Jacobs v. Board of Parole

No. 646 July 23, 2025 41

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

SHAYNE M. JACOBS,

Petitioner,

v.

BOARD OF PAROLE

AND POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A181782

Argued and submitted March 10, 2025.

Francis C. Gieringer, Deputy Public Defender, argued the

cause for appellant. Also on the brief was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Oregon Public

Defense Commission.

Erica L. Herb, Assistant Attorney General, argued the

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

Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

KAMINS, J.

Reversed and remanded for proceedings consistent with

this opinion.

42 Jacobs v. Board of Parole

KAMINS, J.

Petitioner seeks judicial review of a final order (Board

Action Form (BAF) 12) of the Board of Parole and Post-Prison

Supervision (the board) that denied petitioner release after

his juvenile hearing under ORS 144.397. Petitioner, an adult

in custody with a life sentence for crimes committed when he

was fifteen years old, was granted clemency by Governor Kate

Brown in the form of a sentence commutation. That commu-

tation gave petitioner a juvenile hearing that he otherwise

would not have received. Petitioner raises three assignments

of error: the board erred when it (1) determined that peti-

tioner had not demonstrated his maturity or rehabilitation;

(2) forced petitioner to choose between an exit interview and

a juvenile hearing; and (3) deferred petitioner’s next juvenile

hearing for four years.

Petitioner’s first assignment rests on three distinct

prongs: (1) the board’s conclusion that petitioner’s “family

and community circumstances” were not probative of the

person and the offense was not supported by substantial

evidence and substantial reason; (2) the board exceeded its

authority by adopting an administrative rule that the board

then used in its determination, in part, to reach its conclu-

sion, OAR 255-033-0030(5)(k); and (3) the board’s order, on

the whole, was not supported by substantial evidence.

With regard to petitioner’s second assignment,

we agree that it was error to require petitioner to choose

between a previously scheduled exit interview and the juve-

nile hearing granted as part of his commutation, but other-

wise affirm.

I. JUVENILE HEARINGS

To place our discussion of the facts in their appro-

priate context, we begin with a brief overview of juvenile

hearings1 under ORS 144.397 and the relevant board’s rule

implementing that statute. Since 2019, all persons serving a

prison sentence who were convicted of an offense committed

1

We use the term “juvenile hearing” here to refer to the hearing conducted

by the board pursuant to ORS 144.397(3) (“When a person eligible for release on

parole or post-prison supervision as described in subsection (1) of this section

has served 15 years of imprisonment, the State Board of Parole and Post-Prison

Supervision shall hold a hearing.”).

Cite as 342 Or App 41 (2025) 43

prior to turning 18 are eligible for parole after serving 15

years of imprisonment, regardless of any mandatory mini-

mum sentences. ORS 144.397(1) - (2). After a person who was

convicted as a juvenile has served 15 years, the board shall

hold a juvenile hearing that provides the person “a mean-

ingful opportunity to be released on parole.” ORS 144.397(3).

During that hearing, the board “shall consider and give sub-

stantial weight to the fact that a person under 18 years of

age is incapable of the same reasoning and impulse control

as an adult and the diminished culpability of minors as com-

pared to that of adults.” ORS 144.397(5). The board “shall”

also consider the following factors, if relevant:

“(a) The age and immaturity of the person at the time

of the offense[;]

“(b) Whether and to what extent an adult was involved

in the offense[;]

“(c) The person’s family and community circum-

stances at the time of the offense, including any history of

abuse, trauma and involvement in the juvenile dependency

system[;]

“(d) The person’s subsequent emotional growth and

increased maturity during the person’s imprisonment[;]

“(e) The person’s participation in rehabilitative and

educational programs while in custody if such programs

have been made available to the person and use of self-

study for self-improvement[;]

“(f) A mental health diagnosis[;]

“(g) Any other mitigating factors or circumstances

presented by the person.”

Id. The board may not consider the age of the person “as an

aggravating factor,” under any circumstance. ORS 144.397(6).

If, “based on the consideration of the age and imma-

turity of the person at the time of the offense and the person’s

behavior thereafter, the person has demonstrated matu-

rity and rehabilitation,” the board shall release the person

subject to certain procedures. ORS 144.397(7). Finally, the

board “may adopt rules to carry out the provisions of” the

statute. ORS 144.397(13).

