Justice Resource Center v. Board of Parole

No. 197 March 12, 2025 509

IN THE COURT OF APPEALS OF THE STATE OF

OREGON

OREGON JUSTICE RESOURCE CENTER,

Petitioner,

v.

BOARD OF PAROLE AND POST-PRISON

SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A181296

Argued and submitted June 14, 2024.

Alexander Coven argued the cause for petitioner. On

the opening brief was Brian R. Decker and Oregon Justice

Resource Center. Also on the reply brief was Julia Yoshimoto

and Oregon Justice Resource Center.

Denise G. Fjordbeck, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Pagán, Presiding Judge, Lagesen, Chief Judge,

and Mooney, Senior Judge.*

LAGESEN, C. J.

Petition for judicial review dismissed.

Mooney, S. J., dissenting.

______________

* Lagesen, C. J. vice Hadlock, S. J.

510 Justice Resource Center v. Board of Parole

Cite as 338 Or App 509 (2025) 511

LAGESEN, C. J.

This is an administrative-rule-review proceeding

under ORS 183.400. Petitioner, the Oregon Justice Resource

Center, asserts that written and oral testimony about

pending legislation by the then-chair of the Oregon Board

of Parole and Post-Prison Supervision at a hearing of the

Senate Committee on Judiciary constitutes an administra-

tive rule under ORS 183.310(9). Because we conclude that

legislative testimony about pending legislation by an agency

representative is not a rule under the Oregon Administrative

Procedure Act (APA), we dismiss this proceeding for lack of

jurisdiction.

By way of background, during the 2023 legislative

session, petitioner advocated in favor of Senate Bill 1027

(2023).1 That measure proposed to change the statutory pro-

cess for converting the terms of incarceration and allowing

for the parole of persons convicted of murder or aggravated

murder and sentenced to life imprisonment without possi-

bility of parole. If enacted, the statute would have required

such a person to be released on parole within 60 days of the

date of a hearing at which the Board of Parole and Post-

Prison Supervision unanimously found that the person was

capable of rehabilitation and that the terms of imprison-

ment should be converted to life with possibility of parole.

SB 1027 would have changed existing law in several ways

with respect to the offenders covered by it. One significant

change would have been to eliminate the board’s authority

under ORS 144.125 to conduct a hearing to assess whether

a person has a “present severe emotional disturbance such

as to constitute a danger to the health or safety of the com-

munity” before releasing such a person on parole, and by

requiring parole solely on a finding that a person was “capa-

ble of rehabilitation.” See ORS 144.125(3)(a) (2021); SB 1027,

§ 2 (2023).

In March 2023, the Senate Committee on Judiciary

held what turned out to be the single public hearing on SB

1027. Greta Lowry, then-chair of the Oregon Board of Parole

and Post-Prison Supervision, was one of several witnesses

1

We draw our discussion of SB 1027 from the legislative record: SB1027 2023

Regular Session - Oregon Legislative Information System.

512 Justice Resource Center v. Board of Parole

to testify. She provided both written and oral testimony.

That testimony, which Lowry represented was on behalf of

the board, is included in the appendices to this opinion.2

In her written testimony, Lowry noted that SB 1027

did not require proof of actual rehabilitation as a prereq-

uisite to parole and further described it as eliminating an

existing requirement that a person be actually rehabilitated

prior to release on parole: “As actual rehabilitation would

no longer be a requirement for release, the necessary bal-

ance of risk and rehabilitation, and the exploration of the

dynamic factors implicit in both, would fail to be addressed.”

Testimony, Senate Committee on Judiciary, SB 1027, Mar

22, 2023, 1 (written statement of Greta Lowry).

In her oral testimony, Lowry described the existing

statutory scheme, including the board’s authority to conduct

an exit interview “where the Board is tasked with making a

release decision based on whether it finds that the adult in

custody has a present severe emotional disturbance such as

to constitute a danger to the health or safety of the commu-

nity.” Tape Recording, Senate Committee on Judiciary, SB

1027, Mar 23, 2023, at 01:19:30 (statements of Greta Lowry),

Oregon Legislative Video (accessed Mar 4, 2025); Testimony,

Senate Committee on Judiciary, SB 1027, Mar 22, 2023, 1

(accompanying written statement of Greta Lowry).

Lowry then explained how the changes proposed in

SB 1027 would, in the board’s view, eliminate safeguards for

public safety by, among other changes, “remov[ing] the safe-

guard of actual rehabilitation, requiring only that an adult in

custody be found likely to be rehabilitated within a reason-

able period of time prior to release to the community.” Tape

Recording, Senate Committee on Judiciary, SB 1027, Mar

23, 2023, at 01:20:40 (statements of Greta Lowry), Oregon

Legislative Video (accessed Mar 4, 2025); Testimony, Senate

Committee on Judiciary, SB 1027, Mar 23, 2023, 1 (accompany-

ing written statement of Greta Lowry) (emphasis in original).

