State v. Gonzalez

248 January 30, 2025 No. 5

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

VANESSA AMADA GONZALEZ,

Petitioner on Review.

(CC 17CR78352) (CA A173971) (SC S070433)

On review from the Court of Appeals.*

Argued and submitted May 9, 2024.

Jonathan N. Schildt, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Kali Montague, Deputy Public Defender, Oregon Public

Defense Commission, Salem, argued the cause and filed the

briefs for petitioner on review. Also on the briefs was Ernest

G. Lannet, Chief Defender, Criminal Appellate Section.

Brittney Plesser and Malori Maloney, Oregon Justice

Resource Center, Portland, and Jeffrey Ellis, Oregon

Capital Resource Center, Portland, filed the brief for amici

curiae Oregon Justice Resource Center and Oregon Capital

Resource Center.

Before Flynn, Chief Justice, and Duncan, Garrett,

DeHoog, James, Masih, Justices, and Nakamoto, Senior

Judge, Justice pro tempore.**

GARRETT, J.

The decision of the Court of Appeals is affirmed.

______________

* Appeal from Marion County Circuit Court, Audrey J. Broyles, Judge. 326

Or App 587, 534 P3d 289 (2023).

** Bushong, J., did not participate in the consideration or decision of this

case.

Cite as 373 Or 248 (2025) 249

250 State v. Gonzalez

GARRETT, J.

The issue in this criminal case is whether a

90-month mandatory minimum sentence for defendant’s

convictions for first-degree arson would violate the pro-

portionality clause of Article I, section 16, of the Oregon

Constitution, which provides that “all penalties shall be

proportioned to the offense.” Defendant was convicted after

intentionally causing a fire in her apartment building that

resulted in property damage and serious injuries to another

resident. During sentencing, after the trial court reviewed

various circumstances of defendant’s life that it found to

be mitigating, the court concluded that the mandatory

90-month prison sentence was unconstitutionally dispropor-

tionate to her offense and imposed a 60-month term of pro-

bation instead. On the state’s appeal, the Court of Appeals

reversed, holding that the trial court had erred in relying on

defendant’s personal characteristics and circumstances in

its proportionality analysis. State v. Gonzalez, 326 Or App

587, 534 P3d 289 (2023). We allowed defendant’s petition for

review to consider that question. For the reasons that follow,

we affirm the decision of the Court of Appeals.

I. BACKGROUND

Defendant lived on the second floor of a two-story

apartment building with four units, two on the upper floor

and two on the lower. In November 2017, in an apparent sui-

cide attempt, defendant assembled a variety of combustible

household items, including furniture and papers, on the land-

ing between the two upper story apartments, just in front of

her doorway. After adding flammable items to the pile, includ-

ing charcoal briquets doused with lighter fluid, defendant lit

the items on fire, went back into her apartment, and shut the

door. Five other people were in the building at the time.

A man who lived across the street from defen-

dant’s building noticed the fire, which by then had spread

to the stairwell, and tried to put it out. When his efforts

were unsuccessful, he notified the family who lived below

defendant and urged them to leave the building. As they left

their apartment, defendant began yelling at them from her

windowsill, telling them to go back inside and saying that

Cite as 373 Or 248 (2025) 251

she wanted them to die with her. The two men who shared

the other second-floor apartment soon also noticed the fire.

One jumped out a window and was uninjured. The other

man tried to leave through the front door of the apartment.

When he opened the door, the fire “flashed” and rushed

toward him, severely burning him and blocking his escape.

He eventually was also able to jump to safety, but he was

hospitalized for three months due to his burn injuries, fol-

lowed by two months in a physical therapy facility, and he

has lasting scars on his arm, neck, and shoulder from the

burns. Defendant’s apartment was not damaged; her door

remained closed, which protected it from the heat and fire.

Defendant was charged with, among other things,

five counts of attempted murder, five counts of first-degree

arson, and one count of second-degree assault. At the ensu-

ing bench trial, defendant presented evidence that, for

several years preceding the incident, she had experienced

physical and emotional trauma as a result of mental ill-

ness. She also presented evidence that, in the weeks before

the fire, she had attempted suicide multiple times, she had

been evicted from her apartment, her electricity had been

shut off, her cousin had died from a drug overdose, and the

Department of Human Services had removed her children

from her care. Additionally, defendant presented evidence

that she had used methamphetamine during that period,

which had triggered a psychotic episode in her. Defendant

conceded that she was not relying on the affirmative defense

of guilty except for insanity (GEI), which requires a show-

ing of a “qualifying mental disorder.”1 However, she argued

that the trial court should find that her voluntary intoxica-

tion due to methamphetamine use had negated her intent

or that she had “mental difficulties coupled with” metham-

phetamine use that negated her intent under the “partial

1

Under ORS 161.295(1), a person is guilty except for insanity, “if, as a result

of a qualifying mental disorder at the time of engaging in criminal conduct,

the person lacks substantial capacity either to appreciate the criminality of the

conduct or to conform the conduct to the requirements of law.” Subsection (2) of

that statute provides that the term “qualifying mental disorder” does not include

“abnormalit[ies] manifested only by repeated criminal or otherwise antisocial

conduct” or “constituting solely a personality disorder.” At trial, a defense expert

testified that, at the time of the alleged offenses, defendant was experiencing a

“stimulant-induced psychotic disorder,” which the parties agree is not a qualify-

ing mental disorder for purposes of the guilty-except-for-insanity defense.

