Proportionality Clause and Sentences Consecutive to Murder
by: Ryan Scott • August 2, 2023 • no comments
Does it make sense to impose a sentence that the defendant only serves after he has been rehabilitated? The following is taken from a memorandum of law set to be heard at the end of August, 2023.
Article I, section 16, of the Oregon Constitution provides, in relevant part:
Cruel and unusual punishment shall not be inflicted, but all penalties shall be proportioned to the offense.
The Oregon Supreme Court has identified the following three factors for determining whether a sentence is constitutionally disproportionate to the offense, as applied to a particular defendant: "(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant." State v. Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659 (2009).
The first factor is relevant here. Under that factor, a court "may consider, among other things, the specific circumstances and facts of the defendant's conduct that come within the statutory definition of the offense," such as the defendant's personal characteristics. Id. at 62. An offender's intellectual disability, for example, is such a characteristic. Ryan, 361 Or at 620-21. In Ryan, the Supreme Court held that, where evidence of an offender's intellectual disability is presented, a trial court must consider that intellectual disability, including how the disability affects the offender's level of understanding of the nature and consequences of his conduct and his ability to conform his conduct to the law. Id. at 621. A trial court commits reversible error where the record demonstrates that the court only "generally note[s]" the fact of an offender's intellectual disability rather than addressing the "constitutional implications" of a defendant's intellectual disability on the gravity of the sentence. Id. at 624. A trial court, therefore, must address on the record a defendant's intellectual disability in comparison to the gravity of the offense. State v. Fudge, 297 Or App 750, 757, 443 P3d 1176, rev den, 365 Or 819, 453 P3d 1289 (2019). The personal characteristic Mr. Smith asks this Court to consider is not intellectual disability but rather reformation. That said, though Mr. Smith has demonstrated reformation since the prior sentencing, it is not only his current reformation that he is asking the court to consider. Rather, he is asking that this court consider the fact that when Mr. Allen begins serving a consecutive sentence on this case, the parole board will have necessarily found he "is likely to be rehabilitated within a reasonable period of time.” ORS 163.107(3)(a).
B. ORS 163.107(3)(a)
Mr. Smith is currently serving a sentence for murder. ORS 163.107; State v. Smith, 21CRxxx25. He will be eligible for parole after at least twenty-five years, but only after he has met his statutory burden. That burden is to show that he is “likely to be rehabilitated within a reasonable period of time.” ORS 163.107(3)(a). In fact, that is the “sole issue.” Id.
Mr. Smith stipulates upfront that we do not know if he will be able to meet burden. He may not, and may ultimately serve his entire life in prison on the murder conviction alone. But the sentence this court imposes in this case only matters if it is run consecutively. Self-evidently, if it is run consecutively, it begins only after he is paroled on the murder charge, whether that occurs following twenty-five or thirty-five or forty years in custody. Consequently, this court – when determining whether to impose a consecutive sentence or whether a consecutive sentence is proportionate as applied to Mr. Smith – should assume Mr. Smith has met his burden to prove imminent reformation. The sentence this court imposes on this case is only relevant if he has in fact demonstrated imminent reformation.
C. Aggregate Sentences and Article I, section 16.
There is presumably no dispute that being reformed is a personal characteristic, and therefore it implicates the constitutional limitations of Article I, section 16. Mr. Smith can only meet that burden after serving at least twenty-five years on a murder conviction.
However, Mr. Smith is not arguing that the aggregate sentence – the sentence for murder plus the sentence on this case, if run consecutively – is disproportionate. In State v. Horner, 306 Or App 402, 403-04, 474 P3d 394 (2020), the Court of Appeals addressed the disproportionality of aggregate sentences. The court rejected the defendant’s argument that a sentencing court should consider the aggregate sentence in its disproportionality analysis. In doing so, the court relied on the holdings in State v. Parker, 259 Or App 547, 549, 314 P3d 980 (2013), rev den, 355 Or 380 (2014) and Real v. Nooth, 268 Or App 747, 756, 344 P3d 33, rev den, 357 Or 550, (2015). In those cases, the court “deemed it ‘not appropriate’ to consider the defendant’s disproportionality challenge to an aggregate sentence.” Horner, 306 Or App at 403. In so holding, the Horner court noted that its holding in Parker and Real, “that disproportionality challenges with respect to aggregate sentences imposed on convictions for multiple counts are not cognizable under Article I, section 16,” was supported by “little published analysis.” Id. at 404. Nonetheless, the Horner court affirmed the trial court under Parker and Real but noted that the question remains open in the Supreme Court.
