Criminal Justice Reform Clinic at Lewis & Clark Law Sch. v. Bd. of Parole & Post-Prison Supervision

• Decision Date: 28 July 2021
• Docket Number: A172093
• Citation: 313 Or.App. 592,496 P.3d 688
• Parties: CRIMINAL JUSTICE REFORM CLINIC AT LEWIS & CLARK LAW SCHOOL, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
• Court: Oregon Court of Appeals

313 Or.App. 592

496 P.3d 688

CRIMINAL JUSTICE REFORM CLINIC AT LEWIS & CLARK LAW SCHOOL, Petitioner,

v.BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.

A172093

Court of Appeals of Oregon.

Argued and submitted February 4, 2021

July 28, 2021

Mieke de Vrind argued the cause for petitioner. Also on the briefs were Aliza B. Kaplan and Criminal Justice Reform Clinic, Lewis & Clark Law School.

Paul L. Smith, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

KAMINS, J.

Pursuant to ORS 183.400, petitioner challenges the validity of OAR 255-032-0005(4) and (5) (the JAM-II rules), two rules of the Board of Parole and Post-Prison Supervision (the board) which relate to parole consideration for juveniles convicted of aggravated murder between 1989 and 1995. Petitioner contends that the rules violate the Eighth Amendment to the United States Constitution, the ex post facto provisions of the state and federal constitutions, and ORS 161.620.¹ Because the rules do not facially violate the state or federal constitutions or Oregon statute in the ways that petitioner claims, they are valid.

The JAM-II rules are the latest chapter in a story that has filled many reporter pages. To make that long story short, the board enacted the first iteration of these rules (the JAM-I rules) to fill a "void" in the rules governing juvenile aggravated murderers who committed their offense between 1989 and 1995.² Engweiler v. Board of Parole , 343 Or. 536, 548, 175 P.3d 408 (2007) ( Engweiler I ). However, because the JAM-I rules required juveniles to undergo "an intermediate process before they become eligible for parole consideration," which was "inconsistent with the statutes requiring the board to conduct a parole hearing and set an initial release date," the Oregon Supreme Court struck them. Engweiler v. Persson/Dept. of Corrections , 354 Or. 549, 553, 316 P.3d 264 (2013) ( Engweiler III ). The JAM-II rules are the board's effort to address the deficiencies identified by the Oregon Supreme Court.

The JAM-II rules provide:

"Inmates, who were juveniles and waived to adult court pursuant to ORS 419C.340 through 419C.364, and were under the age of 17 years at the time of their crime(s), and were convicted of Aggravated Murder, per ORS 163.095, and whose crimes were committed after October 31, 1989 and prior to April 1, 1995, shall receive a prison term hearing. At the hearing, the Board shall set a projected parole release date, in accordance with the guidelines and matrix that apply with respect to the date of the crime."

OAR 255-032-0005(4). The rules further provide that "[t]he Board will apply the applicable procedural rules under OAR divisions 30 and 35, in effect at the time of the hearing, for the conduct of the hearing." OAR 255-032-0005(5). Because they require the board to set a "projected parole release date" at the juvenile's first prison term hearing, the JAM-II rules eliminate the intermediate review hearing that violated ORS 161.620.

Although the board addressed the problem of the intermediate review hearing, petitioner contends that the JAM-II rules "traded one unconstitutional parole scheme for another." Accordingly, petitioner filed this rule challenge arguing that the rules facially violate the Eighth Amendment, the ex post facto provisions, and ORS 161.620. See ORS 183.400(4) (a rule may be declared facially invalid if it violates a constitutional provision or exceeds an agency's statutory authority). Our review is limited to "an examination of: (a) [t]he rule under review; (b) [t]he statutory provisions authorizing the rule; and (c) [c]opies of all documents necessary to demonstrate compliance with applicable rulemaking procedures." ORS 183.400(3).

Petitioner's Eighth Amendment challenge rests on the contention that the JAM-II rules use an "adult matrix" that treats youth as an aggravating factor, or at least not a mitigating one. According to petitioner, the adult matrix does this in three ways. First, the matrix factor (D) considers age at the time of the crime to reduce the risk of reoffense for older individuals, which may result in a shorter prison term. Petitioner also points out that factor (F) increases an offender's risk level if they have had substance abuse problems within three years prior to the crime. According to petitioner, this "disproportionately punishes juveniles as compared to adults because it captures a larger percentage of childhood compared to adulthood." Finally, petitioner argues that the matrix "utterly fails to consider youth as a mitigating factor." The state responds that the statutory and regulatory scheme must be viewed holistically, rather than by parsing individual factors, and, when so viewed, the JAM-II rules allow for the consideration of youth as a mitigating factor.

The Eighth Amendment requires that an offender's youth be considered as a mitigating factor in certain circumstances. Because "youth matters for purposes of meting out the law's most serious punishments[,] *** a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." State v. Link , 367 Or. 625, 646, 482 P.3d 28 (2021) (internal quotation marks omitted). Accordingly, "the first step to determine whether a sentence comports with [the Eighth Amendment] is to determine whether the sentence is life without parole (or the functional equivalent). If the answer is yes, then the second question is whether the sentencing scheme [provides an] individualized-sentencing requirement." Id . at 659, 482 P.3d 28. For the second step, the Eighth Amendment requires that a sentencer be given an opportunity for "individualized consideration of a defendant's youth." Jones v. Mississippi , 593 U.S. ––––, ––––, 141 S. Ct. 1307, 1321, 209 L. Ed. 2d 390 (2021).

We cannot say that the JAM-II rules facially violate the Eighth Amendment. Without the application of the matrix to an actual juvenile offender, we first cannot determine whether the prison term imposed prior to release amounts to one of "the law's most serious punishments," which the Oregon Supreme Court has limited to life without parole or its functional equivalent. Link , 367 Or. at 646, 659, 482 P.3d 28. Even assuming that the JAM-II rules could be viewed to result in the functional equivalent of a life sentence, for purposes of the second step, the sentencing scheme does allow for the consideration of youth as a mitigating factor. The matrix itself allows for the consideration of any "other" factor, including an offender's youth at the time of commission.

Overall, to the extent it can be said that the JAM-II rules lead to the one of the law's "most serious punishments," the statutes and rules allow for sufficient consideration of a juvenile's age to comport with the Eighth Amendment. Although several matrix factors address advancing age and behavior over time, we cannot say that considering advancing age as a mitigating factor in assessing the risk of reoffense categorically offends the Eighth Amendment regardless of other opportunities to consider youth as a mitigating factor. Nor can we conclude that any assessment of time—such as three years free of substance abuse—violates the Eighth Amendment because years amount to a larger percentage of one's life the younger one is. The Eighth Amendment mandates that the sentencer be given discretion to consider youth in determining the sentence, not that youth automatically causes a reduction in the prison term. See Jones , 141 S. Ct. at 1320 (recognizing that "[different] sentencers presented with the same facts might decide that life without parole remains appropriate despite the defendant's youth"). Because, on their face, the JAM-II rules do not necessarily impose the functional equivalent of a life sentence, and do allow for the consideration of youth, they are facially valid. Individual offenders may identify...