inline"> 625 Argued and submitted March 12, 2020; decision of Court of Appeals reversed, judgment of circuit court affirmed March 4, 2021 STATE OF OREGON, Petitioner on Review, v. JUSTIN ALAN LINK, Respondent on Review. (CC 01FE0371AB) (CA A163518) (SC S066824) 482 P3d 28


    Defendant moved for an order declaring that the 2001 sentencing scheme
applicable to his conviction for aggravated murder violates Article I, section 16,
of the Oregon Constitution and the Eighth Amendment to the United States
Constitution, as construed by the United States Supreme Court in Miller v.
Alabama,

 (2012). The trial court
denied that motion, and sentenced defendant to “life imprisonment” with a minimum of 30 years without the possibility of parole pursuant to ORS 163.105(1)(c)
(2001). The Court of Appeals reversed, concluding that defendant had abandoned
his argument under Article I, section 16, but that the sentencing scheme violated the Eighth Amendment. Held: (1) Defendant failed to raise his Article I,
section 16, argument before the Court of Appeals and prudential reasons did not
weigh in favor of considering it on review; (2) the prohibition announced in Miller
applies to mandatory sentences of life without parole (or the functional equivalent) for juvenile offenders; and (3) a sentence of “life imprisonment” under ORS
163.105(1)(c) (2001), which affords juvenile offenders who have served a minimum
of 30 years the opportunity to convert their sentence to one with the possibility of parole, is not the equivalent of a life-without-parole sentence and is not
unconstitutional.
    The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.



    En Banc
    On review from the Court of Appeals.*
   Benjamin Gutman, Solicitor General, Salem, argued the
cause and filed the briefs for petitioner on review. Also on
the briefs was Ellen F. Rosenblum, Attorney General.
  Marc D. Brown, Chief Deputy Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
______________
    * On appeal from Deschutes County Circuit Court, Alta Jean Brady, Judge.

441 P3d 664

 (2019).
626                                           State v. Link

brief for respondent on review. Also on the brief was Ernest
G. Lannet, Chief Defender.
   Andy Simrin, Andy Simrin PC, Portland, filed the brief
for amicus curiae Seth Edwin Koch.
   Sara Kobak, Schwabe, Williamson & Wyatt, P.C.,
Portland, filed the brief for amici curiae American Civil
Liberties Union of Oregon, American Civil Liberties Union
Foundation, and Youth, Rights & Justice. Also on the brief
were Kelly Simon, American Civil Liberties Union of Oregon,
Steven M. Watt, American Civil Liberties Union Foundation,
and Angela Sherbo and Christa Obold Eshleman, Youth,
Rights & Justice.
   Crystal Maloney, Brooklyn, New York, filed the brief for
amici curiae Oregon Justice Resource Center and Oregon
Criminal Defense Lawyers Association.
  GARRETT, J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
Cite as

367 Or 625

 (2021)                                               627

          GARRETT, J.
         Defendant committed aggravated murder as a
juvenile in 2001. He was sentenced to a term of life imprisonment, which, as defined by statute at the relevant time,
requires him to serve “a minimum of 30 years without possibility of parole.” ORS 163.105(1)(c) (2001). After serving
that minimum term of confinement, defendant can petition
to convert his sentence to life imprisonment with the possibility of parole. ORS 163.105(2), (3) (2001). In this case,
defendant argues that the statute under which he was sentenced violates the Eighth Amendment to the United States
Constitution. The Court of Appeals agreed. State v. Link,

297 Or App 126, 128

441 P3d 664

 (2019) (Link IV). We allowed
the state’s petition for review. For the reasons that follow, we
reverse the decision of the Court of Appeals and affirm the
judgment of the circuit court.
                   I.    AGGRAVATED MURDER
                        SENTENCING SCHEME
       We begin with a brief overview of the 2001 scheme
under which defendant was sentenced.
A. Initial Sentencing
         In 2001, aggravated murder was defined as murder “which is committed under, or accompanied by,” certain
aggravating circumstances. ORS 163.095 (2001).1 A juvenile
charged with committing aggravated murder at the age of
15, 16, or 17 was automatically prosecuted in adult criminal
court. ORS 137.707(1)(a) (2001);2 see also ORS 419C.005(1)
(2001) (noting that ORS 137.707 sets forth an exception to
the juvenile court’s “exclusive original jurisdiction” over “any
case involving a person who is under 18 years of age and
who has committed an act which is a violation, or which if
done by an adult would constitute a violation, of a law or
ordinance”).3

    1
      ORS 163.095 (2001), amended by Or Laws 2005, ch 264, § 17; Or Laws 2012,
ch 54, § 26; Or Laws 2015, ch 614, § 149; Or Laws 2019, ch 635, § 1.
    2
      ORS 137.707 (2001), amended by Or Laws 2007, ch 867, § 6; Or Laws 2011,
ch 334, § 2; Or Laws 2019, ch 634, § 5.
    3
       ORS 419C.005 (2001), amended by Or Laws 2003, ch 396, § 98; Or Laws
2005, ch 843, § 7; Or Laws 2019, ch 634, § 14.
628                                                        State v. Link

