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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."

This week, the Oregon Supreme Court remanded a case back to the Court of Appeals to decide whether the sentence for Online Sexual Solicitation of a Minor violates Article I, section 16, of the Oregon Constitution. Specifically, does it violate the rule known as vertical proportionality, whereby a lesser offense imposes a greater punishment than a greater offense?

For example, if the sentence for theft in the third degree was greater than theft in the first degree, that would violate proportionality. Online sexual corruption of a child in the first degree is committed when a perpetrator uses an online communication to contact a person whom they reasonably believe is under 16 years of age for the purposes of arousing or gratifying the sexual desire of the perpetrator or another person and intentionally takes a substantial step towards meeting the child. Online sexual corruption of a child is a category 8 offense, which makes it presumptive prison.

But if that same perpetrator has sex with, say, a 15 year old, the sentence is a category 6 offense and presumptive probation if the perpetrator has either no or little criminal history.

Above, I used the phrase "lesser offense" in describing the situation where a lesser offense is treated more harshly than a greater offense. But that phrase "lesser offense" glosses over a significant legal issue. Note I did not say "lesser-included offense" because Online Sexual Corruption is a not a lesser-included offense. And the state would argue it is not always a lesser offense. For example, what if the defendant was communicating with a 10 year old?

Imagine a not uncommon scenario where the defendant wasn't communicating with a child at all, but an undercover police officer who had logged into an adults-only website and told the defendant he was a minor child.

Vertical proportionality has existed for a long-time in Oregon. Historically, it was limited to looking at the punishment for related offenses, not the facts of any particular case. More to the point, it has existed since long before Rodriguez/Buck, the cases which held for the first time that defendants could argue that the specific facts of their case rendered a sentence unconstitutionally disproportionate. So vertical proportionality meant the sentencing scheme was unconstitutional, but Rodriguez/Buck and their progeny meant a sentence could be unconsitutional as-applied to a specific defendant, based on their conduct and particular characteristics.

The defendant in the hypothetical I described -- and probably the defendant in the vast majority of Online Sexual Corruption stings -- has, in my opinion, a very strong argument for an as-applied challenge. It is not unlike a scenario where a defendant is convicted of Using a Child in a Sexually Explicit Display, for soliciting a slightly lewd photo from a 15 year old and getting 70 months in prison, when having sex with that same 15 year old would result in probation. Under those facts, it's a very compelling argument that the greater sentence is disproportionate compared to the much lesser sentence for more serious behavior.

But a facial challenge to the sentencing scheme is going to be a problem, because the state will have an argument that not every Online Sexual Corruption or Using a Child Case will involve less egregious behavior. In the abstract, it could be worse behavior, and the problem with a facial challenge is the court may have to consider abstractions, specifically whether Online Sexual Corruption could ever be worse than Rape in the Third Degree.

In sum, you almost always want to argue the sentence is unconstitutional as-applied, in addition to any facial challenge you want to make.

Facts: Defendant has been found guilty of attempting to kill John Smith, while trying to kill John Doe in the same criminal episode (count 1) and attempting to kill John Doe while trying to kill John Smith in the same criminal episode (count 2)

Summary of Argument: The two counts must merge into a single conviction under the Federal Double Jeopardy Clause and/or the Oregon Double Jeopardy Provision. In the alternative, the counts must be sentenced to run concurrently.

Argument

A. Conviction of the defendant on the second of two inverse attempted murder counts in 24CR36206 would violate federal and state constitutional proscriptions on double jeopardy.

1. The conviction would violate the double-jeopardy proscription in the Fifth Amendment to the U.S. Constitution.

The Fifth Amendment to the U.S. Constitution guarantees that “no[] * * * person [shall be] subject for the same offence to be twice put in jeopardy of life or limb * * *.” The guaranty “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 US 711, 717, 89 S Ct 2072, 23 L Ed 2d 656 (1969) (quoted with approval in City of Lake Oswego v. $23,232.23 in Cash, 140 Or App 520, 527, 916 P2d 865 (1996)). The guaranty applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 US 784, 794, 89 S Ct 2056, 23 L

Ed 2d 707 (1969)); State v. Sawatzky, 339 Or 689, 694 n 6, 125 P3d 722 (2005).

