youthful offenders after serving 15 years in prison are now entitled to a release hearing before BPPS, which must “consider and give substantial weight to the fact that a person under 18 years of age is incapable of the same reasoning and impulse control as an adult and the diminished culpability of minors as compared to that of adults.”

But since the law was not made retroactive before 2020, Brown used the clemency process to help 73 individuals convicted of serious violent crimes as teenagers before then. Left behind were another 171 prisoners convicted as juveniles, whom Brown chose to exclude because they are serving sentences for the most serious crimes, “with a current projected release date in 2050 or later.”

Lane County District Attorney Patty Perlow and her Linn County counterpart, Doug Marteeny, cried foul and sued to stop the governor from sending any prisoners to a parole hearing without notifying victims. That led to Judge Leith’s ruling. While disagreeing with Plaintiffs’ arguments in most of the commutations issued, he drew the line on the 73 cases in which he found Brown tried to use clemency to make SB 1008 retroactive.

Brown’s press secretary, Liz Merah, noted that the rest of the ruling affirmed the governor’s commutations for 911 prisoners released due to their risk of dying from COVID-19 and another 41 who battled state wildfires. Regarding the remaining 73 cases, the governor’s office filed a notice of appeal on March 8, 2022. See: Marteeny v. Brown, Ore. Cir. (3d Jud.Dist., Marion Cnt.), Case No. 22-cv-0260. 


Sources: Eugene Register-Guard, KEZI, KXL, News Journal, Oregonian


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Related legal case

Marteeny v. Brown