Article I, Section 16, Opportunities

Latest revision as of 14:24, June 18, 2025

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.

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.

Second, when the defendant's health problems would render the prison sentence particularly cruel.

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?

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?

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.