Aggravated Murder

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_200/oar_255/255_032.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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BOARD OF PAROLE AND POST-PRISON SUPERVISION

 

DIVISION 32
AGGRAVATED MURDER

255-032-0005
Prison Term Hearing to Be Held
(1) An adult person convicted
of Aggravated Murder under ORS 163.095 shall receive a hearing within one year of
sentencing. A person convicted of Murder under ORS 163.115 that was committed on
or after June 30, 1995, and who was sentenced to life with a twenty-five (25) year
minimum shall receive a hearing within one year of sentencing. At the hearing the
Board shall set a review date congruent with the minimum terms set forth in OAR
255-032-0010 rather than a parole release date. In lieu of holding a hearing, the
Board may determine the prison term/murder review date by administrative file pass.
(2) Adult persons sentenced
to death or life without the possibility of release or parole shall not receive
a hearing.
(3) Adult persons sentenced
to life with a twenty (20) or thirty (30) year minimum for aggravated murder shall
receive a prison term hearing pursuant to ORS 144.120 if they also have a sentence
to the Department of Corrections' custody for a crime other than aggravated murder.
(4) 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.
(5) The 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.
Stat. Auth.: ORS 144.120, 163.095,
163.115, 419C.340 & 419C.364

Stats. Implemented: ORS 163.105

Hist.: 2PB 8-1985, f. &
ef. 5-31-85; PAR 4-1989, f. & ef. 11-1-89; PAR 1-1991, f. & cert. ef. 1-16-91;
PAR 8-1992, f. & cert. ef. 10-9-92; PAR 4-1997, f. 3-11-97, cert. ef. 3-14-97;
PAR 4-1999, f. & cert. ef. 5-18-99; PAR 2-2000, f. 1-3-00, cert. ef. 1-4-00;
PAR 1-2003, f. & cert. ef. 5-13-03; PAR 4-2009(Temp), f. & cert. ef. 9-29-09
thru 3-28-10; PAR 3-2010, f. & cert. ef. 3-26-10; PAR 1-2012, f. & cert.
ef. 3-13-12
255-032-0010
Minimum Period of Confinement Pursuant to ORS 163.105 or ORS 163.115
(1) The minimum period of confinement for an adult person convicted of Aggravated Murder as defined by ORS 163.105(1) shall be thirty (30) years.
(2) The minimum period of confinement for an adult person convicted of Aggravated Murder as defined by ORS 163.105(2) prior to December 6, 1984, shall be twenty (20) years.
(3) The minimum period of confinement for a person sentenced to life for Murder under ORS 163.115 committed on or after June 30, 1995, shall be twenty-five (25) years.
Stat. Auth.: ORS 144.110, ORS 163.105 & ORS 163.115

Stats. Implemented: ORS 144, ORS 163.105 & ORS 163.115

Hist.: 2PB 8-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 4-1999, f. & cert. ef. 5-18-99; PAR 2-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 1-2003, f. & cert. ef. 5-13-03
255-032-0015
Petition/Purpose for Review Hearing
An inmate not described in OAR 255-032-0005(4) may petition and the Board shall hold a hearing to determine whether the inmate is likely to be rehabilitated within a reasonable period of time:
(1) Any time after completion of a minimum period of confinement pursuant to OAR 255-032-0010(1) for an offense committed on or after October 23, 1999; or
(2) Any time after twenty-five (25) years from the date of imposition of a minimum period of confinement pursuant to OAR 255-032-0010(1) for an offense committed on or between June 30, 1995 through October 22, 1999; or
(3) Any time after twenty (20) years from the date of imposition of a minimum period of confinement pursuant to OAR 255-032-0010(1) for an offense committed before June 30, 1995; or
(4) Any time after fifteen (15) years from the date of imposition of a minimum period of confinement pursuant to OAR 255-032-0010(2); or
(5) Anytime after twenty-five (25) years from the date of imposition of confinement pursuant to OAR 255-032-0010(3).
Stat. Auth.: ORS 163.115

Stats. Implemented: ORS 163.105 (1977–1983), 163.105 (1984–1994), 163.105 (1995–1999) & 163.105 (2001)

Hist.: 2PB 8-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 4-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 4-1999, f. & cert. ef. 5-18-99; PAR 2-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 1-2003, f. & cert. ef. 5-13-03; PAR 3-2004(Temp), f. & cert. ef. 4-15-04 thru 10-11-04; PAR 6-2004, f. & cert. ef. 6-14-04; PAR 4-2009(Temp), f. & cert. ef. 9-29-09 thru 3-28-10; PAR 3-2010, f. & cert. ef. 3-26-10
255-032-0020
Purpose of Review Hearing
The sole issue of the hearing described in OAR 255-032-0015 shall be to determine whether or not the inmate is likely to be rehabilitated within a reasonable period of time. Criteria indicating whether the inmate is likely to be rehabilitated prior to release include:
(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.
Stat. Auth.: ORS 144.110(2)(b), ORS 163.105(1), ORS 161.620 & ORS 144.780