252 State v. Gonzalez

responsibility doctrine.” See ORS 161.125 (voluntary intoxi-

cation is not a defense but defendant may offer evidence that

defendant used drugs when relevant to negate an element

of the crime, including intent); ORS 161.300 (evidence of a

“qualifying mental disorder” is admissible if relevant to the

issue of whether the actor did or did not have “the intent

which is an element of the crime”).

The trial court rejected those arguments. It found

that defendant “intentionally set the fire [and] * * * inten-

tionally damaged property * * * and thereby recklessly

placed others in danger of physical injury,” and it convicted

her of five counts of first-degree arson.2 The court rejected

defendant’s contention that she had lacked the requisite

mental state for that crime because, “despite [her] mental

health considerations,” the court found that defendant took

“volitional steps” in starting the fire. The court also found

that the arson had “presented a threat of serious physical

injury,” a finding that both increased the crime seriousness

of the offense for purposes of the sentencing guidelines and

subjected defendant to a 90-month mandatory minimum

prison sentence under ORS 137.700(2)(b)(A).

The court acquitted defendant on the charges of

attempted murder, finding that she had not had the specific

intent to kill anyone. The court also acquitted defendant of

the charge of second-degree assault (because that charge,

too, required an intentional mental state that the court

found defendant to have lacked), but it convicted defendant

of the charge of third-degree assault for recklessly causing

serious physical injury to her neighbor, under circumstances

manifesting extreme indifference to the value of human life.

ORS 163.165(b) (so defining third-degree assault).

At sentencing, defendant argued that, as applied to

her, the 90-month mandatory minimum sentence for arson

was unconstitutionally disproportionate under Article I,

section 16, of the Oregon Constitution and the Eighth

Amendment to the United States Constitution.

The trial court agreed with defendant. The court

acknowledged that defendant’s conduct was “egregious,” that

2

Those counts were merged at sentencing.

Cite as 373 Or 248 (2025) 253

she had engaged in volitional acts in setting the fire with other

residents present, that one resident had suffered “significant

and substantial” physical injuries because of her conduct,

and that all residents of the building had suffered emotional

injuries. In addition, the court agreed with the state that

a 90-month sentence was not facially disproportionate—

that is, it was not disproportionate in relation to the ele-

ments of the crime or in relation to other crimes that result

in similar sentences.

However, in the trial court’s view, those factors were

not exclusive. The court had considered in mitigation the

fact that defendant had no criminal history, but the court

also stated that it could consider “mitigating facts in assess-

ing moral culpability,” such as the “psychological paradigm

of [defendant], all factors internal and external as a factor

in the determination of proportionality.” In the court’s view,

those factors included defendant’s unstable childhood, later

traumatic events that she had experienced, the multitude of

stressful events that had occurred in the weeks and months

preceding the fire, the influence of defendant’s metham-

phetamine use on her psychological health, and her diag-

noses of depression, adjustment disorder, anxiety, and post-

traumatic stress disorder. The court observed that, despite

facing those challenges and obstacles, defendant had gone

through life with no interaction with the criminal justice

system until a “convergence of stressors”—including, among

other things, her suicide attempts, the eviction notice, and

the loss of her children—“caused her to snap.” Finally, the

court observed that, since her incarceration, defendant’s

mental health had improved and that she had taken respon-

sibility for her conduct and was remorseful.

For all those reasons, the court concluded that the

90-month mandatory minimum sentence was dispropor-

tionate as applied. The court departed from that sentence

as well as the guidelines range, which could have resulted

in an even longer sentence, and sentenced defendant to a

60-month term of supervised probation with orders to com-

plete drug-addiction and mental-health treatment.

The state appealed, and the Court of Appeals

reversed. That court reviewed the trial court’s ruling for

254 State v. Gonzalez

legal error and concluded that the 90-month mandatory

minimum sentence required by ORS 137.700(2)(b)(A) was

not constitutionally disproportionate as applied. Gonzalez,

326 Or App at 589. We allowed defendant’s petition for

review.

II. ANALYSIS

Article I, section 16, of the Oregon Constitution

requires criminal sentences to be proportionate to the

offense, providing, as pertinent here, that “[c]ruel and

unusual punishments shall not be inflicted, but all penalties

shall be proportioned to the offense.”3 In State v. Wheeler, 343

Or 652, 667, 175 P3d 438 (2007), this court undertook a his-

torical examination of the meaning of Article I, section 16,

observing that,

“[a]t the most basic level, 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.”

(Internal quotation marks omitted.) Since 1921, we have

repeatedly stated that a sentence violates the proportional-

ity provision of Article I, section 16, if it “shock[s] the moral

sense” of reasonable people. See, e.g., Sustar v. County Court

for Marion Co., 101 Or 657, 665, 201 P 445 (1921); State v.

