S054153, Opinion — Engweiler v. Board of Parole

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On certified questions from the United States District Court for the District of
Oregon dated October 19; certification accepted November 21, 2006;
argued and submitted June 19, certified questions answered December 13, 2007

CONRAD ENGWEILER,
Lydell M. White,
and Laycelle T. White,
Plaintiffs,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Robert O. Lampert, and Stan Czerniak,
Defendants.
(USDC NO. CV 06-957, CV 02-1453, CV 02-630;
SC S54153)
175 P3d 408

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CJS, Pardon and Parole § 40.

# En Banc

Honorable Ancer L. Haggerty, Chief Judge.

Andy Simrin, Salem, argued the cause for plaintiffs. With
him on the brief was Dennis N. Balske, Portland.

Janet A. Metcalf, Assistant Attorney General, Salem,
argued the cause for defendants. With her on the brief were

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Hardy Myers, Attorney General, and Mary H. Williams,
Solicitor General.

LINDER, J.

Certified questions answered.

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LINDER, J.

This case is before the court on certified questions of
Oregon law from the United States District Court for the Dis-
trict of Oregon.1 The questions arise in each of three habeas
corpus cases pending before that court. All three federal
habeas petitioners committed aggravated murder when they
were juveniles under the age of 17. Each was prosecuted as
an adult and, on conviction, sentenced to life imprisonment.
The certified questions concern petitioners' statutory eligibil-
ity for parole and the legal effect of any administrative rules
governing their potential parole eligibility. The specific ques-
tions that the federal court has certified to us are best under-
stood in the context of the statutes and administrative rules
that give rise to them. We therefore begin with that back-
ground, and then turn to the certified questions and our
answers.

# I. BACKGROUND

The questions that the federal court has certified to
us arise because of changes made to Oregon's laws punishing
aggravated murder, as well as changes made to Oregon's sen-
tencing laws more generally, through the 1980s. Before 1985,
the maximum penalty for aggravated murder was life impris-
onment, with a mandatory minimum sentence of either 20 or
30 years, depending on the particular form of aggravated
murder committed.2 Pursuant to ORS 144.110(2)(b) (1983),
the Board of Parole (the board)3 was prohibited from releas-
ing on parole any person convicted of aggravated murder,

1 See ORS 28.200 - 28.255 (describing certified question process); ORAP 12.20
(prescribing procedures for consideration of certified questions). See generally
Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 811 P2d 627 (1991)
(discussing factors that court considers in exercising discretion to accept certified
questions).

2 We describe here the penalty for aggravated murder immediately preceding
the 1985 reinstatement of the death penalty. See ORS 163.095 (1983) (aggravated
murder defined as murder under ORS 163.115 (1983) committed under specified
aggravating circumstances); ORS 163.105 (1983) (specifying minimum terms of
imprisonment for aggravated murder); ORS 163.115(3) (1983) (penalty for murder
is life imprisonment). The evolution of Oregon's murder statutes and the penalties
for murder and aggravated murder, including the anomalies that arose after
Oregon's death penalty laws were declared invalid in 1981, are more thoroughly
described in State v. Shumway, 291 Or 153, 157-62, 630 P2d 796 (1981), and State
v. Quinn, 290 Or 383, 399-403, 623 P2d 630 (1981).

3 The Board of Parole is now denominated the Board of Parole and Post-Prison
Supervision. See ORS 144.005(1) (creating Board of Parole and Post-Prison
Supervision).

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except as provided in the statute providing those minimum
terms. A juvenile 16 years of age or older who was alleged to
have committed a criminal offense could be remanded to the
appropriate court for trial as an adult. Former ORS 419.533
(1983), repealed by Or Laws 1993, ch 33, § 373. A juvenile so
remanded and convicted of aggravated murder was subject to
the same penalty as an adult; no provision exempted juve-
niles from the minimum term of incarceration required
under ORS 163.105 (1983) or otherwise made juvenile aggra-
vated murderers eligible for parole before an adult would be.