The bill did not make it out of committee.

2

Lowry submitted a written version of her oral testimony into the legisla-

tive record, in addition to her written testimony. The hearing is viewable here:

Oregon Legislative Video.

Cite as 338 Or App 509 (2025) 513

In May 2023, petitioner initiated this proceeding.

Petitioner alleges that Lowry’s written and oral testimony

regarding SB 1027 “contain the challenged rule for which

review is sought.” Petitioner asserts that Lowry’s testimony

stating or implying that current law requires “actual reha-

bilitation” as a prerequisite to release on parole constitutes

an administrative rule—which petitioner denominates the

“actual rehabilitation rule”—that is subject to review under

ORS 183.400. For the reasons that follow, we conclude that

legislative testimony is not an administrative rule and,

therefore, dismiss the petition for lack of jurisdiction.

ORS 183.400 allows for judicial review of admin-

istrative rules. For purposes of that provision, a “rule” is

“any agency directive, standard, regulation or statement

of general applicability that implements, interprets or pre-

scribes law or policy, or describes the procedure or practice

requirements of any agency.” ORS 183.310(9). “If a par-

ticular agency writing is not a rule within the meaning

of ORS 183.310(9), then we do not have jurisdiction under

ORS 183.400 to determine its validity: ‘When the matter

in question is not a rule, we have no authority to review it

under ORS 183.400.’ ” Smith v. Dept. of Corrections, 300 Or

App 309, 311, 454 P3d 12 (2019) (quoting Smith v. DCBS,

283 Or App 468, 471-72, 388 P3d 1253, rev den, 361 Or 350

(2017)). Because the question whether Lowry’s testimony is

a rule is a jurisdictional one, we have an independent obliga-

tion to determine whether we have jurisdiction under ORS

183.400, regardless of the parties’ specific arguments on the

point. Maloney v. Bryant, 332 Or App 745, 756, 552 P3d 90

(2024) (explaining that the Court of Appeals has an obli-

gation to consider, sua sponte, whether it has jurisdiction);

Schwartz and Battini, 289 Or App 332, 338, 410 P3d 319

(2017) (explaining that issue of subject matter jurisdiction

cannot be waived and can be raised at any time). As the

party invoking our jurisdiction under ORS 183.400, peti-

tioner bears the burden of demonstrating that the testimony

for which it seeks judicial review constitutes an administra-

tive rule.

Petitioner has not done so. Petitioner posits that

Lowry’s testimony constitutes a “statement of general

514 Justice Resource Center v. Board of Parole

applicability” within the meaning of ORS 183.310. That

argument misapprehends what that phrase means in

the context of the Administrative Procedure Act. As the

Supreme Court recently clarified, “the definition of ‘rule’

contemplates an expression of an agency decision that has

‘general applicability’ in the sense that it is made opera-

tive—i.e., the agency somehow has communicated the deci-

sion in a way that purports to bind those subject to it.” PNW

Metal Recycling, Inc. v. DEQ, 371 Or 673, 699, 540 P3d 523

(2023), adh’d to as modified on recons, 372 Or 158 (2024)

(emphasis in original). Applying that definition, the court

concluded that the Department of Environmental Quality

had not issued a “rule” when it informed regulated parties

that, although it had previously interpreted a statute to not

require a permit for their operations, it was changing that

interpretation and requiring the parties to obtain permits.

Id. at 698-701. The court explained “that an agency’s inter-

pretive decision is not, itself, a rule, although the generally

applicable expression of such a decision could be.” Id. at 700

(footnote omitted).

Here, the testimony that petitioner points to is not,

on its face, an “expression” of an agency decision that pur-

ports to bind anyone or even an “expression” of the operative

legal standard for an exit interview. Rather, on its face, the

testimony simply purports to describe the consequences of

SB 1027’s proposed requirement that a parole release date

be set within 60 days of a finding that a person is capable

of rehabilitation and the corresponding elimination of the

existing exit-interview process, which allows the board to

assess a person’s present dangerousness, rather than simply

evaluate whether the person is presently “capable” of reha-

bilitation. Although Lowry’s testimony equates the elim-

ination of the exit-interview process with “remov[ing] the

safeguard of actual rehabilitation,” in context, that equiva-

lence was a nontechnical, common-sense way of describing

how current law operates. Lowry did not testify that the

board applies, or intends to apply, an “actual rehabilitation”

