THE COURT (Circuit Judge Mattison): I'm going to start with some general
remarks and proceed from there. And I guarantee you, I am as nervous as anybody
in this courtroom.
Other than talking a little with the defendant, I generally do not say much
during a sentencing hearing. But this obviously requires more than that, and I
have put most of my thoughts in writing so that they have a little more
organization than they tend to have when I do not.
I started this last weekend, and you will hear some references to things that
both attorneys talked about in their statements. I have made no effort to do
any editing with regard to that.
First, I would like to acknowledge again the efforts and the contributions of
at least some of the people who have brought us to this point. That has to
start with the attorneys themselves and the professionalism they have displayed
in very difficult circumstances.
It must include Judge Brewer, again, for his settlement efforts, and also
District Attorney Harcleroad for his active participation in that process.
The victims and their families have certainly played a role, as did Mr. Kinkel.
His participation and agreement spared us the necessity of spending eight weeks
or so of reliving the events of May 20 and 21.
The efforts of Judge Leonard and David Factor for keeping us on track and
organized and orderly must be recognized, as must those of the law enforcement
personnel, both seen and unseen, who have helped. And especially the Sheriff's
Office transport and security deputies that have assisted us along the way.
And I also want to acknowledge the cooperation of the media and of the public
Turning to the sentence itself, Article 1 Section 15 of the Oregon Constitution
as adopted in 1859 stated: "Laws for the punishment of crime shall be founded
on the principles of reformation, and not of vindictive justice."
On November 5 of 1996, the people of Oregon voted to change this section to its
present form, which reads: "Laws for the punishment of crimes shall be founded
on these principles: the protection of society, personal responsibility,
accountability for one's actions, and reformation." To me, this was a clear
statement that the protection of society in general was to be of more
importance than the possible reformation or rehabilitation of any individual
Article 1 Section 16 states in part that: "All penalties shall be proportional
to the offense." As has been indicated, I have been required on other occasions
to sentence young men on murder charges. One involved a
sixteen-year-old--sixteen at sentencing--who killed an 83-year-old man by
hitting him in the head with a cane in the course of a burglary/robbery
situation. That was Mr. Merrill. The sentence under Measure 11 was 25 years.
Another involved a young man who was, as I recall, nineteen or twenty at the
time of sentencing, who suffered from schizophrenia and killed an emotionally
disturbed woman in her apartment with a board in what was probably a psychotic
rage. A jury rejected his mental defense and found him guilty of aggravated
murder. And that was State vs. Reese.
I sentenced Mr. Reese to life in prison with a minimum term of 30 years, and
noted in that judgment that he should not be released unless treatment and
safeguards were in place to make sure he was not dangerous when released.
The facts of these two cases pale in the light of the facts in this case, and a
sentence of 25 years or so in this case is not proportional to those sentences
or to these present facts.
Based upon my experience, I believe it is highly probable that a jury would
have found Mr. Kinkel guilty of multiple counts of aggravated murder and would
have sentenced him to life in prison without the possibility of release.
Believing that, the question becomes, should the court sentence any
differently, at least without some good reason to do so?
The impressive medical experts who examined Mr. Kinkel necessarily and
appropriately focused on him and on his condition, rather than on what would be
an appropriate sentence based upon the facts of this particular case. They
generally agree that with extensive, long-term treatment, they would not expect
him to be dangerous to others, but they also acknowledge that future
dangerousness is difficult to predict.
Untreated, or I suppose improperly or incompletely treated, he is and remains
dangerous. And as required by Article 1 Section 15, my focus must be much
broader than the possible reformation or rehabilitation of Mr. Kinkel.
One of the last things Dr. Bolstad said was to the effect that there is no cure
for Mr. Kinkel's condition, that he should never be released without
appropriate medication and--I quote--"an awful lot of structure and appropriate
support services arranged for him."
We cannot predict what advances medical science will make in the treatment of
whatever mental illness he has. We cannot guarantee that he will receive the
treatment these doctors believe is necessary while in prison. And Dr. Bolstad,
who knows the system, was not optimistic in that regard. And we cannot
guarantee that Mr. Kinkel would follow up as necessary were he released to a
relatively uncontrolled environment.
Based upon the record I have heard and reviewed, I believe that Mr. Kinkel has
the capacity to do those things in prison his sister said he wanted to do. He
can be a model prisoner, he can help himself through educational opportunities
and other opportunities afforded to him, and he probably can do worthwhile
things to help others. If he chooses this route, and if medical science makes
the advances the doctors expect, he may be able to make a credible case for
gubernatorial clemency under ORS 144.640 and seek a commutation or shortening
of his sentence upon appropriate conditions.
Given the mandatory nature of Measure 11 sentences, I do not have the
flexibility to structure any kind of long-range conditional sentence, even were
it appropriate to do so, and I do not believe it is.
It became very apparent yesterday that this sentence needed to account for each
of the wounded, who rightly call themselves survivors, and for Mr. Kinkel to
know there was a price to be paid for each person hit by his bullets.
Mr. Kinkel, would you stand, please, sir.
It's the order of this court that on
Counts 4, 5, 7, and 8 -- and those are the aggravated murder counts--you be
sentenced to serve a term of 25 years each, as per the Plea Agreement, to run
concurrent with one another. That's with the Department of Corrections.
On Counts 9, 11, 13, 15, 17, 19, 21, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40,
42, 44, 46, 48, 50, 52, 54, 56, and 58 you're sentenced to serve a term of 90
months each, per Measure 11, as follows:
On Count 9, 50 months are to be served concurrent with the 25 years on Counts
4, 5, 7 and 8, and 40 months are to be served consecutively to that
On Count 11, 50 months are to be served concurrently to Count 9 and the other
sentences and 40 months are to be served consecutively to Count 9.
The remainder of the attempted murder counts are to be served in the same way,
that is, 50 months on each is concurrent with the prior counts and 40 months is
consecutive to the prior counts.
The total consecutive time on the 26 attempted murder counts is 1,040 months,
or 86.67 years. The total sentence by my calculation at least is 111.67 years,
which is more than anyone will ever serve. I see little point in sentencing
much beyond the normal lifetime.
The state has filed a restitution schedule. I have no evidence before me that
Mr. Kinkel has any ability to pay any restitution, or will have any during his
incarceration. By statute it would be error to impose the restitution
obligation on this record. And also, by statute he is not eligible to inherit
from his parents' estate, so that avenue of payment is certainly foreclosed.
You have the right to appeal. Any appeal that you file must be filed with the
Court of Appeals in Salem, Oregon, within 30 days of today or you lose that
right. You have the right to a lawyer to assist you, a court-appointed lawyer
if you can't afford your own. And certainly talk on your lawyers in that
UNIDENTIFIED FEMALE: He's having a seizure.
Someone call a doctor.
THE COURT: We will be in recess.
THE COURT: I understand Mr. Walker is feeling much better, and that's certainly
good news. Mr. Mullen and Mr. Sabitt?
(REMAINING PROCEEDINGS NOT TRANSCRIBED HEREIN.
I, Eileen E. McCornack, hereby certify that I am a Certified Shorthand Reporter
and Official Court Reporter for the 2nd Judicial District of Oregon; that I
reported in Stenotype the foregoing proceedings and subsequently transcribed my
said shorthand notes into the printed transcript, pages 1 through 10 both
inclusive; that the said transcript constitutes a full, true and accurate
record of the proceedings as requested, to the best of my knowledge, ability
Dated this [-] day of October 1999 in Eugene, Oregon.
EILEEN McCORNACK, CSR, RMR-CRR
Official Court Reporter
Oregon CSR No. 99-0357