State v. Bartol

598

Argued and submitted November 14, 2019; judgment of conviction affirmed,

sentence of death vacated, and case remanded to circuit court for resentencing

October 7, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

DAVID RAY BARTOL,

Defendant-Appellant.

(CC 14C46903); (SC S064485)

496 P3d 1013

Defendant was convicted of committing a murder while confined in a penal or

correction facility, a crime that, at the time, constituted aggravated murder—the

only crime that is punishable by death in Oregon. Defendant was sentenced to

death. While defendant’s automatic and direct appeal of his conviction and death

sentence was pending in the Oregon Supreme Court, the legislature enacted

Senate Bill (SB) 1013 (2019), which amended the death penalty statutes such

that all of the forms of murder that previously had constituted aggravated mur-

der, including the one of which defendant had been convicted, were reclassified

as murder in the first degree and no longer were subject to the death penalty.

SB 1013 provided that the change applied only to crimes committed before, on,

or after the bill’s effective date, September 29, 2019, that were the subject of

sentencing proceedings occurring on or after that date—meaning that it did not

affect defendant’s death sentence. Defendant, who already had filed briefs rais-

ing numerous challenges to his conviction and death sentence, and amicus cur-

iae Oregon Capital Resources Center filed supplemental briefs, arguing, among

other things, that maintaining defendant’s death sentence when his crime of con-

viction no longer constituted aggravated murder and thus no longer was subject

to the death penalty violated the prohibitions on cruel and unusual punishment

in the Oregon and United States constitutions. Held: Defendant’s death sentence

cannot be maintained because doing so would violate the two special proportion-

ality requirements under Article I, section 16, of the Oregon Constitution: the

requirement that the death penalty be limited to offenders who commit a narrow

category of the most serious crimes and whose extreme culpability makes them

the most deserving of execution and the requirement that there be a fundamen-

tal, moral distinction between crimes that are punishable by death and those

that are not.

The judgment of conviction is affirmed. The sentence of death is vacated, and

the case is remanded to the circuit court for resentencing.

En Banc

On automatic and direct review of the judgment of con-

viction and sentence of death imposed by the Marion County

Circuit Court.

Cite as 368 Or 598 (2021) 599

Tracy A. Prall, Judge.

Timothy A. Sylwester, Assistant Attorney General, Salem,

argued the cause for respondent. Timothy A. Sylwester

and Jordan R. Silk, Assistant Attorneys General filed the

briefs. Also on the briefs were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Andrew D. Robinson, Deputy Public Defender, Office of

Public Defense Services, Salem, argued the cause and filed

the briefs for appellant. Also on the briefs was Ernest G.

Lannet, Chief Defender.

Jeffrey Erwin Ellis, Oregon Capital Resource Center,

Portland, and Richard L. Wolf, Richard L. Wolf PC, Portland,

filed the brief for amicus curiae Oregon Capital Resource

Center.

DUNCAN, J.

The judgment of conviction is affirmed. The sentence of

death is vacated, and the case is remanded to the circuit

court for resentencing.

600 State v. Bartol

DUNCAN, J.

This death penalty case is before this court on

automatic and direct review. ORS 138.052(1). In the trial

court, defendant was convicted of aggravated murder and

sentenced to death. On review, defendant makes numerous

challenges to both his conviction and sentence. We reject

defendant’s challenges to his conviction.1 But we accept one

of his challenges to his sentence. Specifically, we accept

his challenge based on Article I, section 16, of the Oregon

Constitution, which prohibits disproportionate punish-

ments. As we explain below, after defendant was convicted

and sentenced, the legislature enacted Senate Bill (SB) 1013

(2019), which, among other things, reclassified the criminal

conduct that had constituted “aggravated murder,” which

can be punished by death, to “murder in the first degree,”

which cannot be punished by death. The enactment of SB

1013 reflects a legislative determination that, regardless of

when it was committed, the conduct that had constituted

“aggravated murder” does not fall within the narrow cate-

gory of conduct for which the death penalty is appropriate.

Given that determination, we conclude that, although the

legislature did not make SB 1013 retroactive as to sentences

imposed before its effective date, maintaining defendant’s

death sentence would violate Article I, section 16. Therefore,

we affirm defendant’s conviction but reverse his death sen-

tence and remand the case for resentencing.

I. BACKGROUND

While in custody in the Marion County Jail await-

ing trial, defendant killed another person who was also in

custody. The state charged defendant with aggravated mur-

der, which, at the time, was defined to include murder com-

mitted by a person who was “confined in a state, county or

municipal penal or correctional facility or was otherwise

in custody when the murder occurred.” ORS 163.095(2)(b)

(2013), amended by Or Laws 2019, ch 635, § 1. Aggravated

1

We have considered all defendant’s challenges to his conviction—many of

which have been raised and rejected in other death penalty cases—and have

concluded that they are either unpreserved or without merit and that further

discussion would not benefit the bench or the bar.

Cite as 368 Or 598 (2021) 601

murder is the only Oregon crime punishable by death. The

state sought the death penalty, and, after a jury trial, defen-

dant was convicted of aggravated murder and sentenced to

death. This automatic and direct review followed.

After the parties filed their initial briefs on review,

the 2019 Legislative Assembly enacted SB 1013 (2019), which

substantially revised Oregon’s death penalty statutes. Or

Laws 2019, ch 635.

A. SB 1013

Prior to the enactment of SB 1013 in 2019, Oregon

had two categories of murder: “murder” and “aggravated

murder.” “Murder” was defined to include certain forms of

criminal homicide, ORS 163.115(1) (2013), amended by Or

Laws 2019, ch 635, § 4, and “aggravated murder” was defined

as “ ‘murder’ * * * committed under, or accompanied by,” any

one of 12 enumerated aggravating circumstances, ORS

163.095 (2013), amended by Or Laws 2019, ch 635, § 1. Thus,

prior to SB 1013, murder committed under or accompanied

by any one of 12 aggravating circumstances could result in

a death sentence. ORS 163.105(1)(a) (2013); Or Const, Art I,

§ 40.

SB 1013 changed that. It created a new category

of murder, “murder in the first degree”; reclassified all the

forms of murder that previously had been “aggravated mur-

der” as “murder in the first degree”; and provided a maxi-

mum sentence of life imprisonment without the possibility

of parole for “murder in the first degree.” Or Laws 2019,

ch 635, §§ 1, 3(1), (2). Thus, SB 1013 eliminated the death

penalty for all the forms of murder that previously had

been eligible for it, including the form that defendant had

committed—murder committed when confined to a penal or

correctional facility or otherwise in custody.

Although SB 1013 eliminated the death penalty for

all the forms of murder that previously had been eligible for

it, SB 1013 did not eliminate the death penalty entirely. It

redefined “aggravated murder” to include different forms

of murder, most of which are more serious forms of murder

than those that previously had been classified as “aggravated

602 State v. Bartol

murder.” Or Laws 2019, ch 635, § 1; ORS 163.095.2 The forms

of murder that constitute “aggravated murder” under the

new definition can be punished by death. ORS 163.105(1)(a).3

The legislative history of SB 1013 shows that the

legislature’s purpose in narrowing the definition of “aggra-

vated murder” was to ensure that Oregon’s death penalty

statutes do not violate the Eighth Amendment to the United

States Constitution, which prohibits cruel and unusual

punishments, including disproportionate punishments.