standard when conducting exit interviews. Beyond that, her

oral testimony describing the exit interview process accu-

rately described the operative “present severe emotional dis-

turbance” standard and did not identify or articulate any

Cite as 338 Or App 509 (2025) 515

sort of binding standard beyond that explicitly stated in the

applicable statutes. Lowry’s summary of the correct legal

standard using the phrasing of ORS 144.225 further refutes

petitioner’s assertion that Lowry’s later testimony, describ-

ing the effect of eliminating the exit-interview process, rep-

resented an expression that a generally applicable “actual

rehabilitation” rule would govern exit interviews. Under

those circumstances, there is no basis for us to conclude

that Lowry’s testimony mentioning “actual rehabilitation”

constitutes a “statement of general applicability” within the

meaning of ORS 183.310(9).

Our conclusion that petitioner has not shown that

Lowry’s testimony constitutes a “rule” for purposes of ORS

183.310(9) is consistent with the history of the APA. As

David B. Frohnmayer, then a law professor and chair of the

Interim Subcommittee on Administrative Procedure Act

Reform of the Legislative Counsel Committee, recounted

in his essay The Oregon Administrative Procedure Act:

An Essay on State Administrative Rulemaking Procedure

Reform, much of the Oregon APA, as we know it today, was

enacted in 1971 and was based on a draft act prepared by

the Oregon Bar Committee on Administrative Law. Essay

on State Administrative Rulemaking Procedure Reform, 58

Or L Rev 411, 416-20 (1980) (summarizing the legislative

history of the Oregon APA). The proposed definition of a

rule—which is broader than the definition of a rule in the

federal Administrative Procedure Act—prompted concerns

from agency administrators:

“The extraordinary breadth of the definition of [a rule]

raises a question whether agencies must promulgate as

rules their statements of opinion, office guidelines, field

handbooks, and the like, and even the public speeches or

statements of agency administrators.”

Id. at 429 (emphasis added). One agency administrator

was concerned that the agency would have to engage in

rulemaking anytime he or his deputies opined on the legal-

ity, propriety, or wisdom of proposed laws. Id. at n 85. The

Bar Committee alleviated those concerns by affirmatively

stating that the concerns raised by the agency administra-

tor did not fall within the definition of a “rule” subject to

516 Justice Resource Center v. Board of Parole

rulemaking, emphasizing that the “general applicability”

requirement would operate to ensure that such statements

would not require rulemaking. Id. That history of Oregon’s

APA demonstrates that the drafters of the act did not intend

for the broad statutory definition of a “rule” to cover each

and every opinion by an agency head regarding a proposed

or existing law, even if made in public statements.

Finally, although the board does not appear to have

recognized the point, we note that even if legislative testi-

mony could, conceivably, constitute “a statement of general

applicability,” testimony falls within an explicit exception to

the definition of a rule. Under ORS 183.310(9)(b), “[a]ction

by agencies directed to other agencies or other units of gov-

ernment which do not substantially affect the interests of

the public” does not constitute a rule. For purposes of the

statute, to “substantially affect the interests of the pub-

lic” an action must, at a minimum, be “self-executing,” and

not require additional agency action before it affects either

“public or private interests.” Rogue Flyfishers v. Water Policy

Review Bd., 62 Or App 412, 417, 660 P2d 1089 (1983).3 Such

exclusions from the definition of a “rule” were intended to

provide “sufficient flexibility to allow agencies to perform

essential executive functions without unnecessary proce-

dural obstacles” such as having to undergo the rulemak-

ing process simply to communicate. Frohnmayer, Essay on

Administrative Law, 58 Or L Rev at 432-33 (citing and quot-

ing United Parcel v. Transp. Comm., 27 Or App 147, 150, 555

P2d 778 (1976) (internal quotation marks omitted)). Indeed,

treating communications between an executive agency and

the legislature that do not affect the interests of the public in

a self-executing way would frustrate the underlying purpose

of exemptions from actions considered “rules.” Here, Lowry’s

testimony was “directed to” another unit of government: the

legislature. And it did not “substantially affect the inter-

ests of the public” as we have construed that term, because

it did not operate directly on public or private interests.

3

In Rogue Flyfishers we construed the phrase “do not substantially affect

the interests of the public” for purposes of ORS 183.310(9)(a), not for purposes

of ORS 183.310(9)(b). Although we were focused on a different provision of ORS

183.310, “[i]t is a longstanding principle of statutory construction that words

may be assumed to be used consistently throughout a statute.” Pete’s Mountain

Homeowners v. Ore. Water Resources, 236 Or App 507, 518, 238 P3d 395 (2010).

Cite as 338 Or App 509 (2025) 517

Testimony about law, standing alone, does not function in a

self-executing way as law itself. For that additional reason,

we conclude that Lowry’s testimony is not a rule subject to

judicial review under ORS 183.400.

We acknowledge, as petitioner points out, that

Lowry’s characterization of the exit-interview process as

encompassing a requirement of “actual rehabilitation” is at

odds with the Supreme Court’s characterization of the pro-

cess in a footnote in Janowski/Fleming v. Board of Parole,

349 Or 432, 458-59 n 24, 245 P3d 1270 (2010) (“There is no

statutory and regulatory authority for any further procedure

to determine actual rehabilitation or for conditioning parole

release on such a determination, and neither we nor the

board are permitted to add any such procedure to the stat-

utes or rules.”). To the extent that Lowry’s testimony could

be construed as suggesting that before a person convicted

of murder or aggravated murder who has their sentence

converted to life with possibility of parole can be paroled,

a factfinder must find that the person is “actually rehabili-

tated”—as distinct from assessing whether the person has a

present severe emotional disturbance such as to constitute

a danger to the health or safety of the community—that tes-

timony would be incorrect and, potentially, misleading. As

noted, at issue in an exit interview is whether a person “has

a present severe emotional disturbance such as to constitute

a danger to the health or safety of the community.” ORS

144.125(3)(a). The fact that Lowry’s testimony was incorrect,

however,4 does not supply a basis for concluding that her tes-

timony sets a binding legal standard that will govern the

board’s conduct of exit interviews for persons who have their

sentences converted to life with possibility of parole.5

4

The dissenting opinion infers that Lowry’s testimony is “false.” Although

that inference may be one reasonable inference, in our view, it is not the only

reasonable understanding of Lowry’s testimony. Because we have included the

testimony in the appendices to this opinion, readers may draw their own conclu-

sions about it.

5

That Lowry’s testimony is not a rule is underscored by another feature of

our caselaw. It is well-established that, subject to the exception to mootness cre-

ated by ORS 14.175, we lack jurisdiction to review a rule that has been repealed

and must dismiss as moot a proceeding to review a repealed rule under ORS

183.400. Mooney v. Oregon Health Authority, 314 Or App 809, 811, 500 P3d 79

(2021) (citing Reid v. DCBS, 235 Or App 397, 401, 232 P3d 994 (2010)). Were we

to conclude that her testimony was a rule, we would then be faced with a second

518 Justice Resource Center v. Board of Parole

Petition for judicial review dismissed.

MOONEY, S. J., dissenting.

When the Chair of the Board of Parole and Post-

Prison Supervision (Parole Board) testified before the

Senate Judiciary Committee, she told the senators that if

SB 1027 were to become law, “actual rehabilitation would no

longer be a requirement” to convert a convicted murderer’s

life sentence to one with the possibility of parole. In fact,

ORS 163.105(3) provided, and still provides, that

“[i]f * * * the board * * * finds that the prisoner is capable of

rehabilitation and that the terms of the prisoner’s confine-

ment should be changed to life imprisonment with the pos-

sibility of parole * * * it shall enter an order to that effect[.]”

(emphasis added). Indeed, “[t]he sole issue [at a murder

review hearing] is whether or not the prisoner is likely to

be rehabilitated within a reasonable period of time.” ORS

163.105(2). “Actual rehabilitation” is not the same as “capa-

ble of rehabilitation.” The Parole Board Chair’s testimony

was, thus, incorrect.

Petitioner contends that the Chair’s statement

amounted to the announcement of a new agency rule within

the meaning of ORS 183.310(9). It challenges that rule,

arguing that it is invalid because it was adopted without

following applicable rulemaking procedures and because

it exceeds the statutory authority of the Parole Board. The

Parole Board responds, in part, that the Chair did not

announce a new rule, but instead “correctly stated current

law.” According to the Parole Board, its Chair’s statement

was “directed to the impact of proposed legislation” and

“had no effect on the [Parole B]oard’s existing procedures.”

The Parole Board asks us to dismiss the petition for judicial

review because, according to it, there is no rule to review.

The majority reaches the result advocated by the Parole

Board and it characterizes the Chair’s statement as “a

jurisdictional question: whether legislative testimony for a bill that died in com-

mittee in 2023 nevertheless remains a current rule for purposes of ORS 183.400.

Our understanding of the Oregon APA, and its objectives of improving govern-

mental function, make it unlikely that the legislature intended to enact a scheme

that would lead to such an inquiry.

Cite as 338 Or App 509 (2025) 519

nontechnical, common-sense way of describing how current

law operates.” 338 Or App at 514. I disagree.

