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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 at the COA just a month ago. 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.]

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. What no one mentioned in Alvey was that Pirkey seemed to suggest that found that giving the prosecutor the ability to charge the same behavior as either a felony or a misdemeanor violated Oregon's proportionality clause as well.

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 have 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 for a few months.]

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 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 impact the analysis, 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. I wrote something up in a hurry if anyone wants it, but I haven't had reason yet to write it in full.

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.

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.

I wrote about this more than ten years ago, but it's probably worth revisiting since every now and then, the distinction might be useful.

If I point a gun at you in a menacing way, that will likely constitute the crime of Unlawful Use of a Weapon, barring any defenses. But what if I tell you that if you don't leave my neighborhood, I'm going to go inside, get a gun, and then come back out and shoot you? Is that UUW?

Here's what the Oregon Supreme Said about the subject, when tasked with deciding whether the "use" in UUW encompassed threatening someone with a firearm.

The problem with both arguments is that they neglect to distinguish between threatening to use a weapon and using a weapon as a threat. The two are not—or at least, not necessarily—the same. One may threaten to use a weapon without ever touching it, as when, for example, a person says to another, "If you do not give me your money, I will get my gun and shoot you." That does not constitute a current "use" of a weapon, as it is a threat to use it sometime in the future. In contrast, one also may use a weapon as a threat, as when one person points a gun at another and says, "Give me your money." In a sense, that is a threat to use the weapon in the future; there is an implicit warning that, if the money is not forthcoming, the gun will be fired. But—and this is key—it is also a current use of the weapon as a threat.

State v. Ziska, 355 Or 799, 808, 334 P3d 964 (2014)[Bold added.]

Yes, another proportionality post. I am comparing two arguments, one I have raised frequently in the past few years, 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 wrongly decided, State v. Simonson, 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, mental health) 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. Not going to touch on this one in this post.

I have proposed an expansion of the sentencing scheme/vertical proportionality argument, which can be thought of a facial challenge, but my expansion is part-facial, part-as-applied. 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 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)

The Court of Appeals, in a very different context, made this observation:

It would be illogical to presume that the legislature intended that identical criminal conduct could, depending solely on prosecutorial discretion, be indicted as either of two degrees of a crime with such widely divergent sentencing ranges.

State v. Cook, 163 Or App 578, 586, 989 P2d 474 (1999).

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? How can that, according to the COA, be logical?

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."