State v. Link

                                      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)
                                   

    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.

, 

 (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.
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 (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, 

, 

 (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.
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          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 

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         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, 

, 

 (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, 

, 

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

, 

 (2009); State v. Link, 

, 208

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

 (2021)                                   

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

, 

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

. 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, 

, 

, 

 (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, 

, 

, 

 (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.
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 (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, 

. 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. 

,
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, 

,
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, 

, 

, 61 L Ed
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         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, 

, 

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

, 

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

. 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, 

, 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, 

, 

 (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, 

, 

 (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, 

, 180 n 4, 

 (2018), cert den, ___ US ___, 

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

, 376 n 4, 

 (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, 

, 

 (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, 

, 

 (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, 

.
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 (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, 

 (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, 

, 

 (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, 

,

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

, 233 n 1, 

, cert
den, 

 (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 

 (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, 

, 

 (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, 

, 

 (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,

, 207 n 10, 

, cert den, 

(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, 

, 215 n 3, 

 (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, 

, 633 n 6, 

 (2015), rev den, 

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

, 707 n 2, 

 (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, 

. 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, 

 (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, 

, 

, 

(2005).
Cite as 

 (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, 

 (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, 

, 

, 

 (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.” 

. 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.”

 (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.” 

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

         In this case, defendant does not invoke the first
category of proportionality challenge—that is, he does not
argue that a sentence of at least 30 years in prison before
any possibility of parole arises is substantively unconstitutional for a person who committed a crime like defendant
committed. Instead, he makes the second type of proportionality challenge: he contends that the Eighth Amendment
644                                             State v. Link

categorically prohibits the type of sentencing scheme at issue
here. Specifically, he contends that ORS 163.105 (2001) is
categorically unconstitutional because the statutory scheme
fails adequately to account for juvenile offenders’ age and
age-related characteristics, as required by the United States
Supreme Court’s decisions in Roper v. Simmons, 

,

, 

 (2005), Graham, Miller, and
Montgomery, which all dealt with sentencing of juveniles.
We turn to those cases.
          First, in Roper, the Court held that the Eighth
Amendment categorically prohibits the death penalty for
juvenile offenders. 

. The Court explained
that, “[b]ecause the death penalty is the most severe punishment, the Eighth Amendment applies to it with special
force.” 

 (emphasis added). Specifically, the Eighth
Amendment limits the death penalty “to those offenders who
commit ‘a narrow category of the most serious crimes’ and
whose extreme culpability makes them ‘the most deserving of execution.’ ” 

 (quoting Atkins v. Virginia, 

, 

, 

 (2002)). The Court
then explained that juveniles have “diminished culpability”
because they typically possess three characteristics that
distinguish them from adults: (1) juveniles have a “lack of
maturity and an undeveloped sense of responsibility,” resulting in “impetuous and ill-considered actions and decisions”;
(2) “juveniles are more vulnerable or susceptible to negative
influences and outside pressures”; and (3) the “personality
traits of juveniles are more transitory, less fixed.” Id. at
569-71. For those reasons, the Court explained, “the penological justifications for the death penalty apply to [juveniles]
with lesser force than to adults.” Id. at 571. Accordingly, the
Court concluded that “the death penalty is [a] disproportionate punishment for offenders under 18.” Id. at 575.
         Shortly thereafter, in Graham, the Supreme Court
held that the Eighth Amendment prohibits a sentence of life
without parole (or “true life”) for a juvenile who commits a
nonhomicide offense. 

. The Court began by noting that “Roper established that because juveniles have lessened culpability they are less deserving of the most severe
punishments.” 

. It then said that “defendants who
do not kill, intend to kill, or foresee that life will be taken
Cite as 

 (2021)                                   645

are categorically less deserving of the most serious forms
of punishment than are murderers.” 

. From those
premises, the Court concluded that, “when compared to an
adult murderer, a juvenile offender who did not kill or intend
to kill has twice diminished moral culpability.” 

           The Court then noted that “life without parole
is ‘the second most severe penalty permitted by law.’ ” 

(quoting Harmelin v. Michigan, 

, 

, 

 (1991) (Kennedy, J., concurring in
part and concurring in the judgment)). Key to the Court’s
reasoning in Graham was its observation that, although
the death penalty is “ ‘unique in its severity and irrevocability,’ … life without parole sentences share some characteristics with death sentences that are shared by no other
sentences.” 

 (quoting Gregg v. Georgia, 

,

, 

 (1976) (opinion of Stewart,
Powell, and Stevens, JJ.) (emphases added)). Like the death
penalty, a sentence of life without parole “alters the offender’s
life by a forfeiture that is irrevocable. It deprives the convict
of the most basic liberties without giving hope of restoration,
except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence.”
Id. at 69-70.
         Finally, the Court reasoned that the penological
theories behind punishment (retribution, deterrence, incapacitation, and rehabilitation) are “not adequate to justify
life without parole for juvenile nonhomicide offenders.” Id. at
74. That determination, along with “the limited culpability
of juvenile nonhomicide offenders[ ] and the severity of life
without parole sentences,” led the Court to conclude that life
without parole for nonhomicide juvenile offenders is cruel
and unusual. Id. (emphasis added).
         Having held in Graham that the Eighth Amendment
categorically bars true-life sentences for juveniles who commit nonhomicide offenses, the Court took up the question
of homicide offenses several years later, in Miller, and concluded that the Eighth Amendment prohibits mandatory
true-life sentences for such offenders. 

. That
conclusion, the Court explained, rested on the “confluence”
of two lines of precedent: (1) the Court’s cases establishing
646                                                             State v. Link

categorical bans on certain sentencing practices for juvenile
offenders—Roper and Graham—and (2) the Court’s cases
“demanding individualized sentencing when imposing the
death penalty.” 

. The Court explained that
the latter line of cases was relevant because of “Graham’s
[t]reat[ment] [of] juvenile life sentences as analogous to capital punishment.” 

 at 475 (quoting Graham, 

(Roberts, C. J., concurring) (brackets in Miller; emphasis
added)).

