State v. Ryan

602 June 22, 2017 No. 35

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

STEVEN LEVI RYAN,

Petitioner on Review.

(CC 13C43883; CA A156146; SC S063857)

On review from the Court of Appeals.*

Argued and submitted September 20, 2016.

David O. Ferry, Deputy Public Defender, Salem, argued

the cause and filed the briefs for petitioner on review. Also

on the briefs was Ernest G. Lannet, Chief Defender, Office

of Public Defense Services.

Susan Yorke, 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.

Alexander A. Wheatley, Portland, filed the brief for

amici curiae Fair Punishment Project and Oregon Justice

Resource Center.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Brewer, and Nakamoto, Justices, and Baldwin,

Senior Justice pro tem.**

BREWER, J.

The decision of the Court of Appeals is affirmed in part and

reversed in part. The judgments of conviction are affirmed,

but the sentences are vacated, and the case is remanded to

the circuit court for resentencing, in a manner consistent

with this opinion.

Balmer, C.J., concurred and filed an opinion, in which

Kistler, J., and Landau, J., joined.

Cite as 361 Or 602 (2017) 603

Case Summary: Defendant, who pleaded guilty to first-degree sexual abuse,

argued at sentencing that 75 months’ imprisonment, as mandated under ORS

137.700(2)(a)(P), was unconstitutionally disproportionate as applied to him

because of his intellectual disability. Held: In comparing the gravity of defen-

dant’s offense and the severity of the sentence, the trial court erred in failing

to consider evidence of defendant’s intellectual disability when that evidence, if

credited, would establish that defendant’s age-specific intellectual capacity fell

below the minimum level of criminal responsibility for a child.

The decision of the Court of Appeals is affirmed in part and reversed in part.

The judgments of conviction for third-degree sexual abuse and resulting sen-

tences are affirmed. The judgment of conviction for first-degree sexual abuse is

affirmed, but the sentence is vacated, and the case is remanded to the circuit

court for resentencing on that conviction.

604 State v. Ryan

BREWER, J.

Defendant, who is intellectually disabled, makes

an as-applied challenge to his 75-month mandatory mini-

mum prison sentence for first-degree sexual abuse, ORS

163.427, on the ground that it violates Article I, section 16,

of the Oregon Constitution, and the Eighth Amendment to

the United States Constitution, which prohibit sentences

that are disproportionate to the offense for which they are

imposed.

Defendant pleaded guilty to one count of first-

degree sexual abuse and three counts of third-degree sexual

abuse, for over-the-clothes touching of the sexually intimate

parts of nine- and fourteen-year-old victims. At his sentenc-

ing, defendant argued that the 75-month minimum sen-

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

ORS 137.700(2)(a)(P) (Measure 11), would be disproportion-

ate as applied to him. As part of the proportionality analy-

sis, defendant argued that the trial court should take into

account his intellectual disability, as well as the availability

of residential rehabilitative treatment for him as part of an

alternative probationary sentence.

The trial court noted that defendant was intellec-

tually disabled, but the court did not indicate that it had

considered that factor in its proportionality analysis, and

the court ruled that it lacked authority to consider the avail-

ability of rehabilitative treatment for defendant in a nonin-

carcerative setting, unless it first could conclude that the

Measure 11 prison term was disproportionate. The court

then concluded that the Measure 11 sentence was not dis-

proportionate. The Court of Appeals affirmed without opin-

ion. State v. Ryan, 275 Or App 22, 364 P3d 1012 (2015). For

the reasons explained below, we conclude that the trial court

erred when it compared the gravity of defendant’s offense and

the severity of the Measure 11 sentence, because the court

failed to consider evidence of defendant’s intellectual dis-

ability when that evidence, if credited, would establish that

the sentence would be arguably unconstitutional because it

shows that defendant’s age-specific intellectual capacity fell

below the minimum age level of criminal responsibility for a

child. However, we decline to consider defendant’s argument

Cite as 361 Or 602 (2017) 605

on review that the availability of rehabilitative treatment

is relevant to the gravity of his offense, because defendant

failed to adequately develop that argument within the con-

text of this court’s analytical framework for proportional-

ity challenges under Article I, section 16. Accordingly, we

remand defendant’s conviction for first-degree sexual abuse

for resentencing, and otherwise affirm.