I would conclude that the Parole Board Chair’s state-

ment regarding “actual rehabilitation” was a “statement of

general applicability” within the meaning of ORS 183.310(9)

and that it constituted a rule subject to review in this court. I

would, thus, reach the merits of petitioner’s rule challenge and

invalidate the rule because the Parole Board did not follow

applicable rulemaking procedures in creating it and because

the rule exceeds the Parole Board’s statutory authority.

When the Parole Board Chair testified before the

Senate Judiciary Committee, she explained that her purpose

was to provide the committee members with “a foundational

understanding of where we are now” in terms of the “cur-

rent parole process.” Audio Recording, Senate Committee on

Judiciary, SB 1027, Mar 23, 2023, at 1:17:19 (testimony of

Parole Board Chair Greta Lowry), https://olis.oregonlegisla-

ture.gov (accessed Jan 8, 2025). She noted that “the Board

is a statutory creature, meaning that we are obligated to fol-

low the processes that have been spelled out and authorized

by statute[.]” Id. Her purpose in providing testimony was

“to explain how SB 1027 intersects with our current pro-

cess and how its passage would impact the Board, victims,

and our communities.” Id. When she testified that “SB 1027

removes the safeguard of actual rehabilitation, requiring

only that an adult in custody be found likely to be rehabili-

tated within a reasonable period of time prior to release into

the community,” id. (emphasis added), she necessarily told

the committee that current law required actual rehabilita-

tion. Her written testimony echoed her oral testimony and

expressed that same point. Testimony, Senate Committee

on Judiciary, SB 1027, Mar 22, 2023, (written statement of

Parole Board Chair Greta Lowry).1 It was an expression of a

1

The Parole Board Chair’s written testimony included, in part:

“SB 1027 only requires that an Adult in Custody (AIC) demonstrate that

they are likely to be rehabilitated within a reasonable period of time prior to

being released to the community; it does not require an AIC to demonstrate

actual, meaningful rehabilitation consistent with public safety. The ulti-

mate outcome of this approach is that AICs who are not yet safe to be in the

community will be released, within 60 days of their hearing, if the [Parole]

Boards finds them likely to be rehabilitated within a reasonable period of

time. As actual rehabilitation would no longer be a requirement for release,

520 Justice Resource Center v. Board of Parole

rule that, according to the Parole Board Chair, was currently

binding on the Parole Board. See PNW Metal Recycling, Inc.

v. DEQ, 371 Or 673, 699, 540 P3d 523 (2023), adh’d to as

modified on recons, 372 Or 158, 546 P3d 286 (2024) (explain-

ing that “the definition of ‘rule’ contemplates an expression

of an agency decision that has ‘general applicability’ in the

sense that it is made operative—i.e., the agency somehow

has communicated the decision in a way that purports to

bind those subject to it” (emphasis in original)).

It is important to acknowledge that the Parole

Board Chair announced a rule that had never before been

made public. In fact, she announced a rule that, to those

schooled in the laws governing the Parole Board process,

made no sense because it was directly at odds with the stan-

dard for murder review hearings codified in ORS 163.105:

“(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 reha-

bilitated 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 pris-

oner has:

“(a) The burden of proving by a preponderance of the

evidence the likelihood of rehabilitation within a reason-

able period of time;

“* * * * *

“(3) If, upon hearing all of the evidence, the board,

upon a unanimous vote of three board members or, if the

chairperson requires all voting members to participate, a

unanimous vote of all voting members, finds that the pris-

oner is capable of rehabilitation and that the terms of the

prisoner’s confinement should be changed to life imprison-

ment with the possibility of parole, release to post-prison

supervision or work release, it shall enter an order to that

effect[.]”

the necessary balance of risk and rehabilitation, and the exploration of the

dynamic factors implicit in both, would fail to be addressed.”

(Emphasis in original).

Cite as 338 Or App 509 (2025) 521

And to the extent that the Parole Board argues that its

Chair’s comments were describing the impact of SB 1027

on the “exit interview” that ORS 144.125 permits—rather

than the murder review hearing under ORS 163.105—it is

important to recognize that “actual rehabilitation” does not

apply in that context either. See Janowski/Fleming v. Board

of Parole, 349 Or 432, 458 n 24, 245 P3d 1270 (2010) (explain-

ing that after the Parole Board has found that an adult in

custody is capable of rehabilitation at a murder review hear-

ing, “[t]here is no statutory or regulatory authority for any

further procedure to determine actual rehabilitation or for

conditioning parole release on such a determination”).