          For a defendant convicted of aggravated murder,
ORS 163.105(1)(a) (2001)4 provided three possible sentences:
(1) death; (2) “life imprisonment without the possibility of
release or parole”; or (3) “life imprisonment.” However, ORS
137.707(2) (2001) prohibited juveniles from being sentenced
to death.
          Thus, a juvenile convicted of aggravated murder
could be sentenced to “life imprisonment without the possibility of release or parole” or “life imprisonment.” The choice
between those sentences was made following a sentencing
proceeding pursuant to ORS 163.150(1)(a), (3)(a)(B) (2001),5
which provided that “evidence may be presented as to any
matter that the court deems relevant to [the] sentence
including, but not limited to, * * * any aggravating or mitigating evidence * * *.”
          Depending on whether the defendant waived his or
her jury right, either the court or the jury would determine
whether there were sufficient mitigating circumstances
to warrant a sentence of “life imprisonment” under ORS
163.105(1)(c) (2001), instead of “life imprisonment without
the possibility of release or parole.” ORS 163.150(3)(a)(B),
(3)(b) (2001). If the court or jury determined that sufficient
mitigating circumstances existed, then the court would
sentence the defendant to life imprisonment. ORS 163.150
(3)(b) (2001). The statutory scheme further provided that,
for such a sentence, “the defendant shall be confined for a
minimum of 30 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.”
ORS 163.105(1)(c) (2001). After that minimum period of confinement, the Board of Parole and Post-Prison Supervision
(board), upon defendant’s petition, holds a “murder-review”
hearing to determine whether the defendant is “likely to
be rehabilitated within a reasonable period of time.” ORS
163.105(2) (2001). Upon such determination, the board is
required to convert defendant’s sentence to “life imprisonment with the possibility of parole.” ORS 163.105(3) (2001).
    4
      ORS 163.105 (2001), amended by Or Laws 2007, ch 717, § 1; Or Laws 2009,
ch 660, § 6; Or Laws 2015, ch 820, § 45; Or Laws 2019, ch 634, § 27.
    5
      ORS 163.150 (2001), amended by Or Laws 2005, ch 480, § 1; Or Laws 2017,
ch 359, § 4; Or Laws 2019, ch 635, § 5.
Cite as

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 (2021)                                       629

          Thus, in 2001, a juvenile who committed aggravated
murder at the age of 15, 16, or 17 years old would automatically
be tried in adult criminal court but, unlike an adult, could
be sentenced only to “life imprisonment without the possibility of release or parole” or “life imprisonment.” A defendant
who received the latter sentence would have to serve at least
30 years before being entitled to a murder-review hearing
at which the board would determine whether the sentence
should be converted to life with the possibility of parole.
B. Conversion of Sentence
          Because some of defendant’s arguments on review
concern the nature of the murder-review hearing process, we
next discuss that process in some detail, keeping our focus
on the statutes and rules that apply to a crime committed
in 2001. At a murder-review hearing, the board determines
whether the prisoner’s sentence shall be converted to “life
imprisonment with the possibility of parole, release to post-prison supervision or work release.” ORS 163.105(3) (2001)
(emphasis added). That conversion determination depends
on whether the prisoner establishes that he “is likely to
be rehabilitated within a reasonable period of time.” ORS
163.105(2) (2001). By rule, the board has articulated the following criteria relevant to that determination:
      “(1) The inmate’s involvement in correctional treatment, medical care, educational, vocational or other training in the institution which will substantially enhance his/
   her capacity to lead a law-abiding life when released;
      “(2)   The inmate’s institutional employment history;
      “(3)   The inmate’s institutional disciplinary conduct;
      “(4) The inmate’s maturity, stability, demonstrated
   responsibility, and any apparent development in the inmate
   personality which may promote or hinder conformity to
   law;
       “(5) The inmate’s past use of narcotics or other dangerous drugs, or past habitual and excessive use of alcoholic
   liquor;
      “(6) The inmate’s prior criminal history, including the
   nature and circumstances of previous offenses;
       “(7) The inmate’s conduct during any previous period
   of probation or parole;
630                                                           State v. Link

