ORS 163.105
Sentencing options for aggravated murder


Notwithstanding the provisions of ORS chapter 144 and ORS 421.450 (Definitions for ORS 421.455 to 421.480) to 421.490 (Work camps):

(1)

Intentionally left blank —Ed.

(a)

Except as otherwise provided in ORS 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court), when a defendant is convicted of aggravated murder as defined by ORS 163.095 (“Aggravated murder” defined), the defendant shall be sentenced, pursuant to ORS 163.150 (Sentencing for aggravated murder), to death, life imprisonment without the possibility of release or parole or life imprisonment.

(b)

A person sentenced to life imprisonment without the possibility of release or parole under this section shall not have that sentence suspended, deferred or commuted by any judicial officer, and the State Board of Parole and Post-Prison Supervision may not parole the prisoner nor reduce the period of confinement in any manner whatsoever. The Department of Corrections or any executive official may not permit the prisoner to participate in any sort of release or furlough program.

(c)

If sentenced to life imprisonment, the court shall order that the defendant shall be confined for a minimum of 30 years without possibility of parole or release to post-prison supervision except as provided in ORS 144.397 (Release eligibility for juvenile offenders after 15 years of imprisonment), and without the possibility of release on work release or any form of temporary leave or employment at a forest or work camp.

(2)

At any time after completion of a minimum period of confinement pursuant to subsection (1)(c) of this section, the State Board of Parole and Post-Prison Supervision, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. The sole issue is whether or not the prisoner is likely to be rehabilitated within a reasonable period of time. At the hearing, the prisoner has:

(a)

The burden of proving by a preponderance of the evidence the likelihood of rehabilitation within a reasonable period of time;

(b)

The right, if the prisoner is without sufficient funds to employ an attorney, to be represented by legal counsel, appointed by the board, at board expense; and

(c)

The right to a subpoena upon a showing of the general relevance and reasonable scope of the evidence sought, provided that any subpoena issued on behalf of the prisoner must be issued by the State Board of Parole and Post-Prison Supervision pursuant to rules adopted by the board.

(3)

If, upon hearing all of the evidence, the board, upon a unanimous vote of three board members or, if the chairperson requires all voting members to participate, a unanimous vote of all voting members, finds that the prisoner is capable of rehabilitation and that the terms of the prisoner’s confinement should be changed to life imprisonment with the possibility of parole, release to post-prison supervision or work release, 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, release to post-prison supervision or work release and may set a release date. Otherwise the board shall deny the relief sought in the petition.

(4)

If the board denies the relief sought in the petition, the board shall determine the date of the subsequent hearing, and the prisoner may petition for an interim hearing, in accordance with ORS 144.285 (Hearing after petition for change in terms of confinement denied to prisoner convicted of aggravated murder or murder).

(5)

The board’s final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the board’s order. [1977 c.370 §2; 1981 c.873 §4; 1985 c.3 §1; 1987 c.158 §23; 1987 c.803 §20; 1989 c.720 §1; 1991 c.126 §8; 1995 c.421 §2; 1999 c.59 §31; 1999 c.782 §5; 2007 c.717 §1; 2009 c.660 §6; 2015 c.820 §45; 2019 c.634 §27]

Source: Section 163.105 — Sentencing options for aggravated murder, https://www.­oregonlegislature.­gov/bills_laws/ors/ors163.­html.

Notes of Decisions

Where defendant was charged, under ORS 163.115, with intentionally causing death of victim, initiative which amended ORS 163.115 to require person sentenced for murder to serve 25 years before becoming eligible for parole did not conflict with this section and did not impliedly repeal penalty provisions of this section. State v. Shumway, 291 Or 153, 630 P2d 796 (1981)

Mandatory minimum sentence with no possibility of parole does not violate Article I, section 15 of the Oregon Constitution. Norris v. Cupp, 67 Or App 393, 678 P2d 756 (1984), Sup Ct review denied

This section does not violate equal protection by virtue of aggravated felony murder statute requiring additional element of personal commission of homicide. Grooms v. Kenney, 826 F2d 883 (1987)

Combination of statutory definition of aggravated murder while an escapee under ORS 163.095 and sentencing provisions of this section did not create unconstitutionally disproportionate sentence. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Whether petitioner will serve consecutive sentences has no bearing on timing of rehabilitation hearing. Severy v. Board of Parole, 118 Or App 585, 848 P2d 1214 (1993), aff’d 318 Or 172, 864 P2d 368 (1993)

Board of Parole lacks authority to unsum consecutive sentences for aggravated murder except by sentence review hearing conducted 20 years or more after imposition of 30-year minimum sentence. Severy v. Board of Parole, 318 Or 172, 864 P2d 368 (1993)