Oregon voters reinstated the death penalty for
aggravated murder through a constitutional amendment and
other enactments that became effective on December 6,
1984.4 As amended, ORS 163.105 (1985) made the potential
punishment for aggravated murder death, if the jury made
the requisite statutory findings, or life imprisonment with a
minimum term of 30 years without the possibility of parole.
Or Laws 1985, ch 3, § 1. The statute governing the remand of
juveniles to adult court was changed as well. The remand age
was lowered to include juveniles 15 years of age or older at
the time of the offense, but remand was limited to juveniles
who allegedly had committed one of several enumerated fel-
ony offenses, including aggravated murder. Or Laws 1985,
ch 631, § 1 (amending former ORS 419.533). Finally, the
death penalty enactments included a statute that was new:
ORS 161.620. Or Laws 1985, ch 631, § 9. That statute prohib-
ited a trial court from imposing a death sentence or manda-
tory minimum sentence on any remanded juvenile, but it
made an exception for the mandatory minimum sentence
under ORS 163.105 if the juvenile committed aggravated
murder at age 17.

Shortly after those changes took effect, the board
modified its rules for setting parole release dates for persons
convicted of aggravated murder. In particular, the board

4 In the November 1984 General Election, voters enacted Article I, section 40,
of the Oregon Constitution (authorizing death as sentence for aggravated murder
if the jury makes the findings required by law; otherwise, the sentence is "life
imprisonment with minimum sentence as provided by law"). Or Laws 1985, vol 1,
p vi. At the same election, voters amended other existing statutes and enacted
some new provisions. The statutes governing aggravated murder and the author-
ized sentences have been supplemented and amended numerous times since 1984.
We discuss only those changes that bear on the questions before us.

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deleted parole hearing procedures for persons convicted of
aggravated murder from division 30 of OAR chapter 255,
which was (and remains) the set of rules that governed parole
release procedures for felony offenders generally. See former
OAR 255-30-012 (deleted May 31, 1985). Simultaneously, the
board created a new set of rules-division 32-that specifi-
cally addressed parole procedures for persons convicted of
aggravated murder. Those rules-both procedurally and sub-
stantively-tracked the mandatory minimum sentence
required by ORS 163.105(1) (1985). Under OAR 255-32-005
(1985), the rules required that an aggravated murderer
receive a "prison term hearing" under the procedures pro-
vided in division 30 of the rules. OAR 255-32-010(1) (1985)
identified the "minimum period of confinement for a person
convicted of Aggravated Murder as defined by ORS
163.105(1) [(1985)]" to be 30 years. Thus, for persons con-
victed of aggravated murder, the rules did not provide for a
proceeding in which a parole date would be determined until
after the inmate had served the minimum term of confine-
ment imposed pursuant to ORS 163.105(1) (1985). In effect,
the rules did not anticipate the need to do so for any person
convicted of aggravated murder. No board rule specifically
addressed juveniles convicted of aggravated murder or made
any other provision for them.

A few years later, another legislative change to
Oregon's sentencing laws took place, one that also has bear-
ing on the questions before us. Effective November 1, 1989,
the legislature abolished Oregon's indeterminate sentencing
system and replaced it with a so-called "sentencing guide-
lines" scheme. See generally Or Laws 1989, ch 790. Before
that change, Oregon had used a "parole matrix system" for
determining the actual length of an offender's incarceration.
See Hamel v. Johnson, 330 Or 180, 185-86, 998 P2d 661
(2000) (explaining parole matrix system). Under the matrix
system, for any particular offender, the trial court imposed
an indeterminate sentence of a specified maximum duration,
and the board determined the actual duration of imprison-
ment by its parole release decision. In contrast, under the
sentencing guidelines system that came into force in 1989,
trial courts are charged with imposing a determinate sen-
tence for most felony convictions. That sentence is based on a

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presumptive term determined pursuant to a set of legisla-
tively approved guidelines, from which a sentencing court
has limited discretion to deviate. The inmate then serves the
sentence that the trial court imposes, without eligibility for
release on parole. See State ex rel Engweiler v. Cook, 340 Or
373, 380-82, 133 P3d 904 (2006) (discussing former parole
matrix system and current sentencing guidelines scheme).
The sentencing guidelines system thus eliminated any kind
of release on parole for persons subject to its provisions. Con-
sistently with that change, the board amended its parole
"matrix" rules-i.e., division 30-to apply only to an inmate
"whose crime was committed prior to November 1, 1989."
OAR 255-30-010(1) (1989).

