State v. Link

• Citation: 367 Or. 625,482 P.3d 28
• Decision Date: 04 March 2021
• Docket Number: CC 01FE0371AB (SC S066824)
• Parties: STATE of Oregon, Petitioner on Review, v. Justin Alan LINK, Respondent on Review.
• Court: Supreme Court of Oregon

367 Or. 625

482 P.3d 28

STATE of Oregon, Petitioner on Review,

v.Justin Alan LINK, Respondent on Review.

CC 01FE0371AB (SC S066824)

Supreme Court of Oregon, En Banc.

Argued and submitted March 12, 2020.

March 4, 2021

Benjamin Gutman, Solicitor General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ellen F. Rosenblum, Attorney General.

Marc D. Brown, Chief Deputy Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.

Andy Simrin, Andy Simrin PC, Portland, filed the brief for amicus curiae Seth Edwin Koch.

Sara Kobak, Schwabe, Williamson & Wyatt, P.C., Portland, filed the brief for amici curiae American Civil Liberties Union of Oregon, American Civil Liberties Union Foundation, and Youth, Rights & Justice. Also on the brief were Kelly Simon, American Civil Liberties Union of Oregon, Steven M. Watt, American Civil Liberties Union Foundation, and Angela Sherbo and Christa Obold Eshleman, Youth, Rights & Justice.

Crystal Maloney, Brooklyn, New York, filed the brief for amici curiae Oregon Justice Resource Center and Oregon Criminal Defense Lawyers Association.

GARRETT, J.

Defendant committed aggravated murder as a juvenile in 2001. He was sentenced to a term of life imprisonment, which, as defined by statute at the relevant time, requires him to serve "a minimum of 30 years without possibility of parole." ORS 163.105(1)(c) (2001). After serving that minimum term of confinement, defendant can petition to convert his sentence to life imprisonment with the possibility of parole.

ORS 163.105(2), (3) (2001). In this case, defendant argues that the statute under which he was sentenced violates the Eighth Amendment to the United States Constitution. The Court of Appeals agreed. State v. Link , 297 Or. App. 126, 128, 441 P.3d 664 (2019) ( Link IV ). We allowed the state's petition for review. For the reasons that follow, we reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

I. AGGRAVATED MURDER SENTENCING SCHEME

We begin with a brief overview of the 2001 scheme under which defendant was sentenced.

A. Initial Sentencing

In 2001, aggravated murder was defined as murder "which is committed under, or accompanied by," certain aggravating circumstances. ORS 163.095 (2001).¹ A juvenile charged with committing aggravated murder at the age of 15, 16, or 17 was automatically prosecuted in adult criminal court. ORS 137.707(1)(a) (2001) ;² see also ORS 419C.005(1) (2001) (noting that ORS 137.707 sets forth an exception to the juvenile court's "exclusive original jurisdiction" over "any case involving a person who is under 18 years of age and who has committed an act which is a violation, or which if done by an adult would constitute a violation, of a law or ordinance").³

For a defendant convicted of aggravated murder, ORS 163.105(1)(a) (2001)⁴ provided three possible sentences: (1) death; (2) "life imprisonment without the possibility of release or parole"; or (3) "life imprisonment." However, ORS 137.707(2) (2001) prohibited juveniles from being sentenced to death.

Thus, a juvenile convicted of aggravated murder could be sentenced to "life imprisonment without the possibility of release or parole" or "life imprisonment." The choice between those sentences was made following a sentencing proceeding pursuant to ORS 163.150(1)(a), (3)(a)(B) (2001),⁵ which provided that "evidence may be presented as to any matter that the court deems relevant to [the] sentence including, but not limited to, *** any aggravating or mitigating evidence ***."

Depending on whether the defendant waived his or her jury right, either the court or the jury would determine whether there were sufficient mitigating circumstances to warrant a sentence of "life imprisonment" under ORS 163.105(1)(c) (2001), instead of "life imprisonment without the possibility of release or parole." ORS 163.150(3)(a)(B), (3)(b) (2001). If the court or jury determined that sufficient mitigating circumstances existed, then the court would sentence the defendant to life imprisonment. ORS 163.150 (3)(b) (2001). The statutory scheme further provided that, for such a sentence, "the defendant shall be confined for a minimum of 30 years without possibility of parole, release to post-prison supervision, release on work release or any form of temporary leave or employment at a forest or work camp." ORS 163.105(1)(c) (2001). After that minimum period of confinement, the Board of Parole and Post-Prison Supervision (board), upon defendant's petition, holds a "murder-review" hearing to determine whether the defendant is "likely to be rehabilitated within a reasonable period of time." ORS 163.105(2) (2001). Upon such determination, the board is required to convert defendant's sentence to "life imprisonment with the possibility of parole." ORS 163.105(3) (2001).