The United States Supreme Court has held that the Eighth

Amendment requires that the death penalty be “limited to

2

SB 1013 redefined “aggravated murder” as

“(1) Criminal homicide of two or more persons that is premeditated and

committed intentionally and with the intent to:

“(a) Intimidate, injure or coerce a civilian population;

“(b) Influence the policy of a government by intimidation or coercion; or

“(c) Affect the conduct of a government through destruction of property,

murder, kidnapping or aircraft piracy; or

“(2) Murder in the second degree, as defined in ORS 163.115, that is:

“(a)(A) Committed while the defendant was confined in a state, county or

municipal penal or correctional facility or was otherwise in custody; and

“(B) Committed after the defendant was previously convicted in any

jurisdiction of any homicide, the elements of which constitute the crime of

aggravated murder under this section or murder in the first degree under

ORS 163.107;

“(b) Premeditated and committed intentionally against a person under

14 years of age;

“(c) Premeditated, committed intentionally against a police officer as

defined in ORS 801.395, and related to performance of the victim’s official

duties; or

“(d) Premeditated, committed intentionally against a correctional,

parole and probation officer or other person charged with the duty of custody,

control or supervision of convicted persons, and related to the performance of

the victim’s official duties.”

As a result of SB 1013, there are now three categories of murder: “aggravated

murder,” “murder in the first degree,” and “murder in the second degree,” which

consists of the forms of murder that had been classified as “murder” prior to the

enactment of SB 1013. ORS 163.095; ORS 163.107; ORS 163.115.

3

In addition to redefining aggravated murder, SB 1013 made changes to the

requirements for imposition of a death sentence. Prior to SB 1013, a jury had

to answer four questions in the affirmative in order for a defendant to be sen-

tenced to death. ORS 163.150(1)(b) (2013), amended by Or Laws 2019, ch 635, § 5.

SB 1013 eliminated the question relating to whether a defendant constitutes a

continuing threat, and it imposed a “proof beyond a reasonable doubt” standard

of proof on the question relating to whether a defendant should receive a death

sentence. Or Laws 2019, ch 635, § 5.

Cite as 368 Or 598 (2021) 603

those offenders who commit ‘a narrow category of the most

serious crimes’ and whose extreme culpability makes them

‘the most deserving of execution.’ ” Roper v. Simmons, 543

US 551, 568, 125 S Ct 1183, 161 L Ed 2d 1 (2005) (quot-

ing Atkins v. Virginia, 536 US 304, 319, 122 S Ct 2242, 153

L Ed 2d 335 (2002)). Testifying in support of SB 1013, former

Oregon Chief Justice Paul J. De Muniz told legislators that

the “definition of aggravated murder in SB 1013 narrows the

cohort of murderers eligible to be put to death by the state, to

the ‘worst of the worst,’ consistent with the requirements of

the Eighth Amendment to the United States [Constitution].”

Testimony, Senate Committee on Judiciary, SB 1013, Apr 1,

2019, Ex 24 (statement of Paul J. De Muniz). Likewise,

Stephen Kanter, former Dean of Lewis & Clark Law School,

testified that “[w]hat SB 1013 does finally is reduce aggra-

vated murder in Oregon to that very close[,] narrow category

demanded by the US Supreme Court.” Testimony, Senate

Committee on Judiciary, SB 1013, Apr 1, 2019, Ex 3 (state-

ment of Stephen Kanter).

Opponents of SB 1013 understood that passage of

the bill would reflect a new assessment of the gravity of

the criminal conduct that was classified as “aggravated

murder” at the time. In written testimony, Marion County

Deputy District Attorney Katie Suver stated that the bill

would change the “entire definition of Aggravated Murder”

and, thereby, “repeal what the voters knew to be Aggravated

Murder in 1984,” when they enacted the death penalty stat-

ute that SB 1013 would amend. Testimony, House Committee

on Rules, SB 1013, June 5, 2019, Ex 14 (statement of Katie

Suver). Lane County District Attorney Patricia Perlow

argued that the legislature should not reclassify the con-

duct that was classified as “aggravated murder” at the time

because the 12 aggravating circumstances in the defini-

tion were “truly * * * aggravated circumstances, worthy of

whatever our most severe punishment is going to be.” Video

Recording, Senate Committee on Judiciary, SB 1013, June 5,

2019, at 1:22 (testimony of Patricia Perlow), https://olis.

oregonlegislature.gov (accessed Sept 23, 2021).

When SB 1013 was presented on the floor of each

legislative chamber, legislators told their colleagues that SB

1013 would narrow the definition of “aggravated murder”

604 State v. Bartol

so that it would apply only to the “worst of the worst,” in

order to comply with constitutional requirements. Senator

Prozanski carried the bill on the Senate floor, explaining:

“What Senate Bill 1013 will do is the following. It will

narrow the number of circumstances that qualif[y] for

aggravated murder. Specifically, premeditated and inten-

tional killing of two or more individuals carrying out a ter-

rorist act would be a qualifier. Also, committing murder

while the individual is incarcerated in a corrections facility

and has already been previously convicted of any type of

homicide. Third, for the intentional and premeditated mur-

der of a victim under the age of 14[.]”

Video Recording, Senate Committee on Judiciary, SB 1013,

May 21, 2019, at 38:00 (statement of Sen Floyd Prozanski),

https://olis. oregonlegislature.gov (accessed Sept 23, 2021).

After discussing the history of the death penalty in Oregon,

Senator Prozanski discussed the constitutional concerns

that motivated the bill:

“Currently, aggravated murder is subject to consti-

tutional challenges, as I stated. Number one, the U.S.

Supreme Court has made it very clear under the Eighth

Amendment that it needs to be very narrow in space [sic].

As the U.S. Supreme Court has stated, aggravated mur-

der must be reserved for those that are known as the worst

of the worst. We believe by narrowing the statute that we

currently have, we will in fact comply with what the U.S.

Supreme Court has stated.”

Id. (emphasis added). Likewise, when explaining the bill on

the House floor, Representative Williamson stated:

“I believe our aggravated murder statute, and therefore

our death penalty system in Oregon, is at serious constitu-

tional risk. The U.S. Supreme Court has held that a death

penalty system must be reserved for the worst of the worst

crime[s] in order to be constitutional, and that it must be

limited in its application. I believe this bill brings us closer

to the constitutional standards and requirements outlined

by the U.S. Supreme Court.”

Video Recording, House Committee on Judiciary, SB 1013,

June 19, 2019, at 3:07 (statement of Rep Jennifer Williamson),

https://olis.oregonlegislature.gov (accessed Sept 23, 2021)

Cite as 368 Or 598 (2021) 605

(emphasis added). With the issues thus framed, both cham-

bers approved SB 1013.

Governor Brown signed SB 1013 into law on August 1,

2019. In keeping with the expressions of the legislative

intent underlying SB 1013, when the Governor signed the

bill, she stated that, among other things, it “reserve[s]

death sentences for only the rarest and most heinous mur-

ders.” Governor Kate Brown, SB 1013 Ceremonial Signing

Remarks, Aug 1, 2019, https://www.oregon.gov/gov/media/

Pages/speeches/bill-signing-SB1013.aspx (accessed Sept 23,

2021).

SB 1013 provides that its changes to the defini-

tion of “aggravated murder” apply to “crimes committed

before, on or after the effective date of this 2019 Act that

are the subject of sentencing proceedings occurring on or

after” the bill’s effective date, September 29, 2019. Or Laws

2019, ch 635, §§ 30, 31. Therefore, under SB 1013, whether a

person can be sentenced to death for criminal conduct that

was classified as “aggravated murder” before SB 1013 but

is now classified as “murder in the first degree” depends on

whether the criminal conduct is the subject of a sentenc-

ing proceeding on or after September 29, 2019. Under the

bill, if a person engaged in conduct that was classified as

“aggravated murder” before September 29, 2019, but is not

sentenced until after that date, the person cannot be sen-

tenced to death. As described above, SB 1013 was enacted

after defendant had been convicted and sentenced and had

filed his opening brief on review.

B. Defendant’s Arguments About the Effect of SB 1013 on

the Constitutionality of His Death Sentence

One week after SB 1013 was signed by the Governor,

defendant moved to file a supplemental brief to address the

implications of the new law, and this court granted the

motion.

In his opening brief, defendant had argued, among

other things, that the death penalty is unconstitutional for

all crimes because it violates Article I, section 16, of the

Oregon Constitution and the Eighth Amendment to the

United States Constitution. Noting that “both constitutions

606 State v. Bartol

prohibit ‘cruel and unusual punishment,’ a phrase which

‘draw[s] its meaning from the evolving standards of decency

that mark the progress of a maturing society,’ ” he had

argued that “the death penalty’s national and worldwide

decline shows that it has become morally impermissible

under society’s standards of decency.” (Quoting Trop v.

Dulles, 356 US 86, 101, 78 S Ct 590, 2 L Ed 2d 630 (1958)

(plurality opinion).) In his supplemental brief, defendant

argued that “SB 1013 is further proof, if more was needed,

that standards of decency have evolved, both nationally and

in Oregon, to the extent that the death penalty is funda-

mentally morally impermissible and, therefore, unconsti-

tutional.” Alternatively, regarding the criminal conduct for

which he was convicted, defendant argued that “SB 1013’s

abolition of death penalty for murder aggravated solely by

its correctional setting is conclusive evidence that in Oregon,

at least, moral standards have evolved to the extent that

death is an impermissibly excessive punishment for that

crime.”

In his opening brief, defendant had also argued

that his death sentence violated Article I, section 16, and

the Eighth Amendment because Oregon’s then-existing

death penalty statutes did not sufficiently narrow the class

of persons eligible for the death penalty. Relying on the rule

that “an aggravating circumstance must genuinely narrow

the class of persons eligible for the death penalty and must

reasonably justify the imposition of a more severe sentence

on the defendant compared to others found guilty of mur-

der,” Zant v. Stevens, 462 US 862, 877, 103 S Ct 2733, 77 L

Ed 2d 235 (1983), defendant had argued that Oregon’s then-

existing death penalty statutes did not “provide a rational

method to determine who will be subject to the death penalty

and who will not.” In his supplemental brief, he argued that,

“by enacting SB 1013, the legislature stated unequivocally

that the correctional setting does not ‘reasonably justify the

imposition of a more severe sentence on the defendant com-

pared to others found guilty of murder.’ ” (Quoting Zant, 462

US at 877.)

The case proceeded to oral argument, after which

this court allowed the Oregon Capital Resource Center

Cite as 368 Or 598 (2021) 607

(OCRC) to appear as amicus curiae.4 In its subsequently filed

brief, OCRC asserted, among other things, that defendant’s

death sentence violates Article I, section 16, and the Eighth

Amendment because it does not comport with current stan-

dards of decency. See, e.g., Atkins v. Virginia, 536 US at

311 (claim that sentence is unconstitutionally excessive is

judged in accordance with evolving standards of decency, not

standards that prevailed when Bill of Rights was adopted).

As objective evidence of those standards, OCRC pointed to

(1) SB 1013’s narrowing of the definition of “aggravated mur-

der” and the fact that defendant’s conduct is no longer clas-

sified as “aggravated murder” and, thus, is no longer subject

to the death penalty; and (2) historical evidence that, accord-

ing to OCRC, “establishes that neither Oregon nor any other

state has executed an individual for a crime no longer clas-

sified as the most serious under state law and which is no

longer subject to the death penalty.” OCRC asserted that

there is

“a longstanding and vigorous local and national consensus

against the execution of an individual for a crime no longer

subject to the death penalty—even where the reclassifica-

tion and removal of that crime from eligibility for the death

penalty is by prospective only (or partially-prospective)

legislation.”

OCRC described historical facts that, in its view, demon-

strate that consensus, but it asked to supplement the appel-

late record because the facts “are not in [defendant’s] trial

record * * * as SB 1013 was not adopted at the time of his

trial.” This court allowed the parties and OCRC to file state-

ments of facts, as well as supplemental briefs addressing

what relevance, if any, those facts have to the constitution-

ality of defendant’s death sentence.

4

In its motion to appear as amicus curiae, OCRC stated that it expected that

individuals who were challenging their death sentences would raise new chal-

lenges based on SB 1013, which had become effective just over a month earlier.

OCRC reported that several individuals who had been challenging their death

sentences through habeas corpus proceedings in federal court had successfully

moved for stays of those proceedings so that they could file new post-conviction

relief petitions in state court to argue that, because the criminal conduct for

which they had been sentenced to death can no longer result in death sentences,

their death sentences are unconstitutional. OCRC also reported that it expected

that individuals who were already litigating post-conviction relief cases in state

court would amend their petitions to add claims based on SB 1013.

608 State v. Bartol

Defendant and OCRC filed a joint statement of

facts, the accuracy of which the state does not dispute.5 The

statement reviews the history of the death penalty in Oregon

and every other state. It details when the death penalty was

first authorized in each state and whether the death penalty

has ever been repealed by the state’s legislature, voters, or

courts. If the death penalty has been repealed, the state-

ment reports whether any person was executed while the

repeal was in effect. The statement covers more than 100

years of the history of the death penalty, and its comprehen-

sive and detailed survey shows that, when the death pen-

alty has been repealed—in part or in full—no person who

was sentenced to death before the repeal, but who could not

be sentenced to death after the repeal, has been executed.

In other words, according to defendant and OCRC, it shows

that “no state has executed someone for a crime that was not

subject to the death penalty on the day of the execution.”

After the filing of the statement of facts, defendant

and OCRC filed a supplemental brief addressing the impli-

cations of the history recounted in the statement of facts

and of SB 1013. The state also filed a supplemental brief.

There have been four rounds of briefing in this case,

including two rounds after oral argument. Defendant and

OCRC have raised many issues. In the first round of brief-

ing, defendant challenged both his conviction and his sen-

tence. In the subsequent rounds, which followed the enact-

ment of SB 1013, defendant raised additional challenges to

his sentence, as did OCRC.

