Solving the Gordian Knot of Attempted Murder EED

by: Ryan Scott • December 23, 2025 • no comments

A jury finding of extreme emotion disturbance can reduce a murder charge to a manslaughter conviction. And it recently got harder for the state to defeat. Richards v Brown, 345 Or App 321 (2025).

It's a substantial reduction, from a life-25 sentence to 10 years.

But a perennial complaint of defense lawyers is that EED -- though understood as a partial defense to murder -- is not a defense in any way to attempted murder. Seems unfair, but that's the law. Is there anything a defense lawyer can do?

Yes. Article I, section 16. There are legal and societal reasons why EED is a substantial mitigating factor. Consequently, EED almost certainly meets Gonzalez standard for application of Article I, section 16. State v. Gonzalez, 373 Or 248 (2025). A successful proportionality argument would still result in prison, but a non-Measure 11 sentence. State v. Fudge, 333 Or App 149 (2024).

I have developed a strong interest in expanding the scope of Article I, section 16. For those keeping score at home, here are other times I think you should consider pushing the envelope:

(1) When the defendant is highly mentally ill but not quite enough to meet a GEI standard.

(2) When the defendant has significant medical needs. (Compassionate release only applies to non-M11 sentences in Oregon.)

(3) When a lengthy sentence will only be imposed after the defendant is found rehabilitated by the parole board.

(4) When a defendant is convicted of sex abuse II based solely on the victim being 16 or 17, when there is a statute that makes the exact same crime a misdemeanor.