          The Court took from Roper and Graham the principle that, because an offender’s juvenile status is relevant
to the Eighth Amendment proportionality requirement, the
“imposition of a State’s most severe penalties on juvenile
offenders cannot proceed as though they were not children.”
Id. at 474 (emphasis added). And, from the death penalty
cases, the Court took the “requirement that capital defendants have an opportunity to advance, and the judge or
jury a chance to assess, any mitigating factors, so that the
death penalty is reserved only for the most culpable defendants committing the most serious offenses.” Id. at 475-76.
Together, those two lines of precedent established a “principle of proportionality”: “that youth matters for purposes
of meting out the law’s most serious punishments[;]” thus,
a “judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” Id. at 483, 489. It followed, the
Court held, “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Id. at 479 (emphasis
added). Rather, the Eighth Amendment requires individualized decision-making in which the sentencer considers “an
offender’s youth and attendant characteristics.” Id. at 483.
If the sentencer determines that the juvenile’s crime reflects
the “transient immaturity of youth,” then life without parole
cannot be imposed. Id. at 479-80 (quotation marks omitted).
That sentence is permissible only for the “rare juvenile
offender whose crime reflects irreparable corruption.” Id.
(quotation marks omitted).20

    20
       For ease of reference, we refer to that inquiry as “Miller’s individualized-sentencing requirement.”
Cite as 

 (2021)                                      647

        Finally, in Montgomery, the Court held that Miller
had announced a substantive rule of constitutional law that
applied retroactively:
       “Because Miller determined that sentencing a child to
   life without parole is excessive for all but ‘the rare juvenile offender whose crime reflects irreparable corruption,’
   it rendered life without parole an unconstitutional penalty
   for ‘a class of defendants because of their status’—that is,
   juvenile offenders whose crimes reflect the transient immaturity of youth. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules,
   Miller is retroactive ….”

 (citations omitted).
         The Court then considered how to give Miller retroactive effect. The Court explained that a state can remedy
a Miller violation “by permitting juvenile homicide offenders
to be considered for parole.” 

. The Court explained
that “[a]llowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not
be forced to serve a disproportionate sentence in violation of
the Eighth Amendment.” 

         In sum, the Court has held that the Eighth
Amendment (1) categorically prohibits the death penalty
for juvenile offenders, Roper, 

; (2) categorically prohibits life-without-parole sentences for juveniles
who commit nonhomicide offenses, Graham, 

; and (3) for juveniles who commit homicide offenses,
prohibits sentencing schemes that mandate life-without-parole sentences without affording the opportunity to consider an offender’s “youth and attendant characteristics,”
Montgomery, 

. Accordingly, a sentencing
scheme that mandates life without parole for a juvenile
offender will fail Miller’s individualized-sentencing requirement. 

 To remedy a past Miller violation, a state can permit a juvenile homicide offender to be considered for parole.

. “Allowing those offenders to be considered
for parole ensures that juveniles whose crimes reflected
only transient immaturity—and who have since matured—
will not be forced to serve a disproportionate sentence in
violation of the Eighth Amendment.” 

648                                                State v. Link

     2. This court’s interpretation of Miller’s breadth
         Since Miller and Montgomery, this court has twice
confronted the issue of which sentences, if any, other
than mandatory life-without-parole are subject to Miller’s
individualized-sentencing requirement. First, in Kinkel
v. Persson, 

, 

 (2018), cert den, ___
US ___, 

 (2019), this court considered whether
Miller prohibited “an aggregate sentence of slightly less than
112 years” for a petitioner who, at the age of 15, committed
four counts of murder and 26 counts of attempted murder.
The petitioner argued that Miller barred such an aggregate
sentence because it was “the functional equivalent of a life
sentence without the possibility of parole.” Id. at 3. He contended that “the number and nature of his offenses should
not be a factor in striking an Eighth Amendment proportionality balance.” Id. at 19. We understood his argument
to be that “when a juvenile’s aggregate sentence is equivalent to life without possibility of parole, then the severity
of the sentence coupled with the characteristics of juvenile
offenders will always lead to the conclusion that a life sentence without possibility of parole will violate the Eighth
Amendment.” Id.
         We rejected that argument, explaining that the
“holdings in Miller and Graham do not compel the categorical rule that [the] petitioner urge[d]”:
   “The question in Miller was whether a juvenile who had
   committed a single homicide could be sentenced to life
   imprisonment without the possibility of parole for that
   crime. Graham is similarly limited. In that case, the question was whether a juvenile convicted of a single nonhomicide offense could be sentenced to life without parole. The
   Court neither considered nor decided in Miller and Graham
   how the categorical limitations that it announced for a single sentence for one conviction would apply to an aggregate
   sentence for multiple convictions.
       “It follows that the holdings in Miller and Graham do
   not dictate the result when a juvenile is convicted of multiple murders and attempted murders, as [the] petitioner
   was.”
Id. at 19-20 (footnotes and citation omitted). We then concluded that the “reasoning in Graham and Miller permits
Cite as 

 (2021)                                                     649

consideration of the nature and the number of a juvenile’s crimes in addition to the length of the sentence that
the juvenile received and the general characteristics of
juveniles in determining whether a juvenile’s aggregate
sentence is constitutionally disproportionate.” Id. at 21.
Accordingly, we concluded that consideration of the number
and nature of the petitioner’s crimes was appropriate when
determining whether the petitioner “comes within the class
of juveniles who, as Miller recognized, may be sentenced
to life without possibility of parole for a homicide.”21 Id. at
24.
         In White v. Premo, 

, 

(2019), cert dismissed sub nom Kelly v. White, ___ US ___, 

 (2020), this court held that Miller’s individualized-sentencing requirement applies to a term-of-years sentence
that is the “functional equivalent” of life without parole.
There, the petitioner had been sentenced to a determinate
sentence of 800 months for one murder conviction. Id. at 12.
In post-conviction proceedings, the petitioner argued that,
“although that sentence was not explicitly a sentence to life
without parole, it is a sentence that exceeds his life expectancy and is the functional equivalent of such a sentence and
subject to the protections of Miller.” Id. The superintendent
responded by first arguing that, because the “petitioner was
sentenced to a term of years and not to life, Miller does not
apply.” Id. And, “even if some determinate sentences may
be subject to Miller, [the] petitioner’s sentence [was] not so
long as to make it certain that he will die in prison.” Id. In
support of that later position, the superintendent noted that
the petitioner was “eligible for good-time credit and possibly other forms of relief that could reduce his nearly 67-year
sentence to 54 years.” Id.