By late 1989, then, the board's rules had undergone
two significant modifications. First, in response to the enact-
ment of the death penalty provisions, the board had removed
aggravated murder from division 30, which contains the
"matrix" rules by which parole release dates are set for felony
offenses generally; aggravated murder instead became sub-
ject to a separate set of rules set out in division 32. Second, in
response to the new determinate sentencing guidelines
scheme, the board expressly limited its parole authority
under division 30 to felony offenses committed before
November 1, 1989. Neither set of rules contained different
provisions for juveniles convicted of aggravated murder.
Instead, all persons convicted of aggravated murder, includ-
ing juveniles under the age of 17 at the time of their offense,
were subject to division 32, which was written with a built-in
assumption that all persons convicted of aggravated murder
were required to serve a 30-year minimum sentence under
ORS 163.105(1) (1989).

That was the state of the board's rules when each of
the three federal habeas petitioners-Conrad Engweiler,
Lydell M. White, and Laycelle T. White (referred to individ-
ually by last name, or collectively as petitioners)-committed
their crimes of aggravated murder. Engweiler committed
aggravated murder in 1990. He was 15 years old at the time.
The Whites, who are brothers, jointly committed aggravated
murder in 1993. They, too, were 15 years old at the time of
their crimes. All three juveniles were tried as adults, con-
victed of aggravated murder, and sentenced (Engweiler in

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1994 and the Whites in 1995) to life imprisonment without a
minimum sentence-that is, to life with the possibility of
parole.5

In 1999, the board promulgated new rules as part of
division 32 to establish procedures and standards by which
the board would consider whether and when to grant parole
to juvenile aggravated murderers (the "JAM" rules).6 The
board then applied those rules to petitioners. In Engweiler's
case, the board entered an order that gave him a 480-month
prison term and a corresponding "murder review date" of
February 22, 2030; the board further ordered that a "murder
review hearing" would be scheduled for him in December
2029. The effect of that order is that the board has not estab-
lished an initial parole date for Engweiler. Engweiler v.
Board of Parole, 340 Or 361, 371, 133 P3d 910 (2006)
(Engweiler II). The board has, however, determined that,
after 480 months, Engweiler will be eligible for consideration
for parole and it has scheduled further proceedings for
review. Id .; State ex rel Engweiler, 340 Or at 383. In each of
the White's cases, the board imposed a prison term of "life,"
thus effectively determining that they should be denied
release on parole. The board further ordered, however, that
each of the Whites "may petition the board for a murder
review hearing after serving 40 years."

All three petitioners unsuccessfully challenged the
board's orders administratively and by seeking state appel-
late court review of them. Petitioners since have filed for
habeas corpus relief in federal district court, which, as we

5 Engweiler was initially sentenced to life imprisonment with a 30-year mini-
mum sentence, pursuant to ORS 163.105(1) (1989). His appeal resulted in the
Court of Appeals decision holding that juveniles who commit aggravated murder
while under the age of 17 are not subject to the 30-year minimum sentence under
ORS 163.105(1) (1989). State v. Engweiler, 118 Or App 132, 136, 846 P2d 1163
(1993) (Engweiler I). Engweiler's sentence was reversed and, on remand in 1994, he
was sentenced to life imprisonment without a minimum sentence. The Whites
were sentenced in 1995, after Engweiler's appeal. In addition, the district court rec-
ord reveals that two other juveniles are similarly situated to Engweiler and the
Whites. Evidently, then, a total of five inmates are affected by the answers we give
to the district court's questions.

" Both the federal district court and the parties refer to those 1999 rules as the
"juvenile aggravated murder (JAM)" rules. In the interest of consistency, we use
that same shorthand.

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have described, led to that court's certification of three ques-
tions to this court. We turn to those questions.