When the Parole Board Chair told the committee

that SB 1027 would eliminate actual rehabilitation as “a

requirement for release,” she announced a rule that by her

own description was current and binding. She announced a

rule so wholly at odds with the true statutory standard that

it would reasonably be heard as a new rule by those familiar

with existing law. It is difficult to understand the Board’s

assertion in this court that the Chair’s statement was a cor-

rect statement of the law. It was not. And describing the

Chair’s statement as a “nontechnical” description of how

current law works does not change the essential character

of the statement as an expression of a Parole Board rule in

a way that says “this is the rule that is presently binding on

us and on those who come before us.” It was a statement of

general applicability, made by the Parole Board Chair in her

official capacity, without equivocation, for the specific pur-

pose of informing legislators that the Parole Board was cur-

rently required to find actual rehabilitation before releasing

a convicted murderer. It is reasonable to infer that her point

was to be sure that the committee members thought—incor-

rectly—that a vote for SB 1027 would be a vote to lower the

release threshold from actual rehabilitation to mere capac-

ity to be rehabilitated. Not unsurprisingly, the bill never

made it out of that committee.

This case is factually uncomfortable. The Parole

Board Chair appeared before the Senate Judiciary

Committee as it considered a bill that would have had a

direct and significant impact on the Parole Board’s work,

522 Justice Resource Center v. Board of Parole

and she told them that the bill, if passed, would require the

Parole Board to release convicted murderers from prison

before those prisoners were actually rehabilitated. The prob-

lem is that actual rehabilitation has never been required in

the release process. The Chair either created a false legis-

lative record about existing law or she revealed a new rule

that had not before been publicly announced. Either is unac-

ceptable. Because the Parole Board Chair’s testimony meets

the definition of a “rule,” I would address the merits of the

petition before us, and I would declare the rule to be invalid.

If anything, the discomfort occasioned by the circumstances

of this case makes the need to reach its merits all the more

compelling. Today is, as always, an excellent time to embrace

our role in the checks and balances so fundamental to our

government.

Respectfully, I dissent.

Cite as 338 Or App 509 (2025) 523

APPENDIX 1— ORAL TESTIMONY OF GRETA LOWRY

ORAL TESTIMONY – 3/23/23

Chair Prozanski, Vice-Chair Thatcher, and Members of the

Committee.

For the record my name is Greta Lowry, and I am the

Chairwoman of the Oregon Board of Parole and PostPrison

Supervision. With me today is John Bailey, Vice-

Chairperson of the Board.

The Board submitted written testimony regarding SB 1027

yesterday, and so I believe the most prudent use of our time

today is to provide a brief, high-level overview of the cur-

rent parole process, so that as you consider the necessity

and appropriateness of any changes, you have a founda-

tional understanding of where we are now and why. Upon

the conclusion of that overview, I will explain how SB 1027

intersects with our current process and how its passage

would impact the Board, victims, and our communities.

At the outset it is worth noting that the Board is a stat-

utory creature, meaning that we are obligated to follow

the processes that have been spelled out and authorized

by statute, and as interpreted over time by the courts. In

many instances a legal requirement is imposed upon the

Board to conduct a three-step release process to include a

Murder Review Hearing, a Prison Term Hearing, and an

Exit Interview.

For those under the authority of the Board, who have been

convicted of Aggravated Murder or Murder, the release pro-

cess begins with a Murder Review Hearing. In that hear-

ing, Board is tasked with determining whether an adult

in custody is likely to be rehabilitated within a reasonable

period of time. The adult in custody is entitled to an attor-

ney, is able to call support persons to testify on their behalf,

and is questioned by the Board. A representative of the

committing jurisdiction and any designated victim’s repre-

sentatives are entitled to appear and make a statement to

the Board. The standard of proof is that of a preponderance

of the evidence, and the burden is carried by the adult in

524 Justice Resource Center v. Board of Parole

custody. If the Board does not find that an adult in custody

has carried their burden, a deferral period of 2-10 years is

selected, and a Final Order is drafted.

In the alternative, if the board determines an adult in cus-

tody has carried their burden, a prison term calculation is

conducted immediately upon the conclusion of the Board’s

deliberation. If an adult in custody has already served

more time than the board could legally impose at a prison

term hearing, the adult in custody is scheduled for an Exit

Interview as soon as the board hearings calendar allows.

Currently, the Board schedules hearings six months in

advance. This is what happens in the vast majority of cases.

If the adult in custody has not already served more time

than the Board could legally impose, then a Prison Term

Hearing would be scheduled. In these hearings the adult in

custody is not entitled to an attorney, however they are able

to make arguments and call upon support persons to tes-

tify on their behalf after they are questioned by the Board.

A representative of the committing jurisdiction and any

designated victim’s representatives are entitled to appear

and make a statement to the Board. Upon the conclusion of

the hearing, the Board deliberates and determines a prison

term, and the adult in custody would then see the Board for

an Exit Interview at the end of that prison term.

