Barrett v. Board of Parole

750 October 29, 2026 No. 45 IN THE SUPREME COURT OF THE STATE OF OREGON JACOB HENRY BARRETT, Petitioner on Review, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent on Review. (CA A177883) (SC S071738) En Banc On review from the Court of Appeals.* Argued and submitted October 8, 2025. Neil Francis Byl, Deputy Public Defender, Oregon Public Defense Commission, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section. Philip Thoennes, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Interim Deputy Attorney General. Laura A. Fine, Law Office of Laura A. Fine, Veneta, filed the brief for amicus curiae Conrad R. Engweiler. MASIH, J. The decision of the Court of Appeals is reversed. The final order of the Board of Parole and Post-Prison Supervision is reversed, and the case is remanded to the board for further proceedings. ______________ * On judicial review from a final order of the Board of Parole and Post-Prison Supervision. 336 Or App 215 (2024) (nonprecedential memorandum opinion). Cite as 375 Or 750 (2026) 751 752 Barrett v. Board of Parole MASIH, J. In this case, we determine how the Board of Parole and Post-Prison Supervision must apply earned-time cred- its under ORS 421.1211 when an inmate2 is released from an aggravated murder sentence to begin serving a consecutive sentence.3 An inmate serving a sentence of life imprison- ment for aggravated murder is released only if, after serving 20 years of such sentence, the inmate successfully completes the three-step process required for release from a life sen- tence for aggravated murder, which consists of (1) a hearing under ORS 163.105(2), at which the person demonstrates that they are “likely to be rehabilitated within a reason- able period of time[,]” (2) an initial projected release date determination under ORS 144.120, and (3) an exit interview under ORS 144.125 that results in the board affirming the release date. On review, petitioner contends that, once the board affirmed his release date following his exit interview, the board was required to administratively adjust his release date to give him the benefit of all available earned-time credit under ORS 421.121, even if that meant adjusting the release date to a date in the past, before even an ini- tial release date was determined. The board, for its part, does not dispute that it has authority to administratively adjust the release date to account for earned-time credit. 1 The parties, in their briefing, have applied the statutes in effect at the time petitioner committed his original offenses and do not raise any question regard- ing the application of any later enacted statutes. See, e.g., State v. McDonnell, 329 Or 375, 987 P2d 486 (1999) (explaining that courts must determine appli- cability of post-offense statutory amendments in a case by examining first, the legislature’s intention and second, any pertinent state and federal constitutional restrictions). All references to the ORS in this opinion are to the 1993 versions of the statutes unless otherwise noted. 2 We use the term “inmate” in this opinion because that is the term peti- tioner used in his briefing. 3 Because petitioner’s release from the aggravated murder sentence in this case is only a release to commence service of a consecutive sentence within the custody of DOC, we are not asked to decide any questions about the nature of any eventual release to the community. Whether an inmate, who is eligible to be released to the community, will be released to “parole” or “post-prison supervi- sion” is a question currently pending before the court in Black v. Board of Parole, 341 Or App 524, 537, 575 P3d 148 (2025), rev allowed, 375 Or 67 (2026). Nothing in this opinion is intended to or should be interpreted as deciding that pending question. Cite as 375 Or 750 (2026) 753 It contends, however, that this court’s earlier cases dictate that it can adjust the release date only as far back as the date of the exit interview because that is the last step in the aggravated murder release process. The Court of Appeals agreed with the board and affirmed. We reverse and remand to the board for further proceedings. As we will explain, we do so because earned- time credits are mandatory for each inmate who meets the eligibility criteria, and because neither the statutes govern- ing release for a person sentenced for aggravated murder, nor our prior cases construing those statutes, preclude the board from granting the administrative adjustment that petitioner is seeking for earned-time credits. I. BACKGROUND On September 5, 1994, petitioner shot and killed a convenience store clerk during a robbery. State v. Barrett, 331 Or 27, 29 10 P3d 901 (2000), overruled in part by Martinez v. Cain, 