     21
        In doing so, we struck a balance between two approaches other jurisdictions have taken when facing the same question: (1) the approach that considers
the number and nature of a juvenile’s crimes as “immaterial when an aggregate
sentence approximates life without the possibility of parole,” and (2) the approach
that finds “the existence of an aggregate sentence a sufficient basis, in and of
itself, for distinguishing Miller and Graham.” Kinkel, 

.
     However, even though we held that consideration of the number and nature of
the petitioner’s crimes was permissible, we did note that “[i]t might be possible to
uphold [the] petitioner’s sentence against an Eighth Amendment challenge based
solely on the number and magnitude of his crimes.” 

.
650                                              State v. Link

         We rejected the superintendent’s first argument,
noting that most courts that have addressed the limits of
Miller “have understood the inquiry to focus, not on the label
attached to a sentence, but on whether its imposition would
violate the principles that the Court sought to effectuate.”

. And, because we saw no penological justification for treating a sentence that was the “functional equivalent of life” differently, we concluded that Miller applied to
such a sentence. 

.
          We then turned to the question of whether the petitioner’s sentence was, in fact, “functionally equivalent to
a life sentence.” 

. Assuming without deciding that
good-time credit was a proper consideration when determining the contours of the petitioner’s sentence, we noted that,
even accounting for good-time credit, the petitioner would
still be required to “serve at least 54 years and [would] be
released, at the earliest, when he is 68 years old.” 

.
We then concluded that “a sentence in excess of 50 years”
was “sufficiently lengthy” to require a Miller individualized-sentencing analysis. 

 However, we emphasized that we
had not been presented in that case with a developed argument that “a sentence in excess of 50 years would leave a
particular juvenile offender with a meaningful opportunity
for release” and, thus, was not the functional equivalent of
life without parole. 

 (emphasis added). Therefore, we noted
that our holding did not “foreclose” such a future argument.

          In sum, this court has held that Miller does not foreclose consideration of the number and nature of a juvenile’s
crimes when considering whether an aggregate sentence of
slightly less than 112 years is constitutionally disproportionate. Kinkel, 

. And this court has concluded that
Miller’s individualized-sentencing requirement applies to
sentences for single homicide offenses that are “functionally
equivalent” to life without parole. White, 

.
      3. Application
         Here, defendant was sentenced to “life imprisonment”
under ORS 163.105(1)(c) (2001). As noted earlier in this
opinion, that sentence is statutorily distinct from a sentence
of life imprisonment without the possibility of parole and
Cite as 

 (2021)                                   651

carries with it the possibility, after a minimum prison term,
of conversion to a sentence of life with the possibility of
parole. Thus, defendant did not receive a life-without-parole
sentence, nor does he contend that his minimum prison term
of 30 years is the “functional equivalent” of that sentence. In
short, defendant’s sentence does not fall squarely within the
categories of sentences that have been held by the Supreme
Court or this court to implicate the Eighth Amendment. For
that reason, the state’s position on review is that the Miller
individualized-sentencing requirement simply has no application to defendant’s sentence and the Eighth Amendment
analysis ends there. The Court of Appeals, however, concluded that the sentencing scheme applicable to defendant
violated Miller. Link IV, 

. That court discerned a principle in Miller that extends beyond the particular types of sentences considered to date by the Supreme
Court and prohibits the imposition of any sentence that is
among a state’s “most severe penalties” without individualized sentencing procedures. 

.
        Defendant takes a different tack. On review, defendant argues that the sentence he received was, in fact, a
mandatory life-without-parole sentence despite being labeled
otherwise; thus, in his view, his sentence violates Miller
under a straightforward application of that case. Before
turning to defendant’s argument, we address the Court of
Appeals’ rationale.
        a.  The Court of Appeals’ interpretation of Miller
            in Link IV
         The issue on review turns on what the Supreme
Court meant in Miller when it said that individualized sentencing is required before a state’s “most severe penalties”
are imposed on juveniles. The Court of Appeals majority
reasoned that, when the Miller Court discussed Graham’s
and Roper’s “foundational principle” that juveniles must be
treated differently in sentencing, the Court did not “explicitly” limit that principle to “death, or life without parole”
sentences. Link IV, 

 (quotation marks
omitted). Rather, it was grounded “within the broader category of ‘a State’s most severe penalties.’ ” 

 (quoting Miller,

). Thus, according to the Court of Appeals
652                                             State v. Link

majority, “the threshold question in considering whether
the principles of Roper, Graham, and Miller apply at juvenile sentencing is this: Does the case involve the imposition of the state’s most severe penalties against a juvenile
defendant?” Id. at 136 (emphasis in Link IV). “And, when
the sentence is among the most severe, the secondary question becomes whether the statutory sentencing scheme for
a juvenile offender fulfills the constitutional duty to fully
consider youth in sentencing.” Id. at 136-37.

         The majority then applied that analytical framework, first concluding that a sentence of “life imprisonment” under ORS 163.105(1)(c) (2001) is among the “most
severe” sentences in Oregon law. Id. at 147-48. The majority then considered whether imposition of a sentence under
ORS 163.105 (2001) complied with Miller’s individualized-sentencing requirement and concluded that it did not.
Id. at 148-58. The majority first reasoned that, under the
sentencing scheme, “there is no consideration by the sentencing court of the qualities of youth that might render the
imposition of any of the three sentences prescribed by ORS
163.105 [(2001)] inapplicable.” Id. at 149 (emphasis added).
And, the murder-review hearing, explained the majority,
was not an adequate mechanism for consideration of the
qualities of youth for three reasons: (1) the murder-review
hearing does not comport with Graham’s and Miller’s holding that “the proper actor to consider the qualities of youth
is the sentencer”; (2) even if the board could be considered
a sentencer for purposes of Miller, the board’s consideration comes 30 years after the imposition of the sentence,
undercutting Miller’s reasoning that the “act of subjecting
the juvenile to the sentence without the consideration of the
qualities of youth” violates the constitution; and (3) even if
the murder-review hearing could suffice, the statutes and
administrative rules governing the hearing do not “consider youth as something that diminishes the moral culpability and blameworthiness of the defendant.” Id. at 149-54
(emphasis in original).