The final step of the release process is that of an Exit

Interview, where the Board is tasked with making a release

decision based upon whether it finds that the adult in cus-

tody has a present severe emotional disturbance such as to

constitute a danger to the health or safety of the commu-

nity. In these hearings the adult in custody is not entitled

to an attorney, however they are able to make arguments

and call upon support persons to testify on their behalf

after they are questioned by the Board. A representative

of the committing jurisdiction and any designated vic-

tim’s representatives are entitled to appear and make a

statement to the Board. The burden of finding a present

severe emotional disturbance is on the Board. Per statute,

in preparation for an Exit Interview, an adult in custody

Cite as 338 Or App 509 (2025) 525

is required to undergo a thorough psychological evalua-

tion. Refusal to participate in that psychological evalua-

tion is a sufficient, independent reason to defer an adult in

custody. If the Board finds that an adult in custody has a

present severe emotional disturbance, a deferral period of

between 2-10 years is selected. If the Board finds that an

adult in custody does not have a present severe emotional

disturbance, their release date is affirmed, and the release

planning process with the Department of Corrections and

the Community Corrections agency of the receiving county

begins.

So that is a very brief explanation of each type of hear-

ing and the possible outcomes, with exceptions and caveats

omitted due to the constraints of time.

That primer leads us to SB 1027, how it intersects with

our current process and how its passage would impact the

Board, victims, and our communities. It is the Board’s posi-

tion that the decisions made in a Murder Review Hearing

and an Exit Interview are both essential for public safety.

The decisions are made based upon a different threshold

question, under a different standard, and with different

evidence and information. The elimination of any part

of the current structure would significantly hamper the

Board’s ability to do what it does best, which is make indi-

vidualized and informed risk-based decisions. Clearly, the

intent of SB 1027 is to reduce the three hearings process

down to a single hearing. In its current form, however, a

number of safeguards provided by the current process are

lost.

SB 1027 removes the safeguard of actual rehabilitation,

requiring only that an adult in custody be found likely to

be rehabilitated within a reasonable period of time prior to

release into the community.

SB 1027 removes the safeguard of a psychological eval-

uation, by eliminating the Board’s authority to order or

require an adult in custody to undergo a psychological eval-

uation prior to release into the community.

526 Justice Resource Center v. Board of Parole

SB 1027 removes the safeguard of thorough release plan-

ning, allowing only 60 days to plan for a successful and safe

transition prior to release into the community.

SB 1027 removes the safeguard of surety and confidence

that victims have in our criminal justice system, by once

again altering and advancing processes prior to release

into the community.

Put another way, SB 1027 simply lowers the bar for release

of this particular population of adults in custody.

And to be clear, the population that we’re discussing today

represents those among us who have taken the most, and

who have proven themselves capable of causing significant,

irreparable harm. Therefore, any changes to the release

process deserve careful consideration, should not be rushed,

and should involve meaningful discussion among stake-

holders from every corner of the criminal justice system.

Indeed, changes of this magnitude, changes that touch the

lives of so many, should be entered into thoughtfully, col-

laboratively, and with considerations of public safety the

priority of any permanent policy change.

Mr. Bailey and myself would be happy to answer any ques-

tions the Committee may have. Thank you.

Cite as 338 Or App 509 (2025) 527

APPENDIX 2—WRITTEN TESTIMONY OF GRETA LOWRY

March 22, 2023

The Honorable Senator Floyd Prozanski, Chair

Senate Committee on Judiciary, Members

Testimony re: SB 1027

Dear Chair Prozanski, Vice-Chair Thatcher, and Members

of the Committee on Judiciary,

The Board of Parole (Board) has reviewed the proposed

changes to the Oregon parole hearings process in SB 1027

and offers this testimony to identify some potential impacts

a single hearings process would bring.

I. Requires the Board to release before rehabilita-

tion actually occurs.

SB 1027 only requires that an Adult in Custody (AIC)

demonstrate that they are likely to be rehabilitated within

a reasonable period of time prior to being released to the

community; it does not require an AIC to demonstrate

actual, meaningful rehabilitation consistent with pub-

lic safety. The ultimate outcome of this approach is that

AICs who are not yet safe to be in the community will be

released, within 60 days of their hearing, if the Board finds

them likely to be rehabilitated within a reasonable period

of time. As actual rehabilitation would no longer be a

requirement for release, the necessary balance of risk and

rehabilitation, and the exploration of the dynamic factors

implicit in both, would fail to be addressed.

Additionally, SB 1027 removes the Board’s authority to

postpone a firm release date for those convicted of mur-

der and aggravated murder once the release date is set. In

practice, this means that the Board will no longer be able

to rescind parole for AICs who engage in serious miscon-

duct after a successful parole hearing, but prior to actual

release.

