Applying EED at Sentencing to Attempted Murder

Revision as of 12:33, April 4, 2026

I. Extreme Emotion Disturbance

It is a partial affirmative defense to murder in the second degree if the defendant was under the influence of extreme emotional disturbance (“EED”). ORS 163.115(1)(a). EED “constitutes a mitigating circumstance reducing the homicide that would otherwise be murder to manslaughter. . . .” ORS 163.118(1)(a). Although EED is an affirmative defense, it requires ten jurors to reject the defense. Richards v. Brown, 345 Or App 321 (2025)

The difference between a murder in the second degree conviction and manslaughter in the first degree is stark. The former mandates a measure 11 sentence of life in prison, with the possibility of parole only after twenty-five years, and potentially later if any additional sentences are run consecutively. In contrast, manslaughter in the first degree is a ten year sentence.

The logic behind the defense of EED is self-evident. A defendant who commits an intentional homicide under the influence of EED is simply less culpable than one who does not. There literally can be no other purpose for the enormous reduction in sentence.

II. Proportionality, Measure 11 and Personal Characteristics that Make a Defendant Less Morally Culpable

Article I, section 16, of the Oregon Constitution provides that “Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” When a sentence is so excessively long compared to the defendant’s conduct that it violates Article, I, section 16, the appellate courts will reverse it. See Rodriguez/Buck, 347 Or at 58 (“[I]t is the role of the court to ensure that sentences conform to requirements that have been in our constitution for 150 years. And, when we conclude that, because of its length, a sentence is inconsistent with Article I, section 16, as we have on at least three occasions, we should hold that sentence unconstitutional.”).

In Rodriguez/Buck, the Supreme Court identified three factors to consider when determining whether a sentence is unconstitutionally disproportionate: “(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.” Id.

When assessing the “offense” at issue, the court considers:

“the specific circumstances and facts of the defendant’s conduct that come within the statutory definition of the offense, as well as other case-specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship

between the defendant and the victim.” Id. at 62.

More recently, in State v. Gonzalez, 373 Or 248, 266, __ P3d __ (2025), the Supreme Court limited a trial court’s reliance on mental illness when determining the proportionality of a sentence. But more relevant to this case was the fact that the court explained how courts should identify, based on societal standards, those personal characteristics that merit a less serious punishment.

As we have explained, Ryan did not simply rely on this court's own perception of a societal consensus that intellectual disability can, in some general sense, reduce a person's culpability. Rather, in applying the instruction from our case law to determine whether a sentence would "shock the moral sense of reasonable people," this court relied on "objective evidence of a societal standard" that supplied a basis to determine more precisely when an intellectually disabled offender's culpability is different from that of other offenders. Ryan, 361 Or at 624. As discussed, in Ryan, that objective evidence was the legislature's enactment of ORS 161.290, which provides that a person is not criminally responsible for any conduct that occurred when the person was under 12 years of age. Id.

Id. at 265-266.

Last month, the Court of Appeals applied the Supreme Court’s opinion in Gonzalez in order to remand a case to the circuit court with instructions to apply the defendant’s mental health issues – greater than those in Gonzalez – in deciding whether to impose the Measure 11 sentence.

We agree with defendant that, in light of the Supreme Court's opinion in Gonzalez II, the trial court's understanding of Gonzalez I that only intellectual disability could be considered, was not correct. The Supreme Court was clear that other mental health attributes can be considered, if there is "evidence of a societal standard recognizing that people who suffer from [the particular mental disorders]—but who have the ability to form the requisite mental state and appreciate the gravity of their conduct—have reduced moral culpability for their criminal conduct." Gonzalez II, 373 Ore. at 268. As a strategic matter, defendant here chose not to pursue a defense of GEI. ORS 131.300. In finding defendant guilty, the jury necessarily found that defendant had the ability to form the requisite mental state. Thus, the question for us is whether, despite that finding, the record includes objective evidence of a societal standard that recognizes, for purposes of sentencing, that people who suffer from the particular mental health attributes suffered by defendant have reduced moral culpability for their criminal conduct. See State v. Lancaster, 345 Or App 155, 158, 581 P3d 989 (2025) (applying standard).

State v. Clark, 347 Or App 721 (2026).

III. Applying Article I, section 16, and Clark to This Case

Gonzalez and Clark both require a “societal standard” before a personal characteristic can be a basis for sentencing relief, i.e., taking a defendant out of Measure 11. That standard is met here. The fact that the legislature has recognized EED as a partial defense that dramatically reduces a defendant’s sentence – as presumably states have done similarly across the country – is itself evidence of a societal standard.

Because of the legislature's primary role in determining the punishments for criminal conduct, it is appropriate that, in determining whether a societal standard exists that militates against imposing a punishment that would otherwise be required, courts will give great weight to the existence or absence of legislative enactments bearing on such a standard.

State v. Gonzalez, 373 Or 248, 266, 564 P3d 109 (2025). [Bold added.]

See also State v. Ott, 297 Or 375, 686 P2d 1001 (1984)(history of EED as a mitigating factor.)