# II. DISCUSSION

## A. The first certified question

The first certified question asks:

"Whether ORS 144.110(2)(b), 163.105(1) and 161.620[7]
combined to create a situation in which certain juve-
niles (ages 15-16) convicted of aggravated murder were
not entitled to the possibility of parole for crimes com-
mitted after October 31, 1989 and prior to April 1,
1995."8

The question arises because the cited statutes, at
least at first blush, were potentially inconsistent in their
terms. ORS 144.110(2)(b) (1989) provided, in part, that "[t]he
board shall not release a prisoner on parole who has been
convicted of murder defined as aggravated murder under the
provisions of ORS 163.095, except as provided in ORS
163.105." In turn, as already described, other than a sentence
of death, the only sentence that ORS 163.105(1) (1989)
authorized for aggravated murder was life with a minimum
term of 30 years without the possibility of parole. Neither
statute, by its terms, made any exception for juveniles who
committed aggravated murder. ORS 161.620 (1989), on the
other hand, precluded the imposition of a mandatory mini-
mum sentence on any juvenile convicted of an adult crime,

7 The question does not specify which versions of the statutes are at issue. As
mentioned earlier, Engweiler committed aggravated murder in February 1990 and
was resentenced to an indeterminate sentence of life imprisonment in November
1994; the Whites committed aggravated murder in August 1993 and were sen-
tenced to indeterminate sentences of life imprisonment in January 1995. The sub-
stantive text of the relevant statutes did not change in any significant respect dur-
ing that full time period-i.e., between the date on which Engweiler committed
aggravated murder and the date on which the Whites were sentenced in 1995.
Thus, in answering the certified questions, we discuss the 1989 versions of the
statutes.

" The beginning and ending dates in the certified questions reflect the effective
date of the sentencing guidelines, in 1989, and a 1995 amendment to ORS 161.620,
which deleted the phrase "where the person was 17 years of age at the time of the
offense," and thus made juveniles subject to the minimum sentences under ORS
163.105 for aggravated murder. See Or Laws 1995, ch 422, § 131y.

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except for a juvenile who committed aggravated murder at
age 17. Specifically, ORS 161.620 (1989) provided:

"Notwithstanding any other provision of law, a sentence
imposed upon any person remanded from the juvenile court
under ORS 419.533 shall not include any sentence of death
or life imprisonment without the possibility of release or
parole nor imposition of any mandatory minimum sentence
except that a mandatory minimum sentence under ORS
163.105(1)(c) shall be imposed where the person was 17
years of age at the time of the offense."

The answer to the apparent tension in the statutes
lies in the first sentence of ORS 161.620 (1989).9 It declares
that ORS 161.620 (1989) precludes imposition of any man-
datory minimum sentence on a juvenile (except for one who
was 17 when he or she committed aggravated murder)
"[n]otwithstanding any other provision of law." The function
of a "notwithstanding" clause is straightforward. It operates
as an exception to whatever follows. Severy v. Board of
Parole, 318 Or 172, 178, 864 P2d 368 (1993) (function of a
notwithstanding clause is to operate as "an exception to the
provisions of law referenced in the clause"). That means, in
this instance, that the terms of ORS 161.620 (1989) prevailed
over "any other provision of law." In other words, the
notwithstanding clause made it irrelevant that ORS
144.110(2)(b) (1989) and ORS 163.105(1) (1989) each man-
dated a minimum sentence of 30 years without the possibility
of parole for any person convicted of aggravated murder and
made no exception for persons who were juveniles under the
age of 17 when they committed their crime.

9 The answer has been suggested before. Engweiler initially received a 30-year
minimum sentence under ORS 163.105 (1989). On appeal of his conviction, he chal-
lenged that sentence in the Court of Appeals. That court held that ORS 161.620
(1989) precludes imposition of the 30-year mandatory minimum sentence for
aggravated murder on juveniles who were under age 17 at the time of the crime.
Engweiler I, 118 Or App at 136. This court denied review of that decision. State v.
Engweiler, 317 Or 486, 858 P2d 876 (1993). More recently, when Engweiler pur-
sued his challenges to the board's order setting his prison term and murder review
date, this court contrasted the terms of ORS 163.105 (1989) with those of ORS
161.620 (1989) and observed: "Accordingly, the only sentencing option available to
the sentencing court in petitioner's case was life imprisonment with the possibility
of release or parole[.]" State ex rel Engweiler, 340 Or at 383.