Teague, 215 Or 609, 611, 336 P2d 338 (1959); State v. Rogers,

313 Or 356, 380, 836 P2d 1308 (1992) (all using that test).

Whether a sentence “shocks the moral sense” of reasonable

people and, thus, is unconstitutional, is a legal question; in

answering that question, we are bound by the trial court’s

findings of historical facts if they are supported by evidence

in the record. See State v. Ryan, 361 Or 602, 614-15, 396 P3d

867 (2017) (court reviews constitutionality of a sentence for

legal error under Article I, section 16).

3

Defendant contends that imposing the mandatory minimum sentence also

would be unconstitutional under the Eighth Amendment to the United States

Constitution, which provides, “Excessive bail shall not be required, no excessive

fines imposed, nor cruel and unusual punishments inflicted.” However, defendant

does not develop an argument under the federal constitution that is indepen-

dent of or distinct from her argument under the Oregon Constitution, and we do

not separately consider defendant’s constitutional argument under the Eighth

Amendment.

Cite as 373 Or 248 (2025) 255

The primary authority to determine the gravity of

an offense and the appropriate punishment lies with the leg-

islature. State v. Althouse, 359 Or 668, 683-84, 375 P3d 475

(2016). Moreover, “respect for the separation of powers and

the legislature’s authority to set criminal penalties means

that the court’s role [in assessing proportionality] is a lim-

ited one.” Wheeler, 343 Or at 672. We will not second-guess

the legislature’s determination of penalties or range of pen-

alties for a crime unless a punishment is so disproportionate

that it shocks the moral sense of reasonable people. State v.

Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659 (2009). Under

that standard, we have explained, this court will “ ‘find a

penalty to be disproportionately severe for a particular

offense only in rare circumstances.’ ” Id. (quoting Wheeler,

343 Or at 670).

In this case, the Court of Appeals applied the ana-

lytical framework for evaluating proportionality that this

court first described in Rodriguez/Buck and has applied sev-

eral times since then, including in Althouse, 359 Or at 685;

State v. Davidson, 360 Or 370, 384, 380 P3d 963 (2016); and

Ryan, 361 Or at 615. We briefly describe that framework and

then its application here.

A. The Rodriguez/Buck Framework

Defendant challenges the constitutionality of her

sentence within the framework for assessing such chal-

lenges that this court first articulated in Rodriguez/Buck.

There, we observed:

“In declaring unconstitutional a punishment that is so dis-

proportionate, when compared to the offense, so as to ‘shock

the moral sense’ of reasonable people, this court has iden-

tified at least three factors that bear upon that ultimate

conclusion: (1) a comparison of the severity of the penalty

and the gravity of the crime; (2) a comparison of the penal-

ties imposed for other, related crimes; and (3) the criminal

history of the defendant.”

347 Or at 58. We further stated that the “offense” for pur-

poses of Article I, section 16, is “the specific defendant’s

particular conduct toward the victim that constituted the

crime, as well as the general definition of the crime in the

statute.” Id. at 62. And, we went on,

256 State v. Gonzalez

“[i]n considering a defendant’s claim that a penalty is con-

stitutionally disproportionate as applied to that defendant,

then, a court may consider, among other things, the specific

circumstances and facts of the defendant’s conduct that

come within the statutory definition of the offense, as well

as other case-specific factors, such as characteristics of the

defendant and the victim, the harm to the victim, and the

relationship between the defendant and the victim.”

Id.

In Rodriguez/Buck, we considered two consolidated

cases, in each of which the defendant had been convicted

of first-degree sexual abuse and sentenced to a mandatory

minimum term of 75 months’ imprisonment for a single,

brief, sexual contact with a child: over-the-clothes touch-

ing of the sexually intimate parts of a child in one case and

holding the child’s head to the defendant’s clothed breasts in

the other. This court held that those sentences were exces-

sive as applied to those defendants, principally because nei-

ther defendant had had any prior criminal charges, arrests,

or reported police contact; the presumptive non-Measure 11

sentence for their crimes was 16-18 months in prison; and

the 75-month mandatory minimum sentence for first-degree

sexual abuse applied to a broad range of conduct, including

conduct that was far more serious than that for which the

defendants had been convicted. Id. at 70-77.

Similarly, in Davidson, this court held that a statu-

torily required life sentence without the possibility of parole

was unconstitutionally excessive for a defendant’s third con-

viction for public indecency for exposing himself at a public

park. 360 Or at 391. We reasoned that public indecency is

generally considered a high-level misdemeanor or a low-level

felony; it is not considered to be as serious as other sexual

offenses, such as those that involve nonconsensual sexual

contact or sexual behaviors targeting children. Id. at 387.