Where person commits offense of aggravated murder based upon multiple theories, counts merge into single conviction with separate aggravating factors. State v. Walraven, 187 Or App 728, 69 P3d 835 (2003), Sup Ct review denied

Under 1977 version of this section, prisoner who serves judicially imposed minimum sentence remains ineligible for parole, work release, temporary leave or employment at forest or work camp unless State Board of Parole and Post-Prison Supervision determines prisoner is capable of rehabilitation. Larsen v. Board of Parole and Post-Prison Supervision, 191 Or App 526, 84 P3d 176 (2004), Sup Ct review denied; State ex rel Maney v. Hsu, 308 Or App 822, 482 P3d 136 (2021), Sup Ct review denied

Where court imposes life sentence without possibility of parole to be served consecutively to death sentence, court has not “deferred” life sentence. State v. Running, 336 Or 545, 87 P3d 661 (2004)

Requirement that proceeding be conducted in manner prescribed for contested case creates limited exception to parole board’s exemption from Administrative Procedures Act. Larsen v. Board of Parole and Post-Prison Supervision, 206 Or App 353, 138 P3d 16 (2006)

Under 1981 version of this section, where prisoner is serving consecutive sentences for aggravated murder and different offense, finding that prisoner is likely to be rehabilitated does not result in prisoner beginning service of consecutive sentence. Corgain v. Board of Parole and Post-Prison Supervision, 213 Or App 407, 162 P3d 990 (2007)

Person who was juvenile less than 17 years of age at time of murder committed on or after November 1, 1989, and before April 1, 1995, is not subject to 30-year minimum sentence. Engweiler v. Board of Parole, 343 Or 536, 175 P3d 408 (2007)

Under 2002 version of statute, judicial review of murder review hearings is governed by specific provision that governs procedures for appealing decisions of Board of Parole and Post-Prison Supervision, not Administrative Procedure Act provisions that govern procedures for appealing contested case hearings. Larsen v. Board of Parole and Post-Prison Supervision, 231 Or App 59, 219 P3d 28 (2009), Sup Ct review denied

1985 version of statute requires Board of Parole, when determining release date for prisoner sentenced to life imprisonment with possibility of parole, to use parole matrix that was in place when prisoner committed offense. Janowski/Fleming v. Board of Parole, 349 Or 432, 245 P3d 1270 (2010)

Under 1985 version of statute, terms of confinement that must be changed to life imprisonment with possibility of parole include prohibition on eligibility for parole for mandatory minimum period of confinement, requirement that certain periods of confinement be served consecutively and any other condition applicable to period of confinement. Severy/Wilson v. Board of Parole, 349 Or 461, 245 P3d 119 (2010)

Because juvenile convicted of aggravated murder is sentenced to indeterminate period of time, sentence of juvenile convicted of aggravated murder lacks minimum period of confinement required by this section to hold hearing whereby sentence may be changed. State ex rel Engweiler v. Felton, 350 Or 592, 260 P3d 448 (2011)

2001 version of this section was constitutional under Eighth Amendment to United States Constitution because defendant, who committed aggravated murder as juvenile and was sentenced to life imprisonment without possibility of parole, has opportunity after serving 30 years of sentence to have sentence converted to life imprisonment with possibility of parole. State v. Link, 367 Or 625, 482 P3d 28 (2021)

Attorney General Opinions

Repeal by implication by Ballot Measure 8, providing death penalty under certain circumstances, (1978) Vol 39, p 419