44 Jacobs v. Board of Parole

Pursuant to ORS 144.397, the board adopted OAR

255-033-0030, a rule that explains the board’s consider-

ations at the juvenile hearing. As relevant to this appeal,

the rule allows the board to consider, “among other things,”

several factors in determining whether the person has

demonstrated maturity and rehabilitation:

“(a) the person’s involvement in correctional treat-

ment, medical care, educational, vocational, or other train-

ing in the institution which will substantially enhance the

person’s capacity to lead a law-abiding life when released;

“(b) the person’s institutional employment history;

“(c) the person’s institutional disciplinary conduct;

“(d) the adequacy of the person’s release plan includ-

ing community support from family, friends, treatment

providers, and others in the community; type of residence,

neighborhood, or community in which the person plans to

live;

“(e) the person’s ability to demonstrate remorse and

understanding of the impact the person’s crime had on the

victims and the community;

“(f) the person’s attitude and evidence of behavioral

change;

“(g) the extent the person takes personal responsibil-

ity for their actions;

“(h) any psychiatrist or psychologist’s assessment of

the person’s current risk of re-offending, risk of harm, and

suitability for community supervision;

“(i) the person understands long-term consequences;

“(j) the person can delay impulses and identify alter-

native actions;

“(k) the degree of premeditation or deviancy involved

in the commission of the crime and the ability to under-

stand, address, and mitigate those underlying risk factors;

“(l) the person, if paroled, would not be a threat to the

safety of the victim, the victim’s family, or the community

and would comply with release conditions; and

“(m) any other relevant factors.”

OAR 255-033-0030(5).

Cite as 342 Or App 41 (2025) 45

II. FACTS

Crime and initial parole proceedings. In 1981, peti-

tioner and his codefendant, Jackson, shot and killed M and

her six-month-old infant daughter, S, at M’s home.2 Petitioner

and Jackson were 15 years old. Petitioner pleaded guilty to

murder and felony murder and was sentenced to consecutive

life sentences. Although petitioner was initially denied the

possibility of parole, the board in 2005 granted petitioner’s

request to reconsider that decision and, after a hearing, set

petitioner’s projected parole release date for 2009. The board

deferred petitioner’s release date following several exit inter-

views in 2008, 2010, 2015, and 2020 based on its finding that

petitioner suffered from a present severe emotional distur-

bance (PSED). Following the most recent hearing in December

2020, the board deferred petitioner’s release date to June 2023

and scheduled an exit interview for December 2022.

Governor Brown’s commutation. On October 20,

2021, Governor Brown commuted petitioner’s sentence.

Specifically, Governor Brown granted petitioner “the oppor-

tunity to petition [the board] for future release consideration

under the process described in ORS 144.397,” the statute

providing for juvenile hearings. In response, in December

2021, the board sent petitioner a letter telling him that he

was eligible for a juvenile hearing. Of note to this appeal,

the letter required petitioner to check a box with the follow-

ing statement if he wanted a juvenile hearing:

“I would like to accept the Governor’s October 20, 2021

commutation of my sentence to the possibility of parole

under ORS 144.397 and request a hearing. By doing so, I

understand that I waive the possibility of requesting other

types of hearings with the parole board that I may have been

eligible for prior to accepting the commutation.”

(Emphasis added.) Petitioner checked the box to request

a juvenile hearing which was scheduled for December 14,

2022 (the same time frame as his previously scheduled exit

interview).

2

Petitioner’s codefendant, Jackson, shot and killed M. Petitioner shot and

killed S, M’s infant daughter. In describing the offense during the juvenile hear-

ing, petitioner stated that the reason he shot S was because he was concerned it

would take a long time for her to be found and he did not want her to suffer.

46 Jacobs v. Board of Parole

In April 2022, the board notified petitioner in a let-

ter that it had canceled his juvenile hearing due to litigation

surrounding the lawfulness of Governor Brown’s commuta-

tions. See Marteeny v. Brown, 321 Or App 250, 253, 517 P3d

343, rev den, 370 Or 303 (2022) (discussing history of the

litigation). The letter stated that the board would automati-

cally reschedule petitioner’s juvenile hearing should the lit-

igation resolve in petitioner’s favor. The letter also informed

petitioner that, if he was “eligible for any other type of parole

board hearing, such as a Murder Review hearing, [he] may

still apply for it when [he] become[s] eligible.” The board

then rescheduled petitioner’s exit interview on December 14,

2022.

After the litigation resolved and concluded that

the Governor had the authority to commute the sentences

of juvenile offenders, id. at 291-93, the board sent a letter

to petitioner, on September 2, 2022, asking if he wanted

his hearing “changed” from an exit interview to a juvenile

hearing.

Before receiving that letter, petitioner sent a let-

ter to the board asking about the status and nature of the

December 14 hearing, so he could prepare accordingly. On

September 13, 2022, now in receipt of the board’s September

2 letter, petitioner informed the board that he wanted a

juvenile hearing. The board responded with a letter inform-

ing petitioner that he was scheduled for a juvenile hearing

instead of an exit interview.

The juvenile hearing. Petitioner’s hearing was held

on December 14, 2022. Petitioner was unsuccessful. The

board deferred petitioner’s projected release date for 48

months, pushing it back to June 2027. The board identified

multiple concerns that led it to conclude that petitioner had

failed to demonstrate maturity and rehabilitation, including

petitioner’s combativeness during the hearing, his inability

to identify triggers that might cause him to become violent

again, and his reluctance to engage in cognitive program-

ming. Of relevance to this appeal, the board considered OAR

255-033-0030(5)(k) (“the degree of premeditation or devi-

ancy involved in the commission of the crime and the abil-

ity to understand, address, and mitigate those underlying

Cite as 342 Or App 41 (2025) 47

risk factors”) and found that petitioner and his codefendant

“carefully planned and committed the crime,” by casing the

home, bringing firearms with them, and using predeter-

mined code words to know when to enter. The board also

noted that petitioner and his codefendant had ample time

during the planning of the crime to understand and discuss

the risk of entering an occupied home with deadly weapons

and that they discussed killing the victims so they would

not be recognized. The board denied petitioner’s request for

administrative review and this appeal followed.

III. ANALYSIS

A. OAR 255-033-0030(5)(k)

We begin with the question of whether the agency’s

rule that allowed it to consider the premeditation and devi-

ancy of the offense, OAR 255-033-0030(5)(k), was within

its authority. Administrative agencies like the board are

creatures of statute and can only act with the “power and

authority as has been conferred upon it by its organic” stat-

ute. Ochoco Const. v. DLCD, 295 Or 422, 426, 667 P2d 499

(1983).

When reviewing an agency’s actions under a stat-

ute the agency is required to administer, we first look to

the terms in the statute and consider whether they are

“exact,” “inexact,” or “delegative.” See generally Springfield

Education Assn. v. School Dist., 290 Or 217, 221-30, 621

P2d 547 (1980) (so explaining). “ ‘Delegative’ terms ‘express

non-completed legislation which the agency is given dele-

gated authority to complete.’ ” Penn v. Board of Parole, 365

Or 607, 451 P3d 589 (2019) (quoting Springfield Education

Assn., 290 Or at 228-29). “The only role of appellate courts

with respect to such delegative terms is to ensure that the

agency exercises the authority delegated to it ‘within the

range of discretion allowed by the more general policy of the

statute.’ ” Id. (quoting Springfield Education Assn., 290 Or at

229). To determine the general policy of the statute, our typ-

ical framework of statutory interpretation applies: we look

to the text, context, and legislative history of the statute to

discern the legislature’s intent. State v. Gaines, 346 Or 160,

171-72, 206 P3d 1042 (2009).

48 Jacobs v. Board of Parole

The parties agree that the policy of the juvenile

hearing statute, ORS 144.397, is explained, at least in part,

by subsection (5): it accounts for the fact that juveniles are

“incapable of the same reasoning and impulse control as

[ ] adult[s]” and have “diminished culpability.” However, they

dispute the intent behind subsection (13), which provides:

“The board may adopt rules to carry out the provisions of this

section.” The parties contend, and we agree, that subsection

(13) contains delegative terms. Petitioner asserts that sub-

section (13) only allows for the agency to promulgate proce-

dural rules that do not, in petitioner’s view, “expand” on the

statutory factors the board must consider in a juvenile hear-

ing, whereas the board argues that it allows the board to

promulgate rules to assist it in making its determinations.