Yet the sentence that had been imposed on the defendant

was the most severe penalty that exists in Oregon law other

than the death penalty. Id. We reached a different conclu-

sion in Althouse, which, like Davidson, involved a defendant

who had been convicted of public indecency and sentenced

to life without parole under a repeat-offender statute. In

Althouse, however, the defendant had an extensive history of

Cite as 373 Or 248 (2025) 257

more serious sex crimes, including sexual abuse and sodomy

of children. 359 Or at 687 (“Given the seriousness of defen-

dant’s repeated sexual misconduct and the danger that it

forecasts for others, we cannot say that imposing presump-

tive life sentence in response to defendant’s pattern of crim-

inal behavior violated Article I, section 16.”).

B. “Personal Characteristics” and State v. Ryan

As noted above, Rodriguez/Buck permits a court to

consider “case-specific factors, such as characteristics of the

defendant” in assessing the gravity of the offense for pur-

poses of a constitutional disproportionality analysis.4 347 Or

at 62. Rodriguez/Buck did not further explain what “charac-

teristics of the defendant” may be relevant, as no such char-

acteristics were pertinent to our analysis in that case. This

court’s first opportunity to explore that issue came in Ryan,

where we addressed whether a defendant’s intellectual dis-

ability is a personal characteristic that may affect the grav-

ity of the offense in a proportionality analysis. The defendant

in that case received a 75-month mandatory minimum sen-

tence for over-the-clothes touching of the sexually intimate

parts of two victims aged nine and 14. At his sentencing,

the defendant argued that the 75-month minimum sentence

for first-degree sexual abuse, which was mandated by ORS

137.700(2)(a)(P), would be disproportionate as applied to him

because of his intellectual disability. 361 Or at 604. The trial

court ruled that the mandatory minimum sentence was not

disproportionate as applied to the defendant, but the court

did not indicate that it had considered the defendant’s intel-

lectual disability as a factor in its analysis. Id.

On review, this court began by noting that the

United States Supreme Court and other federal courts had

4

In Rodriguez/Buck, the court stated that it had identified “at least” three

factors that bear on whether a punishment is so disproportionate when compared

to the offense as to shock the moral sense of reasonable people. In other words,

the court did not intend the three factors that we described above to be an exclu-

sive list of factors to be considered. We observe that “characteristics of the defen-

dant” is not a particularly close fit when considering the gravity of the offense

under the first Rodriguez/Buck factor, and perhaps it would make more sense to

consider the subjective characteristics of the defendant as a separate factor that

may affect the moral sense of reasonable people that a punishment is dispropor-

tionate. But the parties in this case dealt with defendant’s mental illness in the

context of discussing the gravity of the offense, as this court did in Ryan. For that

reason, we take the same approach here.

258 State v. Gonzalez

previously addressed proportionality challenges under the

Eighth Amendment by intellectually disabled offenders sen-

tenced to death and to mandatory minimum sentences. Id.

at 616. We observed that the Supreme Court, in Atkins v.

Virginia, 536 US 304, 122 S Ct 2242, 153 L Ed 2d 335 (2002),

had held that the Eighth Amendment prohibits the execution

of an intellectually disabled offender, because “ ‘the American

public, legislators, scholars, and judges’ had deliberated over

the question of the death penalty for the intellectually dis-

abled and had come to a consensus that it should be prohib-

ited” and the Court’s own judgment was that there was no

reason to disagree with that consensus view. Ryan, 361 Or

at 617-18 (quoting Atkins, 536 US at 307). As we explained in

our opinion in Ryan, the Court in Atkins had concluded that,

for an intellectually disabled person, the penological justifi-

cations for the death penalty are diminished because intel-

lectually disabled persons have a reduced ability “ ‘to under-

stand and process information, to learn from experience, to

engage in logical reasoning, [and] to control impulses.’ ” Id. at

618 (quoting Atkins, 536 US at 320 (brackets in Ryan)).

This court in Ryan further noted that, despite the

Court’s pronouncements about the reduced justification for

treating intellectually disabled offenders the same as other

offenders, lower federal courts had routinely held that Atkins

applied only to offenders otherwise subject to the death pen-

alty; they had declined to apply the same reasoning in pro-

portionality cases involving mandatory prison sentences.

Id. at 619. However, this court took note of a legal commen-

tator’s statement that “ ‘[j]ust about everyone working in

the field’ ” believed that “ ‘the diminished intelligence of the

offender ought to be a major factor in determining appro-

priate sentences.’ ” Id. at 620 (quoting Paul Marcus, Does

Atkins Make a Difference in Non-Capital Cases? Should It?,

23 Wm & Mary Bill Rts J 431, 456 (2014). We acknowledged

“the force of that view” and held:

“Evidence of an offender’s intellectual disability therefore

is relevant to a proportionality determination where sen-

tencing laws require the imposition of a term of imprison-

ment without consideration of such evidence. Accordingly,

we conclude that, where the issue is presented, a sentenc-

ing court must consider an offender’s intellectual disability

Cite as 373 Or 248 (2025) 259

in comparing the gravity of the offense and the severity of

a mandatory prison sentence on such an offender in a pro-

portionality analysis under Rodriguez/Buck.”

Id. at 620-21.