366 Or 136, 458 P3d 670 (2020). He has been in custody since September 6, 1994. In the operative criminal judgment, petitioner was convicted of aggravated murder and first-degree robbery.4 On the aggravated mur- der conviction, he was sentenced to life imprisonment with a mandatory minimum term of 30 years’ confinement. On the robbery conviction, he was sentenced to a consecutive term of 72 months’ imprisonment. While in prison, he was convicted of additional offenses, which were also subject to consecutive terms of incarceration. The dispute in this case centers on when petitioner should be deemed to have been “released” on the aggravated murder sentence to begin serv- ing the consecutive terms of incarceration. The release process for aggravated murder is com- plex but—in the context of this case—largely undisputed. To better illustrate where the parties part ways in their analysis, our background discussion begins with an over- view of the statutes that govern release of persons convicted of aggravated murder, followed by a preliminary discussion of how earned-time credits work, generally, in this context. 4 The operative judgment is a judgment on remand entered after petitioner’s original judgment was vacated on direct appeal. Barrett, 331 Or at 28. 754 Barrett v. Board of Parole We then outline the procedural history of petitioner’s case, including the parties’ dispute before this court. A. Background—Three-Step Aggravated Murder Release Process In 1994, Oregon law authorized trial courts to impose one of three sentences for aggravated murder: “death, life imprisonment without the possibility of release or parole or life imprisonment.” ORS 163.105(1)(a).5 Life imprisonment is an indeterminate sentence, which means that the trial judge imposes the maximum term that an offender might be required to serve in prison (in that case, “life”), and the board—subject to any determinate minimum imposed by the trial court or statute—determines “the actual duration of imprisonment.” Hamel v. Johnson, 330 Or 180, 185-86, 998 P2d 661 (2000) (explaining respective roles of sentenc- ing court and board). At the time petitioner committed aggravated mur- der, if a trial court imposed an indeterminate sentence of “life imprisonment,” then the court was also required to impose a mandatory minimum term of incarceration of 30 years. ORS 163.105(1)(c). However, after serving 20 years, an inmate became eligible to seek release through a three- step process in front of the board. ORS 163.105(2).6 At the first step, which the board refers to as a murder-review hearing, the board determines whether the inmate” is likely to be rehabilitated within a reasonable 5 The 1993 version of the statutes refer to “parole.” In 1999, the legislature amended ORS 163.105(3) to add post-prison supervision to the statute, providing that, if the board finds that the inmate is capable of rehabilitation and their “con- finement should be changed to life imprisonment with the possibility of parole, release to post-prison supervision or work release, it shall enter an order to that effect and the order shall convert the terms of the * * * confinement to life impris- onment with the possibility of parole, release to post-prison supervision or work release and may set a release date.” Or Laws 1999, ch 782, § 5 (emphasis added). As previously noted, whether an inmate, who is eligible to be released to the com- munity, will be released to “parole” or “post-prison supervision” is not a question in this case, and our use of the term “parole” in this case should not be interpreted as deciding that issue currently pending before the court in Black, 341 Or App at 537. 6 In 1995, the legislature changed the point at which an offender could ini- tiate these proceedings to 25 years from the imposition of the mandatory mini- mum term. Or Laws 1995, ch 421, § 2. In 1999, the legislature changed it to “[a] t any time after completion of a minimum period of confinement” e.g., after the inmate has served the full 30-year minimum term. Or Laws 1999, ch 782, § 5. Cite as 375 Or 750 (2026) 755 period of time.” ORS 163.105(2). The inmate must prove that they have met that standard by a preponderance of the evidence. ORS 163.105(2)(a). If the board concludes that the petitioner failed to prove that they would likely be rehabil- itated within a reasonable period of time, then the board denies the petition, and the inmate must wait at least two years before seeking another murder-review hearing. ORS 163.105(4). If the board determines, unanimously, that the inmate is capable of rehabilitation within a reasonable period of time, then the board enters an order converting the term of the inmate’s “confinement to life imprisonment with the possibility of parole or work release.” ORS 163.105(3).7 At the second step, the board schedules the inmate’s initial projected release date under ORS 144.120. Initially, the board uses a parole matrix to calculate the inmate’s prison term.8 Janowski/Fleming v. Board of Parole, 349 Or 432, 456, 245 P3d 1270 (2010). If the matrix-based release date has expired, that is, if application of the term would result in the inmate being released on a date in the past, then the board does not use the matrix to project the inmate’s prison term. Id. Instead, it must schedule a release date for a date in the “near future” that leaves sufficient time to con- duct the third step in the process. Id. Either way, it is at the second step that the board projects the inmate’s prison term for aggravated murder. It is either the term derived from the matrix (if that term projects a future release date), or it is the span of time between the inmate’s arrest for the offense and the projected release date (if the matrix term results in a release date in the past). At the third step, the board must engage in a release consideration process; that is, it decides whether to affirm 7 If an inmate has not yet served 30 years at the time the board converts the inmate’s sentence, the conversion effectively removes the 30-year minimum term of incarceration. See Janowski/Fleming v. Board of Parole, 349 Or 432, 456, 245 P3d 1270 (2010) (“[T]he legislature intended the board to have the authority to override the 30-year mandatory minimum aggravated murder sentence and to release [inmates] on parole before the expiration of that term.”). 8 The “matrix” is a table used by the board to determine an offender’s initial prison term that provides “ranges of duration of imprisonment” based on the seriousness of the offense and the offender’s criminal history. Hamel, 330 Or at 186. Absent a basis for a “departure” from the matrix—the board selects a term within that range to be the projected prison term. Id. at 187. 756 Barrett v. Board of Parole the projected release date. As part of that process, the board is authorized to hold a hearing, known as an “exit interview,” to assess whether the inmate should be released on that date or whether the release date should be postponed. ORS 144.125(1). After an exit interview, the board is authorized to postpone release only for three statutorily prescribed rea- sons. The board must postpone release if it finds that the inmate has engaged in serious misconduct during confine- ment. ORS 144.125(2). The board may postpone release if the inmate “has a mental or emotional disturbance, defi- ciency, condition or disorder predisposing the [inmate] to the commission of a crime to a degree rendering the [inmate] a danger to the health or safety of the community * * *.” ORS 144.125(3)(a). Finally, the board may defer release for up to three months if the inmate is going to be released to the com- munity, and the board finds that the inmate’s parole release plan is not adequate. ORS 144.125(4). If, following the exit interview, the board does not postpone the release date, the inmate “shall be released” on the date scheduled. See ORS 144.245(1) (so stating, barring exception not applicable in this case). This three-step process is the exclusive mechanism by which a person convicted of aggravated murder may be released from that sentence, either through physical release from custody into the community or to serve a consecutive sentence. See ORS 144.110(2)(b) (“The board shall not release a[n inmate] who has been convicted of murder defined as aggravated murder under the provisions of ORS 163.095, except as provided in ORS 163.105.”). Only the board can set a release date. See ORS 144.120 (board must set ini- tial release date); ORS 144.125(2) - (4) (board may postpone release in certain circumstances); ORS 144.245(1) (inmate shall be released on the date set by the board). B. Earned-Time Credits Earned-time credits are a mechanism by which inmates sentenced to the custody of the Department of Corrections (DOC) may reduce their “term of incarceration” by up to 20 percent for appropriate institutional behavior and participation in certain programs. ORS 421.121(1) - (2). This court has concluded that earned-time credits are mandatory Cite as 375 Or 750 (2026) 757 and apply to “each inmate sentenced” after November 1, 1989, including petitioner, who was convicted of an aggravated murder committed in 1994.9 State ex rel Engweiler v. Cook, 340 Or 373, 377-78, 133 P3d 904 (2006) (Engweiler IV).10 DOC is responsible for calculating earned-time credits once the board establishes an inmate’s term of incarceration. See OAR 291-097-0236(1)(d)(B) (providing that, although DOC calculates earned-time credit, only