        In a dissenting opinion, Judge Tookey wrote that
Miller and Montgomery apply to a sentence of “life without
parole under a mandatory sentencing scheme that precludes
Cite as 

 (2021)                                 653

the defendant from ‘present[ing] mitigation evidence to
justify a less severe sentence.’ ” 

 (Tookey, J., dissenting) (quoting Montgomery, 

 (brackets in
Link IV)). To determine if that threshold is met, “the nature
of the sentencing practice at issue, and the penological justifications for the sentence being imposed, must be evaluated to determine if the sentence is analogous to those that
have been deemed the ‘most severe’ by the Supreme Court.”
Id. at 169. And, the dissent concluded, “life imprisonment”
under ORS 163.105(1)(c) (2001) is not analogous to the death
penalty or life without parole—the sentences that have
been deemed the “most severe” by the Supreme Court. Id. at
170-76.
         On review, the state argues that the Court of
Appeals majority incorrectly applied Miller. According to
the state, the context of Miller, Roper, and Graham make
clear that, when the Court in Miller referred to the “most
severe” or “harshest penalties,” it meant the death penalty
and true-life sentences. Thus, the individualized-sentencing
requirement applies only to those sentences or their functional equivalents, of which “life imprisonment” under ORS
163.105(1)(c) (2001) is not one. We agree with the state.
        As noted above, the holding in Miller rested on the
“confluence” of Roper and Graham and the death penalty
cases requiring individualized sentencing. Miller, 

. Beginning with Roper and Graham, the Court first
emphasized that those cases “establish that children are
constitutionally different from adults for purposes of sentencing” because “juveniles have diminished culpability and
greater prospects of reform.” 

.
         The Court then noted that, although “Graham’s
flat ban on life without parole applies only to nonhomicide crimes, and the Court took care to distinguish those
offenses from murder, based on both moral culpability
and consequential harm[,] … none of what it said about
children—about their distinctive (and transitory) mental
traits and environmental vulnerabilities—is crime specific.”

. Therefore, “Graham’s reasoning implicates any
life-without-parole sentence imposed on a juvenile, even as
its categorical bar relates only to nonhomicide offenses.” 

654                                                State v. Link

(emphasis added). Notably, the Court did not suggest at that
point in its Miller opinion that Graham’s reasoning applied
to sentences other than life without parole.
         Turning to the sentencing schemes at hand, the
Miller Court explained that they failed to account for the
qualities of youth:
   “the mandatory penalty schemes at issue … prevent the
   sentencer from taking account of these central considerations. By removing youth from the balance—by subjecting
   a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority
   from assessing whether the law’s harshest term of imprisonment proportionally punishes a juvenile offender. That
   contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on
   juvenile offenders cannot proceed as though they were not
   children.”

 (emphasis added).
         However, the Court’s analysis did not end with
that defect. The Court also cited Graham’s likening of “life-without-parole sentences imposed on juveniles to the death
penalty itself.” 

 Specifically, the Court drew on that part
of Graham that treated a “juvenile life sentence as analogous to capital punishment,” thus implicating the Court’s
line of precedent “demanding individualized sentencing
when imposing the death penalty.” 

 (quotation
marks omitted). And, importantly, that line of precedent
established that a mitigating factor that a sentencer must
be able to consider when imposing the death penalty is “the
‘mitigating qualities of youth.’ ” 

 at 476 (quoting Johnson
v. Texas, 

, 

, 

(1993)).
        Thus,
       “In light of Graham’s reasoning, [the death penalty]
   decisions too show the flaws of imposing mandatory life-without-parole sentences on juvenile homicide offenders.
   Such mandatory penalties by their nature, preclude a sentencer from taking account of an offender’s age and the
   wealth of characteristics and circumstances attendant to
   it. Under these schemes, every juvenile will receive the
Cite as 

 (2021)                                      655

   same sentence as every other—the 17-year-old and the
   14-year-old, the shooter and the accomplice, the child from
   a stable household and the child from a chaotic and abusive
   one. … In meting out the death penalty, the elision of all
   of those differences would be strictly forbidden. And once
   again, Graham indicates that a similar rule should apply
   when a juvenile confronts a sentence of life (and death) in
   prison.”
Id. at 476-77.
          From the foregoing, we understand the Court in
Miller to have drawn on two distinct principles to conclude
that a mandatory life-without-parole sentence cannot be
applied to juveniles. One of them is what has been described
as “Graham’s (and also Roper’s) foundational principle”—
that is, that “imposition of a State’s most severe penalties on
juvenile offenders cannot proceed as though they were not
children.” Miller, 

. The second is the Court’s
clearly articulated view in Graham that life without parole
for juveniles is akin to the death penalty. 

. And,
because of that similarity, the issue in Miller, in turn, implicated the Court’s death penalty cases demanding individualized sentencing when imposing that sentence. 

 Neither
of those two principles can be severed from the Court’s
analysis.
         Thus, the reasoning that the Supreme Court has
embraced regarding the categorical unconstitutionality of
certain types of sentences for juveniles is anchored to the
premise that a “true-life” sentence applied to juveniles is
similar to the death penalty in ways that make it cruel
and unusual to impose such a sentence without individualized procedures. It is in that light that we interpret the
Court’s reference in Miller to a state’s “most severe penalties.” The most natural reading of that phrase, in context,
is as shorthand for the two types of sentences the Court
had considered in Roper, Graham, and Miller: the death
penalty, and life without parole. In other words, we understand the phrase “most severe penalties” in Miller to have
an objective meaning: those two penalties. The Court of
Appeals majority, by contrast, gave that language a relative meaning, requiring individualized sentencing before a
state imposes any penalty that could be characterized as
656                                               State v. Link

among that state’s most severe. Because that interpretation
would unmoor the Eighth Amendment analysis from the
Supreme Court’s repeated emphasis on the unique qualities of death and life-without-parole sentences, we reject
it.

