"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

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.

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