the board can determine a “release date” for an inmate serving an indeterminate term of life imprisonment for murder). As a sentence of “life imprisonment” is indeterminate, it is not a “term of incarceration” against which earned-time credit under ORS 421.121 may be applied. Instead, DOC makes this calculation once the board determines an inmate’s “actual duration” of imprisonment, Engweiler IV, 340 Or at 383, which happens when the board projects—and then affirms—an inmate’s release date. C. Background—Current Dispute The relevant historical facts are largely procedural and not in dispute. In 2021, after serving nearly 27 years for aggravated murder, petitioner requested a murder-review hearing under ORS 163.105(2) to determine whether he was capable of rehabilitation within a reasonable period of time.11 In May 2021, the board conducted the hearing and unanimously found that he was capable of rehabilitation. Consistent with ORS 163.105(3), the board issued Board Action Form (BAF) No. 7, in which it converted his sentence for aggravated murder to life imprisonment with the possi- bility of parole, effectively eliminating the mandatory mini- mum term imposed by the trial court. 9 The legislature has periodically altered who is eligible for earned-time credits under ORS 421.121. See, e.g., Or Laws 2015, ch 625, § 1 (life sentences for aggravated murder committed on or after July 1, 2015, are not eligible for earned time under ORS 421.121); OAR 291-097-0236(2) (same). Here, it is undisputed that petitioner was entitled to earn credits under ORS 421.121. 10 Over the years, Oregon appellate courts have issued many judicial opin- ions addressing issues relating to Engweiler. Although we do not cite all the deci- sions in this opinion, for ease of reference, we follow the case numbering conven- tion we adopted to distinguish the opinions in Engweiler v. Persson / Dept. of Corrections, 354 Or 549, 552 n 2, 316 P3d 264 (2013) (Engweiler VIII). 11 Petitioner had murder-review hearings in 2015 and 2019 but did not meet his burden of proof at either hearing. 758 Barrett v. Board of Parole In BAF No. 7, the board also completed the sec- ond step of the release process: The board determined peti- tioner’s initial projected “release date” as required by ORS 144.120. The board calculated petitioner’s projected prison term under the relevant matrix rules and determined that it should be 168 months. Because petitioner had already served longer than 168 months in prison, however, the board could not use that projected prison term to determine peti- tioner’s initial release date. Instead, to provide it with suf- ficient time to complete the parole-consideration process, including the statutorily authorized exit interview process, the board set petitioner’s projected release date as January 5, 2022. At that point, petitioner had a projected duration of incarceration of 328 months—September 6, 1994 to January 5, 2022 (27 years, 4 months)—against which earned-time credits could be applied. After the board issued BAF No. 7, but before peti- tioner’s exit interview, DOC calculated petitioner’s earned- time credits under ORS 421.121 for appropriate institu- tional behavior. DOC calculated earned-time credit, based on a projected release date of January 5, 2022, resulting in an “Estimated Projected Earned Date” of September 23, 2017. On November 18, 2021, the board held petitioner’s exit interview. Five days later, the board issued BAF No. 8, concluding that there was no basis to postpone the January 5, 2022, release date. In setting petitioner’s final release date, the board adjusted the release date to November 18, 2021, the date of the exit interview, to give petitioner a por- tion of his earned-time credits: “The [b]oard has adjusted the parole release date to the hearing date of 11/18/2021 based on the DOC memorandum noting an estimated projected release date of [9]/23/2017[12]; the [b]oard affirms the parole release date of 11/18/2021 following 326 months. “The [b]oard cannot set a re-release date prior to the date of exit interview hearing. 