2011 ORS § 163.115¹
- • affirmative defense to certain felony murders
- • sentence of life imprisonment required
- • minimum term
(a) When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance;
(b) When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants:
(A) Arson in the first degree as defined in ORS 164.325 (Arson in the first degree);
(B) Criminal mischief in the first degree by means of an explosive as defined in ORS 164.365 (Criminal mischief in the first degree);
(C) Burglary in the first degree as defined in ORS 164.225 (Burglary in the first degree);
(D) Escape in the first degree as defined in ORS 162.165 (Escape in the first degree);
(E) Kidnapping in the second degree as defined in ORS 163.225 (Kidnapping in the second degree);
(F) Kidnapping in the first degree as defined in ORS 163.235 (Kidnapping in the first degree);
(G) Robbery in the first degree as defined in ORS 164.415 (Robbery in the first degree);
(H) Any felony sexual offense in the first degree defined in this chapter;
(I) Compelling prostitution as defined in ORS 167.017 (Compelling prostitution); or
(J) Assault in the first degree, as defined in ORS 163.185 (Assault in the first degree), and the victim is under 14 years of age, or assault in the second degree, as defined in ORS 163.175 (Assault in the second degree) (1)(a) or (b), and the victim is under 14 years of age; or
(c) By abuse when a person, recklessly under circumstances manifesting extreme indifference to the value of human life, causes the death of a child under 14 years of age or a dependent person, as defined in ORS 163.205 (Criminal mistreatment in the first degree), and:
(A) The person has previously engaged in a pattern or practice of assault or torture of the victim or another child under 14 years of age or a dependent person; or
(B) The person causes the death by neglect or maltreatment.
(2) An accusatory instrument alleging murder by abuse under subsection (1)(c) of this section need not allege specific incidents of assault or torture.
(3) It is an affirmative defense to a charge of violating subsection (1)(b) of this section that the defendant:
(a) Was not the only participant in the underlying crime;
(b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid in the commission thereof;
(c) Was not armed with a dangerous or deadly weapon;
(d) Had no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon; and
(e) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death.
(4) It is an affirmative defense to a charge of violating subsection (1)(c)(B) of this section that the victim was a dependent person who was at least 18 years of age and was under care or treatment solely by spiritual means pursuant to the religious beliefs or practices of the dependent person or the guardian of the dependent person.
(5)(a) Except as otherwise provided in ORS 163.155 (Sentencing for murder of pregnant victim), 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 to post-prison supervision, release on work release or any form of temporary leave or employment at a forest or work camp.
(c) At any time after completion of a minimum period of confinement pursuant to paragraph (b) of this subsection, 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 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.
(d) 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 prisoners 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 prisoners 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.
(e) 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 (Hearing after petition for change in terms of confinement denied to prisoner convicted of aggravated murder or murder).
(f) The boards 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 boards order.
(6) As used in this section:
(a) Assault means to intentionally, knowingly or recklessly cause physical injury to another person. Assault does not include the causing of physical injury in a motor vehicle accident that occurs by reason of the reckless conduct of a defendant.
(b) Neglect or maltreatment means a violation of ORS 163.535 (Abandonment of a child), 163.545 (Child neglect in the second degree) or 163.547 (Child neglect in the first degree) or a failure to provide adequate food, clothing, shelter or medical care that is likely to endanger the health or welfare of a child under 14 years of age or a dependent person. This paragraph is not intended to replace or affect the duty or standard of care required under ORS chapter 677.
(c) Pattern or practice means one or more previous episodes.
(d) Torture means to intentionally inflict intense physical pain upon an unwilling victim as a separate objective apart from any other purpose. [1971 c.743 §88; 1975 c.577 §1; 1979 c.2 §1; 1981 c.873 §5; 1985 c.763 §1; 1989 c.985 §1; 1993 c.664 §1; 1995 c.421 §3; 1995 c.657 §1; 1997 c.850 §2; 1999 c.782 §4; 2007 c.717 §2; 2009 c.660 §7; 2009 c.785 §1; 2011 c.291 §1]