concluding, in part, that certain rules relat- ing to parole consideration were facially valid under Jones because the rules allowed for “consideration of any ‘other’ [mitigating] factor, including an offender’s youth at the time of commission”
How later courts described this case
- concluding, in part, that certain rules relat- ing to parole consideration were facially valid under Jones because the rules allowed for “consideration of any ‘other’ [mitigating] factor, including an offender’s youth at the time of commission”
- in holding facially valid rules regarding parole con- sideration for certain juveniles convicted of aggravated mur- der, court explained that a claim that the rules might some- times affect juveniles in ways that illegally failed to consider their age could be addressed by “as applied” challenge
Written by the judges who cited it.
The opinion
592
Argued and submitted February 4, OAR 255-032-0005(4), (5) held valid
July 28, 2021
CRIMINAL JUSTICE REFORM CLINIC
AT LEWIS & CLARK LAW SCHOOL,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Agency/Board/Other
A172093
496 P3d 688
Pursuant to ORS 183.400, petitioner challenges the validity of OAR 255-
032-0005(4) and (5), two rules of the Board of Parole and Post-Prison Supervision
which relate to parole consideration for juveniles convicted of aggravated murder
between 1989 and 1995. Petitioner contends that the rules violate the Eighth
Amendment to the United States Constitution, the ex post facto provisions of the
state and federal constitutions, and ORS 161.620. Held: OAR 255-032-0005(4)
and (5) are valid. ORS 183.400 permits only facial challenges, and OAR 255-032-
0005(4) and (5) do not categorically violate either the Eighth Amendment or the
ex post facto provisions of the state and federal constitutions. Further, OAR 255-
032-0005(4) and (5) do not violate ORS 161.620 because they do not (and cannot)
impose a true life or statutory mandatory minimum sentence.
OAR 255-032-0005(4), (5) held valid.
Mieke de Vrind argued the cause for petitioner. Also
on the briefs were Aliza B. Kaplan and Criminal Justice
Reform Clinic, Lewis & Clark Law School.
Paul L. Smith, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
KAMINS, J.
OAR 255-032-0005(4), (5) held valid.
Cite as 313 Or App 592 (2021) 593
KAMINS, J.
Pursuant to ORS 183.400, petitioner challenges the
validity of OAR 255-032-0005(4) and (5) (the JAM-II rules),
two rules of the Board of Parole and Post-Prison Supervision
(the board) which relate to parole consideration for juve-
niles convicted of aggravated murder between 1989 and
1995. Petitioner contends that the rules violate the Eighth
Amendment to the United States Constitution, the ex post
facto provisions of the state and federal constitutions, and
ORS 161.620.1 Because the rules do not facially violate the
state or federal constitutions or Oregon statute in the ways
that petitioner claims, they are valid.
The JAM-II rules are the latest chapter in a story
that has filled many reporter pages. To make that long story
short, the board enacted the first iteration of these rules (the
JAM-I rules) to fill a “void” in the rules governing juvenile
aggravated murderers who committed their offense between
1989 and 1995.2 Engweiler v. Board of Parole, 343 Or 536,
548, 175 P3d 408 (2007) (Engweiler I). However, because the
JAM-I rules required juveniles to undergo “an intermediate
process before they become eligible for parole consideration,”
which was “inconsistent with the statutes requiring the
board to conduct a parole hearing and set an initial release
date,” the Oregon Supreme Court struck them. Engweiler
v. Persson/Dept. of Corrections, 354 Or 549, 553, 316 P3d
264 (2013) (Engweiler III). The JAM-II rules are the board’s
effort to address the deficiencies identified by the Oregon
Supreme Court.
The JAM-II rules provide:
“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
1
Because petitioner proceeds solely under the Eighth Amendment and does
not raise a state constitutional challenge under Article I, section 16, we do not
address the JAM-II rules’ validity under that provision.
2
These rules applied to “a total of five inmates.” Engweiler v. Board of Parole,
343 Or 536, 542 n 5, 175 P3d 408 (2007).
594 Criminal Justice Reform Clinic v. Board of Parole
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.”
OAR 255-032-0005(4). The rules further provide that “[t]he
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.” OAR 255-032-0005(5). Because
they require the board to set a “projected parole release
date” at the juvenile’s first prison term hearing, the JAM-II
rules eliminate the intermediate review hearing that vio-
lated ORS 161.620.
