Bill Text: OR SB81 | 2013 | Regular Session | Introduced
Bill Title: Relating to sentencing.
Spectrum: Committee Bill
Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB81 Detail]
Download: Oregon-2013-SB81-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1105
Senate Bill 81
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies minimum term of incarceration for offenders convicted
of aggravated murder who are eligible for parole.
A BILL FOR AN ACT
Relating to sentencing; creating new provisions; and amending ORS
163.105 and 163.150.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 163.105 is amended to read:
163.105. Notwithstanding the provisions of ORS chapter 144 and
ORS 421.450 to 421.490:
(1)(a) Except as otherwise provided in ORS 137.700, when a
defendant is convicted of aggravated murder as defined by ORS
163.095, the defendant shall be sentenced, pursuant to ORS
163.150, to death, life imprisonment without the possibility of
release or parole or life imprisonment.
(b) A person sentenced to life imprisonment without the
possibility of release or parole under this section shall not
have that sentence suspended, deferred or commuted by any
judicial officer, and the State Board of Parole and Post-Prison
Supervision may not parole the prisoner nor reduce the period of
confinement in any manner whatsoever. The Department of
Corrections or any executive official may not permit the prisoner
to participate in any sort of release or furlough program.
(c) If sentenced to life imprisonment, the court shall order
that the defendant shall be confined for a minimum of
{ - 30 - } { + 31 + } years without possibility of parole,
release to post-prison supervision, release on work release or
any form of temporary leave or employment at a forest or work
camp.
(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 rehabilitated 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 prisoner has:
(a) The burden of proving by a preponderance of the evidence
the likelihood of rehabilitation within a reasonable period of
time;
(b) The right, if the prisoner is without sufficient funds to
employ an attorney, to be represented by legal counsel, appointed
by the board, at board expense; and
(c) The right to a subpoena upon a showing of the general
relevance and reasonable scope of the evidence sought, provided
that any subpoena issued on behalf of the prisoner must be issued
by the State Board of Parole and Post-Prison Supervision pursuant
to rules adopted by the board.
(3) If, upon hearing all of the evidence, the board, upon a
unanimous vote of all of its members, finds that the prisoner is
capable of rehabilitation and that the terms of the prisoner's
confinement should be changed to life imprisonment with the
possibility of parole, release to post-prison supervision or work
release, it shall enter an order to that effect and the order
shall convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole, release to
post-prison supervision or work release and may set a release
date. Otherwise the board shall deny the relief sought in the
petition.
(4) If the board denies the relief sought in the petition, the
board shall determine the date of the subsequent hearing, and the
prisoner may petition for an interim hearing, in accordance with
ORS 144.285.
(5) The board's final order shall be accompanied by findings of
fact and conclusions of law. The findings of fact shall consist
of a concise statement of the underlying facts supporting the
findings as to each contested issue of fact and as to each
ultimate fact required to support the board's order.
SECTION 2. ORS 163.150 is amended to read:
163.150. (1)(a) Upon a finding that the defendant is guilty of
aggravated murder, the court, except as otherwise provided in
subsection (3) of this section, shall conduct a separate
sentencing proceeding to determine whether the defendant shall be
sentenced to life imprisonment, as described in ORS 163.105
(1)(c), life imprisonment without the possibility of release or
parole, as described in ORS 163.105 (1)(b), or death. The
proceeding shall be conducted in the trial court before the trial
jury as soon as practicable. If a juror for any reason is unable
to perform the function of a juror, the juror shall be dismissed
from the sentencing proceeding. The court shall cause to be drawn
the name of one of the alternate jurors, who shall then become a
member of the jury for the sentencing proceeding notwithstanding
the fact that the alternate juror did not deliberate on the issue
of guilt. The substitution of an alternate juror shall be allowed
only if the jury has not begun to deliberate on the issue of the
sentence. If the defendant has pleaded guilty, the sentencing
proceeding shall be conducted before a jury impaneled for that
purpose. In the proceeding, evidence may be presented as to any
matter that the court deems relevant to sentence including, but
not limited to, victim impact evidence relating to the personal
characteristics of the victim or the impact of the crime on the
victim's family and any aggravating or mitigating evidence
relevant to the issue in paragraph (b)(D) of this subsection;
however, neither the state nor the defendant shall be allowed to
introduce repetitive evidence that has previously been offered
and received during the trial on the issue of guilt. The court
shall instruct the jury that all evidence previously offered and
received may be considered for purposes of the sentencing
hearing. This paragraph shall not be construed to authorize the
introduction of any evidence secured in violation of the
Constitution of the United States or of the State of Oregon. The
state and the defendant or the counsel of the defendant shall be
permitted to present arguments for or against a sentence of death
and for or against a sentence of life imprisonment with or
without the possibility of release or parole.
(b) Upon the conclusion of the presentation of the evidence,
the court shall submit the following issues to the jury:
(A) Whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the
reasonable expectation that death of the deceased or another
would result;
(B) Whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a
continuing threat to society;
(C) If raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased; and
(D) Whether the defendant should receive a death sentence.
(c)(A) The court shall instruct the jury to consider, in
determining the issues in paragraph (b) of this subsection, any
mitigating circumstances offered in evidence, including but not
limited to the defendant's age, the extent and severity of the
defendant's prior criminal conduct and the extent of the mental
and emotional pressure under which the defendant was acting at
the time the offense was committed.