Stats. Implemented: ORS 144.050, ORS 144.140, ORS 144.226, ORS 144.228 & ORS 144.232

Hist.: 2PB 8-1985, f. & ef. 5-31-85; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 4-1999, f. & cert. ef. 5-18-99
255-032-0022
Murder Review Hearings Notice
The Board's notice (Exhibit NOR-3MR) must
include:
(1) A statement that the sole
issue to be considered shall be whether or not the inmate is likely to be rehabilitated
within a reasonable period of time, and that the inmate shall have the burden of
proof, by a preponderance of the evidence;
(2) A statement of the inmate's
right to be represented by counsel; and if the inmate is without sufficient funds,
counsel will be appointed by the Board at Board expense;
(3) A statement that the Board
has authority and jurisdiction to hold a hearing on the issue pursuant to ORS 163.105(2)
or 163.115(5); and
(4) A statement of rights of
the inmate at the hearing.
[ED. NOTE:
Tables referenced are not included in rule text. Click here for PDF copy of table(s).]
Stat. Auth.: ORS 183.415, 163.105(2) &
163.115(5)
Stats. Implemented:
Hist.: PAR 2-2007(Temp),
f. & cert. ef. 2-1-07 thru 7-30-07; PAR 5-2007, f. & cert. ef. 7-30-07;
PAR 2-2012(Temp), f. & cert. ef. 6-28-12 thru 12-25-12; PAR 4-2012, f. &
cert. ef. 10-15-12; PAR 1-2015, f. & cert. ef. 4-15-15
255-032-0025
Manner of Review Hearing
(1) The proceedings shall be governed by the procedures for records, disclosure, and notice outlined in divisions 15 and 30.
(2) At the hearing, the inmate has:
(a) The burden of proving by a preponderance of the evidence the likelihood of rehabilitation within a reasonable period of time; and
(b) If the inmate is without sufficient funds to employ an attorney, the right to Board appointed legal counsel. Board payment to legal counsel shall not exceed $100 per hour and $1000 per case. The attorney shall send the Board a billing within 90 days of the hearing.
(c) The right to a subpoena issued by the Board upon a showing of the general relevance and reasonable scope of the evidence sought, and pursuant to Board rules.
(3) The initial testimony of each witness shall not exceed ten minutes. The presiding Board member may grant the witness additional time upon a finding that further testimony is likely to be relevant to the board's decision. The presiding Board member may exclude or limit irrelevant, immaterial or unduly repetitious testimony and evidence.
(4) Pursuant to ORS 144.120, the crime victims have the right to appear at the hearing, or to submit a written statement concerning the crime and the person responsible. For the purposes of these rules, victim means any person determined by the prosecuting attorney, the court, or the Board to have suffered direct financial, psychological, or physical harm as a result of a crime and, in the case of a victim who is a minor, the legal guardian of the minor. The victim may be represented by counsel or a designee of the victim’s choice. If a victim chooses to speak, his/her statement should be concluded within 15 minutes. The Board may allow the victim to exceed that period when additional time is needed.
(5) Pursuant to ORS 144.120, the district attorney from the committing jurisdiction has the right to appear at the hearing, or to submit a written statement concerning the crime and the inmate. The district attorney may be represented by a designee if he/she wishes. The district attorney’s statement should be concluded within 15 minutes. The Board may allow the statement to exceed that period when additional time is needed.
(6) If upon hearing all the evidence, the full Board, upon a unanimous vote of all members, or by such other vote as is specified in statute, finds that the inmate is capable of rehabilitation and that the terms of the inmate's confinement should be changed to life imprisonment with the possibility of parole or work release, it shall convert the terms of the inmate's confinement to life imprisonment with the possibility of parole or work release and may set a parole release date. Otherwise, the Board shall deny the relief sought in the petition. The Board's final order granting or denying relief 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.
(7) When an inmate has a consecutive sentence for a crime other than Aggravated Murder or Murder as described in OAR 255-032-0005, the Board shall determine the prison term for the consecutive sentences(s) pursuant to ORS 144.120. The prison term for the consecutive sentence(s) will not begin to run until and unless the Board orders a release date on the Aggravated Murder sentence established pursuant to ORS 163.105, or the Murder sentence established pursuant to ORS 163.115.
Stat. Auth.: ORS 144.120, 163.105, 163.115, 183.415

Stats. Implemented:

Hist.: 2PB 8-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 4-1989, f. & ef. 11-1-89; PAR 1-1991, f. & cert. ef. 1-16-91; PAR 3-1991(Temp), f. & cert. ef. 5-1-91; PAR 5-1991, f. & cert. ef. 10-15-91; PAR 4-1993, f. & cert. ef. 10-29-93; PAR 2-2000, f. 1-3-00, cert. ef. 1-4-00; PAR 3-2001, f. & cert. ef. 2-6-01; PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07; PAR 5-2007, f. & cert. ef. 7-30-07; PAR 4-2009(Temp), f. & cert. ef. 9-29-09 thru 3-28-10; PAR 3-2010, f. & cert. ef. 3-26-10
255-032-0027
Inmate's Right to Review Record; Exceptions
Except as provided in OAR 255-015-0010, all exhibits to be considered by the Board shall be disclosed to the inmate's attorney or the inmate, if proceeding pro se, within a reasonable period of time before the hearing:
(1) Exhibits not available prior to the hearing shall be made available to the inmate's attorney or to the inmate, if not represented, at the hearing.
(2) All material relevant and pertinent to issues before the Board shall be made a part of the record.
(3) Any material not made part of the record shall be separated and a statement to that effect shall be placed in the record. The board shall follow the criteria for denial or disclosure of records set out in OAR 255-015-0010.
Stat. Auth.: ORS 183.335, 192.410 - 192.505, 144.025(3) & 144.050

Stats. Implemented:

Hist.: PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07; PAR 5-2007, f. & cert. ef. 7-30-07
255-032-0029
Subpoenas for a Murder Review Hearing
(1) Inmates must make their own arrangements for calling and presenting witnesses. However, upon the request of an inmate, and upon a proper showing of general relevance and reasonable scope of the evidence being sought, the Board may issue subpoenas on behalf of the inmate.
(2) Witnesses are not required to appear in person unless good cause can be shown why an in-person appearance is necessary. Witnesses may participate via teleconference.
(3) Witnesses appearing pursuant to subpoena, other than inmates, state officers, or employees of the Board, must receive fees and mileage payable by the Board as prescribed by law for witnesses in ORS 44.415(2), provided the Board certifies that the witness's testimony was relevant and material to the hearing.
Stat. Auth.: ORS 44.415 & 183.440

Stats. Implemented:

Hist.: PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07; PAR 5-2007, f. & cert. ef. 7-30-07; PAR 4-2009(Temp), f. & cert. ef. 9-29-09 thru 3-28-10; PAR 3-2010, f. & cert. ef. 3-26-10
255-032-0030
Evidence in a Murder Review Hearing
(1) Irrelevant, immaterial, or unduly repetitious evidence will be excluded, and privileges afforded by Oregon law shall be recognized by the presiding member. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs will be admissible. All offered evidence, not objected to, will be received by the presiding member subject to the presiding member's power to exclude irrelevant, immaterial, or unduly repetitious matter.
(2) In determining whether the evidence is material, relevant or reliable, the Board shall consider the following:
(a) The age and source of the documents;
(b) The ability of the witness to have observed and had personal knowledge of the incidents;
(c) The credibility of the witness and whether the witness has bias or interest in the matter.
(3) The inmate, the inmate's attorney, or the Board, may object to any evidence. Objections to evidence being introduced by the Board or the inmate may be made and will be noted in the record. The presiding board member must accept an offer of proof for excluded evidence. The offer of proof must contain sufficient detail to allow the Board or a court to determine whether the evidence was properly excluded. The presiding member shall have discretion to decide whether the offer of proof is to be oral or written and at what stage of the proceeding it will be made. The presiding member may place reasonable limits on the offer of proof, including the time to be devoted to an oral offer or the number of pages in a written offer. The Board may decide the following:
(a) To sustain the objection and deny the admission and consideration of the evidence on the grounds that it is not material, relevant or reliable; or
(b) To overrule the objection and admit the evidence and in considering the weight given to that evidence, consider the reason for the objection.
(4) The Board will consider all available relevant evidence for purposes of determining the inmate's likelihood of rehabilitation within a reasonable period of time.
(5) The Board and the inmate will have the right of cross-examination of each witness that testifies, and will have the right to submit rebuttal evidence.
Stat. Auth.: ORS 163.105, 163.115, 183.450

Stats. Implemented:

Hist.: PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07; PAR 5-2007, f. & cert. ef. 7-30-07
255-032-0031
Final Orders in Murder Review Hearings
(1) Final orders in Murder Review hearings must be in writing, and if adverse to the inmate include the following:
(a) Findings of fact -- a concise statement of those matters that are either agreed as fact or that, when disputed, are determined by the Board to be facts over contentions to the contrary. A finding must be made on each fact necessary to reach the conclusions of law on which the order is based; and
(b) Conclusion(s) of law -- applications of the controlling law to the facts found and the legal results of the application.
(2) If the Board finds that the inmate has proven by a preponderance of the evidence that the inmate is likely to be rehabilitated within a reasonable period of time, then it is not necessary that the final order include findings of fact or conclusions of law.
(3) The Board may also issue its decision orally on the record at the hearing.
Stat. Auth.: ORS 163.105, 163.115, 183.470

Stats. Implemented:

Hist.: PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07; PAR 5-2007, f. & cert. ef. 7-30-07
255-032-0032
Continuance of Hearings: Cancellation of Hearings
(1) Upon the request of any party or on its own motion, the Board may, for good cause, continue a hearing for a reasonable period of time not to exceed 60 days to obtain additional information required to assist the Board in its decision.
(2) If an inmate asks for cancellation of a hearing, it must be for good cause, in writing, and with seven days advance notice. If the board finds that the cancellation request does not fulfill these requirements, the inmate shall not be eligible to request another hearing for 90 days from the date of the scheduled hearing.
Stat. Auth.: ORS 183.341(2)

Stats. Implemented:

Hist.: PAR 2-2007(Temp), f. & cert. ef. 2-1-07 thru 7-30-07; PAR 5-2007, f. & cert. ef. 7-30-07
255-032-0035
Effect of Denying Relief
Request
If the Board finds that the
inmate is not capable of rehabilitation, the Board shall deny the relief sought
in the inmate petition. The Board may not grant a subsequent hearing that is less
than two years, or more than 10 years, from the date the petition is denied.
(1) The Board may not grant
a hearing that is more than two years from the date a petition is denied unless
the board finds that it is not reasonable to expect that the prisoner would be granted
a change in the terms of confinement before the date of the subsequent hearing.
(2) A decision to grant a hearing
that is more than two years from the date a petition is denied requires a unanimous
vote of the Board members participating in the hearing; the length of the deferral
shall be determined by a majority vote.
(3) Factors to be considered
in establishing a deferral period of longer than two years include those listed
in OAR 255-062-0016.
(4) The inmate may request an
interim exit interview hearing pursuant to OAR 255-062-0021.
(5) If the Board finds, based
upon the request for an interim hearing, that there is reasonable cause to believe
that the inmate may be granted a change in the terms of confinement, the Board shall
conduct a hearing as soon as is reasonably convenient. An interim hearing may be
granted by a majority of the Board.
(6) If the Board denies a petition
for an interim hearing, it shall issue a final order accompanied by findings of
fact and conclusions of law, pursuant to ORS144.285(3) (2009). A finding by the
Board under (e) above does not bind the Board to any specific finding at the interim
murder review hearing.
Stat. Auth.: ORS 163.105, 144.285

Stats. Implemented: ORS 144,
163.105

Hist.: 2PB 8-1985, f. &
ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88; PAR 4-1993, f. & cert. ef. 10-29-93;
PAR 4-1997, f. 3-11-97, cert. ef. 3-14-97; PAR 6-2011, f. & cert. ef. 11-30-11
255-032-0037
Prison Term Hearings
for Inmates Found Likely to be Rehabilitated
(1) The Board shall hold a prison
term hearing for an adult inmate convicted of murder as defined in ORS 163.115 or
Aggravated Murder as defined in ORS 163.095 committed on or before October 22, 1999,
whose sentence has been converted to life with the possibility of parole based on
the Board’s determination that the inmate is likely to be rehabilitated within
a reasonable period of time.
(2) The Board will conduct the
hearing under the provisions of Division 030 of the Board’s rules in place
at the time the hearing is conducted, and will establish the prison term or take
other action authorized under the law and administrative rules that apply with respect
to the date of the crime.
Stat. Auth.: ORS 144.120; Other
Auth.: OAR 255-030-0012(1982), 255-032-0005(1)(1985), 255-032-0005(1)(1982)(1985),
Janowski/Flemimg v. Board of Parole, 349 OR 432(2010), Severy/Wilson v. Board of
Parole, 349 OR 461(2010)

Stats. Implemented: ORS 144.120,

Hist.: PAR 7-2011, f. &
cert. ef. 11-30-11; PAR 1-2012, f. & cert. ef. 3-13-12
255-032-0040
Record/Notice
Provisions for maintaining a record of the hearings and providing notice of decision shall be those set forth in Divisions 15 and 30 of these rules.
Stat. Auth.: ORS 144

Stats. Implemented: ORS 144.120, ORS 144.135 & ORS 144.260

Hist.: 2PB 8-1985, f. & ef. 5-31-85; PAR 6-1988, f. & ef. 5-19-88

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