74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1134
A-Engrossed
Senate Bill 288
Ordered by the Senate April 30
Including Senate Amendments dated April 30
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Removes requirement that parole hearing for defendant convicted
of murder or aggravated murder follow procedures for contested
case hearing { + , unless certain pre-existing conditions
exist + }.
{ + Declares emergency, effective on passage. + }
A BILL FOR AN ACT
Relating to parole hearings in murder cases; creating new
provisions; amending ORS 163.105 and 163.115; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 163.105 is amended to read:
163.105. Notwithstanding the provisions of ORS chapter 144 and
ORS 421.450 to 421.490:
(1)(a) Except as otherwise provided in ORS 137.700, when a
defendant is convicted of aggravated murder as defined by ORS
163.095, the defendant shall be sentenced, pursuant to ORS
163.150, 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, release to post-prison
supervision, 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 { - shall be - }
{ + is + } whether or not the prisoner is likely to be
rehabilitated within a reasonable period of time. { - The
proceeding shall be conducted in the manner prescribed for a
contested case hearing under ORS chapter 183 except that: - }
{ - (a) - } { + At the hearing, + } the prisoner
{ - shall have - } { + has:
(a) + } The burden of proving by a preponderance of the
evidence the likelihood of rehabilitation within a reasonable
period of time; and
(b) { - The prisoner shall have - } 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.
(3) If, upon hearing all of the evidence, the board, upon a
unanimous vote of all of its 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) Not less than two years after the denial of the relief
sought in a petition under this section, the prisoner may
petition again for a change in the terms of confinement. Further
petitions for a change may be filed at intervals of not less than
two years thereafter.
SECTION 2. ORS 163.115 is amended to read:
163.115. (1) Except as provided in ORS 163.118 and 163.125,
criminal homicide constitutes murder:
(a) When it is committed intentionally, except that it is an
affirmative defense that, at the time of the homicide, the
defendant was under the influence of an extreme emotional
disturbance;
(b) When it is committed by a person, acting either alone or
with one or more persons, who commits or attempts to commit any
of the following crimes and in the course of and in furtherance
of the crime the person is committing or attempting to commit, or
during the immediate flight therefrom, the person, or another
participant if there be any, causes the death of a person other
than one of the participants:
(A) Arson in the first degree as defined in ORS 164.325;
(B) Criminal mischief in the first degree by means of an
explosive as defined in ORS 164.365;
(C) Burglary in the first degree as defined in ORS 164.225;
(D) Escape in the first degree as defined in ORS 162.165;
(E) Kidnapping in the second degree as defined in ORS 163.225;
(F) Kidnapping in the first degree as defined in ORS 163.235;
(G) Robbery in the first degree as defined in ORS 164.415;
(H) Any felony sexual offense in the first degree defined in
this chapter;
(I) Compelling prostitution as defined in ORS 167.017; or
(J) Assault in the first degree, as defined in ORS 163.185, and
the victim is under 14 years of age, or assault in the second
degree, as defined in ORS 163.175 (1)(a) or (b), and the victim
is under 14 years of age; or
(c) By abuse when a person, recklessly under circumstances
manifesting extreme indifference to the value of human life,
causes the death of a child under 14 years of age or a dependent
person, as defined in ORS 163.205, and:
(A) The person has previously engaged in a pattern or practice
of assault or torture of the victim or another child under 14
years of age or a dependent person; or
(B) The person causes the death by neglect or maltreatment.
(2) An accusatory instrument alleging murder by abuse under
subsection (1)(c) of this section need not allege specific
incidents of assault or torture.
(3) It is an affirmative defense to a charge of violating
subsection (1)(b) of this section that the defendant:
(a) Was not the only participant in the underlying crime;
(b) Did not commit the homicidal act or in any way solicit,
request, command, importune, cause or aid in the commission
thereof;
(c) Was not armed with a dangerous or deadly weapon;
(d) Had no reasonable ground to believe that any other
participant was armed with a dangerous or deadly weapon; and
(e) Had no reasonable ground to believe that any other
participant intended to engage in conduct likely to result in
death.
(4) It is an affirmative defense to a charge of violating
subsection (1)(c)(B) of this section that the child or dependent
person was under care or treatment solely by spiritual means
pursuant to the religious beliefs or practices of the child or
person or the parent or guardian of the child or person.
(5)(a) A person convicted of murder, who was at least 15 years
of age at the time of committing the murder, shall be punished by
imprisonment for life.
(b) When a defendant is convicted of murder under this section,
the court shall order that the defendant shall be confined for a
minimum of 25 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.
(c) At any time after completion of a minimum period of
confinement pursuant to paragraph (b) of this subsection, 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 { - shall be - }
{ + is + } whether or not the prisoner is likely to be
rehabilitated within a reasonable period of time. { - The
proceeding shall be conducted in the manner prescribed for a
contested case hearing under ORS chapter 183 except that: - }
{ - (A) - } { + At the hearing, + } the prisoner
{ - shall have - } { + has:
(A) + } The burden of proving by a preponderance of the
evidence the likelihood of rehabilitation within a reasonable
period of time; and
(B) { - The prisoner shall have - } 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.
(d) If, upon hearing all of the evidence, the board, upon a
unanimous vote of all of its 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.
(e) Not less than two years after the denial of the relief
sought in a petition under paragraph (c) of this subsection, the
prisoner may petition again for a change in the terms of
confinement. Further petitions for a change may be filed at
intervals of not less than two years thereafter.
(6) As used in this section:
(a) 'Assault' means to intentionally, knowingly or recklessly
cause physical injury to another person. 'Assault ' does not
include the causing of physical injury in a motor vehicle
accident that occurs by reason of the reckless conduct of a
defendant.
(b) 'Neglect or maltreatment' means a violation of ORS 163.535,
163.545 or 163.547 or a failure to provide adequate food,
clothing, shelter or medical care that is likely to endanger the
health or welfare of a child under 14 years of age or a dependent
person. This paragraph is not intended to replace or affect the
duty or standard of care required under ORS chapter 677.
(c) 'Pattern or practice' means one or more previous episodes.
(d) 'Torture' means to intentionally inflict intense physical
pain upon an unwilling victim as a separate objective apart from
any other purpose.
SECTION 3. { + (1) The amendments to ORS 163.105 and 163.115
by sections 1 and 2 of this 2007 Act apply to hearings conducted
on or after the effective date of this 2007 Act.
(2) Notwithstanding subsection (1) of this section, the
amendments to ORS 163.105 and 163.115 by sections 1 and 2 of this
2007 Act do not apply to hearings conducted on or after the
effective date of this 2007 Act if:
(a) The prisoner has petitioned the State Board of Parole and
Post-Prison Supervision for a hearing under ORS 163.105 or
163.115 prior to the effective date of this 2007 Act;
(b) The prisoner was eligible for a hearing at the time the
petition was filed; and
(c) The prisoner has not been granted a hearing on the petition
that was filed prior to the effective date of this 2007 Act. + }
SECTION 4. This 2007 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2007 Act takes effect on its
passage.
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