Only if a state legislature “specifically authorizes cumulative punishment under two statutes” may a state punish the same conduct twice without violating the Fifth Amendment. Missouri v Hunter, 459 US 359, 368–69, 103 S Ct 673, 74 L Ed 2d 535 (1983). Without that specific authorization, whether charges are for the “same offense” depends on the elements of each charge. If all the elements of one are included in the elements of the other, the charges are for the “same offense.” State v. Dodge, 373 Or 156, 173 n 4, 563 P3d 339 (2025) (citing Blockburger v. United States, 284 US 299, 304, 52 S Ct 180, 76 L Ed 306 (1932)). Under the state’s approach, whenever a defendant is convicted of attempted murder under ORS 163.107(1)(d)—which requires that there be “more than one murder victim”—the defendant can always be convicted (and sentenced) twice, unlike a defendant convicted of attempted murder under any other subparagraph of ORS 163.107(1).

That’s because every instance of attempted murder under ORS 163.107(1)(d) can be charged, as here, in the inverse, by switching the names of the two victims. For that double punishment to comply with federal double-jeopardy proscription, it must not just be authorized; it must be specifically authorized. For authorization to be specific, it must authorize the specific double punishment of a defendant convicted under ORS 163.107(1)(d), at least by referring to a conviction under that statute. No such specific authorization appears in Oregon law. Indeed, whether the analogous former offense of attempted aggravated murder under ORS 163.095(1)(d) existed at all had to be settled by the Oregon Supreme Court’s 2022 decision in State v. Kyger, 369 Or 363, 506 P3d 376 (2022).

Here, the two attempted-murder charges are the inverse of each other; count 1 charges the attempted murder of Smith while attempting to murder Jones, and count 2 differs only in that the names are switched. Because both counts arose under the same statute (ORS 161.107(1)(d)) and the same two

individuals are named in each, it follows that both counts had the same elements and that all the elements of one were included in the elements of the other. The state relied on the same evidence (the gunshots) to prove both offenses; none of the evidence proved only one of those offenses. Notably, the completed offense of murder in the first degree under ORS 163.107(1)(d) does not suffer from the same constitutional infirmity. That is because the elements of two counts of the completed offense can never be identical. To prove the completed offense, the state need only show that the defendant intended to kill one person (A) and that another person (B) died during the same criminal episode; the state need not show that the defendant intended to kill B. If the state charges the inverse offense, it must to show that the defendant intended to kill B, but it need not show that the defendant intended to kill A. Here, by contrast, the defendant is charged with attempting and thus intending to kill both victims in both counts, so neither count has an element the other lacks. Conviction for both attempted-murder counts would violate the federal constitutional double-jeopardy proscription.

2. The conviction would violate double-jeopardy proscription in Article I, section 12, of the Oregon Constitution.

Under Article I, section 12, of the Oregon Constitution, “no person shall be put in jeopardy twice for the same offence * * *.” Under that provision, charges are for the same offense if they “(1) arise out of the same act or transaction, (2) can be

brought in the same court, and (3) the prosecutor knows or reasonably should know about them at the time of the original prosecution.” Dodge, 373 Or at 173 n 4, 563 P3d 339 (2025) (citing State v. Brown, 262 Or 442, 458, 497 P2d 1191 (1972)). Article I, section 44(1)(b), addressing “crimes against different victims,” limits only laws affecting sentencing; it does not limit the section 12 constitutional proscription against prosecution and conviction.

Here, the two attempted-murder offenses arose out of the same act (the shooting) and could have been (and were) brought in the same court, and because the prosecutor brought both counts in the same indictment, the prosecutor

necessarily knew of both offenses when the state initiated the prosecution of both of them.

Conviction for both attempted-murder counts would also violate the state constitutional double-jeopardy proscription.

B. Consecutive sentencing on the second attempted-murder count would violate the proscription in Article I, section 16, of the Oregon Constitution on disproportionate punishments.

Under Article I, section 16, of the Oregon Constitution, “[c]ruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense * * *.” A punishment is unconstitutional if it is “so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” Sustar v. County Court of Marion County, 101 Or 657, 201 P 445 (1921) (citing Weems v. United States, 217 US 349, 367, 30 S Ct 544, 54 L Ed 793 (1920)); see also State v. Gonzalez, 373 Or 248, 254,

564 P3d 109 (2025) (citing Sustar). “The primary authority to determine the gravity of an offense and the appropriate punishment lies with the legislature.” Gonzalez, 373 Or at 255.