We then turned to examine how that consideration

should affect the proportionality analysis under the Oregon

Constitution. Id. at 621. Reasoning that “there exists a

broad spectrum of intellectual disabilities that may reduce,

but not erase” a person’s culpability, we determined that a

“one-size-fits-all approach is not appropriate.” Id. Rather, a

sentencing court’s findings “as to an intellectually disabled

offender’s level of understanding of the nature and conse-

quences of his or her conduct and ability to conform his or

her behavior to the law” will be relevant to the proportional-

ity of a sentence as applied to the offender. Id.

In Ryan, the undisputed evidence at sentencing

showed that the defendant had an IQ score of between 50

and 60, corresponding to a mental age of 10, which, the court

observed, was two years below the minimum age for estab-

lishing criminal responsibility in Oregon, as set out in ORS

161.290.5 Id. at 623. We explained that the legislature’s pro-

nouncement on the age of criminal responsibility was rele-

vant to the proportionality analysis “because it is objective

evidence of a societal standard that eschews treating per-

sons with the attributes of a pre-teen child as if they were

normally abled adult offenders.” Id. at 624 Ultimately, we

concluded that the trial court had erred when it compared

the gravity of the defendant’s offense and the severity of the

mandatory minimum sentence without sufficiently consid-

ering evidence that the defendant’s “age-specific intellectual

capacity fell below the minimum level of criminal responsi-

bility for a child.” Id. at 625-26.

In a concurring opinion, Justice Balmer empha-

sized his understanding that the majority’s holding was

5

ORS 161.290 provides:

“(1) A person who is tried as an adult in a court of criminal jurisdiction

is not criminally responsible for any conduct which occurred when the person

was under 12 years of age.

“(2) Incapacity due to immaturity, as defined in subsection (1) of this sec-

tion, is a defense.”

260 State v. Gonzalez

more limited than the broad rule that the defendant had

proposed. As the concurrence explained, whereas the defen-

dant in Ryan had urged that “any personal characteristics

that ‘mitigate[ ] culpability’ ” are relevant to the Article I, sec-

tion 16, proportionality analysis, the majority had adopted

a “narrower approach” in concluding, on the basis of Atkins

and ORS 161.290, that the sentencing court was required to

have considered the evidence of the defendant’s intellectual

functioning. Id. at 626, 629, 634 (Balmer, J., concurring).

In this case, after discussing both the majority

and concurring opinions in Ryan, the Court of Appeals

explained that its own post-Ryan cases have “restricted the

consideration of a defendant’s personal characteristics to

those affecting intellectual capacity.” Gonzalez, 326 Or App

at 600-01. The court went on to note that, “in contrast with

Ryan, defendant has not identified any statutory or other

basis for concluding that there is a ‘societal standard that

eschews’ treating persons with defendant’s mental health

attributes the same way that other adults are treated where,

as here, they are found to have acted with the requisite cul-

pable mental state.” Id. at 601-02 (quoting Ryan, 361 Or at

624).

C. Application

Of the three factors identified in Rodriguez/

Buck—a comparison of the severity of the penalty and the

gravity of the crime; a comparison of the penalties imposed

for other, related crimes; and the criminal history of the

defendant—the first is the focus of our analysis. Defendant

does not argue that a 90-month mandatory minimum sen-

tence for first-degree arson is disproportionate in compari-

son with penalties imposed for other crimes. Nor does she

argue that her lack of a criminal history should weigh heav-

ily under the circumstances of this case. Rather, defendant’s

argument focuses on the first Rodriguez/Buck factor, and,

specifically, the extent to which her personal characteristics

should affect the court’s view of the severity of the penalty

in relation to the gravity of the crime.

Before we turn to the first Rodriguez/Buck factor,

we consider the “offense” that defendant committed, which,

Cite as 373 Or 248 (2025) 261

as we explained in Rodriguez/Buck, means both defendant’s

particular conduct and the general statutory definition. 347

Or at 62. Under ORS 164.325, a person commits first-degree

arson if, by means of fire or explosion, the person inten-

tionally damages another’s property and recklessly places

another person in danger of physical injury. Here, the trial

court found that defendant intentionally set a fire in the

landing of her apartment building, intentionally damaged

property, and recklessly placed others in danger of physical

injury. Defendant’s conduct thus falls squarely within the

definition of first-degree arson.

The first Rodriguez/Buck factor requires a com-

parison of the severity of the penalty and the gravity of the

crime. We begin with an examination of the penalty, both in

relation to other conduct that is subject to the same sentence

and in relation to the penalties imposed for other crimes,

because that penalty is “an external source of law” that

assists the court in determining whether imposition of that

penalty would shock the moral sense of reasonable people.

Wheeler, 343 Or at 671. As we have said, the legislature’s

enactment of a particular penalty does not itself establish

constitutional proportionality—the courts ultimately must

decide whether penalties exceed constitutional limits. State

v. Bartol, 368 Or 598, 613, 496 P3d 1013 (2021). But enact-

ment of the penalty is important because it is evidence of

societal standards and enables the objective comparisons

that Article I, section 16, requires. A court can compare

the relative “ ‘harm caused or threatened to the victim or

society, and the culpability of the offender’ ” by looking to

the “ ‘widely shared views as to the relative seriousness of

crimes’ ” that “ ‘the criminal laws make clear.’ ” Rodriguez/

Buck, 347 Or at 63 (quoting Solem v. Helm, 463 US 277, 292-

93, 103 S Ct 3001, 77 L Ed 2d 637 (1983)).