12 The board’s order had a typographical error; DOC’s earned-time calcula- tion projected a release date of September 23, 2017, not August 23, 2017. Cite as 375 Or 750 (2026) 759 “[Petitioner] has numerous consecutive sentences not under the board’s jurisdiction;[13] [DOC] will compute his final release date from custody and notify the board.” Petitioner requested administrative review of that order, contending that the board had erred in failing to grant him an administrative adjustment to his release date to reflect his earned-time date of September 23, 2017, as calculated by DOC. That is, petitioner maintained that the board should have adjusted his release date on the aggra- vated murder conviction back to his calculated earned-time date so that he would be deemed to have begun serving his consecutive sentence on that earlier date. Petitioner also argued that the legislature, in enacting ORS 421.121, had created a protected liberty interest in earned-time credits and that the board had violated his right to due process by depriving him of those credits.14 The board rejected petitioner’s arguments.15 The board—as reflected in its order—did not dispute that it was required to adjust petitioner’s release date to account for his earned-time credits. According to the board, however, this court’s case law prevented it from adjusting petitioner’s release date back to September 2017, because petitioner was not entitled to release on his aggravated murder sentence until the board had scheduled a “release date and conducted an exit interview under ORS 144.125” in November 2021. In support of that conclusion, the board cited this court’s opin- ion in Engweiler v. Persson / Dept. of Correction, 354 Or 549, 567-68, 316 P3d 264 (2013) (Engweiler VIII). Petitioner sought judicial review of the board’s final order in the Court of Appeals. On review, petitioner reprised his argument that the board had erred when it had granted him only partial earned-time credit rather than the full earned-time credit as calculated by DOC. Petitioner also 13 A trial judge imposed determinate terms of incarceration for all of petition- er’s other convictions (both for robbery in the operative judgment and in later cases). 14 Petitioner raised other issues regarding the summing of his other sen- tences, but those issues are not before this court. 15 The board also concluded that petitioner’s request was untimely because he should have challenged the board’s earlier order setting the projected release date after the murder-review hearing. It does not pursue that argument before this court. 760 Barrett v. Board of Parole renewed his contention that ORS 421.121 created a protected liberty interest in those earned-time credits, asserting that the board’s action was an arbitrary exercise of government authority that deprived him of due process. In response, the board argued that it was not authorized, under this court’s earlier case law, to set a release date for the aggra- vated murder sentence that predated the exit interview. The board also argued that DOC had sole authority to calculate and apply earned-time credits and that, procedurally, before DOC could calculate and apply earned-time credits, the board must first affirm the release date.16 The Court of Appeals affirmed the board’s release date decision, explaining that “[i]t is the responsibility of DOC to calculate earned-time credits and use them to deter- mine a release date” and that “[s]uch calculations cannot be conclusively made until the board sets the release date, thus defining the ‘term of incarceration’ for an individual serv- ing an indeterminate sentence.” Barrett v. Board of Parole, 336 Or App 215, 217 (2024) (nonprecedential memorandum opinion) (emphasis added). The Court of Appeals concluded that, because petitioner did not have a set release date until the board issued BAF No. 8 following the exit interview, and because DOC’s earlier calculations only provided an “esti- mated projected calculation of petitioner’s earned date,” the board “did not err in establishing a parole release date with- out considering earned-time credits.”17 Id. at 217 n 1 (empha- sis in original). The Court of Appeals also rejected petition- er’s due process arguments for similar reasons. Id. at 217. 16 Before this court, the board appears to have abandoned its argument that DOC was responsible for calculating and applying petitioner’s earned-time credits after the issuance of BAF No. 8. The board conceded at oral argument that DOC calculates the credits but that only the board can schedule or affirm a release date on an indeterminate life sentence. That argument was addressed by the Court of Appeals in Black, 341 Or App at 537 (concluding that DOC lacked authority to disregard a release date set by the board or to set an earlier release date based on earned-time credits). We do not address that issue here except to note that the parties agree, for purposes of this case, that the board was autho- rized to set the release date. 17 It is not entirely clear what the Court of Appeals meant by that statement. The court appears to have believed that DOC would apply the earned-time cred- its once the release date was affirmed after the exit interview. It is undisputed (and explicitly stated in BAF No. 8) that the board partially applied earned-time credits to adjust petitioner’s release date from January 5, 2022, to the date of his exit interview, November 18, 2021. Cite as 375 Or 750 (2026) 761 Before the Court of Appeals issued its decision in this case, the Court of Appeals issued a precedential opin- ion in Lehman v. Board of Parole, 333 Or App 417, 424, 552 P3d 718 (2024), concluding that the board had erred in fail- ing to give an inmate, who is similarly situated to petitioner in this case, the benefit of all his earned time following a successful exit interview. Petitioner sought reconsideration in thiscase, arguing that Lehman was factually indistin- guishable from his case.18 In response, the board conceded that Lehman appeared to control and to dictate a different outcome, but it argued that reconsideration should never- theless be denied because this court had accepted review of Lehman and was likely to reverse it. See Lehman, 333 Or App 417, rev allowed, 373 Or 119 (2024). The Court of Appeals denied reconsideration without further expla- nation. This court later dismissed review in Lehman as improvidently allowed. Lehman, 333 Or App 417, rev dis- missed, 373 Or 212 (2025). We allowed the petition for review in this case to consider how the board must apply earned-time credits when an inmate, like petitioner, has consecutive sentences to serve following his release on his aggravated murder conviction. II. ANALYSIS An appellate court reviews the board’s legal conclu- sions to determine whether the board “erroneously inter- preted a provision of law,” and it reviews any exercise of discretion by the board for consistency with statutory and constitutional standards and with agency rules, policies, 18 The facts in Lehman are slightly different. In that case, the board released the petitioner, Lehman, on his aggravated murder sentence in 2019, following an exit interview. 333 Or App at 419. He then began serving his consecutive sentence. Id. Over a year later, in 2021, Lehman sought a determination that he was eligible for a reduction on the term of incarceration he had served for aggra- vated murder to the DOC calculated “earned-time date.” Id. At Lehman’s request, DOC issued a memorandum calculating the “earned-time date” on his aggra- vated murder term of incarceration. Id. at 420. As calculated by DOC, Lehman had an earned-time date in 2016. Id. After a hearing, the board denied Lehman’s requested earned-time date in 2016, but the board did adjust his release date back to the date of his exit interview. Id. Then Lehman sought review. Id. Here, by contrast, petitioner sought review at once after the exit interview when the board declined to give him the full benefit of his earned-time credits after that hearing. 762 Barrett v. Board of Parole and practices. See ORS 183.482(8)(a) - (c); ORS 144.335(4)19 (final order of the board reviewable as provided in ORS 183.482(8)); see also Gordon v. Board of Parole, 343 Or 618, 632, 175 P3d 461 (2007) (stating standard of review for orders of the board). The question in this case is how the board must apply earned-time credits, under ORS 421.121, to an inmate who successfully completes the three-step release process for aggravated murder, under ORS 163.105, ORS 144.120, and ORS 144.125, and will not be released to the community but, instead, will be released to serve a consecutive term of incarceration. Specifically, we must determine whether petitioner’s release date for aggravated murder (and, con- sequently, the commencement date of his consecutive sen- tence) should be based on the full application of earned-time credits as calculated by DOC, or, as the board contends, a partial application of earned-time credits so that his release date does not fall before the date of his exit interview. Because this dispute presents an issue requiring the application and construction of statutes, we follow the framework set out in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (explaining that we determine legis- lature’s intended meaning by examining statutory text in context, taking into account any legislative history that we find helpful). We observe at the outset, however, that this case does not present the typical interpretive problem, because the parties focus on our case law applying the relevant stat- utory scheme, rather than on the meaning of any particu- lar statutory text. See Sherman v. Dept. of Human Services, 368 Or 403, 411-12, 492 P3d 31 (2021) (considering earlier opinions construing the statutes at issue at the first level of Gaines analysis); State v. Wallace, 373 Or 122, 134-36, 561 P3d 602 (2024) (same). Our prior cases, however, did not present us with an opportunity to consider the relevant statutes when an inmate is not going to be released to the community but, instead, will be released to begin serving 19 ORS 144.335 has been