Press "Enter" to skip to content

Posts published in “Day: September 24, 2009”

A disproportionate sentence

supreme court

Oregon Supreme Court

This is what they're talking about when they talk about a court throwing out a policy explicitly backed by the voters, and imposing its own. At least, it probably will be presented that way. Or maybe what the people had in mind to do violates the state constitution, and the Supreme Court had to be the (lone) adult in the room who said, "no."

Odds are the merged cases of Oregon v. Veronica Rodriguez and Oregon v. Darryl Anthony Buck will be hotly debated, and that would be understandable. They may also stand as an unusual profile in courage. The justices here have to know that this one could come back to haunt them, if enough people pay attention to political slogans as opposed to the details of the case. (What are the odds?)

Here's the core of the case:

These two criminal cases, which we consolidated for argument and disposition, require us to interpret and apply the requirement in Article I, section 16, of the Oregon Constitution that "all penalties shall be proportioned to the offense."

Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute. Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times. When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand. Each of those touchings was unlawful because a jury in Rodriguez's case and a judge in Buck's case found that they had been for a sexual purpose - a fact that brought the physical contact within the definition of first-degree sexual abuse. Rodriguez and Buck were both convicted of that crime.

First-degree sexual abuse carries a mandatory sentence of six years and three months (75 months) in prison, under Ballot Measure 11 (1994). In each of these cases, however, the trial judge determined that the mandatory sentence was not "proportioned to the offense" committed by the defendant and therefore was unconstitutional under Article I, section 16. The trial courts imposed shorter sentences - 16 months in the case of Rodriguez and 17 months in the case of Buck. The state appealed the trial courts' sentencing rulings, and Rodriguez and Buck cross-appealed their convictions. The Court of Appeals affirmed the convictions, but agreed with the state that the trial courts should have imposed mandatory 75-month sentences.

The slippery terrain the Supreme Court had to walk: What, exactly was a proportional sentence? The justices could have taken a walk on answering the question. Instead, they chose to grapple with it.

The reasoning is a little complex, which may mean it will be attacked simplistically since it could prove hard to defend. But the most compelling slice of the argument may lie in this paragraph:

"An as-applied proportionality analysis that considers the facts of an individual defendant's specific criminal conduct is particularly significant when the criminal statute at issue covers a broad range of activity, criminalizing a variety of forms and intensity of conduct. In such a case, a harsh penalty might not, on its face, be disproportionate, because of the fact that the statute dealt, inter alia, with some extreme form of that conduct. However, when a defendant is convicted for engaging in only more minor conduct encompassed within the statute, the defendant may plausibly argue that the mandatory sentence, as applied to the particular facts of his or her case, is unconstitutionally disproportionate. To refuse even to consider defendants' as-applied challenge would not only be inconsistent with Huddleston, but would undermine the basic proportionality concept that more serious crimes should receive more severe sentences than less serious crimes and vice versa."

In other words, blindly sentencing according to Measure 11 undermines the whole idea that more serious crimes ought to be punished more severely than less-serious crimes - something most voters very likely would agree with. It may be a stronger argument than one cited in the conclusion that "this court's cases establish that a criminal penalty is unconstitutionally disproportionate to the offense, in violation of Article I, section 16, when imposition of the penalty would "shock the moral sense" of reasonable people."

If you view this decision as seriously undermining Measure 11, you're probably right. This is a shot at its heart.

NW . . .

Boeing continues to scramble for that air tanker business, but the Pentagon says it is opening up another round . . . A fine first-person blog post from Chuck Sheketoff, getting very specific on how people are being misled about the actual impact of this year's pair of Oregon tax increases . . . Oregon Representative Chip Shields named senator in a Democratic Portland district . . . Democratic Senator Rick Metsger won't run again, in what has been a close-margin district, which will lead to GOP targeting in that area . . . King County animal control going away, transitioning, or something . . . A Chicago Tribune editorial touts Boise State President Bob Kustra as a prospect for University of Illinois presidency . . . Twin Falls Times-News opines, "The governor needs $159 million to make the budgetary pot right. He'd already have most of it except for all those tax incentives the state gave away recently, to the likes of Micron Technology and Albertsons. How'd that work out for Idaho, anyway?" . . . Boise continues battle over air traffic control, may lose some of those functions to Salt Lake . . .

On end of life

Check out the fine New York Times blog post by writer Timothy Egan, telling the story of Annabel and Albert Kitzhaber - parents of former and possibly future governor John - and how they chose to die: Peacefully at home, with family, rather than "the tubes and the needles, the meds and smells and the squawk of television" at a hospital.

Egan pauses in wonderment at how, "for reasons both cynical and clinical, the American political debate on health care treats end-of-life care like a contagion — an unspeakable one at that."

The article is a thoughtful read, but check out too the comments below (and a lot of them have accumulated). The very first tells a story somewhat like the Kitzhabers. The third suggests, "This is a touching story, but I fear that Kitzhaber’s battle is an uphill one. For some reason, we Americans seem utterly incapable of conducting rational, mature, and nuanced discussions about issues such as the right to die. The adults always seem to get crowded out by the red-faced moral absolutists and the carnival crowd."