       “(8) The inmate does/does not have a mental or emotional disturbance, deficiency, condition or disorder predisposing them to the commission of a crime to a degree
    rendering them a danger to the health and safety of the
    community;
        “(9) The adequacy of the inmate’s parole plan including community support from family, friends, treatment
    providers, and others in the community; type of residence,
    neighborhood or community in which the inmate plans to
    live;
       “(10) There is a reasonable probability that the inmate
    will remain in the community without violating the law,
    and there is substantial likelihood that the inmate will
    conform to the conditions of parole.”
OAR 255-032-0020 (2001). If the board agrees by unanimous vote “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,”
the board “shall” enter an order converting the sentence.
ORS 163.105(3) (2001). Otherwise, if the board denies the
petition, “not less than two years after the denial * * *, the
prisoner may petition again for a change in the terms of
confinement.” ORS 163.105(4) (2001).
           The murder-review hearing is conducted “in the
manner prescribed for a contested case hearing under ORS
183.310 to 183.550,” except that the prisoner has “the burden of proving by a preponderance of the evidence the likelihood of rehabilitation with a reasonable period of time,” and
the prisoner has the right to counsel, including, if necessary, counsel appointed at the board’s expense. ORS 163.105
(2)(a) - (b) (2001). In addition, the prisoner has the right to
have the board subpoena witnesses if he shows the “general relevance and reasonable scope of the evidence being
sought.” OAR 255-032-0029(1).6
    6
      Several of the board’s rules applicable to murder-review hearings were promulgated after defendant committed the crimes, but before he was sentenced.
Particularly, as relevant here, OAR 255-032-0027, OAR 255-032-0029, OAR
255-032-0030, and OAR 255-032-0031 were all promulgated after defendant
committed aggravated murder, but before he was sentenced. However, defendant does not argue that those administrative rules do not apply to his murder-review hearing. Accordingly, we assume that they do and rely on them in this
opinion.
Cite as

367 Or 625

 (2021)                                          631

         Additional procedural protections are set out in,
inter alia, OAR 255-032-0030 (allowing prisoner to submit
evidence, object to evidence, and cross-examine witnesses),
OAR 255-032-0027 (requiring board to provide disclosure
of exhibits to be used at hearing), and OAR 255-032-0031
(requiring board to produce written final order following
hearing, which, if adverse to prisoner, must include findings
of fact and conclusions of law).
         In the event that defendant’s sentence is converted
to life with the possibility of parole, the parties have not
addressed in detail what would happen next; that question
is affected by statutes and administrative rules that have
changed in part since the 2001 date of the crime in this case.
However, in its briefing and at oral argument, the state has
taken the position that, either at the murder-review hearing or “shortly thereafter” at a “parole hearing,” the board
will determine defendant’s “sentence term” pursuant to the
“matrix system.” See ORS 144.120 (2001) (explaining parole
hearing);7 ORS 144.780 (2001) (setting forth matrix system).
The state further represents that, under the matrix system,
defendant’s presumptive sentence term could be as low as
120 months or as high as 288 months to life; the board also
could depart from the applicable presumptive sentence if it
determines that aggravating or mitigating circumstances
justify such departure. See ORS 144.785 (2001) (explaining board’s authority to depart from presumptive sentence
under matrix system).
         Furthermore, according to the state, the board
would set defendant’s release date based on the sentence
term and the date of the crime. In other words, the sentence term would “start” on the date of the crime and “end”
when the sentence term expires. See, e.g., Janowski/Fleming
v. Board of Parole,

349 Or 432, 456

245 P3d 1270

 (2010)
(explaining that the petitioner’s presumptive sentence under
the matrix system had already expired). Thus, the board
can theoretically set a prison term that makes a prisoner
immediately available for parole.
         Once the release date is set, the defendant is entitled to be released on that date unless the board finds, at
   7
       ORS 144.120 (2001), amended by Or Laws 2010, ch 89, § 11.
632                                                          State v. Link

an exit-interview hearing, “that the prisoner engaged in
serious misconduct during confinement” and postpones
the release date. See ORS 144.125(2) (2001) (providing for
exit interview); ORS 144.245(1) (2001) (providing that if a
prisoner does not have an unexpired minimum term, the
prisoner “shall be released” on the release date).8 The board
also may postpone the release date if the board finds that
the defendant has “a present severe emotional disturbance
such as to constitute a danger to the health or safety of the
community.” See ORS 144.125(3)(a) (2001). Additionally, the
board may defer the defendant’s release “for not more than
three months if it finds that the [defendant’s] parole plan is
inadequate.” See ORS 144.125(4) (2001).
         In sum, at the murder-review hearing, the board
will determine whether defendant is “likely to be rehabilitated within a reasonable period of time.” If so, the board
is required to convert defendant’s sentence to life with the
possibility of parole. According to the state, at that point
or “shortly thereafter,” the board will establish defendant’s
sentence term pursuant to the matrix system and set defendant’s release date. Defendant then is entitled to release
on that date unless the board determines that one of three
statutory reasons justifies postponing release. However,
according to the state, defendant will be able to seek review
of the board’s subsequent decisions.
                                II.   FACTS
        Defendant was charged in 2001 with numerous
crimes after he and a group of friends stole a car and sought
to conceal that act by murdering the car’s owner. He was
convicted of multiple felonies, including aggravated murder
under ORS 163.095(2)(e) (2001) (describing a murder “committed in an effort to conceal the commission of a crime, or to
conceal the identity of the perpetrator of a crime”) (Count 4).
Those convictions led to two direct appeal proceedings
involving assignments of error that are not pertinent to the
issue now on review. State v. Link,