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It follows from the foregoing that the answer to
the first question is "no." ORS 144.110(2)(b) (1989), ORS
163.105(1) (1989), and ORS 161.620 (1989) did not "combine
[ ] to create a situation in which certain juveniles (ages 15-16)
convicted of aggravated murder were not entitled to the pos-
sibility of parole for crimes committed after October 31, 1989
and prior to April 1, 1995." Instead, ORS 161.620 (1989)
trumped the other two statutes by precluding imposition of
the 30-year mandatory minimum sentence otherwise author-
ized by ORS 163.105(1) (1989) for juveniles who were under
age 17 when they committed aggravated murder. Conse-
quently, petitioners must be entitled to the possibility of
parole.

## B. The second certified question

The federal district court's second certified question
asks:

"Whether, prior to promulgating its juvenile aggravated
murder (JAM) rules in 1999, the Board of Parole and Post-
Prison Supervision (Board) had any rules for establishing
prison terms for juvenile offenders (ages 15-16) convicted of
aggravated murder committed after October 31, 1989 and
prior to April 1, 1995, and if not, whether the Board had the
statutory authority to promulgate its JAM rules in 1999,
establishing prison terms for juvenile offenders (ages
15-16) convicted of aggravated murder committed after
October 31, 1989 and prior to April 1, 1995."

The question has two parts. The first part asks if,
before promulgating the JAM rules, the board had any rules
for establishing prison terms for juveniles convicted of aggra-
vated murder. The second half asks, if not, whether the board
had statutory authority to adopt the JAM rules that it prom-
ulgated in 1999.

As for the first half of the district court's question,
the parties do not disagree about what rules in fact were in
existence when petitioners committed their crimes. Rather,
the dispute is over the legal effect of those rules and whether
any of them correctly could be applied to petitioners. We
understand that to be the point of the first part of the federal
court's question.

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Our answer is that, when petitioners committed
their crimes, none of the board's existing rules provided
either procedural or substantive mechanisms to determine
whether and when to parole juvenile aggravated murderers.
The board had no such rules in place until 1999, when it
promulgated the JAM rules. As described earlier, Engweiler
committed aggravated murder in 1990 and the Whites com-
mitted aggravated murder in 1993. The pertinent rules in
force on the date of their crimes were the 1989 versions of
division 30 (the parole matrix provisions for felony offenders
generally) and division 32 (specific provisions governing
parole of aggravated murderers) of OAR chapter 255. By
1989, consistently with the enactment of Oregon's death pen-
alty provisions, the board had removed aggravated murder
from the substantive provisions in division 30 and had prom-
ulgated division 32, which specifically applied to aggravated
murderers only.10 Consistently with the sentencing guide-
lines provisions, the board also had amended division
30 to apply only to persons who committed felonies before
November 1, 1989. Petitioners thus did not come within the
ambit of the division 30 rules, both because of the crimes that
they committed (aggravated murder) and the date on which
they committed them (after November 1, 1989).

Division 32, in contrast, potentially applied to peti-
tioners, because it purported to govern any person convicted
of aggravated murder. The problem, however, is that division
32 contained no rule that fit petitioners' distinctive circum-
stance of being juveniles who, because of ORS 161.620 (1989),
could not be sentenced to a 30-year minimum term of impris-
onment for aggravated murder. Specifically, OAR 255-32-005
(1989) provided:

10 Petitioners nevertheless argue that, when Engweiler committed his crimes,
exhibits to the board's rules continued to list aggravated murder as a category 7 or
8 offense for purposes of calculating parole release under the parole matrix system
for general felony offenders (i.e., division 30). OAR ch 255, Ex A, Pts I & II (1990).
That continued reference was a holdover from the former rule and had been deleted
by the time the Whites committed their crimes. See OAR ch 255, Ex A (1992), avail-
able at http://www.oregon.gov/BOPPPS/docs/Rules/ExhA.pdf. It therefore would
not aid the Whites. In all events, petitioners have not demonstrated how that ref-
erence in the exhibits, without more, had legal significance once aggravated mur-
der had been removed from the substantive provisions of the division 30 rules and
had become the subject of the division 32 rules.

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"(1) A person convicted of Aggravated Murder under
ORS 163.095 shall receive a prison term hearing under the
provisions of Division 30 of these rules. A review date con-
gruent with the minimum terms set forth in 255-32-010
shall be set rather than a parole release date.

"(2) Persons sentenced to death or life without the pos-
sibility of release or parole shall not receive a prison term
hearing."

