« State judge makes pitch for ignition locks for drunk drivers | Main | "Time for a Moratorium to Rethink Executions" »

September 24, 2009

Oregon Supreme Court declares two non-capital sentences disproportionate

A helpful reader altered me to today's ruling by the Oregon Supreme Court in State v. Rodriguez/Buck, No. S055720 (Ore. Sept 24, 2009) (available here), in which the Court relies on the state's constitutional proportionality provision to deem two sentences in two sex offense cases too long. Here is how the opinion starts:

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. ORS 163.427(1)(a)(A). 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.  State v. Rodriguez, 217 Or App 351, 174 P3d 1100 (2007); State v. Buck, 217 Or App 363, 174 P3d 1106 (2007).

Defendants filed petitions for review, which we allowed. For the reasons that follow, we affirm defendants' convictions. However, we reverse the decisions of the Court of Appeals as to sentencing and affirm the sentences imposed by the trial courts. We conclude that the imposition of the mandatory 75-month sentence for first-degree sexual abuse, as applied to the facts of Rodriguez's and Buck's offenses, would violate the constitutional requirement that the penalty be proportioned to the offense.

September 24, 2009 at 11:28 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Oregon Supreme Court declares two non-capital sentences disproportionate:

» Proportionality from Crime and Consequences Blog
The Oregon Constitution, unlike the federal, actually does have a proportionality of punishment requirement in black and white. AP reports, "The Oregon Supreme Court ruled Thursday that more than six years in prison was too harsh a penalty for a... [Read More]

Tracked on Sep 24, 2009 1:51:56 PM


Given the 2007 date of the appellate decisions, and the rulings of the Oregon Supreme Court, both defendants are entitled to immediate release from their sixteen and seventeen month long sentences respectively, absent the unlikely possibility that they were released on bond pendiing appeal. Both have served sentences well in excess of their lawful terms.

Also, they will each suffer all of the collateral consequences of having a serious sex felony on their criminal records, unless Oregon provides exceptions for juvenile offenses for people tried as adults when they reach majority.

As the facts indicate, this conduct really shouldn't be a felony at all, at best, this conduct looks like a petty misdemeanor, and given the ages of those involved, in most states (with a Romeo and Juliet exception) it wouldn't be criminal conduct at all. These appear to be the equivalent of statutory rape convictions.

Both cases are situations where a pardon is in order.

Posted by: ohwilleke | Sep 24, 2009 2:48:14 PM

I agree ohwilleke. But in this environment even small victories make me clap my hands with glee.

Posted by: Daniel | Sep 24, 2009 3:07:49 PM

A great victory for common sense. As a matter of due process and or "cruel and unusual punishment" all penalties should be proportional to the offense. To the extent that any mandatory minimum senence is not, it should be held unconstitutional, as was done here. Kudos to the Oregon Supreme Court. I'm glad I live and practice law in this state!!

Posted by: Michael R. Levine | Sep 24, 2009 4:03:22 PM

Is is just me, or does the State of Oregon actually get it??? Looking at the entire way they deal with registration all the way down to this State Supreme Court ruling, it seems to me that Oregon is a bit of a positive light in the darkness of draconian legislation throughout the U.S. these days. Anyone agree? disagree?

Posted by: George | Sep 24, 2009 6:21:35 PM

Ohwilleke: They won on their constitutional arguments in the trial court, so both defendants already served their reduced sentences and are out of prison. They were both lucky to have judges willing to stick their necks out so they could defend their shorter sentences instead of trying to shorten longer ones.

Posted by: Aaron | Sep 24, 2009 7:49:14 PM

Yes, I think Oregon in general is a more progressive state. Of course, some of the other states would say that Oregon doesn’t get it, but that’s another issue.

Posted by: Marc Shepherd | Sep 25, 2009 9:41:11 AM

Very useful information! Thanks! Great Blog!

I’m glad to see this post.

Thanks again guys!

Posted by: חלקי חילוף לרכב בירושלים | Jan 3, 2011 8:33:21 AM

Dont you know Oregon is tough on crime. See how many folks are in prison? aren't our DA's and laws making us ever so much safer?

Posted by: Litecubes | Feb 28, 2013 12:51:20 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB