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Oregon Will Hold Release Hearings for 73 Prisoners Sentenced to LWOP as Juveniles

by Mark Wilson

On October 6, 2022, the Oregon Supreme Court denied a petition for review from prosecutors seeking to stop the Governor and Board of Parole and Post-Prison Supervision (BPPS) from granting early release hearings to 73 prisoners who were sentenced to life for offenses committed as juveniles. See: Marteeny v. Brown, 370 Or. 303 (2022).

That left to stand a decision by the ­Oregon Court of Appeals on August 10, 2022, which in turn reversed a lower court’s order in favor of the prosecutors. Importantly, the Court made clear that prosecutors lack authority to bring suit on behalf of the state or its citizens.

As PLN has reported, the Oregon Legislature passed Senate Bill (SB) 1008 in 2019, eliminating life without parole (LWOP) sentences for juveniles and granting a release hearing after 15 years of confinement to those then imprisoned on an LWOP conviction for a crime committed as juveniles.

However, the legislation did not apply retroactively to prisoners who committed their offenses before January 1, 2020. So on October 20, 2021, then-Gov. Kate Brown (D) used her clemency power to grant SB 1008 release hearings to 73 prisoners left behind by the law.

Attorney Kevin Mannix, who authored Measure 11, Oregon’s 1994 voter initiative that required adults and juveniles as young as 15 to serve harsh mandatory-minimum prison sentences, filed a mandamus action on behalf of Lane County District Attorney Patty Perlow, Linn County District Attorney Douglas Marteeny and four victims, seeking to vacate Brown’s clemency decisions. All but one of his arguments were rejected by Judge David Leith on March 1, 2022; however, that was enough to bring the 73 release hearings to a screeching halt. [See: PLN, July 2022, p.62.]

The Governor and BPPS turned to the Court of Appeals, which reversed the lower court’s ruling. Noting that the two prosecutors purported to bring the action “on behalf of all Oregonians,” the Court held that “the Attorney General and only the Attorney General speaks on behalf of the state with respect to matters concerning the state’s legal interests.” It also found that they lacked standing to bring the action in an individual capacity.

“Marteeny and Perlow’ s disagreement with the Attorney General’s decision to defend the commutations here does not confer on them standing to assert a position contrary to the Attorney General’s in mandamus,” the Court explained.

Turning to the merits of the case, the Court concluded that the lower court erred in precluding BPPS from holding the release hearings.

“It would be within [the Governor’s] power to decide to release the juvenile offenders immediately, if she chose that lesser punishment. However, here, she decided that the appropriate punishment was to commute the juvenile offenders’ sentences to sentences that include the right to a hearing after 15 years of imprisonment,” the Court explained. “She did not purport to leave to [BPPS] whether to commute the juvenile offenders’ sentences; she completed the commutation by providing the juvenile offenders with a new, less severe punishment; continued imprisonment, but with the right to a hearing. Relators provide no explanation and cite no authority for the proposition that she could not impose that particular lesser punishment ... and we perceive none.”

The Court made clear what the suit was truly about. “Relators’ fundamental complaint is that the legislature decided that ORS 144.397 should not apply to sentences imposed before January 1, 2020,” it observed. “That is true. But the Governor’s clemency power is not limited to legislatively approved sentences. The legislature’s policy choice regarding retroactivity does not constrain the Governor’s policy choice as to the appropriate sentence for the juvenile offenders.”

Oregon Attorney General Ellen Rosenblum (D), who represented the Governor, applauded the decision, saying it “recognizes that the governor had the authority to commute the sentences as she did.”

Naturally, the prosecutors were unhappy with the decision. “The court of appeals granted the governor unbridled authority to trample on the rights of victims and limit the authority of the 36 district attorneys to enforce those rights,” Perlow declared. Marteeny suggested the public take action. “We are the masters of our destiny, and this outlines the significant need for a change to Oregon law,” he said. See: Marteeny v. Brown, 321 Or App 250 (2022). 

Additional sources: Statesman Journal, The Guardian