214 Or App 100

162 P3d 1038

 (2007) (Link I), rev’d in part, aff’d in part and rem’d,

346 Or 187

208 P3d 936

 (2009); State v. Link,

346 Or 187

, 208

   8
       ORS 144.125 (2001), amended by Or Laws 2009, ch 660, § 3.
Cite as

367 Or 625

 (2021)

633 P3d 936

 (2009) (Link II); State v. Link,

260 Or App 211

317 P3d 298

 (2013) (Link III).
         In the second direct appeal proceeding, the Court of
Appeals remanded the case for resentencing. Link III,

260 Or App at 217

. On remand, defendant moved for an order
declaring the aggravated-murder sentencing scheme unconstitutional. Specifically, defendant argued that the sentencing scheme violated Article I, section 16, of the Oregon
Constitution and the Eighth Amendment to the United
States Constitution, as construed by the United States
Supreme Court in Miller v. Alabama,

567 US 460

132 S Ct 2455

183 L Ed 2d 407

 (2012) (holding that the Eighth
Amendment prohibits a mandatory sentence of life without
parole for juveniles who commit homicide offenses).
         The trial court rejected defendant’s argument that
the statutory scheme is categorically unconstitutional and
denied the motion. The court then explained that, pursuant to a written stipulation between the parties, to comply
with Miller and Montgomery v. Louisiana,

577 US 190

136 S Ct 718

193 L Ed 2d 599

 (2016), the court would conduct
an “evidentiary hearing to determine as a matter of law,
whether [d]efendant is ineligible for a sentence of life without the possibility of parole.” The state would “bear the burden of proof to show by a preponderance of the evidence that
[d]efendant is eligible for a true[-]life sentence.”
         At the evidentiary hearing, the trial court heard testimony from fact witnesses regarding defendant’s actions surrounding the murder; from family members who described
defendant’s early childhood and adolescent years; and from
state corrections employees who described defendant’s conduct during his years of incarceration. In addition, the court
heard from three expert witnesses: (1) Dr. Bonnie Nagel, a
neuropsychologist; (2) Dr. James Garbarino, a developmental psychologist; and (3) Dr. Alexander Duncan, a clinical
and forensic psychologist.
         After the hearing, the trial court concluded that the
evidence was insufficient to show that defendant “is the rare
juvenile offender whose crime reflects irreparable corruption
or irretrievable depravity so extensive that rehabilitation is
impossible.” The court cited United States Supreme Court
634                                                            State v. Link

decisions recognizing a “juvenile’s diminished culpability
and heightened capacity for change,” and noted “the progression of science in the area of adolescent development,” as
evidenced by the testimony of the three expert witnesses.9
         The court then made several findings regarding
defendant’s involvement in and actions after the murder,
his childhood,10 and his actions immediately after being
arrested for murder.11 The trial court also made favorable
findings as to defendant’s conduct after being transferred
to Eastern Oregon Correctional Institution (EOCI), in
September 2003.12
         Turning to the expert witness testimony, the trial
court found that Dr. Duncan had concluded that defendant
“likely had the onset of conduct disorder around age 13,”
but that he “does not have an antisocial personality disorder, nor has [d]efendant exhibited any signs of antisocial
behavior in the past 13 years.” Dr. Duncan also concluded
    9
       Specifically, Dr. Nagel described how the development of the limbic system
and the prefrontal regulatory system during adolescence; stress and exposure
to neglect, abuse, and violence; and the presence of peers are “related to teenagers engaging in risky decision making and activities.” Dr. Garbarino testified
that adolescents with trauma history tend to exemplify “the worst of adolescent
behaviors.” However, most adolescents are “capable of repair.”
    10
       The court found that, from an early age, defendant was subject to “shocking neglect and abuse.” Although defendant was “passive and submissive” in the
face of that abuse, he was “defiant and aggressive in school and community.”
The court further found that defendant’s “negative behavior outside the home
escalated.” By the time that he was 15, defendant was moved to an “alternative education program.” But his aggressive behaviors continued to “escalate[ ],”
so he was not allowed to continue to attend the program. After that, defendant
“was charged with menacing and disorderly conduct” and placed in juvenile court
school. By age 17, defendant “encouraged and participated” in the murder underlying this case.
    11
       The court found that defendant “continued to exhibit antisocial behavior in
the Deschutes County Jail” and received 51 disciplinary actions over the course
of two years. However, at the time of trial, defendant’s last recorded misconduct
was in June 2003.
    12
       The court found that defendant has “completely avoided involvement at
any level with gangs”; completed all available programs and classes; worked successfully in multiple job positions; and “is trusted by EOCI staff to respond to
EOCI’s plumbing needs unsupervised.” “Defendant is involved in the inmate hospice program, a position requiring presence and compassion.” He also “mentors
and is a role model for other inmates.” And he “demonstrated an altruistic side
when he organized a fundraiser for a family in need.” Finally, the court found
that defendant has never had a positive random urinalysis result. And, because
defendant has exhibited prolonged periods of clean conduct, he resides in one of
four extended housing units.
Cite as