I. FACTS AND PROCEDURAL HISTORY

As we will explain, defendant has intellectual dis-

abilities, as well as attention deficit hyperactivity disorder

(ADHD). When he committed the offenses at issue, defen-

dant was on probation for second-degree criminal mischief

for having masturbated into an item of clothing in a depart-

ment store dressing room.

In his plea petition in this case, defendant acknowl-

edged that, on July 15, 2013, he subjected a nine-year-old

child, AS, to sexual contact by touching her genital area.

The incident occurred at a sleepover birthday party involv-

ing a group of defendant’s adult disabled friends. One friend

brought his sisters, AS (age nine) and CS (age 14). On the

evening of the sleepover, defendant flirted with CS and sent

her a text message asking her to join him in the bathroom to

kiss. Inside the bathroom, defendant slapped and grabbed

CS’s buttocks, ground his penis against her, attempted to

expose her breasts by pulling on her dress, and kissed her

on the mouth.

The next morning, while most of the party guests

were outside, AS went into the house to retrieve her shoes.

While inside, she encountered defendant, who was the only

other person in the house. Defendant pushed AS to the

floor, got on top of her, grabbed her genital area outside her

clothing, and ran his hand down her leg. AS told defendant

to get off her, and defendant complied, but he then chased

her as she tried to run away. AS ended the pursuit by kick-

ing defendant. Afterwards, AS was upset and crying, and

she stated at sentencing that she had been very frightened

during the incident.

The state charged defendant with three counts of

third-degree sexual abuse based on the incident involving

606 State v. Ryan

CS, and one count of first-degree sexual abuse for his con-

duct with respect to AS. Defendant pleaded guilty to all

four charges. However, defendant argued at sentencing

that, in view of his intellectual disability, the imposition of

a 75-month prison term on the first-degree sexual abuse

conviction under Measure 11 would be unconstitutionally

disproportionate. In support of that argument, defendant

provided the court with written reports from four mental

health evaluations performed between 2008 and 2013. All

the evaluators diagnosed defendant with intellectual dis-

abilities. The first evaluator reported an IQ score of 50 for

defendant, the most recent IQ test scored defendant at 60,

and each evaluator found significant impairment in his

adaptive functioning.1 Defendant represented to the court

that he functioned at an approximate mental age of 10, and

the state did not dispute that representation.

More specifically, the first evaluation—performed

when defendant was 17 and living in an adolescent group

home—was part of an effort to secure services for defendant

based on his developmental delay. The evaluator, Dr. Sacks,

noted that defendant had a history of striking out at oth-

ers and that, between 2001 and 2006, he had engaged in

misconduct that “seemed to increase in severity.” Sacks

diagnosed defendant with Conduct Disorder and Reactive

Attachment Disorder and stated that defendant needed a

residential setting with highly developed structure to avoid

impulsive and dangerous acts.

The second evaluation was performed in 2012, when

defendant was 21, to determine whether he was able to aid

and assist in his defense on the criminal mischief charge.

The evaluator, Dr. Stoltzfus, diagnosed defendant with low

cognitive functioning, attention deficit hyperactivity disor-

der (ADHD), and Conduct Disorder. Stoltzfus reported that

1

Impairment in “adaptive functioning” refers to “significant limitations in

an individual’s effectiveness in meeting the standards of maturation, learning,

personal independence, and/or social responsibility that are expected for his

or her age level and cultural group, as determined by clinical assessment and,

usually, standardized scales.” Kevin P. Weis, Confessions of Mentally Retarded

Juveniles and the Validity of Miranda Rights Waiver, 37 Brandeis L J 117, 126

(1998) (quoting American Association on Mental Deficiency, Classification in

Mental Retardation 11 (Herbert J. Grossman ed. 1983)).