          Montgomery supports our conclusion. In Montgomery,
the Court considered whether Miller announced a procedural rule or a substantive rule, i.e., one that “forbids criminal punishment of certain primary conduct or prohibits
a certain category of punishment for a class of defendants
because of their status or offense.” 

 (internal
quotation marks omitted). The Court began by explaining
Miller’s reasoning: “the penological justifications for life
without parole collapse in light of the distinctive attributes
of youth” to such an extent that “mandatory life-without-parole sentences for children pos[e] too great a risk of disproportionate punishment.” 

 (brackets in Montgomery;
quotation marks omitted; emphasis added). However, the
Miller Court did not hold that life without parole is disproportionate for all juveniles; it held that life without parole is
disproportionate for those juveniles whose crimes reflect the
“transient immaturity of youth.” 

 And, “to separate those
juveniles who may be sentenced to life without parole from
those who may not,” the Miller court imposed a procedural
requirement, i.e. the individualized-sentencing requirement.

 (emphases added). However, the Montgomery
Court explained that the procedural component did “not
replace but rather gives effect to Miller’s substantive holding
that life without parole is an excessive sentence for children
whose crimes reflect transient immaturity.” 

 (emphasis
added). Thus, Montgomery’s framing of Miller’s reasoning
and holding supports the view that Miller’s individualized-sentencing requirement applies only to life-without-parole
sentences.

         That understanding is also reflected in
Montgomery’s discussion of how to give Miller retroactive
effect. The court noted that a state will not have to relitigate a sentence “in every case where a juvenile offender
received mandatory life without parole. A State may remedy
a Miller violation by permitting juvenile homicide offenders
Cite as 

 (2021)                                657

to be considered for parole, rather than by resentencing
them.” Id. at 212 (emphasis added). By framing Miller as
applying to “mandatory life without parole,” Montgomery is
consistent with the view that Miller’s sweep does not extend
further.

         Defendant, like the Court of Appeals majority,
downplays the significance of Montgomery because that
case arose in the posture of collateral review, rather than
direct appeal. See Link IV, 

-56. We recognize
that, in crafting remedies on collateral review, the Court
weighs concerns that may not be applicable on direct appeal,
such as the “burden on the States” in providing a remedy
and disturbing the “finality of state convictions.” See, e.g.,
Montgomery, 

 (considering those concerns).
Nevertheless, Montgomery is replete with language that is
at least consistent with, if it does not compel, the view that
Miller is limited to life-without-parole sentences.

         Numerous other courts have grappled with Miller’s
application and have reached varying conclusions. However,
the great majority of jurisdictions of which we are aware
have concluded that Miller’s individualized-sentencing
requirement applies only to a life-without-parole sentence
or the functional equivalent. See, e.g., People v. Franklin,
63 Cal 4th 267, 276, 279-80, 

, cert
den, ___ US ___, 

 (2016) (explaining that “a
juvenile may not be sentenced to the functional equivalent
of [life without parole] for a homicide offense without the
protections outlined in Miller,” but concluding that a Miller
claim did not arise because the defendant was not serving
the functional equivalent of life without parole); People v.
Tate, 

 (Colo 2015) (explaining that, if life
without parole was determined to be unconstitutional
under Miller for the defendant on remand, then life with
the possibility of parole was the “appropriate sentence but
also constitutional,” because “Miller does not go so far as
to declare [life with the possibility of parole] unconstitutional as applied to juveniles”); State v. Michel, 257 So 3d
3, 7 (Fla 2018), cert den, ___ US ___, 

 (2019)
(holding that Miller’s individualized-sentencing requirement does not apply to a sentence of life with the possibility
658                                                             State v. Link

of parole after 25 years); Commonwealth v. Okoro, 471 Mass
51, 58, 

 (2015) (explaining that, when
read as a whole, “Miller’s requirement of individualized
sentencing was limited to instances where a state seeks to
impose life in prison without parole eligibility on a juvenile”
(emphasis in original)); Lewis v. State, 

,
cert den, 

 (Tex Crim App 2014) (“Miller does not
entitle all juvenile offenders to individualized sentencing.
It requires an individualized hearing only when a juvenile
can be sentenced to life without the possibility of parole.”).22
     22
         See also State v. Vera, 235 Ariz 571, 578, 

 (Ariz Ct App
2014), cert den, 

 (2015) (explaining that life with the possibility of
parole after 25 years is “consistent with the ‘meaningful opportunity’ for release
contemplated by Miller and Graham”); State v. Delgado, 

,
151 A3d 345, 351-52 (2016) (“The eighth amendment, as interpreted by Miller,
does not prohibit a court from imposing a sentence of life imprisonment with the
opportunity for parole for a juvenile homicide offender, nor does it require the
court to consider the mitigating factors of youth before imposing such a sentence.
Rather, under Miller, a sentencing court’s obligation to consider youth related
mitigating factors is limited to cases in which the court imposes a sentence of
life, or its equivalent, without parole.” (Emphases in original; internal citations
omitted.)); James v. US, 59 A3d 1233, 1236-39 (DC 2013) (explaining that a mandatory minimum of 30 years without parole did not “fit into the Miller category”
because it was not a mandatory life-without-parole sentence, but also noting
that the mandatory nature of the sentence did not violate Miller or Graham
because the legislature had taken youth into account when enacting the statute
at issue); State v. Tran, 138 Hawai’i 298, 305, 307, 

 (Haw
Ct App 2016) (explaining that “Miller does not require individualized sentencing or consideration of the mitigating factors of youth in every case involving a
juvenile offender, but only where a sentence of life imprisonment without parole
is imposed on a juvenile offender,” and also explaining that Graham “did not bar
the imposition of mandatory penalties on juvenile offenders or require a court
to consider the mitigating factors of youth at the time it imposed [a] sentence”);
State v. Shanahan, 

, 

, cert den, ___
US ___, 

 (2019) (explaining that “the rationale of Miller applies to
life sentences without the possibility of parole and their functional equivalents,”
before concluding that life without parole eligibility for 35 years was not the
functional equivalent to life without parole); State v. Brown, 300 Kan 542, 564,

 (2014) (explaining that Miller’s rationale did not make a mandatory life-with-parole sentence unconstitutional); State v. Vang, 