The legislature has prescribed a uniform maximum penalty for every form of attempted first-degree murder, including under ORS 163.107(1)(d) by attempting to murder one person while also attempting to murder another. For that reason, an evaluation of the proportionality of double convictions and consecutive sentences for violating ORS 163.107(1)(d) once does not challenge a legislative policy judgment.

Three factors bear on whether a punishment is constitutionally 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.” State v. Rodriguez, 347 Or 46, 58, 217 P3d 659 (2009). Here, defendant challenges the proportionality of his and any other defendant’s conviction and consecutive sentence for committing one of several types of attempted first-degree murder by comparison to every other type of first-degree murder. So of the three Rodriguez factors, the only relevant one is the second: “a comparison of the penalties imposed for other, related crimes.”

It would shock the moral sense of all reasonable people to learn that for violating ORS 163.107(1)(d) once, a defendant would receive two convictions and concurrent sentences, but a defendant violating any other part of ORS 163.107(1) would receive but one conviction and sentence. Because the two attempted-murder counts have identical elements and are based on evidence of the same behavior, a conviction or consecutive sentence on the second attempted-murder count would violate Article I, section 16.

C. Under ORS 137.123(4) and (5), the sentence for the second attempted-murder count should be concurrent with the sentence for the first.

Under ORS 137.123(4) and (5), sentences for multiple offenses “shall be concurrent” (1) if the offenses “aris[e] out of a continuous and uninterrupted course of conduct” and (2) the court does not find either— “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”

Because ORS 137.123(5)(a) applies only when the second offense “was not merely an incidental violation of a separate statutory provision,” it does not apply when the sentences arise from offenses under the same statutory provision. And because counts 1 and 2 both arise under ORS 163.107, ORS 137.123(5)(a) does not authorize consecutive sentences.

Neither does ORS 137.123(5)(b) authorize consecutive sentences. The basis for conviction on counts 1 and 2 was evidence of seven gunshots in quick succession, so those offenses arose out of a continuous and uninterrupted course of conduct. And because there was no evidence that any of the gunshots was aimed specifically at either Smith or Jones, as opposed to the house where they were present, there was no evidence that any of the gunshots was an attempt to kill only one of them; the state relied on the same seven gunshots to support both charges. Thus, there is no evidentiary basis for the court to make a finding that defendant’s attempt to kill Washington caused or created a risk of causing greater or qualitatively different loss, injury or harm to Jones than was caused by the attempt to kill Smith, or that defendant caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the attempt to kill Smith.

The state will claim that consecutive sentences are authorized because each count addresses harm to a different victim. That might be true for the completed offense of murder. But it is not true here for the offense of attempted murder. Each count alleges that Clay personally attempted to kill two people. Both victims are victims of each count, and neither count has a victim the other does not. Thus, under ORS 137.123(5), the court lacks discretion to impose a sentence for count 2 consecutive to the sentence for count 1.

I. Extreme Emotional 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.)

In a footnote in today's Bock opinion, the COA wrote:

4 UUW is not generally a lesser included offense of attempted aggravated murder, because it requires proof of the use of a “dangerous or deadly weapon,” which is not an element of attempted aggravated murder. However, in cases such as this one in which the counts of attempted aggravated murder included that defendant used a firearm as an additional material element, UUW may be a lesser included offense as it was here. See ORS 161.610(2) (use or threatened use of a firearm may be pleaded in the accusatory instrument and proved at trial as an element of aggravation).

Not only then is the most common theory of UUW a lesser-included of Attempted Murder w/ a firearm (assuming same victim), the two counts would merge in the same way a lesser-included offense mergers with a greater offense.

The same applies to murder w/ a firearm and UUW. Note that it does not apply to every theory of UUW.

For whatever reason, a lot of attorneys who handle murder cases miss this easy and slam-dunk argument. I assume on some level, it's because if a defendant is convicted of murder and UUW after trial, even the most ignorant judge will run the two counts concurrently. The additional conviction for UUW wouldn't increase the sentence or the PPS.

But on a more basic level, I believe fewer convictions is better than more convictions. And if it takes a 30-second argument to get one fewer convictions, just do it. Even if there will be absolutely no chance of any collateral impact once the defendant gets out of prison, who knows what DOC policies -- either now or in the future -- would be impacted by the number of convictions. And getting into the habit of thinking about merger and how it applies will help the attorney recognize the issue in cases where fewer convictions really will make a clear and substantive difference.