367 Or 625

 (2021)                                 635

that defendant had not “displayed any features of an adult
personality disorder.” Finally, Dr. Duncan concluded that
defendant’s “risk for recidivism and violence is low for both
the short and long term.”
         Similarly, Dr. Garbarino concluded that it was evident that defendant “was psychologically maltreated as a
child” and that he likely experienced Type 2 trauma, which
“involves chronic, repeated traumatic experiences.” However,
Dr. Garbarino opined that defendant’s “prosocial tendencies
exhibited during incarceration suggest [d]efendant was not
irreparably damaged as a result of abuse during childhood
and adolescence.”
         The court then explained that there was “extensive
evidence from which to conclude that [d]efendant’s juvenile
conduct disorder has not developed into an antisocial personality disorder. The 180 degree change in [d]efendant’s
behavior is consistent with the expected timing of the
physical development of the regulatory prefrontal cortex.”
Thus, although defendant’s conduct prior to his arrival at
EOCI “was horrendous and is unforgivable,” that conduct
“was a reflection of unfortunate yet transitory immaturity.” Accordingly, the trial court determined that defendant could not be sentenced to life without the possibility of
parole.
         At a subsequent sentencing hearing, the trial court
sentenced defendant to life imprisonment with a minimum
of 30 years without the possibility of parole pursuant to ORS
163.105(1)(c) (2001). Defendant renewed his objection to that
sentence, contending that the sentencing scheme is unconstitutional “in that it imposes [a] de facto true[-]life term.”
        Defendant appealed a third time, reiterating his
argument that his sentence of “life imprisonment” under
ORS 163.105(1)(c) (2001) violates the Eighth Amendment as
interpreted in Miller because the sentence is, in fact, a mandatory sentence of life without parole when imposed.
        As discussed in more detail below, 367 Or at 651-52,
a divided panel of the Court of Appeals agreed that ORS
163.105 (2001) violates Miller. The majority interpreted the
Supreme Court’s Eighth Amendment case law on juvenile
636                                                           State v. Link

sentencing, culminating in Miller, as prohibiting a sentencing court from imposing “the state’s most severe penalties on a juvenile offender without regard for the unique
qualities of youth that might make imposition of that sentence inappropriate,” and concluded that a sentence of life
imprisonment is such a sentence. Link IV,

297 Or App at 157-88

. The Court of Appeals further noted that defendant
had “abandoned” his reliance on Article I, section 16, of the
Oregon Constitution and it did not address the constitutionality of defendant’s sentence under that provision.

Id. at 131

,
132 n 2.
           The state petitioned for review, which we allowed.
                          III.    DISCUSSION
A.    Arguments under Article I, Section 16, of the Oregon
      Constitution
         We allowed review to consider the state’s argument that the Court of Appeals reached the wrong conclusion under the Eighth Amendment. On review, however,
defendant renews a contention that he made at the trial
court, but that he did not raise at the Court of Appeals,
which is that his sentence also violates Article I, section 16,
of the Oregon Constitution. As noted above, the Court of
Appeals determined that defendant had abandoned the
latter argument on appeal. Link IV,

297 Or App at 131

,
132 n 2. The state contends that defendant’s state constitutional argument is thus not properly before us. For his
part, defendant argues that he did not actually abandon his
state constitutional argument on appeal; in the alternative,
defendant argues that, regardless of whether he did, this
court should still address the argument in light of our preference for resolving questions under the state constitution
before turning to federal constitutional issues. Thus, before
turning to the Eighth Amendment issues, we first consider
whether to address the merits of defendant’s Article I, section 16, argument. For the reasons that follow, we decline to
do so.13
    13
       In a similar vein, amicus curiae Seth Edwin Koch (amicus Koch) also makes
an argument that is unrelated to the Eighth Amendment: that Oregon’s sentencing scheme violates the Due Process Clause of the Fourteenth Amendment,
as interpreted in Sandstrom v. Montana,

442 US 510

99 S Ct 2450

, 61 L Ed
Cite as

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 (2021)                                                  637