 (Minn 2014) (“Miller did not hold that a juvenile homicide offender could not
be sentenced to life imprisonment with the possibility of release. Instead, Miller
held more narrowly that ‘a judge or jury must have the opportunity to consider
mitigating circumstances’ before imposing a sentence of life in prison without
the possibility of release on a juvenile.” (Emphases in original.)); Steilman v.
Michael, 

, 

 (2017), cert den, ___ US
___, 

 (2018) (concluding that a sentence was not de facto life without parole; therefore, it was not subject to Miller’s individualized-sentencing
requirement); State v. Nollen, 296 Neb 94, 119-20, 

, cert den,
___ US ___, 

 (2017) (holding that a sentence of 90-years to life
with the possibility of parole after 45 years did not violate Miller or Graham
Cite as 

 (2021)                                                       659

While a few jurisdictions have concluded that Miller’s
individualized-sentencing requirement goes further,23 for
the reasons discussed above, we join with those courts that
have held that Miller’s individualized-sentencing requirement is limited to life-without-parole sentences or the functional equivalent.
         In sum, we conclude that the Miller individualized-sentencing requirement applies only when imposing a sentence of life without parole on juvenile offenders. Thus, the
first step to determine whether a sentence comports with
Miller is to determine whether the sentence is life without parole (or the functional equivalent). If the answer is
yes, then the second question is whether the sentencing
scheme comports with Miller’s individualized-sentencing
requirement. Thus, we turn to the first step of that inquiry:
whether a sentence of “life imprisonment” under ORS
163.105(1)(c) (2001) with a 30-year mandatory minimum
term is the same as life-without-parole or the functional
equivalent.

because it was not life-without-parole sentence, but also because the sentencing court “considered the traditional sentencing factors, along with the mitigating factors set forth” by statute); State v. Jefferson, 252 NC App 174, 177, 

 (NC Ct App 2017), cert den, ___ US ___, 

 (2018)
(“the Supreme Court has not indicated the individualized sentencing required
in Miller extends to sentences beyond life without parole”); Commonwealth v.
White, 193 A3d 977, 983 (Pa Super Ct 2018), rev den, 215 A3d 3 (2019) (explaining
that Miller’s individualized-sentencing requirement did not apply when imposing a 35-years-to-life sentence); State v. Smith, 428 SC 417, 421, 

,
350 (2019) (holding that the Eighth Amendment and Miller did not bar mandatory minimums, including a 35-year sentence, merely, because the mandatory
nature prevents the sentencer from imposing a lesser sentence if it deems leniency is appropriate in light of the defendant’s youth); State v. Barbeau, 

, 

 (Wis Ct App 2016), cert den, ___ US ___, 

 (2017) (explaining that “the principle that emerges from Miller is that
for a juvenile convicted of murder, the Eighth Amendment requires that before
a sentence of life imprisonment without the possibility of parole may be imposed
… a judge must be able to make an ‘individualized’ sentencing determination,
allowing for the consideration of the juvenile’s age,” however, that principle was
not at stake, in part, because the defendant was not sentenced to life without
parole).
     23
        See State v. Patrick, ___ NE3d ___, 

, at *7 (Ohio 2020)
(explaining that Miller applied to a sentence of life with the possibility of parole);
State v. Houston-Sconiers, 188 Wash 2d 1, 18-21, 

 (2017)
(concluding that Miller applies to juveniles sentenced to 26- and 31-year prison
terms for robberies); see also Lyle, 

 (relying on Roper, Graham,
and Miller to conclude all mandatory minimum sentences of imprisonment for
youthful offenders are unconstitutional under the state constitution).
660                                                            State v. Link

           b.   Defendant’s argument
         Defendant, joined by amicus Koch, argues that the
categorical rule announced in Miller applies to his sentence
of “life imprisonment” under ORS 163.105(1)(c) (2001),24
because that sentence is in fact a sentence of life without
parole. That is so because, “at the time the court imposes that
sentence, the defendant has no possibility of parole.” That
possibility arises only later—30 years later, if the defendant
establishes at the murder-review hearing that he “is likely
to be rehabilitated within a reasonable time,” and the board
determines that his sentence should be changed to life with
the possibility of parole. In short, defendant reasons, at the
time of sentencing, a sentence of “life imprisonment” under
ORS 163.105(1)(c) (2001) carries no inherent opportunity for
parole and is thus a life-without-parole sentence.
          We reject that argument, which is essentially the
same as one that we rejected in White. Even if defendant
is correct that the proper focus is on the nature of the sentence at the time the sentence is imposed,25 at the time “life
imprisonment” under ORS 163.105(1)(c) (2001) is imposed,
the entitlement to a murder-review hearing is part of that
sentence; thus, the opportunity to obtain entitlement to
parole at that hearing is necessarily part of the sentence as
well. It is true that, as a technical matter, the sentence does
not become a sentence of “life with the possibility of parole”
unless and until it is so converted. However, in White we
made it clear that the question is not what label attaches to
a sentence, but, rather, whether a defendant’s sentence is in
fact the “functional equivalent” of life without parole. 

. And, that inquiry must consider the substance
of the sentence, including any opportunities to convert the
sentence later.
    24
       Neither party on review has raised the possibility that ORS 163.105(1)(c)
(2001) may have permitted a trial court to impose a minimum term of confinement greater than 30 years. A case involving a longer minimum term of confinement might present different questions under Miller as to whether such a
sentence for a juvenile might be the functional equivalent to life without parole.
    25
       Although we assume for sake of argument that the appropriate focus is
on the nature of the sentence at the time of sentencing, we pause to note that
that focus is potentially in tension with our assumption, in White, that good-time
credit is a proper consideration when determining the contours of a sentence. See

.
Cite as 

 (2021)                                  661

         Defendant next argues that the sentencing scheme
imposes the functional equivalent of life without parole
because it does not provide a meaningful opportunity for
release. We understand defendant to argue that the sentencing scheme does not provide a meaningful opportunity
for release because it does not provide the sentencer or the
board with the authority to do the type of individualized
sentencing required by Miller. That argument, however,
presumes the very thing in dispute, which is whether the
individualized-sentencing requirement applies to a sentence of “life imprisonment” under ORS 163.105(1)(c) (2001).
See White, 

 (turning to the question of whether
the petitioner was provided individualized sentencing after
concluding that the petitioner’s sentence was the functional
equivalent to life without parole).