Ultimately, we agree with the board that the rule is

within the range of discretion granted to the agency. As men-

tioned, the board was granted authority to hold hearings that

determine a juvenile offender’s demonstrated maturity and

rehabilitation. And the board has also been given authority

to adopt rules to carry out those hearings. Nothing in that

statutory scheme suggests that the legislature intended to

authorize the board to adopt only procedural rules for mak-

ing its statutorily mandated maturity and rehabilitation

determination. Rather, it is within the range of permissible

discretion that the board could consider a person’s premed-

itation and deviancy of the offense, in order to fully under-

stand whether that person has demonstrated maturity and

rehabilitation from the time of offending. We emphasize that,

in applying its rules, the board may not consider the age of

the person as an aggravating factor. ORS 144.397(6). Thus,

while the board may consider a person’s premeditation and

deviancy of the offense, that consideration should be only

for the purposes of determining maturity and rehabilitation

consistent with ORS 144.397(7), and not to highlight, or give

undue weight to, the crimes committed by a youth offender

with “diminished culpability.”3

To be clear: The board may not rely on premedita-

tion and deviancy of the offense solely as a reason to deny

3

It is not clear from the board’s order how it weighed the premeditation and

deviancy of petitioner’s 1981 crime.

Cite as 342 Or App 41 (2025) 49

release. Any rules the board promulgates must further

the legislature’s intended policy goals. See Price v. Dept. of

Human Services, 243 Or App 65, 74-76, 259 P3d 86 (2011)

(reversing agency order that relied on rule that contravened

statutory policy directives, notwithstanding broad grant of

rulemaking authority by legislature).

B. Family and Community Circumstances

We next turn to petitioner’s argument regarding

“family and community circumstances.” Petitioner argues

that the board’s conclusion that petitioner’s “family and

community circumstances” were not sufficiently probative

of the person and the offense to warrant discussion in BAF

12 lacks substantial evidence and substantial reason.

For context: during a juvenile hearing, the board is

required, by statute, to consider a person’s “family and com-

munity circumstances at the time of the offense” if those cir-

cumstances are “relevant to the specific person and offense.”

ORS 144.397(5)(c) (family circumstances factor). In BAF 12,

however, the board did not discuss or cite to that statutory fac-

tor. Petitioner, in his administrative review request, argued

that that failure amounted to a violation of ORS 144.397 and

of petitioner’s constitutional due-process rights. In its admin-

istrative response to petitioner’s request (ARR), the board

maintained that it did consider those circumstances but found

them insufficiently “probative” to discuss them in BAF 12.

On appeal, petitioner frames his argument slightly

differently. He no longer argues that the board failed to con-

sider the family circumstances factor. Rather, he argues

that the manner in which the board considered that factor

was wrong. That is, the board’s reasons for not discussing

the factor in the BAF were insufficient, or, ostensibly, the

board failed to give that factor its proper weight.

We review the board’s order for substantial evidence

in the record. ORS 183.482(8). “Substantial evidence exists to

support a finding of fact when the record, viewed as a whole,

would permit a reasonable person to make that finding.” Id.

The substantial-evidence standard requires that substantial

evidence support the board’s factual findings and that sub-

stantial reason support its conclusions, “i.e., its conclusions

50 Jacobs v. Board of Parole

must reasonably follow from the facts found.” Simpson v.

Board of Parole, 237 Or App 661, 663, 241 P3d 347 (2010).

“If the board’s reasoning is not obvious, its order—which

includes both the BAF and the ARR—must at least set forth

the bases for its inferences.” King v. Board of Parole, 308 Or

App 716, 719, 482 P3d 110 (2021). “The board’s explanation

need not be complex, but it should be sufficient to demon-

strate the existence of a rational basis and to allow for judi-

cial review.” Mendacino v. Board of Parole, 287 Or App 822,

837, 404 P3d 1048 (2017), rev den, 362 Or 508 (2018) (internal

quotation marks and citations omitted).

As mentioned, the board explained that petition-

er’s family circumstances were not probative to the person

or the offense. That conclusion is supported by substantial

reason. The board could logically conclude, upon weighing all

the evidence, that petitioner’s family circumstances were not

sufficiently probative to outweigh the significant amount of

evidence in the record that petitioner lacked maturity and

rehabilitation. In saying that, we do not wish to minimize the

harm that petitioner experienced growing up in an abusive

household. However, the board considered that history, bal-

ancing it against the evidence of petitioner’s failure to answer

basic questions about his parole plan, his inability to identify

potential triggers to commit future violence, his violation of

prison rules, and his lack of participation in formal cognitive

and rehabilitative programming to conclude that the evidence

of petitioner’s family circumstances did not outweigh the evi-

dence that petitioner lacked maturity and rehabilitation.