         Article I, section 16, of the Oregon Constitution
states that “[c]ruel and unusual punishments shall not
be inflicted, but all penalties shall be proportioned to the
offense.” Defendant argued to the trial court that Article I,
section 16, prohibits his sentence of “life imprisonment”
under ORS 163.105(1)(c) (2001). He makes the same argument here.14 However, defendant did not expressly pursue
any argument under the state constitution at the Court
of Appeals. He nonetheless argues that, because the state
constitutional provision “closely parallels the Eighth
Amendment,” the Court of Appeals should have understood
defendant’s arguments as drawing “on constitutional proportionality limitations under both sources.”
         As this court has explained, adjudication “resolves
legal and factual issues framed by litigants.” State v.
McDonnell,

329 Or 375, 389

987 P2d 486

 (1999) (emphasis added). Consistent with that idea of adjudication,
courts “embrace[ ] the preservation requirement,” Peeples v.
Lampert,

345 Or 209, 220

191 P3d 637

 (2008), and, accordingly, “generally confine their judgments to the issues
that the litigants have raised and submitted for decision,”
McDonnell,

329 Or at 390

. See also ORAP 5.45(4)(a) (“Each
assignment of error must demonstrate that the question or
issue presented by the assignment of error timely and properly was raised and preserved in the lower court.”); ORAP
9.20(2) (“If review is not so limited, the questions before the
Supreme Court include all questions properly before the
Court of Appeals * * *.”). To that end, this court generally
only considers an issue if it is first “presented to the trial
court,” Peeples,

345 Or at 219

, and the issue is “briefed or

2d 39 (1979), because ORS 163.150(2) to (3) (2017) “impermissibly shift[s] to the
defendant the burden of proof on a factual issue that increases the quantum
of punishment to which a defendant is exposed.” The issue on which this court
granted review, however, is whether sentencing a juvenile to “life imprisonment”
under ORS 163.105(1)(c) (2001) violates the Eighth Amendment. Accordingly, we
decline to address the Fourteenth Amendment issue. See Harris v. Suniga,

344 Or 301, 313

180 P3d 12

 (2008) (declining to address arguments advanced by
the amici because they went beyond the scope of the issue on which review was
allowed).
    14
       Amici curiae American Civil Liberties Union of Oregon, American Civil
Liberties Union Foundation, and Youth, Rights & Justice (amici ACLU), along
with amici curiae Oregon Justice Resource Center and Oregon Criminal Defense
Lawyers Association, join defendant in that argument.
638                                                          State v. Link

argued on appeal,” see Stanfield v. Laccoarce,

284 Or 651, 659

588 P2d 1271

 (1978).15

          Just as an issue that was not preserved at the trial
court ordinarily is not amenable to consideration by the
Court of Appeals, issues that were not raised in a party’s
brief to the Court of Appeals ordinarily will not be considered by this court. State v. Lacey,

364 Or 171

, 180 n 4,

431 P3d 400

 (2018), cert den, ___ US ___,

139 S Ct 1590

 (2019)
(declining to address state constitutional argument, in
part, because issue was not raised in the Court of Appeals);
State v. Hamilton,

348 Or 371

, 376 n 4,

233 P3d 432

 (2010)
(noting that the issue was not properly before this court,
in part, because defendant did not raise it in the Court of
Appeals). This court, in particular, adheres to the preservation requirement not only to ensure that parties have had
fair opportunities to raise and respond to arguments at earlier stages of litigation, but because this court’s process of
resolving legal issues benefits from the consideration given
to those issues by the Court of Appeals in its own opinions.
See, e.g., State v. Hitz,

307 Or 183, 188

766 P2d 373

 (1988)
(explaining that it is “important to efficient judicial procedures that the positions of the parties be clearly presented
to the initial tribunal and on appeal”).

         Preservation is a pragmatic doctrine, and defendant
is correct that, in some cases, this court has considered the
fact “that certain parallel provisions of the state and federal
constitutions are identical in meaning” when determining
whether an issue was preserved at trial. State v. Walker,

350 Or 540, 551

258 P3d 1228

 (2011). As such, we have rejected
a “hard-and-fast rule” that a litigant always must articulate
distinct arguments under the state and federal constitutions, explaining instead that the “appropriate focus” is
   “whether a party has given opponents and the trial court
   enough information to be able to understand the contention
   and to fairly respond to it. The necessity of fleshing out a
   contention with more developed or detailed analysis will

    15
       “The principal exception to preservation requirements is for so-called
‘plain error’—that is, an error apparent on the record, about which there is no
reasonable dispute.” Peeples,