         Defendant’s more substantial argument is that the
murder-review hearing is not a “meaningful opportunity for
release” because that hearing, itself, cannot result directly
in release; rather, it can result only in a conversion of a sentence of “life imprisonment” under ORS 163.105(1)(c) (2001)
to a life-with-the-possibility-of-parole sentence, with the
opportunity for release on parole coming only later, at an
exit-interview hearing. See ORS 144.125 (setting forth exit-interview hearing). Consequently, because the defendant
may never prevail at a murder-review hearing, he has no
guarantee that his sentence will be converted, that he will
ever be afforded an exit-interview hearing, and that he will
be afforded an opportunity for release. Moreover, according
to defendant, the murder-review hearing is not a meaningful opportunity for release because the “default is for the
board to deny relief unless the juvenile offender has satisfied the listed criteria.”

        Defendant accurately describes the mechanics of
the statutory scheme, but his argument fails to show that
the scheme does not provide a “meaningful opportunity to
obtain release.” That phrase has its origins in Graham,
which, as discussed above, held that life without parole
for juvenile nonhomicide offenders is cruel and unusual
punishment. 

. In reaching that holding, the
Court explained that, while the Eighth Amendment bars a
662                                                  State v. Link

sentence of life without parole, it does not bar lifetime incarceration for those who commit “horrifying crimes as juveniles” so long as they have “some meaningful opportunity to
obtain release”:
       “A State is not required to guarantee eventual freedom
   to a juvenile offender convicted of a nonhomicide crime.
   What the State must do, however, is give defendants like
   Graham some meaningful opportunity to obtain release
   based on demonstrated maturity and rehabilitation. It is for
   the State, in the first instance, to explore the means and
   mechanisms for compliance. It bears emphasis, however,
   that while the Eighth Amendment prohibits a State from
   imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release
   that offender during his natural life. Those who commit
   truly horrifying crimes as juveniles may turn out to be
   irredeemable, and thus deserving of incarceration for the
   duration of their lives. The Eighth Amendment does not
   foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain
   behind bars for life. It does prohibit States from making
   the judgment at the outset that those offenders never will
   be fit to reenter society.”

 (emphasis added).
         Additionally, in explaining why a life-without-parole sentence shared some characteristics with death
sentences, the Court noted that such a sentence “deprives
the convict of the most basic liberties without giving hope
of restoration, except perhaps by executive clemency—the
remote possibility of which does not mitigate the harshness
of the sentence.” 

. In doing so, the Court cited
Solem v. Helm, 

, 

, 

 (1983), where the Court discussed the difference
between parole and commutation when considering the constitutionality of a life-without-parole sentence. Specifically,
the court, in Solem, explained that
      “As a matter of law, parole and commutation are different concepts, despite some surface similarities. Parole is
   a regular part of the rehabilitative process. … The law
   generally specifies when a prisoner will be eligible to be
   considered for parole, and details the standards and procedures applicable at that time. Thus, it is possible to predict,
Cite as 

 (2021)                                  663

   at least to some extent, when parole might be granted.
   Commutation, on the other hand, is an ad hoc exercise
   of executive clemency. A governor may commute a sentence at any time for any reason without reference to any
   standards.”

 (citations omitted).
          In Montgomery, the Court provided further guidance
about what constitutes a meaningful opportunity to obtain
release when it explained how states can remedy a Miller
violation. 

. The Court explained that a Miller
violation may be remedied “by permitting juvenile homicide
offenders to be considered for parole.” 

 Consideration for
parole, explained the Court, “ensures that juveniles whose
crimes reflected only transient immaturity—and who have
since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.” 

 In
other words, parole consideration gives defendants an opportunity to present evidence showing that their crime did not
reflect “irreparable corruption” and, “if it did not, their hope
for some years of life outside prison walls must be restored.”

.
          Graham, Solem, and Montgomery provide important guidance regarding the meaning of the phrase “some
meaningful opportunity to obtain release.” From Graham,
we know that such opportunity must allow for consideration
of the defendant’s “demonstrated maturity and rehabilitation,” and, from Montgomery, we know that such opportunity
must consider whether the crime the defendant committed
reflected “irreparable corruption and, if it did not, their hope
for some years of life outside prison walls must be restored.”
However, Graham also instructs that a “meaningful opportunity” does not have to guarantee a defendant release. 

 (“The Eighth Amendment does not foreclose the
possibility that persons convicted of nonhomicide crimes
committed before adulthood will remain behind bars for
life.”). But, Graham’s reference to executive clemency, as discussed in Solem, suggests that a meaningful opportunity
cannot be as “remote” as the clemency procedure analyzed
in Solem; it cannot be an ad hoc, discretionary procedure,
divorced from any legal standards.
664                                             State v. Link

         With that in mind, we reject defendant’s argument
that the sentencing scheme does not provide a meaningful
opportunity to obtain release. As the state observes, the
scheme establishes “concrete legal standards” that entitle
defendant to convert his sentence to a life with the possibility of parole when certain conditions are met. Specifically,
the state points to the “likelihood of rehabilitation” standard set forth in ORS 163.105(2) (2001) and contends that
that standard is one that can be met by a juvenile offender
whose crime reflects the transience of youth. And the state
explained at oral argument that, if defendant’s sentence is
converted, at that time or “shortly thereafter,” the board will
set his release date based on the matrix system.
          The administrative rules further illuminate how
the board will apply the “likelihood of rehabilitation” standard. In making that determination, the board is guided
by OAR 255-032-0020 (2001), which sets forth relevant
“[c]riteria indicating whether the inmate is likely to be rehabilitated prior to release.” It is true that defendant has the
burden of proof, ORS 163.105(2)(a) (2001), and that the conversion opportunity (and, in turn, release on parole), does
not occur until defendant has served at least 30 years, ORS
163.105(2) (2001). However, if defendant meets that burden,
the board “shall enter an order … convert[ing] the terms
of the prisoner’s confinement to life imprisonment with the
possibility of parole.” ORS 163.105(3) (2001); see Haynes v.
Board of Parole, 