Defendant committed first-degree arson by inten-

tionally setting a fire that damaged property and recklessly

placed other people in danger of physical injury. When, as

here, that offense “represented a threat of serious physical

injury,” it is subject to the mandatory minimum sentence of

90 months in prison. ORS 137.700(2)(b)(A). We also note that,

under Oregon’s felony sentencing guidelines, first-degree

262 State v. Gonzalez

arson is ranked at crime-seriousness levels 7-9, based on

the type and amount of property damage, but it is ranked at

level 10 if the offense also “represented [a] threat of serious

injury.” OAR 213-017-0002(11). Arson that threatens serious

physical injury carries a presumptive sentence of up to 130

months in prison, depending on the person’s criminal his-

tory—and that sentence is subject to doubling by departure.

OAR 213-004-0001, App 1 (sentencing guidelines grid); OAR

213-008-0003 (durational departures shall not total more

than double the maximum duration of a presumptive prison

term). If a court finds substantial and compelling reasons

to depart from the presumptive guidelines sentence range,6

even a person with no criminal history—such as defendant—

could receive a sentence of 116-120 months in prison for

arson that threatened serious physical injury. OAR 213-004-

0001, App 1 (sentencing guidelines grid). In other words, had

defendant been sentenced under the guidelines, she could

have received an even longer sentence than the 90-month

mandatory minimum sentence required by ORS 137.700.

The legislature thus regards first-degree arson as

a very serious crime, particularly when it threatens seri-

ous physical injury. In this case, unlike in Rodriguez/Buck

and Davidson, the gravity of defendant’s conduct is not “rel-

atively minor” in comparison to the range of other conduct

that is subject to the same mandatory minimum sentence

for first-degree arson. See Davidson, 360 Or at 389 (find-

ing that public indecency is “relatively minor in comparison

with the majority of the other sex offenses identified in ORS

163A.005(5) that may result in a true-life sentence under

ORS 137.719”). As the trial court found, defendant’s conduct

was “egregious,” it caused “emotional injury” to all victims,

and it caused “significant and substantial” physical injury to

the neighbor. We also observe that first-degree arson is not

less serious than other crimes carrying a 90-month manda-

tory minimum sentence under ORS 137.700. Those include

attempt or conspiracy to commit murder, ORS 137.700(2)(D);

first-degree assault, ORS 137.700(2)(G); first-degree

6

The state asserts that, based on the facts of this case, it could have pursued

a departure sentence on the ground that defendant’s conduct “resulted in perma-

nent injury” to the neighbor. OAR 213-008-0002(1)(b)(I) (that offense resulted in

permanent injury is aggravating factor to be considered in determining whether

substantial and compelling reasons for a departure exist).

Cite as 373 Or 248 (2025) 263

kidnapping, ORS 137.700(2)(I); and first-degree robbery,

ORS 137.700(2)(R). We therefore conclude that, apart from

consideration of any personal characteristic of defendant

that may have constitutional significance, imposition of a

90-month mandatory minimum sentence for her conduct

would not “ ‘shock the moral sense’ of reasonable people.”

Rodriguez/Buck, 347 Or at 58.

In this case, defendant asserts that mental ill-

ness, like intellectual disability, is a “characteristic of the

defendant” that courts must consider in a proportionality

analysis under Article I, section 16. Pointing out that, in

Ryan, this court identified a societal consensus that a per-

son’s intellectual functioning makes the person less culpa-

ble than other offenders, defendant contends that such a

societal consensus also exists for mental illness. She points

first to the United States Supreme Court’s decision in Penry

v. Lynaugh, 492 US 302, 319, 109 S Ct 2934, 106 L Ed 2d

256 (1989), abrogated by Atkins, 536 US at 321, in which the

Court held that the jury could consider the facts that the

defendant was intellectually disabled, with a mental age of

six and a half years old, and that he had a history of child

abuse, when deciding whether to impose the death penalty.

Defendant argues that Penry supports her position, because,

in that case, the Court stated:

“If the sentencer is to make an individualized assessment

of the appropriateness of the death penalty, evidence about

the defendant’s background and character is relevant

because of the belief, long held by this society, that defen-

dants who commit criminal acts that are attributable to

a disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who have

no such excuse.”

492 US at 319 (internal quotation marks omitted). In

addition, defendant points to, among other things, a post-

conviction case in which the Court held that a lawyer pro-

vided ineffective assistance of counsel in failing to investi-

gate the defendant’s mental health as a mitigating factor in

his sentencing, Porter v. McCollum, 558 US 30, 40, 130 S Ct

447, 175 L Ed 2d 398 (2009); a case in which the Court lim-

ited the detention of a mentally incompetent defendant to

a reasonable period of time to determine whether he would

264 State v. Gonzalez

attain the capacity to stand trial, Jackson v. Indiana, 406

US 715, 738, 92 S Ct 1845, 32 L Ed 2d 435 (1972); and a case

in which the Court held that the Eighth Amendment prohib-

its executing “insane” persons, Ford v. Wainwright, 477 US

399, 410, 106 S Ct 2595, 91 L Ed 2d 335 (1986).