As noted at the outset, we reject defendant’s chal-

lenges to his conviction—many of which have been raised

and rejected in other death penalty cases—without further

discussion. But, for the reasons explained below, we agree

5

The material in the statement of facts was drawn from two well-respected

national databases: (1) the Espy File, available at https://deathpenaltyinfo.org/

executions/executions-overview/executions-in-the-u-s-1608-2002-the-espy-file

(accessed Sept 24, 2021), which is maintained by the Inter-University Consortium

for Political and Social Research and which covers executions in the United

States between 1608 and 2002; and (2) the “Execution Database” maintained

by the Death Penalty Information Center (DPIC) in Washington D.C., available

at https://deathpenaltyinfo.org/executions/execution-database (accessed Sept 24,

2021) which covers executions from 1976 to the present.

Cite as 368 Or 598 (2021) 609

with his argument that, in light of the enactment of SB 1013

in 2019, his death sentence violates Article I, section 16, of

the Oregon Constitution.

II. ANALYSIS

As mentioned, defendant argues that his sen-

tence violates both Article I, section 16, of the Oregon

Constitution and the Eighth Amendment to the United

States Constitution.6 The state responds that defendant’s

Article I, section 16, challenge is barred by another section

of the state constitution: Article I, section 40. We turn to

that issue first.

A. Whether Defendant’s Article I, Section 16, Challenge Is

Barred

In 1984, Oregon voters approved two ballot mea-

sures, Measure 7, which reinstated the death penalty, and

Measure 6, which provided:

“The Constitution of the State of Oregon is amended by

creating a new section 40 to be added to and made a part of

Article I and to read:

“Section 40. Notwithstanding sections 15 and 16 of this

Article, the penalty for aggravated murder as defined by

law shall be death upon unanimous affirmative jury find-

ings as provided by law and otherwise shall be life impris-

onment with minimum sentence as provided by law.”

The state argues that the “notwithstanding” clause of

Article I, section 40 (the constitutional provision that resulted

from the voters’ adoption of Measure 6) “precludes any facial

or as-applied challenges to defendant’s death sentence that

are based on Article I, section[ ] * * * 16.”

This court addressed the scope of Article I, sec-

tion 40, in State v. Rogers, 352 Or 510, 513-25, 288 P3d

544 (2012). As we will explain, Rogers establishes that the

only types of challenges barred by Article I, section 40, are

6

Article I, section 16, provides, in part, “Excessive bail shall not be required,

nor excessive fines imposed. Cruel and unusual punishments shall not be

inflicted, but all penalties shall be proportioned to the offense.”

The Eighth Amendment provides, “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.”

610 State v. Bartol

challenges to the death penalty per se, that is, challenges

based on a theory that the death penalty is unconstitutional

in all circumstances.

In Rogers, the defendant argued that Article I, sec-

tion 40, had been adopted in violation of the “separate vote”

requirement for constitutional amendments. That require-

ment is set out in Article XVII, section 1, of the Oregon

Constitution, which provides, in part:

“When two or more amendments shall be submitted * * *

to the voters of this state at the same election, they shall

be so submitted that each amendment shall be voted on

separately.”

(Emphasis added.) As the court in Rogers explained, the

“ ‘separate vote’ requirement is ‘aimed at ensuring that the

voters are able to express their will in one vote as to only one

constitutional change.’ ” 352 Or at 514 (quoting Armatta v.

Kitzhaber, 327 Or 250, 269, 959 P2d 49 (1998)). It “focuses on

the form of the submission of an amendment and the poten-

tial changes to the existing constitution that the amendment

proposes.” Id. at 515. An amendment violates the “separate

vote” requirement if it proposes two or more substantive

changes to the constitution that are not “closely related.”

Id. Consequently, when determining whether an amend-

ment violates the “separate vote” requirement, a court must

determine how many substantive changes it makes to the

constitution and whether those changes are closely related.

In Rogers, the parties disputed how many substan-

tive changes Measure 6 had made to the constitution. The

defendant argued that the measure eliminated all types

of challenges to death sentences based on either Article I,

section 15, which, at the time, prohibited vindictive punish-

ments,7 or Article I, section 16, which prohibits cruel and

unusual punishments and disproportionate punishments.

Id. at 518. The state disagreed, arguing that Measure 6 was

more limited than the defendant contended. Id. at 515-16.

7

At the time, Article I, section 15 provided that “[l]aws for the punishment

of crime shall be founded on the principles of reformation, and not of vindictive

justice.” Or Const, Art I, § 15 (Original). The voters approved an amendment to

that section in 1996; it now provides that “[l]aws for the punishment of crime

shall be founded on these principles: protection of society, personal responsibility,

accountability for one’s actions and reformation.”

Cite as 368 Or 598 (2021) 611

This court agreed with the state, explaining that

Measure 6

“changes sections 15 and 16 by eliminating any consti-

tutional barriers that those sections potentially posed to

death as a sanction for aggravated murder; it does not ren-

der sections 15 or 16 otherwise inoperable. In other words,

the text of the measure appears to preclude challenges to

the death penalty as a sanction for aggravated murder; it

does not preclude other challenges under Article I, sections

15 and 16.”

Id. at 519.

Later in the Rogers opinion, when determining

whether all the substantive changes made by Measure 6

were closely related, this court again addressed the scope of

the measure’s limitation on challenges based on Article I, sec-

tion 15, or Article I, section 16. It explained that Measure 6

“contains only one provision and proposes to do only one

thing—prescribe the penalty for aggravated murder. All

of the other changes that Measure 6 effects are directed

at eliminating the potential constitutional barriers to the

imposition of that penalty posed by Article I, sections 15

and 16.”

Id. at 522-23. Thus, the only challenges to the death pen-

alty that Measure 6 precludes are those based on theories

that the death penalty violates either Article I, section 15, or

Article I, section 16, in all circumstances.

This court reiterated that understanding of Measure 6

in response to the defendant’s argument that the measure

did not allow voters to express their will in one vote as to

only one constitutional change, explaining:

“Defendant argues * * * that a voter conceivably could

favor one or more of the changes that Measure 6 effects

and oppose others. For example, defendant suggests, a

voter could support the measure’s directive that the pen-

alty for aggravated murder is death, but oppose excepting

that directive from the relevant provisions of Article I, sec-

tions 15 or 16. But, in so contending, defendant fails to rec-

ognize the limits of the measure’s effect on those sections. As

we have explained, Measure 6 ensures that Article I, sections

15 and 16, will not stand as barriers to imposition of the

612 State v. Bartol

death penalty. It does not otherwise permit that penalty to

be imposed in violation of those sections—for example, by

methods that are cruel and unusual. Because the measure

did not propose to eliminate all or any of the protections

afforded by sections 15 and 16, it was not possible for voters

to separately decide whether they wished to do so. A voter

who favored death as a penalty for aggravated murder could

not achieve that objective without also favoring removal of

potential barriers to imposition of that penalty, specifically

those found in Article I, sections 15 and 16.”

Id. at 524 (emphases added).

