Oregon Parole Hearing Exclusion Rule Invalidated
by David M. Reutter
The Oregon Court of Appeals on November 23, 2022, held that the state Board of Parole and Post-Prison Supervision exceeded its statutory authority when it adopted a rule that excludes prisoners convicted of aggravated murder – including those for whom an initial parole release date has been set – from personal review eligibility.
Before the Court was a petition filed by Oregon prisoner Jacob Barrett that challenged the validity of the Board’s new rule, OAR 255-040-0005(5). That rule provided, in relevant part, that “inmates sentenced for aggravated murder … are not subject to personal reviews.”
The Court’s opinion began with background on aggravated murder sentencing. It noted that there are only three sentencing options for a conviction of aggravated murder: (1) life imprisonment; (2) life imprisonment without the possibility of release or parole; or (3) death.
If a defendant is sentenced to life imprisonment, the trial court will order imprisonment “for a minimum of 30 years without possibility of parole or release to post-prison supervision … and without the possibility of release on work release or any form of temporary leave or employment at a forest or work camp.”
After completing that minimum three-decade period, the defendant may petition the Board for a “murder review” hearing to determine if the defendant “is likely to be rehabilitated within a reasonable period of time.” If the Board makes that finding, it enters an order converting the sentence to “life imprisonment with the possibility of parole, release to post-prison supervision, or work release.”
The Board must then set a release date under the matrix system. Under that system, once the initial parole release date is set, the defendant is entitled to release on that date unless prior to it the board finds that one of the proscribed reasons to postpone the prisoner’s release exists. The relevant rules also provide for a “personal review” to adjust the initial release date.
But by taking it upon itself to set aside a class of prisoners – those guilty of aggravated murder – and making them ineligible for any parole review, the Board exceeded its statutory authority, the Court said.
Under ORS 144.122(1), a “prisoner may request that the parolee release date be reset to an earlier date” after “the initial parole date has been set under ORS 144.120 and after a minimum period of time established by” the Board.
As the Court explained in State ex rel. Engweiler v. Felton, 350 Or. 592 (2011), ORS 144.120 is the sole statutory authority applicable after a life sentence for aggravated murder has been converted.
Thus the Court declared OAR 255-040-005(5) invalid because it was unauthorized by statute. As a result, it said that aggravated murder defendants whose sentences are converted to allow parole must receive a personal review once they meet the criteria. See: Barrett v. Bd. of Parole & Post-Prison Supervision, 322 Ore. App. 751 (2022).
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