Thus, in 2001, a juvenile who committed aggravated murder at the age of 15, 16, or 17 years old would automatically be tried in adult criminal court but, unlike an adult, could be sentenced only to "life imprisonment without the possibility of release or parole" or "life imprisonment." A defendant who received the latter sentence would have to serve at least 30 years before being entitled to a murder-review hearing at which the board would determine whether the sentence should be converted to life with the possibility of parole.

B. Conversion of Sentence

Because some of defendant's arguments on review concern the nature of the murder-review hearing process, we next discuss that process in some detail, keeping our focus on the statutes and rules that apply to a crime committed in 2001. At a murder-review hearing, the board determines whether the prisoner's sentence shall be converted to "life imprisonment with the possibility of parole, release to post-prison supervision or work release." ORS 163.105(3) (2001) (emphasis added). That conversion determination depends on whether the prisoner establishes that he "is likely to be rehabilitated within a reasonable period of time." ORS 163.105(2) (2001). By rule, the board has articulated the following criteria relevant to that determination:

"(1) The inmate's involvement in correctional treatment, medical care, educational, vocational or other training in the institution which will substantially enhance his/ her capacity to lead a law-abiding life when released;

"(2) The inmate's institutional employment history;

"(3) The inmate's institutional disciplinary conduct;

"(4) The inmate's maturity, stability, demonstrated responsibility, and any apparent development in the inmate personality which may promote or hinder conformity to law;

"(5) The inmate's past use of narcotics or other dangerous drugs, or past habitual and excessive use of alcoholic liquor;

"(6) The inmate's prior criminal history, including the nature and circumstances of previous offenses;

"(7) The inmate's conduct during any previous period of probation or parole; "(8) The inmate does/does not have a mental or emotional disturbance, deficiency, condition or disorder predisposing them to the commission of a crime to a degree rendering them a danger to the health and safety of the community;

"(9) The adequacy of the inmate's parole plan including community support from family, friends, treatment providers, and others in the community; type of residence, neighborhood or community in which the inmate plans to live;

"(10) There is a reasonable probability that the inmate will remain in the community without violating the law, and there is substantial likelihood that the inmate will conform to the conditions of parole."

OAR 255-032-0020 (2001). If the board agrees by unanimous vote "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," the board "shall" enter an order converting the sentence. ORS 163.105(3) (2001). Otherwise, if the board denies the petition, "not less than two years after the denial ***, the prisoner may petition again for a change in the terms of confinement." ORS 163.105(4) (2001).

The murder-review hearing is conducted "in the manner prescribed for a contested case hearing under ORS 183.310 to 183.550," except that the prisoner has "the burden of proving by a preponderance of the evidence the likelihood of rehabilitation with a reasonable period of time," and the prisoner has the right to counsel, including, if necessary, counsel appointed at the board's expense. ORS 163.105 (2)(a)-(b) (2001). In addition, the prisoner has the right to have the board subpoena witnesses if he shows the "general relevance and reasonable scope of the evidence being sought." OAR 255-032-0029(1).⁶

Additional procedural protections are set out in, inter alia , OAR 255-032-0030 (allowing prisoner to submit evidence, object to evidence, and cross-examine witnesses), OAR 255-032-0027 (requiring board to provide disclosure of exhibits to be used at hearing), and OAR 255-032-0031 (requiring board to produce written final order following hearing, which, if adverse to prisoner, must include findings of fact and conclusions of law).

In the event that defendant's sentence is converted to life with the possibility of parole, the parties have not addressed in detail what would happen next; that question is affected by statutes and administrative rules that have changed in part since the 2001 date of the crime in this case. However, in its briefing and at oral argument, the state has taken the position that, either at the murder-review hearing or "shortly thereafter" at a "parole hearing," the board will determine defendant's "sentence term" pursuant to the "matrix system." See ORS 144.120 (2001) (explaining parole hearing);⁷ ORS 144.780 (2001) (setting forth matrix system). The state further represents that, under the matrix system, defendant's presumptive...