Although this case involves consecutive sentences, the issue is not one of aggregate sentences. It is solely about constitutional limitations on the length of a prison sentence that begins after the defendant has been found “likely to be rehabilitated” by the Parole Board.
To the extent this court or the Court of Appeals conclude the issue as framed by Mr. Smith is still one of “aggregate sentences,” Mr. Smith argues that the Horner court erred. The text of Oregon’s Proportionality Clause provides that “all penalties shall be proportioned to the offense.” Or Const, Art I, § 16. A “penalty” includes “the amount of time that the wrongdoer must spend in prison,” State v. Rodriguez/Buck, 347 Or 46, 60, 217 P3d 659 (2009), and the Proportionality Clause refers to “all penalties,” in the plural. Or Const, Art I, § 16. According to the text, then, courts must consider “all” of the time a defendant is required to spend in prison. Or Const, Art I, § 16
Of course, the text also refers to “the offense,” in the singular, which suggests that proportionality review might focus only “on each individual crime . . . and on the corresponding sentence imposed for that crime.” Carey-Martin, 293 Or App at 622. But the Supreme Court has already rejected that narrow reading of the text. Under the Proportionality Clause, “the offense” is limited neither to the conduct prohibited by statute, Rodriguez/Buck, 347 Or at 61–62, nor to the underlying facts of a single criminal offense. State v. Althouse, 359 Or 668, 375 P3d 475 (2016). It includes “the specific circumstances of the charged and uncharged offenses that make up [a defendant’s] criminal history.” Id. at 686; see also Rodriguez/Buck, 347 Or at 58; Carey-Martin, 293 Or App at 685–88 (Garrett, J., dissenting).
Again, Mr. Smith does not see this as an issue involving the application of Article I, section 16, to aggregate sentences, but only regarding the length of the sentence in this case, and only if it begins following a finding of imminent reformation. But the argument above is set forth in case, in that regard, any of the appellate courts see it differently.
D. Reformation is the North Star of Punishment Under Oregon Law
The context of Article I, section 16, includes the original text of Article I, section 15, which stated "[l]aws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice." Although Article I, section 15, has been amended to no longer include that text, at the time the people voted to adopt the Oregon Constitution, including Article I, section 16, the constitution included the original version of Article I, section 15. With that context in mind, it becomes clear that the intent of the people of Oregon, when they voted to adopt the state constitution, was that a proportionate sentence was one that was based on reformation and a disproportionate sentence was one that was vindictive. A sentence imposed on a person with no criminal history that ensures the person will never be released from prison is not based on reformation and is, by its nature, vindictive and, therefore, disproportionate.
As the Oregon Supreme Court noted in Priest v. Pearce, the historical circumstances leading to the adoption of a particular constitutional provision is to be considered when determining the intent of the framers and the people who ultimately ratified the constitution. 314 Or 411, 415-16, 840 P2d 65 (1992). And the Supreme Court also held in Oberg v. Honda Motor Co., Ltd., the context of a disputed constitutional provision may also include not just the surrounding words of the section in dispute, but also other related provisions of the constitution. 316 Or 263, 274, 851 P2d 1084 (1993), rev’d on other grounds, 512 US 415 (1994). In Oberg, the question was whether the fines provision of Article I, section 16, was limited to criminal cases. After referring to related sections, specifically, Article I, section 14, and Article I, section 15, thr court concluded that Article I, section 16, does not apply to civil awards of punitive damages. Id. at 275; see also, Jack L. Landau, An Introduction to Oregon Constitutional Interpretation, 55 Willamette L Rev 261, 270-74 (2019)(explaining that “the ‘text’ of a provision of the constitution is never examined in isolation; instead, it’s always examined in context,” and that context includes “other related provisions of the constitution”).
The citizens of Oregon, when voting to adopt the constitution, would have understood that a proportionate sentence was one that was based on the principles of reformation and, conversely, that a disproportionate sentence was once based on vindictive justice. In other words, when asking whether a sentence is disproportionate to the offense, part of the question is whether that sentence based on the principles of reformation and not on vindictive justice.
To emphasize, defendant is not arguing that the original text of Article I, section 15, controls. The argument is that the original text of Article I, section 15, provides necessary context to what the people would have understood the text of Article I, section 16, to mean.
In this case, it would be disproportionate to impose a ten-year, much less twenty-year, sentence on a person only after they had shown that they had been rehabilitated. It would be cruel and vindictive.
