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Challenge focused on 73 juvenile offenders whose cases can now be reviewed by a parole board after 15 years.

The Oregon Court of Appeals has rejected challenges to Gov. Kate Brown's early release of prison inmates, including a right to new hearings for some convicted juvenile offenders after they complete part of their sentences.

Although her orders covered 1,026 people, the challenges focused on the 73 juvenile offenders. They were not pardoned, and their sentences were not automatically commuted.

However, under Brown's order, the state Board of Parole and Post-Prison Supervision will have the authority to hold hearings on their cases after they have served 15 years of their sentences. Oregon law was changed in 2019 to allow such reconsideration for juvenile offenders starting Jan. 1, 2020, but the law is not retroactive.

Challenges were filed by two district attorneys — Douglas Marteeny of Linn County and Patty Perlow of Lane County — and four crime victims, who were represented by Kevin Mannix, a Salem lawyer and chief author of a series of victims' rights voters added to the Oregon Constitution in 1999. Mannix is seeking his former seat in the Oregon House in the Nov. 8 general election.

Most of the other inmates affected by Brown's orders in 2020 and 2021 were in two categories: Those likely to be endangered by COVID-19 — as of Aug. 12, 5,683 inmates had tested positive and 49 inmates died in state prisons, according to agency figures — and those who volunteered to fight the 2020 Labor Day wildfires.

A three-judge panel said this in its opinion, released Aug. 10, referring to the 953 adult inmates:

"We are not called here to judge the wisdom of the governor's clemency of these 953 individuals; that is a political question. We are tasked solely with determining her authority to do so under Oregon law. And on that narrow question, we conclude that the commutations at issue here were a lawful exercise of the broad clemency power afforded Oregon governors by constitution and statute."

The panel consisted of Bronson James, presiding judge and author of the court's opinion, and Robyn Aoyagi and Ramon Pagan. The case was argued on June 23.

The decision can be appealed to the Oregon Supreme Court, which has discretion about whether to review it.

The high court has ruled that the governor has broad executive authority for clemency, notably in 2013 when Gary Haugen sought to waive further appeals of his death sentence and challenged then-Gov. John Kitzhaber's temporary reprieve in November 2011. Haugen, who has spent 40 of his 60 years in prison, lost his challenge. He is at Snake River Correctional Institution in Ontario, but no longer seeks an early death sentence.

"Pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review," the appeals court said in its Aug. 10 decision.

"Ultimately, it is the voters, not the courts, who hold the power to limit gubernatorial clemency actions."

The challenges

The district attorneys challenged Brown's authority to change the status of the juvenile offenders. They referred to legal procedures a governor must follow when someone applies for clemency, including notification of district attorneys and crime victims.

Perlow said in a 2021 statement:

"Victims of crime in Oregon have constitutional and statutory rights that are being ignored by Governor Brown, the Oregon Department of Corrections and the State Parole Board with a first priority to these offenders of a 'meaningful opportunity to be released.' Victims of crime deserve the enforcement of their rights they fought so hard to have recognized."

Eight of the 73 offenders were from Lane County.

But the court ruled that the district attorneys lacked legal standing to sue, since once someone is convicted, the attorney general represents the state in appellate proceedings.

The court also said that while governors must follow a specified set of procedures if someone applies for clemency — including notice to the district attorney and the crime victims — the procedures do not apply if there is no application and the governor acts on her own.

It also said the crime victims had no legal standing to challenge the governor's actions.

"While the commutations at issue here affect the victim families far more profoundly than the public generally, their grief and anger, as understandable as it is, does not confer legal standing, as the Oregon Supreme Court has made clear."

It referred to a 1958 decision by the high court to uphold then-Gov. Robert Holmes' commutation of a death sentence. The parents of the murder victim had sought to overturn Holmes' commutation.

A 'second look'

The issue of a "second look" for offenders convicted of serious crimes they committed before turning 18 has been around for decades.

A juvenile justice task force led by then-Attorney General Ted Kulongoski proposed it when it recommended an overhaul of juvenile law to the 1995 Legislature. The session came after voters approved a 1994 ballot initiative, known as Measure 11, that imposed mandatory minimum prison sentences for specified violent crimes by adults. Under it, district attorneys — not judges — got discretion to prosecute offenders as young as 15 as adults.

The Legislature passed the juvenile-justice overhaul, but without a "second look" provision that would have triggered a review once the offenders had served half their sentences. (The law provided for the transfer of these offenders from the Oregon Youth Authority to the Department of Corrections when they turned age 25.)

In 2019, the Legislature passed Senate Bill 1008, which among other things required district attorneys to request a waiver hearing if they seek to try a 15-, 16- or 17-year-old as an adult. The bill also provided for a hearing by the state Parole Board once offenders had served 15 years of their sentences.

It was the final bill managed by Republican Sen. Jackie Winters of Salem before her death on May 29, 2019, at age 82.

Though the law was not retroactive, Brown's order allowed the 73 offenders to have the same opportunity as anyone convicted since it took effect in 2020.

The court said in its opinion:

"Here, she decided that the appropriate punishment was to commute the juvenile offenders' sentences to sentences that include the right to a hearing after 15 years of imprisonment.

"She did not purport to leave to (the parole board) whether to commute the juvenile offenders' sentences; she completed the commutation by providing the juvenile offenders with a new, less severe punishment: Continued imprisonment, but with the right to a hearing.

"Relators (district attorneys and crime victims) provide no explanation and cite no authority for the proposition that she could not impose that particular lesser punishment — a continuing sentence of imprisonment, but with the right to a hearing — and we perceive none."

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