Defendant acknowledges that none of those cases

holds that mental illness is a characteristic that must be

considered as part of the proportionality analysis in noncap-

ital cases. Nonetheless, defendant argues that mental ill-

ness, like intellectual disability, reduces culpability because

it, too, reduces the defendant’s ability “ ‘to understand and

process information, to learn from experience, to engage in

logical reasoning, [and] to control impulses.’ ” Ryan, 361 Or

at 618 (speaking of intellectual disability (quoting Atkins,

536 US at 320)). Thus, defendant argues, the same rationale

that animated our decision in Ryan suggests that any per-

sonal characteristic that can be thought to influence a per-

son’s conduct and thereby make a person less blameworthy

may be considered in the court’s evaluation of the “gravity of

the offense” for purposes of a proportionality analysis.

Defendant faults the Court of Appeals for reading

Ryan too “narrowly” to the extent that, in her view, that

court understood Ryan to hold that intellectual disability

is the only personal characteristic that may affect the pro-

portionality analysis. Defendant acknowledges that ORS

161.290 was crucial to the court’s analysis in Ryan, but she

argues that, in evaluating whether a punishment in a par-

ticular case would conflict with “societal standards,” legis-

lative enactments cannot be the only source of such stan-

dards. She contends that the Court of Appeals’ decision in

this case did not leave room for consideration of indicia of a

societal consensus that individuals with mental illness also

may be less culpable than those without mental illness.

We agree with defendant that Ryan did not hold

that no characteristic other than intellectual disability may

ever be relevant. In fact, it neither embraced nor rejected

the proposition that other personal characteristics may be

relevant. The court decided the case before it, which con-

cerned the defendant’s intellectual disability. However, the

Court of Appeals’ analysis in this case was consistent with

Cite as 373 Or 248 (2025) 265

Ryan. Contrary to defendant’s argument on review, the

Court of Appeals did not interpret Ryan to foreclose the pos-

sibility that personal characteristics other than intellectual

disability might, theoretically, be relevant to constitutional

proportionality in a particular case. After discussing Ryan,

that court went on to explain what was present in Ryan that

is not present here:

“[I]n contrast with Ryan, defendant has not identified any

statutory or other basis for concluding that there is a ‘soci-

etal standard that eschews’ treating persons with defen-

dant’s mental health attributes the same way that other

adults are treated where, as here, they are found to have

acted with the requisite culpable mental state, notwith-

standing the presence of mental health issues.”

Gonzalez, 326 Or at 601-02 (quoting Ryan, 361 Or at 624). As

that passage indicates, the Court of Appeals looked for indi-

cations of a consensus that “persons with defendant’s men-

tal health attributes” are less culpable than those without

them, and it sought such indications in “statutory or other”

bases.

The court went on to explain that “the law accounts

for” the possibility that mental health may affect culpability

by providing for the GEI defense and by allowing a defen-

dant to use evidence of mental illness to negate a showing

that he or she possessed the necessary mental state for a

crime. Id. at 602. In light of that, the court concluded, “it

is difficult to see how such conditions might then also be

relevant” to concluding that a defendant who had been prop-

erly found guilty was nevertheless less culpable than other

defendants. Id. But acknowledging that it is “difficult to see”

how mental illness might affect a person’s culpability when

that person was found to have taken “volitional steps” and

to have acted intentionally in committing a crime does not

amount to a holding that no characteristic other than intel-

lectual disability may ever be relevant.

As we have explained, Ryan did not simply rely

on this court’s own perception of a societal consensus that

intellectual disability can, in some general sense, reduce a

person’s culpability. Rather, in applying the instruction from

our case law to determine whether a sentence would “shock

266 State v. Gonzalez

the moral sense of reasonable people,” this court relied on

“objective evidence of a societal standard” that supplied a

basis to determine more precisely when an intellectually

disabled offender’s culpability is different from that of other

offenders. Ryan, 361 Or at 624. As discussed, in Ryan, that

objective evidence was the legislature’s enactment of ORS

161.290, which provides that a person is not criminally

responsible for any conduct that occurred when the person

was under 12 years of age. Id.

Defendant is correct that Ryan does not compel the

conclusion that only a legislative enactment may provide

the evidence of such a “societal standard.” But the Court of

Appeals appears to have correctly understood that as well,

as evidenced by its observation that defendant had identi-

fied “no statutory or other basis” for the societal standard

of which defendant urges recognition. Gonzalez, 326 Or

App at 602 (emphasis added). Because of the legislature’s

primary role in determining the punishments for criminal

conduct, it is appropriate that, in determining whether a

societal standard exists that militates against imposing a

punishment that would otherwise be required, courts will

give great weight to the existence or absence of legislative

enactments bearing on such a standard. However, that does

not make the existence or absence of legislation dispositive

in the analysis. As we stated in Bartol, “legislative enact-

ments are strong indicators of current societal standards,

but [they] are not dispositive of whether a sentence comports

with those standards.” 368 Or at 613. At bottom, however,

as both Bartol and Ryan reflect, there must be some objec-

tive basis for allowing this court to discern a societal stan-

dard that requires treating persons with certain attributes

differently for purposes of criminal culpability—even in the

face of a legislative policy (such as a mandatory minimum

sentence) that would otherwise require them to be punished

the same as others.