(Emphasis added.) In turn, OAR 255-32-010(1) (1989)
provided:

"The minimum period of confinement for a person con-
victed of Aggravated Murder as defined by ORS 163.105(1)
shall be thirty (30) years."

(Emphasis added.) In effect, the 1989 rules tracked the
30-year minimum sentence under ORS 163.105(1) (1989) by
precluding any parole eligibility review and the setting of a
parole release date for aggravated murderers until they had
served that mandatory minimum sentence. See generally
Engweiler II, 340 Or at 371 (under the board's rules, a mur-
der "review date" does not establish the date on which an
inmate is to be released on parole, but instead determines
when the inmate is entitled to further parole review). The
board had no rule that similarly tracked ORS 161.620 (1989)
by making an exception for juveniles who were under age 17
when they committed aggravated murder, and who therefore
were entitled to parole consideration without first serving a
minimum sentence. The rules that the board had in place as
of the date of petitioners' crimes for persons convicted of
aggravated murder therefore did not fit petitioners' particu-
lar circumstances and could not be applied to them.

On that last point, the parties agree. In particular,
petitioners agree that the 1989 provisions of division 32 could
not be applied to them. Petitioners maintain, however, that
nothing prevented the board from applying the general
parole "matrix" provisions of division 30, which remained in
place for certain felony offenses generally, including murder.
Petitioners assert that aggravated murder, as a more specific
form of murder,11 fit within those rules. That argument fails,

11 See ORS 163.095 (1989) (defining aggravated murder as murder under ORS
163.115 (1989) committed under specified aggravating circumstances).

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for at least two reasons. First, the board specifically removed
aggravated murder from division 30 and made it the subject
of a special set of parole rules set forth in division 32. Second,
the board limited division 30 to felonies committed before
November 1, 1989. Thus, by their terms, neither set of rules
applied to petitioners. That fact does not mean that petition-
ers were entitled to choose which nonapplicable rule they
would nevertheless like to have applied to them. Rather, it
means that the board's rules contained a void, one that the
board filled when it promulgated the JAM rules in 1999.12

We turn, then, to the second part of the second cer-
tified question-whether the board had the authority to
promulgate the JAM rules. The dispute on that point is not
whether the board had authority to promulgate some set of
rules that would apply to juvenile aggravated murderers. On
that score, petitioners and the board agree that the board had
such authority, either pursuant to the board's express statu-
tory rulemaking authority or because such authority must be
implied to give effect to ORS 161.620 (1989), which requires
that juvenile aggravated murderers under the age of 17 be
eligible for parole consideration.13 The dispute instead is
whether the particular JAM rules that the board promul-
gated in 1999 exceeded the board's authority. We begin by
describing the provisions of the JAM rules that the board
adopted in 1999. We then address petitioners' argument that
certain provisions of those rules run afoul of what the board
is statutorily obligated to accomplish by rule.

12 Petitioners further point out that the board apparently used the matrix pro-
visions for murder in division 30 (as opposed to those in division 32 for aggravated
murder) to establish parole release dates for two other juvenile aggravated mur-
derers, Karl Kazor and Michelle Burks. One answer to their argument is that
Kazor and Burks committed their aggravated murders in 1988, and thus fell
within the time period to which division 30 continues to apply. Beyond that, as the
board acknowledges, for a while "the issue of how to deal with this category of juve-
nile aggravated murderers [was] one that troubled" both the board and its lawyers.
Eventually, the board determined on advice of counsel that it had misapplied the
matrix provisions of division 30 to Kazor and Burks. That advice is consistent with
our analysis. Suffice it to say, the fact that the board misapplied its rules to Kazor
and Burks does not require it to continue to do so for other juvenile offenders.

13 In promulgating its JAM rules, the board expressly relied on the then cur-
rent versions of ORS 144.110(2)(b), ORS 163.105(1), and ORS 144.780 (i.e., the
1997 versions of those statutes); the board also relied on the 1994 version of ORS
161.620. See also ORS 144.050 (which, from 1959 to the present, has authorized the
board to establish rules applicable to parole).

