Updated Post on Cutting-Edge Proportionality Arguments

Latest revision as of 16:28, July 29, 2026

I wrote a Library of Defense post slightly more than a year ago on a number of proportionality arguments that were open questions but had a sound basis in case law. Here is a partial list of what I wrote. What follows will be an update regarding those arguments (including one that has already won!) and additional crimes where a proportionality argument might be justified.

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First, when the defendant has already been shown to be rehabilitated. How often does that come into play at sentencing? All the time, specifically when a defendant receives a lengthy prison sentence to run consecutively to a Murder II sentence. In that case, the defendant’s only opportunity to begin serving the consecutive portion of the sentence in this case is if the parole board finds that he is likely to be rehabilitated within a reasonable period of time. Imposing the consecutive sentence is unconstitutional because he will only be able to serve that sentence once it is determined that he has reformed and will not likely return to his criminal behavior. [Update: the opening brief on this issue has been written by OPDC, and the state's response brief is due in a few months.]

Second, when the defendant's health problems would render the prison sentence particularly cruel. [Update: This has been argued by me in June 2026. State v. John Wayne Smith. I expect it will be a year before we get an opinion.]

Third, when a defendant receives the same sentence for felony murder (when he neither killed the victim nor intended the victim to be killed) as a person who, for example, intentionally kills their spouse in cold-blood. How can the same sentence be proportionate to both offenses? [No updates that I am aware of, but if you need resources supporting this argument, let me know and I can direct you to the right person.]

Fourth, the crime of sexual abuse in the second degree when it is based on age. In a 1955 case called State v. Pirkey, the Oregon Supreme Court struck as unconstitutional a crime that could be treated as either a misdemeanor or a felony, it did so under the equal privileges clause. The COA -- in a per curiam opinion in St v Alvey -- would subsequently hold that that portion of Pirkey had been overruled in a different equal privileges case (Klamath Falls v. Winters). What the Alvey opinion failed to mention was Pirkey suggested giving the prosecutor unfettered discretion to charge the same behavior as either a felony or a misdemeanor violated Oregon's proportionality clause as well as the equal privileges clause.

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)

A defendant charged with having otherwise consensual sex with a 17 year old is guilty of a felony Sex Abuse II. For the exact same behavior, they could be guilty of misdemeanor Contributing to the Sexual Delinquency of a Minor. How can both a felony and a misdemeanor be proportionate to the identical offense? [Update: this issue has finally been preserved, but the opening brief is not due until the fall of 2026.]

Fifth, when the defendant has significantly greater mental health problems than the defendant in State v. Gonzalez, such that might rise to a GEI claim but which the defendant did not pursue at trial. [Update: this WON in State v Clark, 347 Or App 721 (2026)]

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And now, for some additional crimes which raise proportionality arguments:

Use of a Child in a Sexually Explicit Display: when soliciting a selfie from a 14-17 year old results in 75 months prison, but having sex with the 14-17 year old would result in probation, there's a proportionality problem. I argued this in February to the COA, and we are just waiting on a decision, which I expect won't be issued until 2027. Note, this is an as-applied argument, not a straight vertical proportionality argument, and so it is important to highlight other case-specific factors when they would favor your client, including: (1) was the selfie for the defendant's personal use or did he plan to enter it into the black market, (2) was the defendant a relative or teacher or coach, (3) how explicit was the photo, e.g., topless selfie versus, well, you know?

ECSA I: did the defendant simply download pictures (i.e., duplicate images for his own personal use) and therefore his behavior was of the type ECSA II was supposed to address? This again is an as-applied argument. Full argument here: https://libraryofdefense.ocdla.org/Blog:Main/Framing_the_proportionality_argument_for_ECSA_I

Unlawful Use of a Weapon with a Firearm: when the defendant points a firearm at another person, he could be subject to five years in prison under UUW w/a firearm, but he could also be subject to a misdemeanor under the crime of Pointing a Firearm at Another. In other words, there is a Pirkey problem, just like SA II above. Note that this would be an as-applied challenge, not a straight Pirkey challenge, because there would have to be evidence your client only pointed the firearm at the victim (or something even less than that).

Some of these arguments would have a huge impact in the life of a single defendant but maybe no one else. That's reason enough to do. Some of these other arguments would, at least for a time, completely change the legal landscape for a huge swath of deserving defendants and make the world a kinder, fairer place. It wouldn't be the first time that one defense lawyer, making -- and losing -- an argument at the trial court, changed the world for the better.