75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
HA to HB 2335
LC 1752/HB 2335-6
HOUSE AMENDMENTS TO
HOUSE BILL 2335
By COMMITTEE ON JUDICIARY
May 6
On page 1 of the printed bill, line 2, after '144.228 ' delete
the rest of the line and insert ', 144.232, 163.105 and
163.115.'.
Delete lines 4 through 30 and delete pages 2 through 4 and
insert:
' { + SECTION 1. + } { + (1)(a) If the State Board of Parole
and Post-Prison Supervision denies a petition for a change in the
terms of confinement filed by a prisoner convicted of aggravated
murder or murder, the board may not grant the prisoner a
subsequent hearing that is less than two years, or more than 10
years, from the date the petition is denied.
' (b) The board may not grant the prisoner 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.
' (c) The board shall determine the date of the subsequent
hearing in accordance with rules adopted by the board. Rules
adopted under this paragraph must be based on the foundation
principles of criminal law described in section 15, Article I of
the Oregon Constitution.
' (2) If the board grants the prisoner a hearing that is more
than two years from the date a petition is denied, the prisoner
may submit a request for an interim hearing not earlier than the
date that is two years from the date the petition is denied and
at intervals of not less than two years thereafter. If the board
finds, based upon a request for an interim hearing, that there is
reasonable cause to believe that the prisoner may be granted a
change in the terms of confinement, the board shall conduct a
hearing as soon as is reasonably convenient.
' (3) When the board grants a prisoner a hearing that is more
than two years from the date a petition is denied and when the
board denies a petition for an interim hearing, the board shall
issue a final order. The 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. Unless the
prisoner bears the burden of persuasion, the order shall include
findings necessary to deny the prisoner a change in the terms of
confinement for any period of time when the prisoner would be
presumed to be eligible for a change in the terms of
confinement. + }
' { + SECTION 2. + } { + (1)(a) If the State Board of Parole
and Post-Prison Supervision denies parole to a prisoner sentenced
for a crime committed prior to November 1, 1989, the board may
not grant the prisoner a subsequent hearing that is less than two
years, or more than 10 years, from the date parole is denied,
unless the two-year period would exceed the maximum sentence
imposed by the court.
' (b) The board may not grant the prisoner a hearing that is
more than two years from the date parole is denied unless the
board finds that it is not reasonable to expect that the prisoner
would be granted parole before the date of the subsequent
hearing.
' (c) The board shall determine the date of the subsequent
hearing pursuant to rules adopted by the board. Rules adopted
under this paragraph must be based on the foundation principles
of criminal law described in section 15, Article I of the Oregon
Constitution.
' (2) If the board grants a prisoner a hearing that is more
than two years from the date parole is denied, the prisoner may
submit a request for an interim hearing not earlier than the date
that is two years from the date parole is denied and at intervals
of not less than two years thereafter. If the board finds, based
upon a request for an interim hearing, that there is reasonable
cause to believe that the prisoner may be granted parole, the
board shall conduct a hearing as soon as is reasonably
convenient.
' (3) When the board grants a prisoner a hearing that is more
than two years from the date parole is denied and when the board
denies a petition for an interim hearing, the board shall issue a
final order. The 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. Unless the prisoner bears
the burden of persuasion, the order shall include findings
necessary to deny the prisoner parole for any period of time when
the prisoner would be presumed to be eligible for parole. + }
' { + SECTION 3. + } ORS 144.125 is amended to read:
' 144.125. (1) Prior to the scheduled release of any prisoner
on parole and prior to release rescheduled under this section,
the State Board of Parole and Post-Prison Supervision may upon
request of the Department of Corrections or on its own initiative
interview the prisoner to review the prisoner's parole plan and
psychiatric or psychological report, if any, and the record of
the prisoner's conduct during confinement. To accommodate such
review by the board, the Department of Corrections shall provide
to the board any psychiatric or psychological reports held by the
department regarding the prisoner. However, if the psychiatrist
or psychologist who prepared any report or any treating
psychiatrist or psychologist determines that disclosure to the
prisoner of the contents of the report would be detrimental to
the prisoner's mental or emotional health, the psychiatrist or
psychologist may indorse upon the report a recommendation that it
not be disclosed to the prisoner. The department may withhold
from the board any report so indorsed.
' (2) The board shall postpone a prisoner's scheduled release
date if it finds, after a hearing, that the prisoner engaged in
serious misconduct during confinement. The board shall adopt
rules defining serious misconduct and specifying periods of
postponement for such misconduct.
