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February 25, 2020

Oregon discovering it might have Apprendi problems with its new first-degree murder sentencing provisions

A helpful reader alerted me to this interesting article from Oregon, headlined "New law throws true life sentence in doubt for MAX train killer Jeremy Christian, other murderers, experts say," which highlights that states are still struggling with the modern meaning of the Sixth Amendment a full two decades since Apprendi v. New Jersey.  Here are the details:

Now that a Portland jury has found Jeremy Christian guilty of the first-degree murders of two men on a MAX train, many people might assume that -- given the horrific nature of his crimes -- he’ll end up serving the rest of his life with the possibility of never being released.  Think again.

A growing chorus of legal experts say they believe there’s a glaring flaw in Oregon’s new first-degree murder law that effectively eliminates the possibility that Christian and other convicted murderers in the future will end up serving “true life” prison terms.

Critics say the new law, passed last summer as Senate Bill 1013, is unconstitutional and vague.  They say it disregards two landmark U.S. Supreme Court decisions that invalidate the procedure laid out in the law for handing down true life sentences.  In a flurry of paperwork filed Monday, Christian’s lawyers told Multnomah County Circuit Judge Cheryl Albrecht that given the law’s constitutional problems, her only remaining option under the law is to sentence Christian to life in prison with the possibility of release after 30 years.

Other lawyers representing first-degree murder defendants across Oregon are beginning to make similar arguments, as the first batch of accused killers head toward trials since the law took effect Sept. 29.  Defense attorneys aren’t the only ones pointing to a problem. “In the prosecution community, there’s considerable concern,” said former prosecutor Josh Marquis. “It’d be naive to say this is some idle speculation.”...

He said few lawyers are aware of the impact that the Supreme Court cases -- Apprendi v. New Jersey in 2000 and Blakely v. Washington in 2004 -- have on true life in Oregon....  The Supreme Court rulings require a jury, not a judge, to decide on an elevated prison sentence, such as true life, critics of SB 1013 say.  And criteria -- or specific questions asked of jurors -- must be laid out by the law before the jury can hand down the harsher sentence, they say.

The problem with Oregon’s law is that it grants sentencing powers solely to a judge and doesn’t include sentencing criteria.  As a result, retired Multnomah County prosecutor Norm Frink believes there’s “a high degree of probability” that the Oregon Supreme Court will overturn true life sentences for defendants convicted of first-degree murder....

The uncertainty over how the law will affect the first batch of defendants found guilty of first-degree murder is beginning to play out in courtrooms across the state.  In Christian’s case, Albrecht could go along with the law as stated and decide to sentence him to true life by simply giving what the law calls “the reasons” she thinks he deserves that sentence.

But Albrecht appears to recognize a problem with this because, after jurors found Christian guilty last week, she asked them to return to court Tuesday and Wednesday.  She plans to ask them questions about Christian that will help her decide his sentence.

In court filings Monday, prosecutors came up with their own suggestions for what she should ask, including: Is there a high probability that Christian can’t be rehabilitated? Were his crimes fueled by “unreasonable racial and religious bias”? Has Christian shown remorse for plunging the knife into the necks of the three men?

Tuesday, defense attorney Greg Scholl cautioned the judge that she is stepping onto shaky ground. “There’s nothing in the statute that says this is how they (jurors) are supposed to do it," Scholl said. “We’re operating in a new and somewhat gray area," prosecutor Jeff Howes responded.  Howes said just because SB 1013 doesn’t lay out a process for the judge and jury, that doesn’t mean the judge can’t create a process that is constitutional.  Regardless of how Albrecht handles this, Christian’s attorneys are likely to appeal whatever process she devises....

Outside Portland, other Oregon judges also have been grappling with what to do.  In November, a Hillsboro jury found Martin Allen Johnson guilty of first-degree murder in the killing of a 15-year-old girl whose body washed up on the banks of the Columbia River more than 20 years ago.

Using suggestions from prosecutors, Washington County Circuit Judge Eric Butterfield also came up with a list of questions for jurors.  Among them was whether the defendant knew he was preying on a particularly vulnerable person and if prior punishment in the criminal justice system had deterred him from reoffending.  Butterfield then sentenced Johnson to true life.  Johnson is appealing.

In Linn County, Brenton Wade Richmond faces a double murder trial in the shooting deaths of his ex-girlfriend and her new boyfriend in her home in 2019.  Wade’s defense attorney asked Circuit Judge David Delsman to prevent the prosecution from seeking true life because of what they see as the first-degree murder law’s many constitutional issues.

Lawyers for the Oregon Department of Justice, however, have weighed in, saying in court filings that the true life option is legal and valid.  Sen. Floyd Prozanski, the Eugene Democrat who chairs the Senate Judiciary Committee, said he wasn’t aware of the deep concerns some critics have over the validity of the law’s true life option for first-degree murder. His committee backed the bill.  “Well, that’s their opinion, their interpretation,” said Prozanski, who is a municipal prosecutor and handles misdemeanor cases.  “I had not heard that.  And I will say that the law is pretty clear... The intent was not to do away with what’s called true life.”

The new law causing all this trouble appears in bold here, and it says in one section that the "court shall" impose a 30-to-life term and in the next section that "the court may sentence the person to life imprisonment without the possibility of parole."  That next section then provides that the "court shall state on the record the reasons for imposing the sentence." 

I understand the Sixth Amendment worry with this statutory scheme which seems to require that "reasons" be given for an elevated "true life" sentence.  But, ironically, because the statute does not specify what "reasons" are required for the elevated "true life" sentence, I think an argument might be made that the Oregon statute requires only reasoned judgment, not discreet fact-finding, to justify the higher sentence and thus does not create Sixth Amendment problems.  (In a 2006 article titled, "Conceptualizing Booker," I developed the argument that broad judicial power at sentencing can be justified if and only when judges are exercising reasoned judgment.)

February 25, 2020 at 11:35 PM | Permalink


Amazing that this post comes out the same day as McKinney. I think that, after McKinney, it is pretty clear that the Oregon law does not have an Apprendi issue.

Looking at the statute, there is some room for arguing ambiguity given the apparently inconsistent sentencing provisions.

Posted by: tmm | Feb 26, 2020 12:30:30 PM

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