Thus, the only challenges to the death penalty that

Article I, section 40, bars are those that are entirely incom-

patible with the death penalty as a punishment for aggra-

vated murder as a general matter. For example, because a

voter could not simultaneously take a position supporting

the reinstatement of the death penalty and a position that

the death penalty is cruel and unusual in all circumstances,

Article I, section 40, precludes an Article I, section 16, chal-

lenge to the death penalty on the ground that it is cruel

and unusual in all circumstances. But, because a voter

could simultaneously take a position supporting the rein-

statement of the death penalty and a position that the death

penalty is cruel and unusual a punishment for certain cate-

gories of offenders, Article I, section 40, does not preclude an

Article I, section 16, challenge to the death penalty on the

ground that it is a cruel and unusual punishment for those

offenders.

Rogers makes clear that Article I, section 40, does

not preclude all Article I, section 15, and Article I, section

16, challenges to the death penalty. Indeed, in Rogers, this

court noted that, after the adoption of Article I, section 40,

the court “actually considered, and rejected on the merits,

certain challenges based on the ‘cruel and unusual’ and ‘pro-

portionate penalty’ provisions of Article I, section 16.” Id. at

520 n 10 (emphasis in original; citing State v. Rogers, 313 Or

356, 836 P2d 1308 (1992) cert den, 507 US 974 (1993); State

v. Isom, 313 Or 391, 837 P2d 491 (1992); State v. McDonnell,

313 Or 478, 837 P2d 941 (1992); State v. Langley, 314 Or 247,

839 P2d 692 (1992), adh’d to on recons, 318 Or 28 (1993);

State v. Moen, 309 Or 45, 786 P2d 111 (1990), abrogated in

Cite as 368 Or 598 (2021) 613

part on other grounds by State v. Turnidge (S059155), 359

Or 364, 374 P3d 853 (2016)). Therefore, Article I, section 40,

does not preclude this court from addressing defendant’s

claim that his death sentence violates Article I, section 16.

B. Whether Defendant’s Death Sentence Violates Article I,

Section 16

As mentioned, defendant argues that his death

sentence violates both Article I, section 16, and the Eighth

Amendment. Ordinarily, this court addresses state consti-

tutional claims before federal ones, State v. MacBale, 353

Or 789, 794, 305 P3d 107 (2013), and we do so here. But

defendant’s state and federal claims are similar, and he sup-

ports his state claim with federal cases. Consequently, it is

helpful to begin with an overview of the Eighth Amendment

and Article I, section 16, and the connections between the

two. As we will explain, case law construing the provisions

establishes that (1) each provision prohibits disproportion-

ate sentences; (2) whether a sentence is disproportionate

is to be determined based on current societal standards;

(3) legislative enactments are strong indicators of current

societal standards, but are not dispositive of whether a sen-

tence comports with those standards; and (4) when deter-

mining whether a sentence comports with those standards,

courts also consider, among other things, how the gravity

of the crime compares to the severity of the sentence and

how the severity of the sentence compares to the severity

of sentences imposed for other crimes. We turn first to the

Eighth Amendment and case law applying it, which, as we

will explain, this court has relied upon when construing

Article I, section 16.

1. Overview of the Eighth Amendment

The Eighth Amendment provides, “Excessive bail

shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.” Although the amend-

ment does not include an express proportionality require-

ment, the United States Supreme Court has long held that

the amendment prohibits disproportionate sentences. As the

Court stated in Weems v. United States, 217 US 349, 367, 30

S Ct 544, 54 L Ed 793 (1910), when holding that a sentence

614 State v. Bartol

violated the Eighth Amendment, “[I]t is a precept of jus-

tice that punishment for [a] crime should be graduated and

proportioned to [the] offense.” Since Weems, the Court has

“repeatedly applied this proportionality precept.” Atkins,

536 US at 311.

The Eighth Amendment is intended to protect indi-

viduals against abuse by the government. It has roots in

early English laws enacted in response to particular abuses,

but it was not intended to protect against only those abuses.

As the Supreme Court explained in Weems, for the principle

underlying the Amendment “to be vital,” it “must be capable

of wider application than the mischief which gave it birth.”

Weems, 217 US at 373. Thus, the Amendment is “progressive,

and is not fastened to the obsolete but may acquire meaning

as public opinion becomes enlightened by a humane justice.”

Id. at 378.

“The basic concept underlying the Eighth Amend-

ment is nothing less than the dignity of man.” Trop, 356

US at 100 (plurality opinion). “While the State has the

power to punish, the Amendment stands to assure that

this power be exercised within the limits of civilized stan-

dards.” Id. Because those standards change, the scope of the

Amendment’s protection is “not static.” Id. at 100-01. Rather,

“[t]he Amendment must draw its meaning from the evolving

standards of decency that mark the progress of a maturing

society.” Id. at 101; accord Atkins, 536 US at 311-12 (quoting

Trop, 356 US at 100 (plurality opinion)); see also Estelle v.

Gamble, 429 US 97, 102, 97 S Ct 285, 50 L Ed 2d 251 (1976)

(“The Amendment embodies broad and idealistic concepts

of dignity, civilized standards, humanity, and decency * * *

against which [the Court] must evaluate penal measures.”

(Internal quotation marks and citations omitted.)).

Consequently, whether a punishment is excessive is

“determined not by the standards that prevailed when the

Eighth Amendment was adopted in 1791 but by the norms

that ‘currently prevail.’ ” Kennedy v. Louisiana, 554 US 407,

419, 128 S Ct 2641, 171 L Ed 2d 525 (2008) (quoting Atkins,

536 US at 311); see also Roper, 543 US at 561 (stating that

the Court has “established the propriety and affirmed the

necessity of referring to ‘the evolving standards of decency

Cite as 368 Or 598 (2021) 615

that mark the progress of maturing society’ to determine

which punishments are so disproportionate as to be cruel

and unusual” (quoting Trop, 356 US at 100-01 (plurality

opinion)).

Courts play a critical role in protecting against dis-

proportionate punishments. Generally, legislatures deter-

mine the punishments that may be imposed for crimes, and

courts defer to those determinations. But the fact that a

punishment is authorized by a legislature does not mean

that the punishment comports with current standards of

decency as required by the Eighth Amendment, and courts

have an obligation to ensure that punishments do not vio-

late that requirement. As Justice Stewart stated,

“[a]lthough legislative measures adopted by the people’s

chosen representatives provide one important means

of ascertaining contemporary values, it is evident that

legislative judgments alone cannot be determinative of

Eighth Amendment standards since that Amendment was

intended to safeguard individuals from the abuse of legis-

lative power.”

Gregg v. Georgia, 428 US 153, 174 n 19, 96 S Ct 2909, 49 L Ed

2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)

(citing Weems, 217 US at 371-73); see also State v. Santiago,

318 Conn 1, 135, 122 A3d 1 (2015) (“When an appellate court

is asked to pass on the constitutionality of a mode of pun-

ishment, it is, almost invariably, after a defendant has been

found guilty of a crime and sentenced in accordance with a

duly enacted penal statute. If the fact that an elected legis-

lature had authorized and enacted the punishment in ques-

tion were enough to insulate it from judicial scrutiny, then

the freedom from cruel and unusual punishment would be

a hollow one.”).