C. Substantial Evidence

Petitioner next challenges the board’s order as

unsupported by substantial evidence. Specifically, petitioner

challenges the following factual findings that the board

made: (1) petitioner lacked insight into his triggers; (2) peti-

tioner’s 2021 rule violation showed an inability to control

his impulses and consider the consequences of his actions;

(3) petitioner failed to participate in cognitive or other reha-

bilitative programming since 2004; (4) petitioner lacked

remorse; and (5) petitioner’s release plan was inadequate.

When evaluating whether substantial evidence sup-

ports a finding of the board, “[w]e consider both the evidence

Cite as 342 Or App 41 (2025) 51

that supports and detracts from the board’s findings, but

defer to the board’s reasonable inferences without reweigh-

ing the evidence in the record ourselves.” Mendacino, 287 Or

App at 834 (internal citation omitted). We have reviewed the

record and conclude that all of the board’s findings were sup-

ported by evidence in the record. Although petitioner points

to other pieces of evidence that could have led the board to

reach a different result, the board could permissibly have

discredited that evidence—or given it less weight than peti-

tioner would have—and relied on the evidence that it did.

D. Exit Interview

Turning to petitioner’s next assignment of error,

petitioner argues that he was impermissibly forced to

choose between an exit interview4 and a juvenile hearing

and requests we reverse with direction to reinstate his June

2023 release date.

1. Communications from the board

Before turning to the merits, we address a dispute

over the factual record, as well as the parties’ arguments

on preservation. The board now argues that it never forced

petitioner to make a choice as to which hearing to select,

notwithstanding the December 2021 letter that required

petitioner to check a box requesting a juvenile hearing and

“waiv[ing] the possibility of requesting other types of hear-

ings with the parole board.” The board points to its April

2022 letter to petitioner as evidence of that fact. That letter

stated, in relevant part:

“In the event that the Circuit Court’s ruling in Marteeny is

reversed or modified to allow for an early-release hearing

under ORS 144.397, the Board will automatically resched-

ule your ORS 144.397 hearing and you do not need to reap-

ply. If you are eligible for any other type of parole board

hearing, such as a Murder Review hearing, you may still

apply for it when you become eligible.”

4

At an exit interview, the board reviews a person’s parole plan, any psychi-

atric or psychological report, and the person’s conduct during confinement before

the scheduled release of that person on parole. ORS 144.125(1). The board may

postpone the person’s scheduled release if it finds the person engaged in serious

misconduct, if the person has a PSED that constitutes a danger to the health or

safety of the community that cannot be adequately controlled, or if the person

does not have an adequate parole plan. ORS 144.125(2) - (4).

52 Jacobs v. Board of Parole

That letter was insufficient to dispel the false notion

that petitioner could only accept a juvenile hearing if he

waived his right to an exit interview. Although the letter tells

petitioner he could “apply” for other hearings once he became

eligible, it did not mention the exit interview that was already

scheduled for December. Moreover, nowhere in that letter, or

in any other communication from the board, did the board

tell petitioner that he was entitled to a juvenile hearing in

addition to the previously scheduled exit interview. In fact, in

the September 2022 letter, sent after Marteeny was decided,

the board asked petitioner if he wanted to change his exit

interview to a juvenile hearing. It was certainly reasonable

for petitioner to believe he had to choose one or the other.

To summarize: the board’s initial December 2021

letter explicitly conditioned acceptance of the Governor’s

commutation on waiver of “the possibility of requesting other

types of hearings.” The board’s April 2022 letter did noth-

ing to dispel the December 2021 letter. In fact, it reinforced

it. Now that petitioner was no longer eligible for a juvenile

hearing, he was once again eligible for an exit interview.

Then, in September 2022, when the board informed peti-

tioner that it was restarting juvenile hearings, it returned

to the position it had adopted in December 2021: petitioner

could exchange his exit interview for a juvenile hearing, but

he could not have both.

2. Exhaustion

With regard to preservation and issue exhaustion,

the board argues that petitioner failed to exhaust and pre-

serve his claim of error. The board’s argument relies on the

fact that petitioner was represented by counsel, both in his

hearing and in his petition for judicial review, and never

raised any concern with the waiver that he had signed,

or with the board’s apparent finding that petitioner has a

present severe emotional disturbance or PSED. Petitioner

argues that we should waive the prudential issue exhaustion

requirement in this instance and that we need not engage

in a separate plain-error analysis, or, in the alternative, the

board’s error is plain, and we should exercise our discretion

to correct it. For the reasons that follow, we conclude that

petitioner is excused from raising his argument to the board.

Cite as 342 Or App 41 (2025) 53

“The general doctrine of exhaustion of administrative

remedies is judicially created, a creature of the common law,

and is employed by the courts * * * in the interest of orderly

procedure and good administration.” Tuckenberry v. Board of

Parole, 365 Or 640, 646, 451 P3d 227 (2019). “Notably, how-

ever, * * * courts may relax or set aside entirely [an issue

exhaustion requirement], depending on the circumstances.”

Id. at 647. The circumstances here present at least two com-

pelling reasons to set aside the issue exhaustion requirement.

First, we note that the board, in BAF 12, alerted

petitioner that he could request administrative review only

of the order deferring his release, not the preceding decision

that forced petitioner to choose between hearings. Thus, it is

“not at all clear” that petitioner had an opportunity to chal-

lenge the board’s decision. See Watson v. Board of Parole, 329

Or App 13, 19, 540 P3d 20 (2023) (relaxing issue exhaustion

requirement when it was “not at all clear” that board actu-

ally provided registrants with opportunity to challenge spe-

cific order).

Second, petitioner “raises important issues of public

interest,” Tuckenberry, 365 Or at 655, as to how the board

treats commutations that grant additional parole hearings.

Petitioner was not alone in the Governor’s commutation of

his sentence.5 The issues petitioner raises are thus not lim-

ited to only him.

We recognize that, unlike the petitioner in

Tuckenberry, petitioner here was represented by counsel,

who could have raised the issue at petitioner’s hearing or

in petitioner’s review request. And had counsel done so, the

parties likely would have been given a chance to develop

the record, and the board would have had an opportunity

to make the necessary findings. Cf. id. at 655 (noting that

petitioner was unrepresented during administrative review

“and his request for administrative review appears to be all

that could be expected, given his evident educational disad-

vantages”). However, it is not clear that counsel was even

aware of the forced waiver—a problem of the board’s own

5

Governor Brown commuted the sentences of 73 individuals situated simi-

larly to petitioner. Marteeny v. Brown, 321 Or App 250, 253, 517 P3d 343, rev den,

370 Or 303 (2022).

54 Jacobs v. Board of Parole

design—which occurred 11 months before counsel’s appoint-

ment. Ultimately, “given the equities and as a prudential

matter,” id., we set aside the issue exhaustion requirement

and consider petitioner’s claim.

3. Merits

Turning to the merits, we conclude that the board

erred by forcing petitioner to choose between a juvenile hearing

and an exit interview. As Marteeny made clear, the Governor’s

grant of clemency—in this case, her commutation of petitioner’s

sentence, along with the sentence of 72 other juvenile offenders

who would not have otherwise been eligible for a juvenile hear-

ing given that their sentences were imposed prior to the law

taking effect—was a lawful exercise “of the broad clemency

power afforded Oregon governors by constitution and statute.”

321 Or App at 254. That broad power allows the Governor, in

her discretion, to “choose[ ] what lesser punishment to impose”

on individuals whose sentences she commutes. Id. at 291. Here,

she commuted the juvenile offenders’ sentences by providing

them “with a new, less severe punishment: continued impris-

onment, but with the right to a hearing” that they would not

already be entitled to. Nothing in Marteeny, or the Governor’s

order, suggests that the new hearing was meant to be instead

of, rather than in addition to, a juvenile hearing.

The board nevertheless argues that petitioner was

not prejudiced as a result of being forced to choose between

a juvenile hearing and an exit interview because he had

the opportunity to litigate the board’s ultimate finding that

he has a PSED—a finding the board relied on to postpone

his release date. That argument, however, presents several

problems. For one, the board did not make the necessary

finding in its order that petitioner had a PSED. The board

concluded that petitioner had “a mental or emotional distur-

bance, deficiency, condition, or disorder predisposing him to

the commission of any crime to a degree rendering him a

danger to the health or safety of others.” It did not make the

legal determination that petitioner’s “mental or emotional

disturbance” was severe. See Gordon v. Board of Parole, 246

Or App 600, 610, 267 P3d 188 (2011) (“Whether an individ-

ual has a severe emotional disturbance is a legal, not a med-

ical, conclusion, which the board must determine.”).