' (3)(a) If the board finds the prisoner has a present severe
emotional disturbance such as to constitute a danger to the
health or safety of the community, the board may order the
postponement of the scheduled parole release until a specified
future date. { + The board may not postpone a prisoner's
scheduled release date to a date that is less than two years, or
more than 10 years, from the date of the hearing, unless the
prisoner would be held beyond the maximum sentence. The board
shall determine the scheduled release date, and the prisoner may
petition for interim review, in accordance with section 2 of this
2009 Act. + }
' (b) If the board finds the prisoner has a present severe
emotional disturbance such as to constitute a danger to the
health or safety of the community, but also finds that the
prisoner can be adequately controlled with supervision and mental
health treatment and that the necessary supervision and treatment
are available, the board may order the prisoner released on
parole subject to conditions that are in the best interests of
community safety and the prisoner's welfare.
' (4) Each prisoner shall furnish the board with a parole plan
prior to the scheduled release of the prisoner on parole. The
board shall adopt rules specifying the elements of an adequate
parole plan and may defer release of the prisoner for not more
than three months if it finds that the parole plan is inadequate.
The Department of Corrections shall assist prisoners in preparing
parole plans.
' { + SECTION 4. + } ORS 144.228 is amended to read:
' 144.228. (1)(a) Within six months after commitment to the
custody of the Department of Corrections of any person sentenced
under ORS 161.725 and 161.735 as a dangerous offender, the State
Board of Parole and Post-Prison Supervision shall set a date for
a parole consideration hearing instead of an initial release date
as otherwise required under ORS 144.120 and 144.125. The parole
consideration hearing date shall be the time the prisoner would
otherwise be eligible for parole under the board's rules.
' (b) { + (A) + } At the parole consideration hearing, the
prisoner shall be given a release date in accordance with the
rules of the board if the board finds the prisoner no longer
dangerous or finds that the prisoner remains dangerous but can be
adequately controlled with supervision and mental health
treatment and that the necessary resources for supervision and
treatment are available to the prisoner. If the board is unable
to make such findings, { - reviews - } { + a review + } will
be conducted { - at least once every two years - } { + no
less than two years, and no more than 10 years, from the date of
the previous review, + } until the board is able to make such
findings, at which time release on parole shall be ordered if the
prisoner is otherwise eligible under the rules.
' { + (B) The board may not grant the prisoner a review
hearing that is more than two years from the date of the previous
hearing unless the board finds that it is not reasonable to
expect that the prisoner would be granted a release date before
the date of the subsequent hearing.
' (C) The board shall determine the date of the review hearing
in accordance with rules adopted by the board. Rules adopted
under this subparagraph must be based on the foundation
principles of criminal law described in section 15, Article I of
the Oregon Constitution.
' (D) + }In no event shall the prisoner be held beyond the
maximum sentence less good time credits imposed by the court.
' (c) Nothing in this section { - shall preclude - } { +
precludes + } a prisoner from submitting a request for a parole
consideration hearing prior to the earliest time the prisoner is
eligible for parole { - or a two-year review - } . { + If the
board grants a prisoner a review hearing that is more than two
years from the date of the previous hearing, the prisoner may
submit a request for an interim review hearing not earlier than
the date that is two years from the date of the previous hearing
and at intervals of not less than two years thereafter.
+ }Should the board find, based upon { - the - } { + a + }
request { + described in this paragraph + }, that there is a
reasonable cause to believe that the prisoner is no longer
dangerous or that necessary supervision and treatment are
available based upon the information provided in the request, it
shall conduct a review as soon as is reasonably convenient.
' { + (d) When the board grants a prisoner a review hearing
that is more than two years from the date of the previous hearing
and when the board denies a petition for an interim hearing, the
board shall issue a final order. The 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.
Unless the prisoner bears the burden of persuasion, the order
shall include findings necessary to deny the prisoner a release
date for any period of time when the prisoner would be presumed
to be eligible for a release date. + }
' (2) For the parole consideration hearing, the board shall
cause to be brought before it and consider all information
regarding such person. The information shall include:
' (a) The written report of the examining psychiatrist or
psychologist which shall contain all the facts necessary to
assist the State Board of Parole and Post-Prison Supervision in
making its determination. The report of the examining
psychiatrist or psychologist shall be made within two months of
the date of its consideration; and
' (b) A written report to be made by the executive officer of
the Department of Corrections institution in which the person has
been confined. The executive officer's report shall contain:
' (A) A detailed account of the person's conduct while
confined, all infractions of rules and discipline, all punishment
meted out to the person and the circumstances connected
therewith, as well as the extent to which the person has
responded to the efforts made in the institution to improve the
person's mental and moral condition.