We turn to defendant’s argument that, in this case,

the trial court was correct to take her mental illness into

account in its proportionality analysis. There is no doubt

of the general proposition that mental illness may bear on

culpability. That is evident in the legislature’s enactment of

Cite as 373 Or 248 (2025) 267

ORS 161.295, which provides a defense for persons with a

“qualifying mental disorder” who lack the capacity to appre-

ciate the criminality of their conduct or conform their con-

duct to the requirements of the law, as well as ORS 161.300,

which allows defendants to introduce evidence that they

suffer from a “qualifying mental disorder” to show that they

did not have the requisite intent to commit the charged

offense. Indeed, Oregon, like other states and jurisdictions

around the world, has recognized an “insanity” defense for

over a hundred years, demonstrating that society has long

understood the relationship between mental illness and

criminal responsibility. See, e.g., State of Oregon v. Zorn, 22

Or 591, 599, 30 P 317 (1892) (recognizing insanity defense

for a defendant who “was laboring under such a defect of

reason, from disease of the mind, as not to know the nature,

quality, or consequences of the act he was committing, or

that if he did know it, he did not clearly understand what he

was doing was wrong”); see also Kahler v. Kansas, 589 US

271, 283, 140 S Ct 1021, 206 L Ed 2d 312 (2020) (“[F]or hun-

dreds of years jurists and judges have recognized insanity

(however defined) as relieving responsibility for a crime.”);

Daniel M’Naghten’s Case, 8 English Reports 718, 722 (1843)

(“[T]o establish a defence on the ground of insanity, it must

be clearly proved that, at the time of the committing of the

act, the party accused was labouring under such a defect of

reason, from disease of the mind, as not to know the nature

and quality of the act he was doing; or, if he did know it, that

he did not know he was doing what was wrong.”).

Those authorities show that persons who, by rea-

son of their mental illness, lack the capacity to appreciate

the criminality of their conduct or to conform their conduct

to the requirements of the law are not criminally responsi-

ble for their conduct. Here, however, the trial court found

that defendant did have the requisite intent to commit

first-degree arson, and, necessarily, that she did appreciate

the criminality of her conduct. To be consistent with Ryan,

defendant’s argument requires identifying some basis for

concluding that society regards a person with mental health

attributes like hers as less culpable than other offenders

despite the fact that, according to the trial court’s findings,

defendant retained the capacity to appreciate the criminality

268 State v. Gonzalez

of her conduct and to form the intent to commit a crime. The

record in this case does not permit such a conclusion.

Defendant asserts, generally, that “mentally ill

people are less morally culpable than others.” But the term

“mental illness” encompasses a vast array of conditions, and

defendant’s assertion fails to account for either the range

of disorders that may fall within the scope of that term or

the different ways that such disorders may affect those who

suffer from them. Importantly, defendant directs us to no

authority for a generally accepted principle that any person

with a mental illness, of whatever nature, is so much less

morally culpable for criminal conduct than a person without

a mental illness that imposition of a mandatory minimum

sentence would be unconstitutional.

Indeed, defendant acknowledges that “not all men-

tal illnesses will require a finding that a lengthy mandatory

prison sentence is unconstitutional, because like people with

intellectual disabilities, not all people with mental illness

will be so impaired as to fall within the range of mentally ill

offenders who are deemed less morally culpable than those

with no excuse.” Given that acknowledgment, the only ques-

tion before us is whether we can identify a societal standard

that requires a court to view a person with a constellation

of mental health attributes comparable to defendant’s as so

much less culpable than people without those attributes that

the mandatory 90-month sentence cannot constitutionally

be imposed. In defendant’s case, the record reflects that her

diagnoses of mental disorders include, among other things,

depression, anxiety, adjustment disorder, and opioid-use

disorder. Defendant has not cited any evidence of a socie-

tal standard recognizing that people who suffer from those

disorders—but who have the ability to form the requisite

mental state and appreciate the gravity of their conduct—

have reduced moral culpability for their criminal conduct to

the extent that imposing the mandatory minimum sentence

would violate Article I, section 16.

Defendant intentionally committed arson that reck-

lessly put five other people at risk of serious physical injury

and caused serious physical injury to one of those people.

In light of the trial court’s specific findings that defendant

Cite as 373 Or 248 (2025) 269

had the requisite mental state and possessed the ability to

appreciate the criminality of her conduct, and in the absence

of evidence of a societal standard recognizing that people

with mental health issues similar to hers are less morally

culpable for their crimes, requiring defendant to serve the

90-month minimum sentence that the legislature chose for

that crime does not shock the moral sense of reasonable

people.

The decision of the Court of Appeals is affirmed.