Offenses Against Persons

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)

(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]

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

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)

Atty. Gen. 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 to 163.145

Law Review Citations

51 OLR 459-493 (1972)

Chapter 163

Law Review Citations

51 OLR 427-637 (1972)


Source

Last accessed
Jun. 26, 2021