The Supreme Court has held in a number of cases

that a sentence violated the Eighth Amendment because it

was disproportionate to the defendant’s crime, even though

the sentence was authorized by statute. For example, in

Solem v. Helm, 463 US 277, 303, 103 S Ct 3001, 77 L Ed 2d

637 (1983), the Court held that the imposition of a sentence of

life without parole, pursuant a recidivist statute, was uncon-

stitutional for the defendant’s seventh nonviolent felony,

616 State v. Bartol

passing a worthless check. See also Graham v. Florida, 50

US 48, 82, 130 S Ct 2011, 176 L Ed 2d 825 (2010) (holding

that the Eighth Amendment bars sentences of life without

parole for nonhomicide offenses committed by juveniles).

Of particular relevance to this case, the Court has held in

several cases that death is a disproportionate punishment

for certain crimes and offenders. E.g., Kennedy, 554 US at

437-38 (holding that the death penalty is a disproportionate

punishment for nonhomicide crimes against individuals);

Roper, 543 US at 575 (same for crimes committed by juve-

niles); Atkins, 536 US at 321 (same for crimes committed

by intellectually disabled defendants); Enmund v. Florida,

458 US 782, 797-801, 102 S Ct 3368, 73 L Ed 2d 1140 (1982)

(same for felony murder, if the defendant did not take or

attempt to take a life, or intend that lethal force would be

employed).

When determining whether a sentence is a dispro-

portionate punishment for a crime, the Supreme Court’s

task is to determine whether the sentence comports with

contemporary standards of decency. To do so, the Court con-

siders a variety of factors, including how many jurisdictions

authorize the sentence for the crime at issue, how frequently

the sentence is actually imposed and carried out for the

crime, whether the gravity of the crime corresponds to the

severity of the sentence, whether the severity of the sentence

corresponds to that of sentences imposed for other crimes,

and whether the severity of the sentence is justified by legit-

imate penological purposes. E.g., Kennedy, 554 US at 422-47

(applying that approach); Enmund, 458 US at 789-801 (same);

Coker v. Georgia, 433 US 584, 593-600, 97 S Ct 2861, 53 L Ed

2d 982 (1977) (plurality opinion) (same).

2. Overview of Article I, section 16

Article I, section 16, is similar to the Eighth

Amendment, but it includes an express proportional-

ity requirement. It provides, “Excessive bail shall not be

required. Excessive fines shall not be imposed. Cruel and

unusual punishments shall not be inflicted. All penalties

shall be proportioned to the nature of the offense.”

When construing Article I, section 16, this court

has built on federal precedent and, like the Supreme Court,

Cite as 368 Or 598 (2021) 617

has held that whether a sentence is a disproportionate pun-

ishment depends on current societal standards. In Sustar

v. County Court for Marion County, 101 Or 657, 665, 201 P

445 (1921), this court announced a standard for determin-

ing whether a punishment is disproportionate to an offense,

stating:

“In order to justify the court in declaring punishment cruel

and unusual with refence to its duration, the punishment

must be so proportioned to the offense committed as to

shock the moral sense of all reasonable men as to what is

right and proper under the circumstances[.]”

The court cited the Supreme Court’s decision in Weems as

the source of that standard. Id. In Weems, the Court con-

cluded that the Eighth Amendment was intended to pro-

hibit punishments that “would shock the sensibilities of

men,” 217 US at 375—a conclusion that points to societal

standards as the basis for a determination that a punish-

ment violates that Amendment. But, in Weems, the Court

had more to say about the Eighth Amendment’s reliance

on societal standards: It also held that the Amendment is

“progressive, and is not fastened to the obsolete, but may

acquire meaning as public opinion becomes enlightened by

a humane justice.” Id. at 378. Thus, when this court adopted

the Weems standard for purposes of the proportionality

requirement of Article I, section 16, in Sustar, it adopted

a standard that looks to evolving societal standards when

determining whether a sentence violates the proportional-

ity requirement. See Rogers, 313 Or at 380 (stating that, in

Sustar, this court cited Weems “for the Eighth Amendment

standard and adopt[ed] that standard for the purposes of

Article I, section 16”).

In State v. Wheeler, 343 Or 652, 175 P3d 438 (2007),

this court noted that, although it had interpreted Article I,

section 16, in a number of cases, it had not yet “reviewed

in any detail the origins of the proportionality requirement

in an effort to determine what the framers of the Oregon

Constitution were concerned about, and therefore intended,

when they adopted” the provision, id. at 656-57, and it

took the opportunity to conduct that review, id. at 657-67.

The court began with the text of Article I, section 16, and

concluded that the text evidenced an intent to require a

618 State v. Bartol

“comparative relationship” between punishments and the

offenses for which they are imposed:

“The term ‘proportion’ indicates a comparative relationship

between at least two things. See, e.g., 2 Noah Webster, An

American Dictionary of the English Language 45 (1828)

(<proportion> indicates a <comparative relation>). Here,

the two things being related are <penalties> and <the

offense>, and the provision requires that the penalties

for each particular offense be <proportioned>—that is,

comparatively related—to that offense. The strong implica-

tion of that requirement is that a greater or more severe pen-

alty should be imposed for a greater or more severe offense,

and, conversely, that a less severe penalty should be imposed

for a less severe offense.”

Id. at 655-56 (emphasis added). The court then examined

the history of the requirement, tracing its roots to early

English laws and reviewing William Blackstone’s views on

the necessity of proportionality in sentencing, noting that

those sources had informed the efforts of the drafters of early

American state constitutions. Id. at 656-67. Blackstone, the

court recounted, had “maintained that punishment should

be proportional to the offense in question and to the social

aims of criminal punishment generally. ‘The method * * *

of inflicting punishment ought always to be proportioned

to the particular purpose it is meant to serve, and by no

means exceed it[.]’ ” Id. at 658 (quoting 4 William Blackstone,

Commentaries on the Laws of England 12 (1769) (ellipsis and

brackets in Wheeler)). And the court quoted Blackstone’s

observation that

“[i]t has been therefore ingeniously proposed, that in every

state a scale of crimes should be formed, with a correspond-

ing scale of punishments, descending from the greatest to

the least; but, if that be too romantic an idea, yet at least

a wise legislator will mark the principal divisions, and not

assign penalties of the first degree to offenses of an inferior

rank.”

Id. at 662 (quoting 4 Blackstone, Commentaries at 18 (empha-

sis added)).

After reviewing proportionality requirements in

early state constitutions and noting that the records of

the Oregon Constitutional Convention do not reveal any

Cite as 368 Or 598 (2021) 619

discussions of Article I, section 16, the court concluded that

Article I, section 16, was based on the same concerns that

“had led Blackstone and later the framers of state consti-

tutions * * * to emphasize the need for proportionality in

sentencing.” Id. at 667. “At the most basic level,” the court

summarized, “the framers’ concern was that the penalty

imposed on a criminal defendant be ‘proportioned’ to the

specific offense for which the defendant was convicted—that

it bear the appropriate ‘comparative relation’ to the severity

of that crime.” Id.