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As already described, the board made the JAM rules
a part of division 32 of OAR chapter 255, the rules that gov-
ern parole procedures for aggravated murderers more gen-
erally. In adopting the JAM rules, the board amended some
of the preexisting division 32 rules so that they govern
"adult" offenders only,14 and also added new provisions to
address juvenile offenders specifically. As pertinent here, the
JAM rules require the board to hold an initial "prison term
hearing" for juveniles convicted of murder who were under
age 17 at the time of the offense. OAR 255-032-0005(4)
(1999). At that hearing, the board sets "a review date
rather than a projected parole release date." Id. Alterna-
tively, the board may "deny parole" altogether. OAR 255-032-

0011(2) (1999). If the board opts to set a review date, it does
so based on a parole release matrix that it adopted specifi-
cally for juvenile aggravated murderers who are eligible for
parole consideration. Id. (cross-referencing Exhibit Pt-III).
Essentially, that matrix establishes ranges of time periods
that dictate whether and when a juvenile aggravated mur-
derer will be reviewed for parole eligibility and will receive a
parole release date. At the low end, the matrix can result in a
review date between 240 and 300 months. Id. At the high
end, it can result in a "life" term, which is a denial of parole.
Id. The review date then triggers a schedule for further board
review of the inmate's institutional conduct and rehabilita-
tion efforts, after which the board may establish a parole
release date under the matrix or may set another review date
at which it will further review the inmate's conduct and reha-
bilitation efforts. OAR 255-032-0011(6) - (7) (1999); see also
State ex rel Engweiler, 340 Or at 383 (so concluding). If the
board denies parole, the inmate is not totally foreclosed from
future parole consideration. Rather, after 480 months, the
inmate may petition the board for further review, and then
may continue to do so periodically. OAR 255-032-0011(5), (7)
(1999).

14 Compare OAR 255-32-005(1) (1989) (requiring board to set review date con-
gruent with minimum term in OAR 255-32-010 (1989)), and OAR 255-32-010(1)
(1989) (identifying minimum period of confinement for persons convicted of aggra-
vated murder as 30 years pursuant to ORS 163.105), with OAR 255-32-0005(1)
(1999), and OAR 255-32-0010(1) (1999).

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Petitioners argue that the JAM rules exceed the
board's statutory authority, because they run afoul of ORS
144.780(1) (1997), which provided, in part:

"The [Advisory Commission on Prison Terms and Parole
Standards] shall propose to the board and the board shall
adopt rules establishing ranges of duration of imprison-
ment to be served for felony offenses prior to release on
parole. The range for any offense shall be within the maxi-
mum sentence provided for that offense."

According to petitioners, the statute obligates the board to
establish a "duration of imprisonment" at a juvenile aggra-
vated murderer's initial prison term hearing. In petitioners'
view, the quoted phrase equates with a prison term based on
a parole release date. As just outlined, the JAM rules do not
permit setting an actual parole release date at the initial
prison term hearing. Instead, under those rules, the board
sets a "prison term" that is coextensive with the "review
date." That prison term is not the functional equivalent of one
based on a parole release date, and it does not establish the
actual period of an inmate's incarceration. See State ex rel
Engweiler, 340 Or at 383 (a "prison term" under the JAM
rules does not establish a parole release date or otherwise set
a discrete term of imprisonment that the inmate will serve).
Rather, it triggers further review that, depending on an
inmate's conduct and rehabilitation efforts, may result in set-
ting a parole release date in the future. Consequently, peti-
tioners argue, the JAM rules do not comport with the direc-
tive of ORS 144.780(1) (1997) because they do not require the
board to set a juvenile aggravated murderer's parole release
date at the initial parole hearing.

Petitioners misread that statute. Its terms do not
require the board, at an initial prison term hearing, to estab-
lish the actual "duration of imprisonment" to be served by an
individual felony offender before his or her release on parole.
Instead, the statute authorizes and directs the board to adopt
"ranges" of duration of imprisonment to be served for "felony
offenses," ranges that are "within the maximum sentence
provided" for each offense. The board is to do so through its
rule-making authority. In other words, the statute requires
the board to make the generally applicable policy choice of
deciding what ranges of incarceration should be served for

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particular crimes. The statute is not directed to the adjudi-
cative process by which the board applies those ranges to an
individual offender-that is, the statute is not directed to the
process by which the board determines whether and when to
set a release date for that individual offender.