amended since 1993 such that the relevant text now appears in subsection (3), but the wording of the statute has not changed in a manner that is relevant to our decision in this case. Cite as 375 Or 750 (2026) 763 a consecutive term of incarceration. This case presents an opportunity to consider whether the legislature intended a different answer in this different context. We begin by looking at the statute on earned-time credits, ORS 421.121: “(1) Except as provided in ORS 137.635 [providing for determinate sentences for certain repeat offenders], each inmate sentenced to the custody of the department for felonies committed on or after November 1, 1989, shall be eligible for a reduction in the term of incarceration for appropriate insti- tutional behavior, as defined by rule of the Department of Corrections, and for participation in the functional literacy program described in ORS 421.084. “(2) The maximum amount of time credits earned for appropriate institutional behavior or for participation in the functional literacy program described in ORS 421.084 shall not exceed 20 percent of the total term of incarcera- tion in a Department of Corrections institution. “(3) The time credits shall not be used to shorten the term of actual prison confinement to less than six months. “(4) The department shall adopt rules pursuant to the rulemaking provisions of ORS 183.310 to 183.550 to estab- lish a process for: granting, retracting and restoring the time credits earned by the offender as allowed in subsec- tions (1) to (3) of this section.” (Emphasis added.) This court has already held that the leg- islature intended earned-time credits to be mandatory and to apply to persons convicted of aggravated murder after November 1, 1989. See Engweiler IV, 340 Or at 378 (ORS 421.121 reduction is “mandatory for each inmate who meets the criteria,” including an inmate convicted of aggravated murder). As previously noted, however, the inmate must have a “term of incarceration” against which the earned- time credit may be applied. This court has concluded that earned-time credits cannot be calculated until an inmate’s “term of incarceration” is known. In Engweiler IV, this court defined the “term of incarceration” to mean “the amount of time that an inmate must spend in prison before he is eligible to be paroled.” Id. at 380; see also Engweiler VIII, 764 Barrett v. Board of Parole 354 Or at 558-59 (court’s construction of the phrase “term of incarceration” in Engweiler IV was not dictum). In the context of an inmate serving a life sentence for aggravated murder, the “term of incarceration” is not the indeterminate term imposed by the trial court but, instead, is established when the board determines the inmate’s “actual duration” of imprisonment. Engweiler IV, 340 Or at 383. In Engweiler IV, Engweiler was serving an indeter- minate life sentence with no mandatory minimum term for an aggravated murder that he had committed as a juvenile. Id. at 375. Engweiler argued that he was entitled to earned- time credits under ORS 421.121 and that the credits should be applied to the “prison term” that the board had identified using the matrix that it had created for juveniles in his situ- ation—480 months. Id. at 376. This court rejected that argu- ment, reasoning that the matrix prison term did not iden- tify the amount of time that an inmate must spend in prison but, instead, the amount of time that an inmate had to serve before he would be eligible for release consideration. Id. at 383. Because the board had not yet engaged in the three-step release process, this court concluded that Engweiler did not yet have a “term of incarceration” against which any earned- time credits under ORS 421.121 could be applied. Id. at 383- 84. This court suggested that, once the board set a “parole release date,” Engweiler would have a “term of incarceration” against which earned-time credits could be applied. Id. After the board set a projected release date, Engweiler again petitioned this court seeking immediate physical release in Engweiler VIII, 354 Or at 554. By that point, the board had set a projected release date and sched- uled an exit interview. Id. Engweiler argued that his “term of incarceration,” for purposes of calculating his earned-time credits under ORS 421.121(1), was established when the board set his initial release date and, because his earned- time release date, as calculated by DOC, yielded an earned- time release date in July 2012, his continued incarceration was unlawful. Id. at 554.20 20 Engweiler did not have a consecutive sentence to serve and so when he was released on his aggravated murder conviction, he was to be released to the community. Cite as 375 Or 750 (2026) 765 This court disagreed. Id. at 