Regarding the test for determining whether a

punishment violates Article I, section 16’s proportionality

requirement, the court in Wheeler looked to Sustar, in

which—as quoted above—the court had stated:

“In order to justify the court in declaring punishment cruel

and unusual with reference to its duration, the punish-

ment must be so proportioned to the offense committed as

to shock the moral sense of all reasonable men as to what

is right and proper under the circumstances.”

Wheeler, 343 Or at 668 (quoting Sustar, 101 Or at 665);

see also id. (noting that the court had “used the ‘shock the

moral sense’ standard” in subsequent cases). The court then

refined that test, explaining that it did not think that, in

Sustar, the court had

“intended the test literally—that is, that a penalty for a

particular crime would meet the proportionality require-

ment if a single ‘reasonable person’ could be found whose

moral sense was not ‘shocked’ by that penalty. Rather, we

read the court’s words as attempting to articulate a stan-

dard that would find a penalty to be disproportionately

severe for a particular offense only in rare circumstances.”

343 Or at 670. The court also noted that, when it had applied

the test in some cases, it had “looked to the legislative enact-

ment of the particular penalties at issue as an external

source of law to assist in determining whether those pen-

alties would shock the moral sense of reasonable people.”

Id. at 670-71. In other words, it had looked to legislative

enactments as indicators of current societal standards.

In Wheeler this court emphasized that it is the

legislature’s role to establish the penalties for violations of

620 State v. Bartol

criminal statutes, and that the court’s role is only to deter-

mine whether those penalties exceed constitutional limits.

Id. at 671-72. Later, in State v. Rodriguez/Buck, 347 Or 46,

58, 217 P3d 659 (2009), the court reiterated that point, stat-

ing that the legislature plays “the central role” in establish-

ing penalties for crimes and that “[i]t is not the role of this

court to second-guess the legislature’s determination of the

penalty or range of penalties for a crime.” “However,” the

court continued,

“it is the role of the court to ensure that sentences conform

to requirements that have been in our constitution for 150

years. And, when we conclude that, because of its length,

a sentence is inconsistent with Article I, section 16, as we

have on at least three occasions, we should hold that sen-

tence unconstitutional.”

Id. (citing State v. Shumway, 291 Or 153, 630 P2d 796 (1981);

Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955); State

v. Ross, 55 Or 450, 104 P 596, modified on reh’g, 55 Or 474,

106 P 1022 (1910), appeal dismissed, 227 US 150, 33 S Ct

220, 57 L Ed 458 (1913)). Thus, this court must give effect

to the proportionality requirement of Article I, section 16,

which “is not merely aspirational, but was intended to pro-

tect Oregon’s citizens against penalties that are dispropor-

tionate to their offenses.” Id. at 80.

This court has fulfilled its role under Article I,

section 16, on more than one occasion, reversing sentences

that it deemed to be disproportionate to the defendants’

crimes, even though the sentences were authorized by stat-

ute. For example, in Rodriguez/Buck, which involved two

cases that had been consolidated for review, this court

affirmed the trial courts’ conclusions that the statutorily

mandated 75-month sentence for first-degree sexual abuse

was disproportionate to the defendants’ crimes where

(1) the defendants’ conduct involved limited physical touch-

ing over clothed body parts; (2) the conduct was far less

severe than other conduct that fell within the broad defi-

nition of first-degree sexual abuse and was punishable by

the same sentence; (3) the conduct was also less severe than

conduct covered by the second-degree sexual abuse statute

that was punishable by a far shorter sentence; and (4) the

Cite as 368 Or 598 (2021) 621

defendants had no prior convictions. 347 Or at 67-80.8 And,

in State v. Davidson, 360 Or 370, 391, 380 P3d 963 (2016),

this court held that a life sentence imposed pursuant to a

recidivist statute was disproportionate to the defendant’s

crime, public indecency, where the defendant’s criminal his-

tory “include[d] no offenses more serious than public inde-

cency (and no other misconduct that otherwise support[ed]

a conclusion that he pose[d] a significant physical danger to

society).”

To summarize, Article I, section 16, expressly pro-

hibits disproportionate punishments. It embodies “the basic

proportionality concept” that “more serious crimes should

receive more severe sentences than less serious crimes

and vice versa.” Rodriguez/Buck, 347 Or at 61. Or, to echo

Blackstone, “penalties of the first degree” should not be

assigned to “offenses of an inferior rank.” 4 Blackstone,

Commentaries at 18, quoted in Wheeler, 343 Or at 662.

Like the Eighth Amendment’s proportionality requirement,

Article I, section 16’s proportionality requirement must be

interpreted based on current societal standards. It is not

static; it evolves as societal standards change. When deter-

mining whether a punishment is disproportionate, courts

apply the standards that currently prevail. And finally,

while it is the role of the legislature to establish penal-

ties for criminal statutory violations, it is the role of the

courts to give effect to the constitutional proportionality

requirement—by setting aside punishments that, under

prevailing societal standards, are disproportionate to the

offenses for which they are imposed.

3. Special proportionality requirements for the death

penalty

The basic proportionality concept that the gravity

of an offense should correspond to the severity of the pun-

ishment gives rise to special rules for the death penalty. As

we will explain, the Supreme Court has so held for the pur-

poses of the Eighth Amendment, and we do so here for the

purposes of Article I, section 16.

8

The sentencing statute at issue in Rodriguez/Buck had been enacted by the

voters, exercising their legislative authority. 347 Or at 79.

622 State v. Bartol

The death penalty is the most severe punishment,

and it differs in kind from all other punishments. It is

“unique in its severity and its irrevocability.” Gregg, 428 US

at 187 (opinion of Stewart, Powell, and Stevens, JJ.). “Death

is today an unusually severe punishment, unusual in its

pain, in its finality, and in its enormity. No other existing

punishment is comparable to death in terms of physical and

mental suffering.” Furman v. Georgia, 408 US 238, 287, 92

S Ct 2726, 33 L Ed 2d 346 (1972) (Brennan, J., concurring).

“The unusual severity of death is manifested most clearly

in its finality and enormity. Death, in these respects, is in a

class by itself.” Id. at 289. It is “qualitatively different from a

sentence of imprisonment, however long. Death, in its final-

ity, differs more from life imprisonment than a 100-year

prison term differs from one of only a year or two.” Woodson

v. North Carolina, 428 US 280, 305, 96 S Ct 2978, 49 L Ed

2d 944 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)

Because death is the most severe punishment,

it must be reserved for the most serious offenses. As the

Supreme Court has held, the death penalty “must be lim-

ited to those offenders who commit ‘a narrow category of the

most serious crimes’ and whose extreme culpability makes

them ‘the most deserving of execution.’ ” Roper, 543 US at

568 (quoting Atkins, 536 US at 319). “The rule of evolving

standards of decency with specific marks on the way to

full progress and mature judgment means that resort to

the penalty must be reserved for the worst of crimes and

limited in its instances of application.” Kennedy, 554 US at

446-47. That is, it must be reserved “for those crimes that

are so grievous an affront to humanity that the only ade-

quate response may be the penalty of death.” Id. at 437

(internal quotation marks omitted).