, 27, 

 (2017), cert den,
___ US ___, 

 (2018) (explaining that a previous, but substantially similar, version of ORS 163.105 used
“mandatory language that creates a presumption that the
board ‘shall’ change the terms of the prisoner’s confinement
to life with the possibility of parole when the board makes
the designated finding”). Thus, the sentencing scheme specifies when defendant will be eligible for parole: after he
serves 30 years of confinement and after he establishes that
he is “likely to be rehabilitated within a reasonable period
of time.” And the scheme also details the standards and procedures applicable at that time. Thus, unlike clemency, “it
is possible to predict, at least to some extent, when parole
might be granted.” See Solem, 

. And, importantly, if defendant satisfies that burden, the board must
Cite as 

 (2021)                                 665

convert the sentence into a sentence of life with the possibility of parole.
         Moreover, the “likelihood of rehabilitation” standard set forth in ORS 163.105(2) (2001) and the implementing rule, OAR 255-032-0020 (2001), call for the board to
consider whether defendant has demonstrated maturity and
rehabilitation. In making that determination, the board
considers, among other things, a defendant’s “involvement
in correctional treatment, medical care, education, vocational or other trainings” while incarcerated that “substantially” enhance his “capacity to lead a law-abiding life when
released.” OAR 255-032-0020(1) (2001). The board also
considers a defendant’s “maturity, stability, demonstrated
responsibility, and any apparent development” in the defendant’s “personality which may promote or hinder conformity
to law.” OAR 255-032-0020(4) (2001). Thus, while the “likelihood of rehabilitation” standard and OAR 255-032-0020
(2001) do not specifically call for consideration of the unique
qualities of youth in the language of Miller, the focus on
factors such as increased “maturity” and “apparent development” will naturally work to the advantage of a juvenile
offender whose crime in fact reflected the transient immaturity of youth.
         For the foregoing reasons, we are not persuaded
that Oregon’s sentencing scheme, which affords juvenile
offenders who have served a term of 30 years the opportunity to convert their sentence to one with the possibility of
parole, deprives juvenile offenders of a meaningful opportunity for release and, therefore, we are not persuaded
that defendant’s sentence should be considered an unconstitutional true-life sentence for purposes of the Miller
analysis. Defendant’s argument that the murder-review
hearing process is not a meaningful opportunity is not
persuasive.
         We are mindful however, of the uncertainty regarding what may happen to defendant after a murder-review
hearing. Neither party’s briefing on review has meaningfully addressed the parole-release process that would follow
if defendant’s sentence is converted. However, we make the
following observations.
666                                             State v. Link

         As noted earlier in this opinion, generally the
board’s parole-release decisions are controlled by ORS
144.120, ORS 144.125, ORS 144.780, and ORS 144.785 and
its rules implementing those statutes. Neither party has
fully addressed how those statutes and rules apply to defendant. And, although we have considered how the process
works under prior versions of those statutes, see, e.g., State
ex rel Engweiler v. Felton, 

, 

 (2011)
(construing the 1988 and 1991 statutory scheme); Janowski/
Fleming, 

 (construing the 1983 and 1985 statutory scheme), we declined to opine at length on how exactly
that process works, but noted our expectation that the
board would “now,” i.e., after converting the petitioner’s sentence, conduct a hearing to “set” the petitioner’s “release
date according to the matrix in effect when [the petitioner]
committed his crime,” Janowski, 

 (emphasis
added). See also Engweiler, 

 (explaining that
ORS 144.120(1) (1991) entitled the defendant to “a hearing
at some point to set an initial release date”). The versions
of the statutory scheme that we considered in Engweiler
and Janowski were amended before 2001; however, based on
the state’s representations at oral argument, we expect the
process to be similar in that, if defendant’s sentence is converted to life with the possibility of parole, then the board
will determine defendant’s sentence term and release date
at the murder-review hearing or reasonably soon thereafter.
         We further understand that, under the board’s
matrix rules, the board may have the choice among several presumptive sentence terms, up to and including life.
The state has acknowledged that possibility and represented that defendant will have opportunities for further
judicial review if he is unsatisfied with the results of those
further administrative proceedings. Based on the parties’
arguments and the record before us, we cannot ascertain
exactly what parole-release procedures the board may follow if defendant’s sentence is converted. Defendant has not
developed an argument that those procedures will deprive
him of a meaningful opportunity for release (e.g., by resulting in a lengthy presumptive term). Moreover, a conclusion
at this stage that the sentencing scheme is categorically
unconstitutional because of the possibility that the board
Cite as 

 (2021)                                 667

might act, a decade or more from now, in a way that extends
defendant’s period of incarceration—even for life—would be
difficult to reconcile with the Supreme Court’s admonition
that a meaningful opportunity does not mean a guarantee.
          At the same time, if a sentencing scheme is to survive Eighth Amendment scrutiny by offering a meaningful opportunity for release in the form of the conversion of
a sentence to life with the possibility of parole, then that
scheme must also (assuming defendant successfully obtains
a conversion of his sentence) employ parole-release procedures which themselves offer a meaningful opportunity for
release. It would not pass constitutional muster for the board
to convert defendant’s sentence to life with the possibility of
parole and then act in a manner that renders that “possibility” effectively meaningless. Accordingly, our conclusion that
the murder-review hearing and sentence-conversion process
affords defendant a meaningful opportunity for release is
predicated on the state’s representations that defendant will
have the ability at relevant stages in the board’s administrative process to demonstrate that he should be considered
for release and to challenge board actions that are adverse
to him. Our decision today does not preclude defendant from
advancing an argument challenging the applicable parole-release procedures after conversion or the board’s actions
related to parole release on the basis that they deny him a
meaningful opportunity for release in violation of Miller.
         For the foregoing reasons, we conclude that defendant has not established that the statutory scheme denies
him a meaningful opportunity for release. Therefore, the
sentence that defendant received is not the functional equivalent of life without parole. It follows that defendant has
failed to establish that Miller’s individualized-sentencing
requirement applies to a sentence of “life imprisonment”
under ORS 163.105(1)(c) (2001).
        The decision of the Court of Appeals is reversed.
The order of the circuit court is affirmed.