567-68. Importantly, this court reaffirmed its earlier conclusion that the legisla- ture had intended for an inmate in Engweiler’s position to be eligible to have his “term of incarceration” reduced in light of his earned-time credits under ORS 421.121. Id. at 556- 57; 563. But this court also concluded that Engweiler was not entitled to immediate physical release for two related reasons—one practical in nature and one statutory. Id. at 563-68. Practically, the court noted that “the board cannot ‘schedule’ his physical release for a date in the past.” Id. at 566 (quoting ORS 144.125(1) (authorizing the exit interview process prior to the “scheduled release” of an inmate serv- ing an indeterminate term) (emphasis added)). Because it is impossible to release an inmate to community supervision at a point in the past, the court held that the inmate’s “phys- ical release necessarily will be scheduled for a future date.” Id. (emphasis added). Statutorily, this court held that, before any physical release was permitted, the board had to “have the opportu- nity to conduct its prerelease interview” as required by ORS 144.125. Id. This court observed that, “by expressly mak- ing ORS 144.125 applicable to aggravated murder, the leg- islature demonstrated” its intent to prevent inmates being released “without any prior review by the parole board.” Id. at 567. Thus, even properly awarded earned-time credits could not be applied to compel the physical release of an inmate on a date that occurred before the board had an opportunity to hold its statutorily prescribed exit interview. Id. at 567-68. Our decision in Engweiler VIII reflects this court’s efforts to effectuate the legislature’s intent in creating the prerelease exit interview process prescribed in ORS 144.125. Id. But, as mentioned above, in the course of that decision, this court also affirmed the mandatory nature of ORS 421.121 once the recipient becomes eligible. Id. at 556-59. We understand the case as recognizing a necessary exception to ORS 421.121 for the limited purpose of permitting the board to complete its statutorily prescribed prerelease functions, including the exit interview under ORS 144.125. Thus, our prior case law confirms that an inmate serving an indeterminate life sentence, has a “term of 766 Barrett v. Board of Parole incarceration,” for purposes of ORS 421.121, when the board affirms the projected release date following the exit inter- view under ORS 144.125. Here, petitioner is both eligible for earned-time credits and has a “term of incarceration” against which his earned-time credits may be applied. Having concluded that petitioner is eligible for earned-time credits under ORS 421.121, we turn to the board’s argu- ments for why it can grant only partial earned-time credit to adjust petitioner’s release date back to the date of the exit interview. The board contends that this court’s decision in Engweiler VIII (discussed above) and in Janowski/Fleming (discussed further below) control. In both cases, this court concluded that an inmate cannot be “released” from their aggravated murder sentence before completing the last step of the three-step release process—the exit interview. The board maintains that there is no meaningful distinction between an inmate’s physical “release” from custody and an inmate’s release to begin serving a consecutive sentence. It maintains that concluding otherwise would generate an “artificial distinction” between inmates who are physically released and those who are released to begin serving a con- secutive sentence. We disagree. As we will explain, our prior cases dealt only with the application of earned-time credits in con- junction with the murder release process to determine when an inmate will be released into the community. Those cases did not resolve the issue presented here—how earned-time credits apply after an inmate completes the last step in the aggravated murder release process and is released to begin serving a consecutive sentence. In Janowski/Fleming—Janowski, like petitioner— had been convicted of aggravated murder and sentenced to life imprisonment pursuant to ORS 163.105(1)(c). 349 Or at 436. After he had served 20 years in prison, the board conducted a murder-review hearing and concluded that Janowski was capable of rehabilitation within a reasonable period. Id. at 438. The board issued an order converting his sentence to life imprisonment with the possibility of parole and then set his release date at the conclusion of the 30-year Cite as 375 Or 750 (2026) 767 minimum term under ORS 163.105(1)(c). Id. Janowski chal- lenged the board’s decision and argued that converting his sentence effectively removed the 30-year minimum term. Id. This court agreed. Id. at