Relatedly, because the death penalty must be

reserved for the most serious crimes, death-eligibility factors

must provide a “fundamental, moral distinction” between a

crime that is serious enough to deserve the death penalty

and one that is not. Id. at 438. A factor justifying imposition

of the death penalty must both “genuinely narrow the class

of persons eligible for the death penalty and must reason-

ably justify the imposition of a more severe sentence on the

Cite as 368 Or 598 (2021) 623

defendant compared to others found guilty of murder.” See

Zant, 462 US at 877 (so holding when evaluating whether

statutory aggravating circumstances sufficiently circum-

scribe the class of persons eligible for the death penalty).

We agree with the Supreme Court that the death

penalty must be reserved for the “worst of crimes,” Kennedy,

554 US at 446-47, and that there must be a “fundamental,

moral distinction” between crimes that are punishable by

death and those that are not, id. at 438. Those require-

ments are consistent with Article I, section 16’s proportion-

ality requirement that the most severe punishments should

be reserved for the most serious crimes, and we now apply

them in our Article I, section 16, analysis of defendant’s

death sentence.

4. The effect of SB 1013 on defendant’s death sentence

As recounted above, through the enactment of

SB 1013, the legislature chose to narrow the definition of

“aggravated murder” so that it would be limited to conduct

that the legislature regarded as the “worst of the worst.”

In hearings on SB 1013, proponents and opponents of the

bill alike explained that the bill asked legislators to make

an assessment regarding the relative gravity of the conduct

that was classified as “aggravated murder” at the time.

Specifically, they explained that the bill asked legislators

to determine that that conduct was not the “worst of the

worst” and to reclassify it as “murder in the first degree,”

the maximum sentence for which would be life in prison

without parole. The legislators who carried the bill in each

chamber of the legislature did the same. Senator Prozanski

told the Senate that “aggravated murder must be reserved

for those that are known as the worst of the worst” and that

SB 1013 would do that. Video Recording, Senate, SB 1013,

May 21, 2019, at 38:00 (statement of Sen Floyd Prozanski).

Likewise, Representative Williamson told the House that SB

1013 would reserve the death penalty for “the worst of the

worst.” Video Recording, House, SB 1013, June 19, 2019, at

3:07 (statement of Rep Jennifer Williamson). With the issue

clearly presented, the legislature passed SB 1013. Thus, the

enactment of the bill reflects a legislative determination

that the conduct that was classified as “aggravated murder”

624 State v. Bartol

before the enactment of SB 1013 does not fall within the

narrow category of conduct for which the death penalty can

be imposed.

Importantly, the legislature made that determina-

tion with respect to conduct committed both before and after

the effective date of SB 1013. That is evidenced by the fact

that the legislature provided that SB 1013 applies to “crimes

committed before, on or after [its effective date] * * * that are

the subject of sentencing proceedings that occur on or after”

that date. Or Laws 2019, ch 635, § 30. That provision shows

that the legislature did not regard conduct committed before

the effective date as more culpable than conduct committed

after it.

Under SB 1013, whether a person who committed

conduct that was previously classified as “aggravated mur-

der” but is now classified as “murder in the first degree” can

be sentenced to death depends on the person’s sentencing

date, not on the relative gravity of the conduct. To illustrate:

If two persons jointly engaged in conduct that was previ-

ously classified as “aggravated murder” but is now classified

as “murder in the first degree,” and the first person was sen-

tenced before SB 1013’s effective date but the second per-

son was sentenced after that date, the first person could be

sentenced to death, but the second person could not. As that

hypothetical illustrates, SB 1013 creates a proportionality

problem: It allows the execution of persons whose conduct

the legislature has determined is not the worst of the worst

and whose culpability is no different from those who cannot

be executed. Under SB 1013, persons who engage in exactly

the same conduct, at exactly the same time, can receive

uniquely different sentences: one cannot be executed, but

the other one can, even though the legislature has deter-

mined that the conduct is not the type for which death sen-

tences can be imposed.

Here, defendant was sentenced to death before the

effective date of SB 1013, so that legislation does not directly

apply to his sentence. But our task is not to determine the

application of SB 1013 to defendant’s sentence—instead, we

must evaluate the constitutionality of his sentence under

Article I, section 16, in light of current societal standards.

Cite as 368 Or 598 (2021) 625

Legislative enactments are strong indicators of those stan-

dards, and the enactment of SB 1013 shows that the legisla-

ture has determined that, regardless of when it was commit-

ted, conduct that was previously classified as “aggravated

murder” but is now classified as “murder in the first degree”

does not fall within the narrow category of crimes for which

the death penalty can be imposed. Importantly, that moral

judgment stands apart from the question of retroactivity.

Although the legislature did not make SB 1013 retroactive

as to sentences imposed before its effective date, the enact-

ment of the bill itself reflects a judgment that conduct that

was previously classified as “aggravated murder” does not

fall within the narrow category of conduct that can be pun-

ished by death, as opposed to lesser sentences, including

life imprisonment. Consequently, maintaining defendant’s

death sentence in this case would violate two special pro-

portionality requirements that, under Article I, section 16,

apply to the death penalty: the requirement that the death

penalty “be limited to those offenders who commit ‘a nar-

row category of the most serious crimes’ and whose extreme

culpability makes them ‘the most deserving of execution,’ ”

Roper, 543 US at 568 (quoting Atkins, 536 US at 319), and

the requirement that there be “a fundamental, moral dis-

tinction” between crimes that are punishable by death and

those that are not, Kennedy, 554 US at 438. Maintaining

his death sentence would allow the execution of a person

for conduct that the legislature has determined no longer

justifies that unique and ultimate punishment, and it would

allow the execution of a person for conduct that the legisla-

ture has determined is no more culpable than conduct that

should not result in death. Therefore, in light of the legisla-

ture’s enactment of SB 1013, we conclude that defendant’s

sentence violates Article I, section 16.9

9

We emphasize that our decision in this case is based on special proportion-

ality rules that apply to the death penalty, which are the result of the unique dif-

ferences between the death penalty and all other punishments, discussed above.

368 Or at 621-23.

In addition, we note that our conclusion is consistent with how others have

responded to similar changes in the law. As the historical information submitted

by defendant and OCRC shows, whenever a state’s laws have changed so that

persons with existing death sentences would not be eligible for the death penalty

if they were sentenced under the new law, those persons have not been executed.

As defendant and OCRC summarize:

626 State v. Bartol

The judgment of conviction is affirmed. The sen-

tence of death is vacated, and the case is remanded to the

circuit court for resentencing.

“When the death penalty was thrice eliminated here in Oregon—in 1914

and 1964 by constitutional amendment and in 1981 by this Court’s decision

in State v. Quinn, 290 Or 383, 623 P2d 630 (1981)—all outstanding death

sentences were vacated. And the same result appears in other states: every

state that has enacted legislation prospectively abolishing the death penalty

has nevertheless overturned all remaining death sentences. Likewise, when

states have exempted certain defendants from execution but otherwise left

the death penalty in place, courts have overturned the death sentences of

condemned prisoners who would otherwise have fit within the exemption,

but for the date of their crimes. This has been the outcome even where the

legislature clearly and expressly intended that its repeal not reach existing

death sentences.”