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The Oregon 5: Legal Glitch Ensnares Five Juvenile Lifers

Austin Jenkins
07/08/2008

Five juvenile murderers in Oregon are waging a legal battle against the state. They say that because of a legal glitch they've been given much harsher sentences than if they'd been older when they committed their crimes. So far the courts have not been moved. And the state isn't backing down. Correspondent Austin Jenkins reports.

TRANSCRIPT

SHANE SOPHER IS NOT A GUY YOU'RE LIKELY TO FEEL MUCH SYMPATHY FOR. WHEN HE WAS SIXTEEN HE HELPED HIS GIRLFRIEND KILL HER MOTHER. ANOTHER MAN ACTUALLY WIELDED THE BASEBALL BAT, BUT SOPHER WAS THERE AND HELPED PLOT THE CRIME. HE WAS CONVICTED OF AGGRAVATED MURDER AND SENTENCED TO LIFE IN PRISON WITH THE POSSIBILITY OF PAROLE.

TODAY SOPHER IS THIRTY–THREE YEARS OLD. HE'S BEEN IN PRISON FOR 16 YEARS.

SOPHER: "I believe that yes I do deserve to be punished for what I did. A life sentence, no. Fifteen years to twenty years max, I can see that as being a fair sentence."

BUT AS IT STANDS TODAY, SOPHER WON'T BE ELIGIBLE TO GO BEFORE THE OREGON BOARD OF PAROLE UNTIL HE'S SERVED AT LEAST THIRTY–THREE YEARS BEHIND BARS. THAT MIGHT SEEM UNREMARKABLE UNTIL YOU HEAR THIS. IF SOPHER HAD BEEN 17 – NOT 16 – WHEN HE COMMITTED HIS CRIME – HE WOULD HAVE BEEN ELIGIBLE FOR A PRE–PAROLE HEARING AFTER JUST 20 YEARS. EVEN AN ADULT SENTENCED TO LIFE WITH THE POSSIBILITY OF PAROLE UNDER OREGON'S GET–TOUGH MEASURE 11 IS ELIGIBLE FOR A HEARING AFTER THIRTY YEARS – THREE YEARS BEFORE SOPHER.

SOPHER: "They're treating us as a separate class from every other offender who's ever been convicted in Oregon."

SOPHER IS ONE OF FIVE JUVENILE KILLERS IN OREGON WHO GOT CAUGHT UP IN WHAT THE STATE CALLS A LEGAL GLITCH. ALL FIVE WERE UNDER AGE 17 WHEN THEY COMMITTED THEIR CRIMES. THAT MEANS THEY WERE SPARED A MANDATORY MINIMUM SENTENCE. INSTEAD THEY WERE GIVEN LIFE WITH THE POSSIBILITY OF PAROLE. THE PROBLEM IS THERE WAS NO RULE ON THE BOOKS TO DETERMINE WHEN THEY'D FIRST BE ELIGIBLE FOR PAROLE.

TO ADDRESS THAT GAP, IN 1999, THE BOARD OF PAROLE DRAFTED A SET OF RULES – AND THEY WERE TOUGH. THE RULES SAID THE FIVE INMATES WOULD HAVE TO SERVE AS MANY AS FORTY YEARS BEFORE THEY COULD BE CONSIDERED FOR PAROLE. DEFENSE ATTORNEY DENNIS BALKSE SAYS EVEN THEN IT WOULD JUST BE A HEARING TO SEE IF THE INMATE WAS A CANDIDATE FOR REHABILITATION.

BALSKE: "If you can convince us that you've rehabilitated yourself we'll consider giving you a parole hearing – that's pretty much how I'd phrase their situation."

BALSKE SAYS THE WHOLE SITUATION IS IRONIC BECAUSE BACK IN THE EARLY 1990S – UNDER OREGON LAW – 15 AND 16 YEAR OLD KILLERS WERE SUPPOSED TO BE TREATED MORE LENIENTLY THAN THEIR OLDER COUNTERPARTS. BALSKE SAYS THE PAROLE BOARD REFUSES TO ACKNOWLEDGE IT MADE A MISTAKE.

BALSKE: "They seem absolutely callous to that and simply dead set on their ways. They don't want to listen and it does run to contrary to the law that's been around for quite some time now about treating juveniles more leniently."

THE PAROLE BOARD WON'T COMMENT CITING ONGOING LITIGATION. BUT OREGON SOLICITOR GENERAL MARY WILLIAMS SAYS THE BOARD DID NOTHING WRONG WHEN IT SET THE RULES FOR THE FIVE INMATES.

WILLIAMS: "What they're doing then is carrying out their authority to define the policy. And someone may question that and think that there should have been a different policy choice made, but that's what they get to do."

SO FAR THE OREGON FIVE HAVE LOST IN COURT. BUT THEY CONTINUE TO CHALLENGE THEIR SENTENCES. THEIR NEXT STOP IS FEDERAL COURT WHERE – FOR THE FIRST TIME – A JUDGE WILL CONSIDER WHETHER THE LONG SENTENCES VIOLATE THEIR CONSTITUTIONAL RIGHTS. FOR NOW THE PAROLE BOARD SAYS IT HAS NO PLANS TO RECONSIDER WHETHER THE SENTENCES IT IMPOSED ARE FAIR. I'M AUSTIN JENKINS REPORTING.