345 Or at 219

.
Cite as

367 Or 625

 (2021)                                                     639

    depend on the circumstances and the nature of the issue
    that has been raised.”
Id. at 551-52. In other words, when parallel constitutional
provisions are at issue, a party is not necessarily required to
develop separate and distinct arguments under both constitutions in the trial court to preserve both issues for review
on appeal. However, a party still must frame its argument in
a way that gives notice to the trial court and opponents that
it is advancing its claim under both constitutional sources.
         In his brief at the Court of Appeals, defendant raised
two assignments of error: (1) “The trial court erred in imposing a life sentence on defendant, a juvenile offender,” and
(2) “The trial court erred in imposing a 30-year mandatory
minimum sentence on defendant, a juvenile.” Defendant’s
arguments in support of those assignments of error make
clear that the sole source of authority on which he drew was
the Eighth Amendment.
         First, the brief includes numerous statements that
the sentencing scheme “violates the Eighth Amendment to
the United States Constitution,” but it includes no comparable assertion that the sentencing scheme violates Article I,
section 16 (or the state constitution generally).
         Second, defendant’s appellate brief said nothing to
assert or imply that the Eighth Amendment and Article I,
section 16, impose substantively identical prohibitions such
that the legal arguments that defendant advanced under
the former should also bear on the latter. He did not cite
case law for any proposition as to Article I, section 16.
Throughout the argument section of his brief, defendant
mentioned Article I, section 16, only once, to observe that
that provision is nearly identical to the cruel-and-unusualpunishment provision in Iowa’s constitution.16 But, that single reference was part of defendant’s argument that State v.
Lyle,

854 NW2d 378

(Iowa 2014), is instructive regarding the

16
Defendant also referenced Article I, section 16, in the preservation section.
One of those references was a general reference, explaining that defendant raised
an Article I, section 16, claim at trial. The other two references were within a
long block quote of the trial court transcript. In context, those two references,
also, were insufficient to alert the Court of Appeals and the state that defendant
was pursuing an argument under Article I, section 16.
640 State v. Link

contours of the Eighth Amendment, despite being decided
under the Iowa Constitution. And, in noting that similarity,
defendant did not explain why that similarity mattered for
purposes of Article I, section 16. Thus, in context, that single reference to Article I, section 16, did not put the state or
the Court of Appeals on notice that defendant was asserting
an argument under the state constitution.
The state observed in its responsive brief at the
Court of Appeals that defendant did “not contend that the
sentence of life imprisonment with a 30-year minimum term
violates Article I, section 16, of the Oregon Constitution,
either on its face or as applied to him.” Defendant did not
file a reply brief contesting that point. At oral argument,
the state reiterated its understanding that defendant was
not making an argument under Article I, section 16. Again,
defendant did not contest that point. In light of the foregoing, we agree with the Court of Appeals that defendant
did not raise an Article I, section 16, argument in that court.
Defendant next argues that this court should
address his Article I, section 16, argument regardless of
preservation concerns. Defendant argues that, in State v.
Kennedy,

295 Or 260, 266-67

666 P2d 1316

 (1983), this
court articulated a “preference” for considering “whether a
statute violates the state constitution before embarking on
similar, but potentially unnecessary, analysis under the federal constitution.” See also Sterling v. Cupp,

290 Or 611, 614

652 P2d 123

 (1981) (articulating the “first things first” doctrine); State v. Clark,

291 Or 231

, 233 n 1,

630 P2d 810

, cert
den,

454 US 1084

 (1981) (explaining that even if defendant
abandoned his state constitutional argument, the rationale
underlying the “first things first” doctrine weighed in favor
of considering such argument).
         It is true that this court has frequently stated a
preference for resolving disputes under state law, including
the state constitution, if possible. On the other hand, it is
a bedrock principle of appellate jurisprudence that courts
generally should decide cases as framed by the parties’
properly raised and preserved arguments. The interplay
between the “first things first” doctrine and jurisprudential
principles such as preservation is a difficult and important
Cite as

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 (2021)                                                   641

issue that has not received systematic treatment by this
court.17 Nevertheless, despite what was said in Sterling and
Clark, the trend in this court’s case law in recent decades
has been decidedly against reaching unpreserved arguments under state law. See State v. Selness/Miller,

334 Or 515, 523-24, 540, 542

54 P3d 1025

 (2002) (concluding that
the defendants had waived an as-applied challenge under
the state constitution before concluding that the defendants’ state facial challenge, as well as their federal double
jeopardy challenges, failed); Stelts v. State of Oregon,

299 Or 252, 258

701 P2d 1047

 (1985) (declining to address the
state constitutional argument before addressing federal
constitutional argument because no developed argument
under the state constitution was presented); State v. Farber,

295 Or 199

, 207 n 10,

666 P2d 821

, cert den,

464 US 987

(1983) (noting that the court would not consider the state
constitutional issue before considering the federal constitutional issue because the state constitutional issue was not
briefed); Jack L. Landau, Of Lessons Learned and Lessons
Nearly Lost: The Linde Legacy and Oregon’s Constitutional
Law, 43 Willamette L Rev 251, 260 (2007) (discussing this
court’s practice of proceeding to federal constitutional law
questions without first determining whether state constitutional law is dispositive).
         We do not rule out the possibility that, in a future
case, this court may find prudential reasons to address an
unpreserved question of state law in addition to, or in lieu
of, a federal question. But the procedural history of this
case counsels against doing that here. Defendant raised a
state constitutional claim at the trial court and then, for
unknown reasons, did not do so at the Court of Appeals. The
state specifically noted in its response brief and during oral
argument at that court that defendant was not raising a
state constitutional claim. Defendant had repeated opportunities to refute the state’s position if he believed it was incorrect, and he declined to do so. Under those circumstances,
    17
       State v. Mitchell,