Cite as 342 Or App 41 (2025) 55

The two hearings—an exit interview and a juvenile

hearing—have significant differences in both purpose and

process. At an exit interview, the board reviews a person’s

parole plan, any psychiatric or psychological report, and

the person’s conduct during confinement before the sched-

uled release of that person on parole. ORS 144.125(1). The

board may postpone the person’s scheduled release if it finds

that the person engaged in serious misconduct, has a PSED

that constitutes a danger to the health or safety of the com-

munity, or does not have an adequate parole plan. ORS

144.125(2) - (4). A juvenile hearing’s purpose, by contrast,

is solely to assess the person’s maturity and rehabilitation.

ORS 144.397(7). ORS 144.397(7).

The two different hearings also have a significant

difference in process. At an exit interview, it is the board—

not petitioner—that has the burden to prove petitioner has

a PSED. ORS 144.125(3). By contrast, at a juvenile hear-

ing, the petitioner has the burden to demonstrate his matu-

rity and rehabilitation. ORS 144.397(7). Thus, as a direct

result of the Governor’s order granting clemency, the board

deferred petitioner’s release date using a less favorable allo-

cation of the burden of proof for petitioner than it would

have applied had the Governor not commuted his sentence

and the exit interview had not been changed to a juvenile

hearing.6 In addition, had petitioner been correctly informed

that the board was intending to treat the hearing as an exit

interview, he could have been prepared to present evidence

addressing the PSED standard contained in ORS 144.125(3),

or he could have challenged the psychological report that

served as the basis for the board’s emotional disturbance

finding. To the extent there remains any question, we con-

clude that petitioner is entitled to both an exit interview and

a juvenile hearing, a fact that the board appears to concede.7

6

Although a juvenile hearing may employ a less favorable allocation of the

burden of proof than an exit interview, one benefit of a juvenile hearing is that a

person has the right to counsel, including counsel appointed at board expense. ORS

144.397(12). At an exit interview, by contrast, there is no right to appointed counsel.

See ORS 144.125 (explaining procedure).

7

Petitioner also argues that the board lacked authority to defer his release

date through a juvenile hearing. According to petitioner, ORS 144.397(9) only

grants the board authority to postpone a subsequent hearing, but is silent as

to its authority to postpone a release date. That argument, too, is unpreserved,

and we decline to relax our prudential issue exhaustion requirement. Unlike the

56 Jacobs v. Board of Parole

E. Deferred Release Hearing

Finally, petitioner challenges the board’s decision

to defer his next juvenile hearing by four years. Petitioner

argues that the board’s decision lacked substantial reason

because it failed to explain why it chose a deferral term of

four years, instead of a shorter period. We disagree.

The board may postpone a subsequent juvenile

hearing for a period between two and 10 years if it finds

that a petitioner has not demonstrated their maturity and

rehabilitation. ORS 144.397(9). The board will consider “the

factors listed in Division 62 [of Chapter 255 of the Oregon

Administrative Rules] when setting a subsequent hearing

date.” OAR 255-033-0050(5). Here, the board considered the

relevant factors—and petitioner does not appear to chal-

lenge the board’s reasoning as to those factors. The board

also provided an explanation as to why a shorter term would

not be feasible, concluding that

“a deferral of 48 months was the appropriate length of defer-

ral, as that time would reasonably provide [petitioner] suf-

ficient time to address the concerns identified in this BAF.

The Board determined a shorter deferral would not provide

the adequate amount of time necessary for Petitioner to

address the concerns of the Board.”

That was a sufficient explanation of its reasoning. Cf.

Contreras v. Board of Parole, 297 Or App 469, 443 P3d 636,

rev den, 365 Or 657 (2019) (reversing and remanding the

board’s order deferring release for eight years, notwith-

standing a thorough analysis of regulatory factors, when

board did not connect the factors to the length of deferral).

Reversed and remanded for proceedings consistent

with this opinion.

argument relating to the entitlement of a hearing altogether, we see no reason

that petitioner could not have raised an issue with the result of the juvenile hear-

ing in his administrative review request of that hearing.