(B) The court shall instruct the jury to answer the question in
paragraph (b)(D) of this subsection 'no' if, after considering
any aggravating evidence and any mitigating evidence concerning
any aspect of the defendant's character or background, or any
circumstances of the offense and any victim impact evidence as
described in paragraph (a) of this subsection, one or more of the
jurors believe that the defendant should not receive a death
sentence.
(d) The state must prove each issue submitted under paragraph
(b)(A) to (C) of this subsection beyond a reasonable doubt, and
the jury shall return a special verdict of 'yes' or 'no' on each
issue considered.
(e) The court shall charge the jury that it may not answer any
issue 'yes,' under paragraph (b) of this subsection unless it
agrees unanimously.
(f) If the jury returns an affirmative finding on each issue
considered under paragraph (b) of this subsection, the trial
judge shall sentence the defendant to death.
(2)(a) Upon the conclusion of the presentation of the evidence,
the court shall also instruct the jury that if it reaches a
negative finding on any issue under subsection (1)(b) of this
section, the trial court shall sentence the defendant to life
imprisonment without the possibility of release or parole, as
described in ORS 163.105 (1)(b), unless 10 or more members of the
jury further find that there are sufficient mitigating
circumstances to warrant life imprisonment, in which case the
trial court shall sentence the defendant to life imprisonment as
described in ORS 163.105 (1)(c).
(b) If the jury returns a negative finding on any issue under
subsection (1)(b) of this section and further finds that there
are sufficient mitigating circumstances to warrant life
imprisonment, the trial court shall sentence the defendant to
life imprisonment in the custody of the Department of Corrections
as provided in ORS 163.105 (1)(c).
(3)(a) When the defendant is found guilty of aggravated murder,
and ORS 137.707 (2) applies or the state advises the court on the
record that the state declines to present evidence for purposes
of sentencing the defendant to death, the court:
(A) Shall not conduct a sentencing proceeding as described in
subsection (1) of this section, and a sentence of death shall not
be ordered.
(B) Shall conduct a sentencing proceeding to determine whether
the defendant shall be sentenced to life imprisonment without the
possibility of release or parole as described in ORS 163.105
(1)(b) or life imprisonment as described in ORS 163.105 (1)(c).
If the defendant waives all rights to a jury sentencing
proceeding, the court shall conduct the sentencing proceeding as
the trier of fact. The procedure for the sentencing proceeding,
whether before a court or a jury, shall follow the procedure of
subsection (1)(a) of this section, as modified by this
subsection. In the proceeding, evidence may be presented as to
any matter that the court deems relevant to sentence, including,
but not limited to, victim impact evidence relating to the
personal characteristics of the victim or the impact of the crime
on the victim's family.
(b) Following the presentation of evidence and argument under
paragraph (a) of this subsection, the court shall instruct the
jury that the trial court shall sentence the defendant to life
imprisonment without the possibility of release or parole as
described in ORS 163.105 (1)(b), unless after considering all of
the evidence submitted, 10 or more members of the jury find there
are sufficient mitigating circumstances to warrant life
imprisonment with the possibility of parole as described in ORS
163.105 (1)(c). If 10 or more members of the jury find there are
sufficient mitigating circumstances to warrant life imprisonment
with the possibility of parole, the trial court shall sentence
the defendant to life imprisonment as described in ORS 163.105
(1)(c).
(c) Nothing in this subsection shall preclude the court from
sentencing the defendant to life imprisonment, as described in
ORS 163.105 (1)(c), or life imprisonment without the possibility
of release or parole, as described in ORS 163.105 (1)(b),
pursuant to a stipulation of sentence or stipulation of
sentencing facts agreed to and offered by both parties if the
defendant waives all rights to a jury sentencing proceeding.
(4) If any part of subsection (2) of this section is held
invalid and as a result thereof a defendant who has been
sentenced to life imprisonment without possibility of release or
parole will instead be sentenced to life imprisonment in the
custody of the Department of Corrections as provided in ORS
163.105 (2), the defendant shall be confined for a minimum of
{ - 30 - } { + 31 + } years without possibility of parole,
release on work release or any form of temporary leave or
employment at a forest or work camp. Subsection (2) of this
section shall apply only to trials commencing on or after July
19, 1989.
(5) Notwithstanding subsection (1)(a) of this section, if the
trial court grants a mistrial during the sentencing proceeding,
the trial court, at the election of the state, shall either:
(a) Sentence the defendant to imprisonment for life in the
custody of the Department of Corrections as provided in ORS
163.105 (1)(c); or
(b) Impanel a new sentencing jury for the purpose of conducting
a new sentencing proceeding to determine if the defendant should
be sentenced to:
(A) Death;
(B) Imprisonment for life without the possibility of release or
parole as provided in ORS 163.105 (1)(b); or
(C) Imprisonment for life in the custody of the Department of
Corrections as provided in ORS 163.105 (1)(c).
SECTION 3. { + The amendments to ORS 163.105 and 163.150 by
sections 1 and 2 of this 2013 Act apply to crimes committed on or
after the effective date of this 2013 Act. + }
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