Although the board addressed the problem of the
intermediate review hearing, petitioner contends that the
JAM-II rules “traded one unconstitutional parole scheme
for another.” Accordingly, petitioner filed this rule chal-
lenge arguing that the rules facially violate the Eighth
Amendment, the ex post facto provisions, and ORS 161.620.
See ORS 183.400(4) (a rule may be declared facially invalid
if it violates a constitutional provision or exceeds an agen-
cy’s statutory authority). Our review is limited to “an exam-
ination of: (a) [t]he rule under review; (b) [t]he statutory
provisions authorizing the rule; and (c) [c]opies of all docu-
ments necessary to demonstrate compliance with applicable
rulemaking procedures.” ORS 183.400(3).
Petitioner’s Eighth Amendment challenge rests on
the contention that the JAM-II rules use an “adult matrix”
that treats youth as an aggravating factor, or at least not
a mitigating one. According to petitioner, the adult matrix
does this in three ways. First, the matrix factor (D) considers
age at the time of the crime to reduce the risk of reoffense
for older individuals, which may result in a shorter prison
term. Petitioner also points out that factor (F) increases
an offender’s risk level if they have had substance abuse
problems within three years prior to the crime. According
to petitioner, this “disproportionately punishes juveniles as
compared to adults because it captures a larger percentage
of childhood compared to adulthood.” Finally, petitioner
argues that the matrix “utterly fails to consider youth as
a mitigating factor.” The state responds that the statutory
and regulatory scheme must be viewed holistically, rather
Cite as 313 Or App 592 (2021) 595
than by parsing individual factors, and, when so viewed, the
JAM-II rules allow for the consideration of youth as a miti-
gating factor.
The Eighth Amendment requires that an offender’s
youth be considered as a mitigating factor in certain cir-
cumstances. Because “youth matters for purposes of met-
ing out the law’s most serious punishments[,] * * * a judge
or jury must have the opportunity to consider mitigating
circumstances before imposing the harshest possible pen-
alty for juveniles.” State v. Link, 367 Or 625, 646, 482 P3d
28 (2021) (internal quotation marks omitted). Accordingly,
“the first step to determine whether a sentence comports
with [the Eighth Amendment] is to determine whether the
sentence is life without parole (or the functional equivalent).
If the answer is yes, then the second question is whether the
sentencing scheme [provides an] individualized-sentencing
requirement.” Id. at 659. For the second step, the Eighth
Amendment requires that a sentencer be given an oppor-
tunity for “individualized consideration of a defendant’s
youth.” Jones v. Mississippi, 593 US ___, ___, 141 S Ct 1307,
1321, 209 L Ed 2d 390 (2021).
We cannot say that the JAM-II rules facially vio-
late the Eighth Amendment. Without the application of
the matrix to an actual juvenile offender, we first cannot
determine whether the prison term imposed prior to release
amounts to one of “the law’s most serious punishments,”
which the Oregon Supreme Court has limited to life without
parole or its functional equivalent. Link, 367 Or at 646, 659.
Even assuming that the JAM-II rules could be viewed to
result in the functional equivalent of a life sentence, for pur-
poses of the second step, the sentencing scheme does allow
for the consideration of youth as a mitigating factor. The
matrix itself allows for the consideration of any “other” fac-
tor, including an offender’s youth at the time of commission.
Overall, to the extent it can be said that the JAM-II
rules lead to the one of the law’s “most serious punishments,”
the statutes and rules allow for sufficient consideration of
a juvenile’s age to comport with the Eighth Amendment.
Although several matrix factors address advancing age
and behavior over time, we cannot say that considering
596 Criminal Justice Reform Clinic v. Board of Parole
advancing age as a mitigating factor in assessing the risk
of reoffense categorically offends the Eighth Amendment
regardless of other opportunities to consider youth as a mit-
igating factor. Nor can we conclude that any assessment of
time—such as three years free of substance abuse—violates
the Eighth Amendment because years amount to a larger
percentage of one’s life the younger one is. The Eighth
Amendment mandates that the sentencer be given discre-
tion to consider youth in determining the sentence, not that
youth automatically causes a reduction in the prison term.
