Ryan@ryanscottlaw.com at 14:15, May 6, 2026

2026-05-06T14:15:34Z

Ryan@ryanscottlaw.com at 14:08, May 6, 2026

2026-05-06T14:08:08Z

Ryan@ryanscottlaw.com: Created page with "Yes, another proportionality post. I am comparing two arguments, one I have raised frequently in the past few year, and one that I wrote about fourteen years ago and then for..."

2026-05-06T14:07:44Z

Created page with "Yes, another proportionality post. I am comparing two arguments, one I have raised frequently in the past few year, and one that I wrote about fourteen years ago and then for..."

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Yes, another proportionality post. I am comparing two arguments, one I have raised frequently in the past few year, and one that I wrote about fourteen years ago and then forgot.

Under the Oregon Constitution, a sentence not only can't be cruel and unusual. It also can't be disproportionate.

This comes into play in three ways. The first is that the sentencing scheme is unconstitutional because it violates vertical proportionality. That is, the sentence for the lesser-included offense is greater than the sentence for the greater offense. For example, under Sex Abuse II, sex with a 16 or 17 year old is ranked as a crime seriousness 7 under the guidelines but Rape III, sex with a 14 or 15 year old, is ranked as a crime seriousness 6. Under a case the state believes was wrong decided, this scheme violates the proportionality clause.

Alternatively, if the facts of any particular case -- taking into account a number of factors -- are far less egregious than typical, then the typical sentence might also violate proportionality. ''See Buck/Rodriguez.
''

The third way is that the characteristics of the defendant (age, mental ability) make the defendant less culpable and therefore the sentence that would be imposed on a normally culpable defendant would be disproportionate when imposed on the less culpable defendant.

I have proposed an expansion of the sentence scheme argument. If the exact same behavior can be charged as either a felony or a misdemeanor, how is it possible that both a felony sentence and a misdemeanor sentence can both be proportionate to the crime?

The Oregon Supreme Court asked this question sixty years ago but it hasn't answered it yet.

:The Oregon Constitution provides that "all penalties shall be proportioned to the offense. * * *" Oregon Constitution, Article I, Section 16. In the case at bar the offense, that is to say, the specific act which is prohibited, is clearly defined, but it is difficult to see how two separate and distinct punishments can both be proportionate to the same identical offense when the sentencing court is given no discretionary power to choose between them.

''State v. Pirkey'', 203 Ore. 697, 705 (Or. 1955)

This comes into play, because sex abuse II, when it is based solely on the age of the victim being under 18, is a felony. But contributing to the sexual delinquency of a minor, the exact same behavior -- sex with someone under 18 -- is a misdemeanor. How can both be proportionate?

Okay, that's the sex part. Here's the firearm part.

Arguably, the same dynamic is at play when a defendant is charged with unlawful use of a weapon based on threatening someone with a firearm.

:We conclude that, as used in ORS 166.220(1)(a), "use" refers both to employment of a weapon to inflict harm or injury and employment of a weapon to threaten immediate harm or injury. In these cases, the evidence is undisputed that each defendant displayed a dangerous or deadly weapon against another person in a manner that threatened the other person with imminent serious physical injury.

''State v. Ziska,'' 355 Or 799, 811, 334 P3d 964, 970 (2014)

UUW is, obviously, a felony.

But pointing a firearm at someone "with malice" is also a misdemeanor.

:166.190 Pointing firearm at another; courts having jurisdiction over offense. Any person over the age of 12 years who, with or without malice, purposely points or aims any loaded or empty pistol, gun, revolver or other firearm, at or toward any other person within range of the firearm, except in self-defense, shall be fined upon conviction in any sum not less than $10 nor more than $500, or be imprisoned in the county jail not less than 10 days nor more than six months, or both.

Whether or not they are describing the same crime would depend on the definition of "with malice." Without looking at the legislative history, I struggle to see how pointing a firearm at someone with malice could mean anything other than a threat to shoot them. What else could malice mean?

To be clear, this is not something where the sentencing scheme is itself disproportionate. UUW can be charged any number of ways, and it would be necessary to take into account what the defendant actually did. But if pointing a firearm at someone with malice necessarily encompasses pointing a firearm at them in order to threaten shooting them, then how can both a felony sentence (perhaps five years under the gun minimum) or a maximum six-month jail sentence for a misdemeanor both be proportionate to the offense?

What to do about this? At sentencing on either a sex abuse II based solely on age, or UUW based solely on threatening someone with a firearm, ask for immediate misdemeanor treatment, because doing otherwise would violate Oregon's proportionality clause. Be sure to quote Pirkey when you do so.

One side note. If your client is accused at pointing a gun at someone, and your argument is that they did so as a warning, not a threat, I highly recommend asking that the jury be allowed to consider the lesser-offense of "pointing a firearm at another."

Ryan
{{wl-publish: 2026-05-06 07:07:44 -0700 | Ryan@ryanscottlaw.com:Ryan Scott }}

@@ Line 10: / Line 10: @@
 The third way is that the characteristics of the defendant (age, mental ability) make the defendant less culpable and therefore the sentence that would be imposed on a normally culpable defendant would be disproportionate when imposed on the less culpable defendant.
-I have proposed an expansion of the sentence scheme argument.  If the exact same behavior can be charged as either a felony or a misdemeanor, how is it possible that both a felony sentence and a misdemeanor sentence can both be proportionate to the crime?
+I have proposed an expansion of the sentencing scheme/vertical proportionality argument, which can be thought of a facial challenge.  If the exact same behavior can be charged as either a felony or a misdemeanor, how is it possible that both a felony sentence and a misdemeanor sentence can both be proportionate to the crime?
 The Oregon Supreme Court asked this question sixty years ago but it hasn't answered it yet.

@@ Line 28: / Line 28: @@
 ''State v. Ziska,'' 355 Or 799, 811, 334 P3d 964, 970 (2014)
- UUW is, obviously, a felony.
+UUW is, obviously, a felony.
 But pointing a firearm at someone "with malice" is also a misdemeanor.

Blog:Main/Sex and Firearms - Revision history

Ryan@ryanscottlaw.com at 14:15, May 6, 2026

Ryan@ryanscottlaw.com at 14:08, May 6, 2026

Ryan@ryanscottlaw.com: Created page with "Yes, another proportionality post. I am comparing two arguments, one I have raised frequently in the past few year, and one that I wrote about fourteen years ago and then for..."