528 Justice Resource Center v. Board of Parole

II. Requires the Board to release without the benefit

of a psychological evaluation.

SB 1027, by eliminating the Exit Interview under ORS

144.125, also eliminates the Board’s clear authority to

order psychological evaluations for use in parole release

decisions, as well as the requirement that an AIC undergo

a psychological evaluation prior to release. A psychological

evaluation is the best piece of information that the Board

has relative to an AIC’s risk for future sexual or physi-

cal violence and is therefore an essential element in the

analysis of risk and rehabilitation. Without these evalua-

tions, which can be upwards of 40 pages long, the Board

would be making critical decisions regarding the health

and safety of our communities with incomplete informa-

tion, which is incompatible with public safety.

Finally, because SB 1027 does not require an AIC to par-

ticipate in a psychological evaluation prior to a hearing,

an AIC can refuse to participate in an evaluation, and the

Board would have no recourse but to proceed and poten-

tially release an AIC who has made a threshold showing of

being likely to be rehabilitated within a reasonable period

of time based solely on historical information already con-

tained in the record, and information gleaned from the AIC

during the hearing. This would be a dramatic departure

from current practice and hinder the Board’s core task of

analyzing current risk.

III. Concerns on how to operationalize the concept

within the time frame as drafted.

Section 8 of the Bill requires that upon the effective date,

anyone who has previously been found likely to be reha-

bilitated within a reasonable period of time, but who has

not yet been deferred at an Exit Interview under ORS

144.125, is required to be released within 60 days if an

Exit Interview is not accomplished. These additional hear-

ings would create an undue burden on the Board, which

is already stretched to its limit accommodating juvenile

commutation hearings. The Board hearings schedule is

Cite as 338 Or App 509 (2025) 529

created six months in advance, with psychological evalu-

ations being ordered four months prior to a hearing, mak-

ing additions to that schedule difficult, especially given the

limited capacity of Department of Corrections institutions

to adapt to last minute changes.

The frank reality of this provision is that a number of

AICs convicted of murder and aggravated murder would

have their prior prison term invalidated, and they would

be released into the community prior to a finding by the

Board that they do not have a present severe emotional dis-

turbance such as to constitute a danger to the health or

safety of the community.

SB 1027 requires the Board, upon a likely finding, to

release an AIC within 60 days of the hearing date. This

is an unrealistic timeline, given the work involved in

safely transitioning someone to the community. The Board

must rely on multiple community partners, including the

Department of Corrections and Community Corrections,

to investigate and approve housing, employment options,

and programming opportunities. Additionally, this time

frame does not account for those releasing on an Interstate

Compact, or those who have special housing or intensive

medical care requirements. Simply stated, release 60 days

from the hearing date is not in the best interest of public

safety, nor is it in the best interest of an AIC seeking a suc-

cessful transition back into a community that is drastically

different from the community they left.

IV. Changing landscape for victims

Finally, the consideration of victim’s rights and the impacts

that procedural changes bring is consistently in the fore-

front of the Board’s mind. The Board routinely hears from

victims that while the current hearings process can be

arduous, they appreciate the bifurcation and the ‘checks

and balances’ approach that it brings. Oregon is an opt-in

state, and victims can choose to participate in all, none,

or only certain hearings held before the Board. This par-

ticipation can take many forms, including written and in

person testimony.

530 Justice Resource Center v. Board of Parole

The Board is in the unique position to regularly interact

with survivors of sexual and physical assault, as well as

the loved ones of those who have been taken through acts

of tremendous violence. We are routinely told that they

are in part able to heal from the trauma they have expe-

rienced by relying on the promises made by the criminal

justice system, among the most important being the guar-

antee that their perpetrators will serve specific sentences.

In the Board’s experience, when we make release decisions,

it often means a mother will have to relive the moment

she heard that her son was killed; a daughter will have to

revisit the moment she found the bodies of her dead parents;

or a father will have to remember the moment he learned

his daughter was raped and left for dead. The retroactive

application of SB 1027 to include those who have been found

likely at a Murder Review Hearing and are currently serv-

ing their imposed prison term further traumatizes victims

and erodes the trust placed in the criminal justice system.

No matter how many hearings are involved in the parole pro-

cess, traumas will be brought to the surface and horrors will

be relived. It is therefore incumbent upon the Board to make

the most informed and thoughtful decisions possible at every

turn, with the best and most evidence available, ensuring a

safe and just process for victims and all Oregonians.

Thank you for taking the time to consider our concerns. We

look forward to engaging with all stakeholder groups and

participating in an official workgroup to collaboratively

discuss any potential changes to this system.

Sincerely,

Greta Lowry

Board Chairwoman

Oregon Board of Parole