' (B) A statement as to the person's present attitude towards
society, towards the sentencing judge, towards the prosecuting
district attorney, towards the arresting police officer and
towards the person's previous criminal career.
' (C) The work and program record of the person while in or
under the supervision of the Department of Corrections. The
program history shall include a summary of any psychological or
substance abuse treatment and other activities that will assist
the board in understanding the psychological adjustment and
social skills and habits of the person and that will assist the
board in determining the likelihood for successful community
reentry.
' { + SECTION 5. + } ORS 144.232 is amended to read:
' 144.232. (1) A person sentenced under ORS 161.725 and 161.735
as a dangerous offender for felonies committed on or after
November 1, 1989, shall be considered for release to post-prison
supervision. The offender is eligible for release to post-prison
supervision after having served the required incarceration term
established under ORS 161.737.
' (2) The State Board of Parole and Post-Prison Supervision
shall hold a release hearing no later than 10 days prior to the
date on which the offender becomes eligible for release on
post-prison supervision as provided in subsection (1) of this
section.
' (3) The dangerous offender's eligibility for and release to
post-prison supervision shall be determined in a manner
consistent with the procedures and criteria required by ORS
144.228 for the parole determination process applicable to
dangerous offenders sentenced for crimes committed prior to
November 1, 1989.
' (4) An offender released under this section shall serve the
remainder of the sentence term imposed under ORS 161.725, 161.735
and 161.737 on post-prison supervision, however:
' (a) Notwithstanding ORS 137.010 or the rules of the Oregon
Criminal Justice Commission, the State Board of Parole and
Post-Prison Supervision may sanction an offender to the
supervision of the local authority for a maximum period of 180
days for any supervision violation. The sanction may be imposed
repeatedly during the term of post-prison supervision for
subsequent supervision violations.
' (b) After release under this section, the board may at any
time return the offender to prison and require the offender to
submit to a psychiatric or psychological examination as provided
for in ORS 144.226. If the board finds that the offender's
dangerousness has returned and cannot be adequately controlled
with supervision and mental and physical health treatment, or
that resources for supervision and treatment are not available to
the offender, the board may defer the offender's release from
prison for an indefinite period of time. An offender returned to
prison under this paragraph is entitled to periodic reviews
{ - once every two years - } for possible release to
post-prison supervision as provided by subsection (3) of this
section.
' { + SECTION 6. + } 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 is whether or not the
prisoner is likely to be rehabilitated within a reasonable period
of time. At the hearing, the prisoner has:
' (a) The burden of proving by a preponderance of the evidence
the likelihood of rehabilitation within a reasonable period of
time;
' (b) 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) If the board denies the relief sought in the
petition, the board shall determine the date of the subsequent
hearing, and the prisoner may petition for an interim hearing, in
accordance with section 1 of this 2009 Act. + }
' { - (4) - } { + (5) + } 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.
' { - (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 7. + } 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 is whether or not the
prisoner is likely to be rehabilitated within a reasonable period
of time. At the hearing the prisoner 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 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) If the board denies the relief sought in the
petition, the board shall determine the date of the subsequent
hearing, and the prisoner may petition for an interim hearing, in
accordance with section 1 of this 2009 Act. + }
' { - (e) - } { + (f) + } 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.
' { - (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 8. + } { + (1) Section 1 of this 2009 Act
applies to prisoners convicted of aggravated murder or murder
that was committed before, on or after the effective date of this
2009 Act and whose petition for a change in the terms of
confinement is denied on or after the effective date of this 2009
Act.
' (2) Section 2 of this 2009 Act applies to prisoners sentenced
for a crime committed prior to November 1, 1989, and who are
denied parole on or after the effective date of this 2009 Act.
' (3) The amendments to ORS 144.125, 144.228 and 144.232 by
sections 3 to 5 of this 2009 Act apply to prisoners:
' (a) Whose release date is postponed under ORS 144.125 on or
after the effective date of this 2009 Act.
' (b) For whom the State Board of Parole and Post-Prison
Supervision is unable to set a release date under ORS 144.228 or
144.232 on or after the effective date of this 2009 Act. + } ' .
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