74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
HA to A-Eng. SB 288
LC 1134/SB 288-A5
HOUSE AMENDMENTS TO
A-ENGROSSED SENATE BILL 288
By COMMITTEE ON JUDICIARY
May 31
On page 1 of the printed A-engrossed bill, line 2, after ' ORS'
insert '144.110,'.
Delete lines 5 through 26 and pages 2 through 4 and insert:
' { + 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 { - . - } { + ; 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 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) 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. + }
' { - (4) - } { + (5) + } 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 { - . - } { + ; 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. + }
' (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) 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. + }
' { - (e) - } { + (f) + } 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. + } ORS 144.110 is amended to read:
' 144.110. (1) In any felony case, the court may impose a
minimum term of imprisonment of up to one-half of the sentence it
imposes.
' (2) Notwithstanding the provisions of ORS 144.120 and
144.780:
' (a) The State Board of Parole and Post-Prison Supervision
shall not release a prisoner on parole who has been sentenced
under subsection (1) of this section until the minimum term has
been served, except upon affirmative vote of a majority of the
members of the board.
' (b) The board shall not release a prisoner on parole:
' (A) Who has been convicted of murder defined as aggravated
murder under the provisions of ORS 163.095, except as provided in
ORS 163.105; or
' (B) Who has been convicted of murder under the provisions of
ORS 163.115, except as provided in ORS 163.115 (5)(c) to
{ - (e) - } { + (f) + }.
' { + SECTION 4. + } { + (1) The amendments to ORS 144.110,
163.105 and 163.115 by sections 1, 2 and 3 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 144.110, 163.105 and 163.115 by sections 1, 2
and 3 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 5. + } { + 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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