Cite as 361 Or 602 (2017) 607

defendant had been placed in foster care at age 12 for kiss-

ing a seven-year-old girl and that he primarily had lived

in group home settings between the ages of 12 and 21. In

his interview with Stoltzfus, defendant made repeated ref-

erences to aggression toward people who made him angry.

Stoltzfus opined that defendant had a high degree of impul-

sivity and reactive hostility that could be ameliorated to

some extent with psychotropic medication, but that “[h]is

low cognitive and low adaptive functioning are not amena-

ble to treatment and will never change.” Stoltzfus concluded

that defendant was not then capable of aiding and assisting

his defense. As a consequence, defendant was placed in the

Oregon State Hospital for further evaluation and treatment.

In December 2012, Dr. Corbett evaluated defen-

dant at the state hospital. He noted that defendant had

been placed in nonrelative foster care for extended intervals

between 2005 and 2008, and that he had received services

for his developmental delay in Marion County from 2006 to

2009. Defendant stated that he had been so angry at the

hospital that he wanted to hit people, but Corbett noted that

defendant had made some progress in “competency resto-

ration education.” Corbett opined that defendant had made

sufficient progress that he was then able to aid and assist in

his defense.

Finally, in December 2013, Dr. Nance evaluated

defendant for his sentencing in this case. Nance noted the

allegation that defendant had violated his probation on the

criminal mischief charge by possessing pornography and

engaging in improper internet use. Defendant was in jail at

the time of his evaluation and told Nance that he did not feel

safe there. He described suicidal and homicidal thoughts,

but denied that he would act on them.

Nance diagnosed defendant with limited intellec-

tual functioning and as being immature, paranoid, and

depressed, and having questionable judgment. On account

of his intellectual deficiencies, defendant was unable to take

a useful polygraph examination, which was a concern to

Nance, because mandated polygraphs are a primary tool

of community supervision. According to Nance, defendant

was at high risk for re-offending, because he had a sense

608 State v. Ryan

of sexual entitlement with “rape attitudes,” some hostil-

ity toward women, and a lack of concern for others. So far,

Nance opined, defendant had expressed an attitude that did

not support probation. In Nance’s view, defendant posed a

high risk to commit a similar or more serious crime and

was not a suitable candidate for community supervision.

Defendant’s prognosis for “full rehabilitation” was poor to

fair, Nance opined, but good for “some benefit from support-

ive therapy.” Nance recommended a lengthy course of court-

mandated sex offender treatment and stated that the court

“may consider” a group home that would administer psycho-

tropic medications and ultimately support defendant’s com-

munity supervision. Nance opined that the antisocial aspect

of defendant’s disorder would be exacerbated if he were to be

incarcerated.

In addition to the evaluators’ reports, defendant

presented testimony at sentencing from the director of a

residential facility that specialized in treating intellectually

disabled sexual offenders. The director, Watson, testified

that he had one residential space available to treat defen-

dant as part of an alternative nonincarcerative sentence.

Participants living in his program’s homes were supervised,

but not in “closed custody,” meaning that “[i]t’s not a locked,

secure facility.” Watson had not personally evaluated defen-

dant, but he had reviewed reports from other evaluators.

He expressed reservations about defendant’s suitability for

the program, because, despite the prior existence of “sup-

ports,” defendant had not engaged in sex offender treatment.

However, Watson stated that he would accept defendant

under “certain conditions,” including that “I need to make

sure I have the backing of the court,” because,

“based on the evidence that I’ve heard today, [defendant]

certain is a—this moderate high-risk guy. And his risk

is high under these unsupervised, unstructured environ-

ments. What that looks like underneath highly structured

and supervised, I don’t know. I’ve not evaluated him and

can’t render an opinion until we know more.”

