A challenge to severe Oregon sex offense sentences worth watching

Late last year, I blogged here and here about a fascinating and sad Oregon case involving a long mandatory prison term imposed on an adult female counselor convicted of unlawful heavy petting of her underage ward.  A helpful reader sent me this local news report on the oral argument in this case that took place last week before the Oregon Supreme Court.  Here are some details:

An attorney for a former employee of the Hillsboro Boy's and Girl's Club told the Oregon Supreme Court Tuesday that six-plus years in prison for touching her clothed breasts to the back of a 12-year-old boy's head amounted to cruel and unusual punishment.

A Washington County jury found Veronica Rodriguez, now 28, guilty of sex abuse in the first degree after Hillsboro investigators saw her breasts touch the boy's head while she ran her fingers through his hair at the club in 2005.

At sentencing, now-retired Judge Nancy Campbell said the circumstances only merited one year and four months in prison instead of the prescribed sentence of six years and three months required by 1994's voter-approved Measure 11.

Rodriguez and attorney Peter Garlan concede that Measure 11 is constitutional, but claim its application against Rodriguez violates Article 1, Section 16 — the proportionality clause of the Oregon Constitution.

Rodriguez's case is combined with another appeal from Linn County, where 36-year-old Darryl Buck was convicted of first-degree sex abuse for touching a 13-year-old girl's clothed buttocks several times during a fishing trip.  Garlan said the girl overreacted to Buck's using his hands to help her remain upright, and her "histrionics" had an effect on the jury.The judge agreed, and handed down a 17-month sentence, appropriate for the action, Garlan said.

The state's Court of Appeals rejected both judge's decisions, and said both defendants should serve another five years....

Department of Justice spokesperson Jake Weigler said Wednesday voters passed the measure to eliminate judges' discretion in a range of crimes. Clearly, Rodriguez and Buck fell within that range, he said. If Measure 11 is to be changed, it should be by the will of the voters or the legislature, he said.... 

Justice Robert D. Durham asked both attorneys if it was the role of the court to make an evaluation of offenders, when the law only mentions "the offense."  Should the court treat each offense as if it were a videotape of the act that turns on when the abuse begins and turns off when it ends? "Does that imply there should be no investigation into the actor?" Durham asked. And did that also imply there should be no consideration of whether a defendant lied on the stand, or lied to the police?

Though this article does not make clear whether the defendants in this case have also presented a federal constitutional challenges as well as the state constitutional challenge.  If they have and if the defendants do not get any relief from the state supreme court, these cases could possibly present interesting and important vehicles for raising an array of constitutional issues in the Supreme Court. 

Some related posts:

• Fascinating proportionality opinion from Oregon court
• More details and insights on Rodriguez case from Oregon

UPDATE:  I found the defendant's brief to the Oregon Supreme Court at this link.  It is hard to tell from a quick scan of the brief whether a formal Eighth Amendment claim is pressed by the brief.  But one aspect of the brief that jumped out was this notable paragraph under the argument summary:

Victim’s Position at Sentencing.  Several statutory and constitutional enactments over the past several decades guarantee the victim a voice at sentencing proceedings.  The victim’s mother accepts defendant as a member of the family and supported defendant throughout the course of the prosecution, through and including the sentencing hearing.

This paragraphs confirms my long-held belief that giving all victims a more formal voice and role at sentencing could and would often prove to be catalyst for more sensible sentencing outcomes and reforms.  In extreme cases, extreme victims will sometimes be eager for extreme sentences.  But I think in most cases, many victims are often eager for moderate sentences.