The board's JAM rules comply with that under-
standing of the statutory directive. They establish a matrix
for aggravated murder committed by juveniles under the age
of 17, one that identifies "ranges of duration of imprison-
ment" based on the circumstances of the offense and the
offender. Under the board's JAM rules, the board follows a
hearing process by which it either denies parole or, alterna-
tively, sets a review schedule pursuant to which it may
eventually set a parole release date for the inmate. ORS
144.780(1) (1997) is not offended by that procedural choice on
the board's part.15

In sum, our answer to the first part of the second cer-
tified question is that the board, before promulgating the
JAM rules in 1999, did not have rules in place that it cor-
rectly could apply to juveniles convicted of aggravated mur-
der to determine whether or when to release them on parole.
Our answer to the second part of the question is that the
board did not exceed its statutory authority in adopting the
particular JAM rules that it promulgated in 1999.

## C. The third certified question

The third certified question asks:

"Whether the prison terms set by the Board under the
1999 JAM rules for offenders (ages 15-16[)] convicted of
aggravated murders committed after October 31, 1989 and
prior to April 1, 1995 are a [mandatory] 'minimum' sen-
tence that is prohibited in ORS 161.620."16

15 Petitioners also argue that the JAM rules are "inconsistent" with ORS
161.620 (1989) because the ranges under the JAM matrix effectively impose a
"mandatory minimum sentence" on juvenile aggravated murderers. That argu-
ment is addressed by the answer to the third certified question, below.

16 The certified question omits the word "mandatory," although ORS 161.620
(1989), which was set out in full earlier in this opinion, prohibited the imposition of
any "mandatory minimum sentence" on a juvenile who committed aggravated
murder while under age 17. We therefore answer the question with that clarifica-
tion. See Western Helicopter Services, 311 Or at 370 (this court may, in its discre-
tion, modify or clarify certified question).

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As we explain, we conclude that the prison terms established
by the board under the JAM rules are not "mandatory mini-
mum sentences" within the meaning of ORS 161.620 (1989).

Regarding the federal court's third question, our
decision in State v. Jones, 315 Or 225, 844 P2d 188 (1992), is
dispositive. In that case, this court interpreted the phrase
"mandatory minimum sentence" in ORS 161.620 (1989) to
mean a minimum period of incarceration that a trial court, by
statute, is required to impose as part of an offender's sen-
tence. Id. at 230. In so holding, we emphasized that the
purpose of ORS 161.620 is to give "trial judges flexibility
in sentencing most remanded juveniles." Id. We therefore
interpreted the term "mandatory minimum sentence" to
include any sentence that a trial court is statutorily obligated
to impose, regardless of whether the board has authority
later to override that sentence. Id.

A prison term established under the JAM rules for a
juvenile aggravated murderer does not satisfy that meaning.
It is not imposed as part of the sentence ordered by the trial
court, pursuant to a statutory mandate or otherwise; instead,
it is imposed pursuant to the ranges established by board
rule pursuant to the parole matrix specially adopted for juve-
nile offenders. A fortiori, the board's action in setting a prison
term does not fall within the literal meaning of "mandatory
minimum sentence" in ORS 161.620 (1989).

Petitioners acknowledge as much. They concede that
a prison term established by the board under the JAM rules
"is not, technically speaking, a mandatory minimum sen-
tence[.]" They argue, however, that it is the "functional equiv-
alent" of a mandatory minimum sentence because, under the
matrix for juvenile aggravated murderers, no inmate can
receive a term of incarceration of less than 240 months. The
question is not, however, whether the board-imposed prison
term is the "functional" equivalent of a mandatory minimum
sentence, as that term is used in ORS 161.620 (1989). The
question is whether it is the legal equivalent. The test of legal
equivalency is the correct one, because petitioners' theory
requires that the JAM rules impose what ORS 161.620
(1989) forbids. Under our holding in Jones, the statute for-
bids only those minimum terms that a sentencing court

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would otherwise be legally obligated to impose as part of a
juvenile offender's sentence. A prison term imposed pursuant
to the JAM rules does not fall within that legal prohibition.

Our answer to the third certified question is there-
fore "no." The prison terms set by the board under the JAM
rules are not "mandatory minimum sentences" that are pro-
hibited by ORS 161.620 (1989).

Certified questions answered.