State v. McLain

WARREN, J.,

dissenting.

The majority correctly describes the history of the relevant statutes and correctly explains why the punishment for murder would be unconstitutional if the majority’s construction of the statute were correct. Because I believe that the majority’s construction is incorrect and that under the correct construction the sentence that defendant received is not disproportionate to the sentence for aggravated murder, I dissent.

*428 The beginning point for this discussion is ORS 163.115(5), which establishes the punishment for murder. It provides:

“(a) A person convicted of murder, who was at least 15 years of age at the time of committing the murder, shall be punished by imprisonment for life.

“(b) When a defendant is convicted of murder under this section, the court shall order that the defendant shall be confined for a minimum of 25 years without possibility of parole, release on work release or any form of temporary leave or employment at a forest or work camp.”

Before the adoption of the sentencing guidelines, the sentence for murder was an indeterminate sentence of life imprisonment with a minimum term before there was a possibility of parole. ORS 163.115(3) (1987). In State v. Morgan, 316 Or 553 , 856 P2d 612 (1993), the Supreme Court held that the legislature impliedly repealed that indeterminate sentence when it enacted the sentencing guidelines. In State v. Francis, 154 Or App 486 , 962 P2d 45 (1998), we held that, by adopting ORS 163.115(5) in 1995, the legislature reinstated an indeterminate sentence of life imprisonment, with a minimum 25-year term and post-prison supervision for life, as the sentence for murder. Our conclusion in Francis , indeed, follows directly from the statutory language: under subsection (a) the sentence for murder is imprisonment for life, while under subsection (b) the prisoner must serve 25 years before there will be a possibility of parole or other easing of the terms of confinement. The only way that the express requirement of imprisonment for life can be consistent with the equally express provision for a minimum term is for the life imprisonment to be an indefinite term.

In his brief, which he filed before our decision in Francis , defendant anticipated the conclusion that we would reach in that case and argued that that result would be unconstitutional. The basis of his argument is the assertion that there is no authority actually to release him after his minimum term has expired, although there is authority to release an aggravated murderer who received a minimum term under the aggravated murder statutes. The majority essentially accepts that argument and, as a remedy for the *429 resulting unconstitutionality, requires that defendant be released, subject to post-prison supervision for life, at the end of the 25-year minimum term. The majority thereby reinstates the sentence that existed before the 1995 amendment to ORS 163.115, making ineffective, at least for adults, our conclusion in Francis that the 1995 amendment had actually changed the law.

The majority bases its conclusion not on the words of ORS 163.115 but on the statutory authority that the Parole Board has had since the adoption of the sentencing guidelines. It relies on ORS 144.050, which generally limits the Board’s authority to parole inmates to those offenses that they committed before November 1, 1989, when the guidelines went into effect, and on Oregon Laws 1989, chapter 790, section 28, which provides that the parole statutes apply only to persons convicted either of felonies committed before November 1,1989, or of aggravated murder. What the majority ignores is that both of those statutes predate the adoption in 1995 of current ORS 163.115(5), which explicitly established an indeterminate life sentence for murder and which explicitly provided for a minimum term of 25 years “without possibility of paroleü” The necessary implication of that phrase, which the majority does not question, is that after the 25 years have passed there will be the possibility of parole. The majority apparently concludes that the legislature failed to establish a procedure for carrying out its unquestioned intent.

The majority’s conclusion leads it directly to its further conclusion that ORS 163.115(5) is unconstitutional as written and that we must modify the punishment for murder that the legislature created in order to make it operate constitutionally. That is a conclusion that we should reach only when there is no alternative; if it is possible to do so, we construe a statute to be constitutional. See Salem College & Academy, Inc. v. Emp. Div., 298 Or 471 , 695 P2d 25 (1985); Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562 , 687 P2d 785 (1984). So far as I can tell, the apparent flaw that the majority finds in the statute is the legislature’s failure to adopt a conforming amendment to ORS 144.050 that would expressly allow the Board to grant parole to those convicted of murder; it already has the express authority to *430 grant parole to those convicted of aggravated murder who receive a sentence that contains the possibility of parole. That lack of a conforming amendment is of no consequence, for the legislature has done implicitly what it did not do explicitly.

In construing a statute, we must give meaning to all of its terms. ORS 174.010. To require a prisoner to serve a mandatory minimum term when the sentence is life imprisonment can have meaning only if there is a way for the prisoner to obtain release after the minimum term is over but before serving the full sentence. Before 1989 that way came through the Board’s authority to release the prisoner on parole. The essential elements of the statutory statement of the term of the basic sentence for murder after the 1995 amendment are the same as they were before the guidelines were adopted. The provision for minimum terms is also similar. The legislature clearly intended that the minimum term have some meaning. It must have intended that some prisoners might serve only the minimum, while others might serve more. The only meaning that the statute can have at present is the same meaning that it had before the guidelines: a prisoner becomes eligible for parole at the expiration of the minimum term. I would therefore hold that ORS 163.115(5) creates an implied exception to ORS 144.050 and that the Board may release on parole a person sentenced to life imprisonment for murder, once the person completes the statutory minimum sentence. 1 There would, thus, be no constitutional violation. I dissent from the majority’s contrary conclusion.

Edmonds, J., joins in this dissent.

Because the current sentence for murder is the result of the actions of the 1995 legislature, the 1989 statutes on which the majority relies are not controlling to the extent that the 1995 changes superseded them.