Law Review Citations

17 WLR 649 (1981); 18 WLR 190 (1982); 36 WLR 313 (2000)

163.005
Criminal homicide
163.095
“Aggravated murder” defined
163.105
Sentencing options for aggravated murder
163.107
Murder in the first degree
163.109
Alternative proof of certain victims of murder in the first degree
163.111
Pleading, proof and stipulation regarding previous conviction element in prosecution for murder in the first degree
163.115
Murder in the second degree
163.117
Causing or aiding suicide as defense to charge of murder
163.118
Manslaughter in the first degree
163.125
Manslaughter in the second degree
163.135
Extreme emotional disturbance as affirmative defense to murder in the second degree
163.145
Criminally negligent homicide
163.147
Crime category classification for manslaughter in the second degree and criminally negligent homicide
163.149
Aggravated vehicular homicide
163.150
Sentencing for aggravated murder
163.155
Sentencing for murder of pregnant victim
163.160
Assault in the fourth degree
163.165
Assault in the third degree
163.168
Crime category classification for assault in the third degree
163.175
Assault in the second degree
163.185
Assault in the first degree
163.187
Strangulation
163.190
Menacing
163.191
Intimidation by display of a noose
163.192
Endangering a person protected by a Family Abuse Prevention Act restraining order
163.193
Assisting another person to commit suicide
163.195
Recklessly endangering another person
163.196
Aggravated driving while suspended or revoked
163.197
Hazing
163.200
Criminal mistreatment in the second degree
163.205
Criminal mistreatment in the first degree
163.206
Exceptions to criminal mistreatment
163.207
Female genital mutilation
163.208
Assaulting a public safety officer
163.211
Definitions for ORS 163.211 to 163.213
163.212
Unlawful use of an electrical stun gun, tear gas or mace in the second degree
163.213
Unlawful use of an electrical stun gun, tear gas or mace in the first degree
163.215
Definitions for ORS 163.215 to 163.257
163.225
Kidnapping in the second degree
163.235
Kidnapping in the first degree
163.245
Custodial interference in the second degree
163.257
Custodial interference in the first degree
163.261
Definitions for ORS 163.263 and 163.264
163.263
Subjecting another person to involuntary servitude in the second degree
163.264
Subjecting another person to involuntary servitude in the first degree
163.266
Trafficking in persons
163.269
Victim assertion of defense of duress
163.275
Coercion
163.285
Defense to coercion
163.305
Definitions
163.315
Incapacity to consent
163.325
Ignorance or mistake as a defense
163.345
Age as a defense in certain cases
163.355
Rape in the third degree
163.365
Rape in the second degree
163.375
Rape in the first degree
163.385
Sodomy in the third degree
163.395
Sodomy in the second degree
163.405
Sodomy in the first degree
163.408
Unlawful sexual penetration in the second degree
163.411
Unlawful sexual penetration in the first degree
163.412
Exceptions to unlawful sexual penetration prohibition
163.413
Purchasing sex with a minor
163.415
Sexual abuse in the third degree
163.425
Sexual abuse in the second degree
163.426
Crime category classification for sexual abuse in the second degree
163.427
Sexual abuse in the first degree
163.431
Definitions for ORS 163.431 to 163.434
163.432
Online sexual corruption of a child in the second degree
163.433
Online sexual corruption of a child in the first degree
163.434
Provisions applicable to online sexual corruption of a child
163.435
Contributing to the sexual delinquency of a minor
163.445
Sexual misconduct
163.448
Definitions for ORS 163.452 and 163.454
163.452
Custodial sexual misconduct in the first degree
163.454
Custodial sexual misconduct in the second degree
163.465
Public indecency
163.466
Classification of felony public indecency
163.467
Private indecency
163.472
Unlawful dissemination of an intimate image
163.476
Unlawfully being in a location where children regularly congregate
163.479
Unlawful contact with a child
163.505
Definitions for certain provisions of ORS 163.505 to 163.575
163.515
Bigamy
163.525
Incest
163.535
Abandonment of a child
163.537
Buying or selling a person under 18 years of age
163.545
Child neglect in the second degree
163.547
Child neglect in the first degree
163.555
Criminal nonsupport
163.565
Evidence of parentage
163.575
Endangering the welfare of a minor
163.577
Failing to supervise a child
163.580
Display of sign concerning sale of smoking devices
163.665
Definitions
163.670
Using child in display of sexually explicit conduct
163.676
Exemption from prosecution under ORS 163.684
163.682
Exceptions to ORS 163.665 to 163.693
163.684
Encouraging child sexual abuse in the first degree
163.686
Encouraging child sexual abuse in the second degree
163.687
Encouraging child sexual abuse in the third degree
163.688
Possession of materials depicting sexually explicit conduct of a child in the first degree
163.689
Possession of materials depicting sexually explicit conduct of a child in the second degree
163.690
Lack of knowledge of age of child as affirmative defense
163.693
Failure to report child pornography
163.700
Invasion of personal privacy in the second degree
163.701
Invasion of personal privacy in the first degree
163.702
Exceptions to ORS 163.700 and 163.701
163.705
Polygraph examination of victims in certain criminal cases prohibited
163.707
Forfeiture of motor vehicle used in drive-by shooting
163.709
Unlawful directing of light from a laser pointer
163.715
Unlawful use of a global positioning system device
163.730
Definitions for ORS 30.866 and 163.730 to 163.750
163.732
Stalking
163.735
Citation
163.738
Effect of citation
163.741
Service of stalking protective order
163.744
Initiation of action seeking citation
163.750
Violating a court’s stalking protective order
163.753
Immunity of officer acting in good faith
163.755
Conduct for which stalking protective order may not be issued
163.760
Definitions for ORS 163.760 to 163.777
163.763
Petition to circuit court for relief
163.765
Restraining order
163.767
Hearing
163.770
Appearance by telephone or electronic communication device
163.773
Enforcement of restraining order
163.775
Renewal and modification of restraining order
163.777
Fees or undertaking may not be required
Green check means up to date. Up to date