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Article I, section 16, of the Oregon Constitution states:

“Excessive bail shall not be required nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”

The proportionality provision requires a “comparative relationship” between punishments and the offenses for which they are imposed:

“The term ‘proportion’ indicates a comparative relationship between at least two things. See, e.g., 2 Noah Webster, An American Dictionary of the English Language 45 (1828) (“proportion” indicates a “comparative relation”). Here, the two things being related are “penalties” and “the offense,” and the provision requires that the penalties for each particular offense be “proportioned”—that is, comparatively related—to that offense. The strong implication of that requirement is that a greater or more severe penalty should be imposed for a greater or more severe offense and, conversely, that a less severe penalty should be imposed for a less severe offense.”

State v. Wheeler, 343 Or 652, 655-56, 175 P3d 438 (2007)

The test for making proportionality determinations has “at least three factors” to consider, including: “(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, 58 n 6, 217 P3d 659 (2009).

Buck/Rodriguez involved Measure 11 crimes, requiring a 75 month mandatory minimum sentence. But the actual behavior was rather minor, and therefore the 75 month sentence was overly severe.

In addition, the Oregon Supreme Court has held that characteristics of the defendant plays a significant role in determining if a sentencing is disproportionate. In State v. Ryan, the Court held:

"Evidence of an offender's intellectual disability therefore is relevant to a proportionality determination where sentencing laws require the imposition of a term of imprisonment without consideration of such evidence. Accordingly, we conclude that, where the issue is presented, a sentencing court must consider an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence on such an offender in a proportionality analysis under Rodriguez/Buck."

Id. at 620-21.

In State v. Gonzalez, the Oregon Supreme Court held that other characteristics other than intellectual disability may be relevant, but rejected the argument that the defendant's mental health attributes rendered a M11 sentence unconstitutional.

I think, however, the case law has only scratched the surface of situations where Article I, section 16, would come into play. What follows are some ideas for when the constitutional protections of the proportionality clause might be triggered.

Today, the OSC issued a press release that announced one case it was granting review on, and a number of cases it was not. Among those cases where the court was not granting review, individual justices either said they would have granted review or, more likely, concurred in the denial of review but felt the issue was worth addressing in a future case.

In other words, the individual justices were alerting lawyers -- defense lawyers in particular -- of issues they would like to see raised in future cases.

One of those cases was State v. Anne. Justices DeHoog and James both concurred in the denial of review "but observed that the petition raised an important legal issue that the Court should consider in

an appropriate case." Do they say what that issue is? Nope, I had to look up the case to find out what the issue was. And let me tell you, it's a doozy.

For the past couple of years, I have encouraged a variety of arguments for keeping out the forensic interview in child sex cases. Not a lot of appellate success so far. Right now, though, I want to focus on excluding it under OEC 403. I've made the argument a couple of times myself, I've written an appellate brief on the issue, I've read other appellate briefs on the issue, and I've read trial transcripts where the arguments were raised. Here is a step-by-step process for what I think is the best way to maximize your chances of either keeping out the interview or winning on appeal.