See Jones, 141 S Ct at 1320 (recognizing that “[different] sen-
tencers presented with the same facts might decide that life
without parole remains appropriate despite the defendant’s
youth”). Because, on their face, the JAM-II rules do not nec-
essarily impose the functional equivalent of a life sentence,
and do allow for the consideration of youth, they are facially
valid. Individual offenders may identify constitutional con-
cerns with the actual prison term imposed in their individ-
ual cases, but those challenges are for the day those terms
are imposed.3
Petitioner next contends that the JAM-II rules vio-
late ORS 161.620 because they do not provide for immediate
parole eligibility. In relevant part, ORS 161.620 provides:
“Notwithstanding any other provision of law, a sentence
imposed upon any person waived [from the juvenile court]
* * * shall not include any sentence of death or life impris-
onment without the possibility of release or parole nor
imposition of any mandatory minimum sentence.”
According to petitioner, this statute “requires immediate
parole eligibility for remanded juveniles at the moment that
the trial court imposed a sentence.” However, the statute
only “provides that no juvenile can be sentenced to death
or true life * * * [or] any statutorily required minimum sen-
tence.” State ex rel Engweiler v. Felton, 350 Or 592, 610, 260
P3d 448 (2011) (Engweiler II). The statute prohibits true life,
life without the possibility of parole, and a statutory man-
datory minimum. It does not require that the board rules
3
Once a prison term is actually imposed, it will be possible for the reviewing
court to determine whether age was impermissibly used as an aggravating fac-
tor, as petitioner contends.
Cite as 313 Or App 592 (2021) 597
mandate immediate parole eligibility. Engweiler I, 343 Or
at 553 (explaining that a prison term imposed by the JAM-I
rules is not a mandatory minimum sentence that violates
ORS 161.620); see also Engweiler II, 350 Or at 620 (“ORS
161.620 is a limitation on the options available to the trial
court in sentencing juvenile felony offenders in general, and
specifically, juvenile aggravated murderers under the age
of 17 at the time of their offense. That statute has no appli-
cation to the authority of the board (a separate branch of
government) to make parole release decisions for juvenile
aggravated murderers.”). Although the interaction of sev-
eral statutes does require immediate parole consideration,
see Engweiler III, 354 Or at 553, the JAM-II rules provide
that.4 Because the JAM-II rules do not (and cannot) impose
a true life or statutory mandatory minimum, they do not
facially violate ORS 161.620.
Finally, petitioner contends that the JAM-II rules
violate the ex post facto provisions because they retroac-
tively impose minimum incarceration terms where none
previously existed and increase the amount of time that
juveniles must serve before becoming eligible for release. As
a rule challenge, in which we review only whether a rule
is facially valid, this argument cannot succeed. Without
an offender’s prison term to review, we cannot evaluate
whether the board’s decision retroactively imposes a greater
term than allowed at the time of the offender’s crime. An
individual can raise this challenge on administrative and
judicial review of the board’s determination, but not as a
facial attack.
Petitioner’s argument boils down to a concern that
the JAM-II rules may affect juveniles in a way that illegally
fails to consider their youth. The province of a rule challenge,
however, is to invalidate rules that, on their face, do violate
the law. AFSCME Local 2623 v. Dept. of Corrections, 315 Or
74, 79, 843 P2d 409 (1992), abrogated on other grounds by
GTE Northwest, Inc. v. Public Utility Commission, 321 Or
458, 900 P2d 495 (1995) (explaining that under ORS 183.400
4
Petitioner also argues that it is “problematic according to ORS 161.620”
that the matrix does not place sufficient weight on a juvenile’s maturation.
Although the statute prohibits the imposition of certain sentences for juveniles,
it does not address weighing of matrix factors.
598 Criminal Justice Reform Clinic v. Board of Parole
“the legality of any particular application of the rules is pre-
mature, and not subject to review”). Given the narrow scope
of review of a rule challenge, petitioner’s arguments do not
provide a basis to invalidate the JAM-II rules. If petition-
er’s concerns manifest in an unconstitutional board action,
an individual affected by the JAM-II rules can raise an
as-applied challenge.
OAR 255-032-0005(4), (5) held valid.