273 Or App 207

, 215 n 3,

360 P3d 525

 (2015) (describing
the “unresolved conflict” in this court’s cases regarding the relative priority to
be given the “first things first” doctrine and preservation principles); State v.
Rodriguez-Moreno,

273 Or App 627

, 633 n 6,

359 P3d 532

 (2015), rev den,

358 Or 611

 (2016) (noting the unresolved conflict); State v. Velykoretskykh,

268 Or App 706

, 707 n 2,

343 P3d 272

 (2015) (same).
642                                                             State v. Link

we do not see a prudential justification for allowing defendant to revive his state constitutional claim now. Moreover,
defendant identifies none, other than his invocation of the
“first things first” doctrine—which, in our recent case law,
has not been enough to lead us to reach unpreserved claims.
Accordingly, we decide as a prudential matter not to address
the merits of the Article I, section 16, argument, and we proceed to defendant’s argument under the Eighth Amendment.
B.    Eighth Amendment
         This case implicates four United States Supreme
Court decisions addressing the requirements that the
Eighth Amendment imposes on the sentencing of juveniles.
We begin with an overview of those four cases and this
court’s decisions applying them. We then turn to the Court
of Appeals decision below. Link IV,

297 Or App 126

. Finally,
we address defendant’s arguments on review.18
1. Eighth Amendment and categorical sentencing limitations for juveniles
The Eighth Amendment provides: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”19 The Supreme Court
18
In addition, amici ACLU make an argument that is distinct from both
defendant’s arguments and the Court of Appeals’ rationale. Particularly, amici
ACLU argue that the Eighth Amendment categorically bars a sentence of “life
imprisonment” under ORS 163.105(1)(c) (2001). Amici ACLU’s argument, however, differs from defendant’s argument, that is, amici ACLU do not argue that
the sentence at issue here is categorically barred because it is the functional
equivalent to the sentence at issue in Miller. Rather, amici ACLU reason that
the objective indicia of society’s standards and the factors the Supreme Court
considers in exercising its independent judgment, establishes that the Eighth
Amendment categorically bars the sentence at issue here. In other words, amici
ACLU advance an argument for a new categorical rule, separate from the one
established in Miller.
However, the issue on which we granted review, as framed by the trial court
and Court of Appeals briefing, is whether a sentence of “life imprisonment”
under ORS 163.105(1)(c) (2001) falls within the categorical rule announced in
Miller, either because it is among the “most severe” sentences or because it is the
functional equivalent to life without the possibility of parole. Accordingly, amici
ACLU’s argument “go[es] beyond what is at issue here”; we therefore decline to
address it. See Harris,

344 Or at 313

 (declining to address arguments advanced
by the amici that went beyond the scope of the issue).
    19
       “The provision is applicable to the States through the Fourteenth
Amendment.” Roper v. Simmons,

543 US 551, 560

125 S Ct 1183

161 L Ed 2d 1

(2005).
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 (2021)                                  643

has construed the prohibition of cruel and unusual punishment as requiring that the punishment for a crime “be
graduated and proportioned to both the offender and the
offense.” Miller,

567 US at 469

 (quotation marks omitted).
        Eighth Amendment proportionality cases fall into
two general classifications: (1) “challenges to the length of
term-of-years sentences given all the circumstances in a
particular case” and (2) “categorical rules to define Eighth
Amendment standards.” Graham v. Florida,

560 US 48, 59-60

130 S Ct 2011

176 L Ed 2d 825

 (2010). “The [second] classification in turn consists of two subsets, one considering the nature of the offense, the other considering
the characteristics of the offender.”

Id. at 60

. But in each of
those subsets, the Court has generally taken the following
approach:
   “The Court first considers ‘objective indicia of society’s
   standards, as expressed in legislative enactments and
   state practice,’ to determine whether there is a national
   consensus against the sentencing practice at issue. Next,
   guided by ‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning
   and purpose,’ the Court must determine in the exercise of
   its own independent judgment whether the punishment in
   question violates the Constitution.”

Id. at 61

 (citations omitted). In that second part of the
analysis, the Court considers “the culpability of the offenders at issue in light of their crimes and characteristics,”
“the severity of the punishment in question,” and “whether
the challenged sentencing practice serves legitimate penological goals.”

Id. at 67

. Based on those considerations, the
Court determines whether the particular sentence is disproportionate for the offense or offender.

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How this case has been treated — in progress