In opposing defendant’s constitutional challenge,

the prosecutor “agree[d] with the [d]efense that one of the

things that the Court can also look at is the characteris-

tics of both the [d]efendant and the victim. And the State

Cite as 361 Or 602 (2017) 609

does not dispute that this [d]efendant has mental disabili-

ties.” However, the prosecutor asserted that “you don’t look

at just one part of the [d]efendant, but rather, again, we get

to look at all of his characteristics.” The prosecutor noted

that defendant’s own evaluator, Nance, had “place[d] him in

the middle of the high risk to reoffend with similar or more

serious types of crimes in our community. He’s also thought

to not be a good candidate for community supervision.”

Because defendant had abused more than one child and had

an ongoing problem with controlling his sexual urges, and

because he was “impulsive, emotionally agitated, verbally

aggressive and abusive, and in need of structure to avoid

impulsive and destructive acts,” the prosecutor argued that

community safety required his incarceration.

Defendant countered that, in view of his intellec-

tual disability, imposing a 75-month prison sentence on

him would shock the moral sense of reasonable people. He

requested, instead, that he be sentenced to probation, condi-

tioned on court-mandated residential treatment in Watson’s

program. In response, the prosecutor asserted that the

availability of alternatives to incarceration had no bearing

on the determination whether a particular term of incarcer-

ation was constitutionally disproportionate.

The trial court noted that defendant was intellectu-

ally disabled. However, the court did not indicate that it had

considered that characteristic in resolving defendant’s con-

stitutional challenge. Consistently with the request of the

victim CS at sentencing, the court did state that it would

like to provide treatment for defendant. However, the court

opined that it could not consider the availability of treat-

ment as part of an alternative sentence without first con-

cluding that the prescribed Measure 11 sentence was consti-

tutionally disproportionate.2 Again, without acknowledging

2

The court stated:

“This Court, based upon the record before me, would find that [defendant]

is of mild to moderate cognitive—or possesses a mild to moderate cognitive

disability. That based upon the exhibits presented and the file materials

that, [defendant], there is a danger to our community [in] placing you out in

the community. I have, again, based upon this record, a great deal of respect

for Mr. Watson’s program, and think that would be appropriate but for the

Measure 11 sentence—or the Measure 11 guidelines that have been laid out

610 State v. Ryan

or indicating that it had considered defendant’s intellectual

disability in reaching its conclusion, the trial court then

stated that the sentence was not disproportionate. The court

therefore sentenced defendant to 75 months’ imprisonment

on the first-degree sex abuse conviction as to AS; the court

then sentenced defendant to a single consecutive term of six

months in prison for the three third-degree sex abuse con-

victions as to CS (concurrent with each other, but consecu-

tive to the 75-month sentence).

Defendant appealed, raising an as-applied chal-

lenge to the constitutionality of the 75-month prison sen-

tence on his first-degree sexual abuse conviction.3 As noted,

the Court of Appeals affirmed without opinion.

On review, defendant asserts, based on this court’s

framework for analyzing proportionality challenges under

Article I, section 16, that the trial court erred in failing to

sufficiently consider his intellectual disability in assessing

the proportionality of the Measure 11 sentence. Defendant

contends, based on the record here, that he deserved less

severe punishment than other defendants who commit

similar offenses and, consequently, that the mandatory

prison term was not properly proportioned to his offense.

Defendant also argues that the prescribed sentence is rela-

tively more severe punishment for him than for a normally-

abled offender because intellectually disabled offenders are

especially vulnerable to abuse and other adverse effects in

by the Legislature as well as by the courts, particularly in Rodriguez/Buck.

When considering the Oregon Constitution, specifically Article [I], [s]ection

16 of the Oregon Constitution[,] as well as the Eighth Amendment of the

U.S. Constitution as applied to you, [defendant], I do not find, under this

record, that your sentence under Measure 11 shocks the conscience of this

Court with regard to the underling factual admissions that have been made.

It is a challenge for any court [when] the Legislature decides to remove the

Court’s ability to fashion an appropriate remedy for somebody who possesses

your background and disability, but I do believe that your—the analysis of

Rodriguez/Buck that—and Measure 11, that I would have to find shocking of

the conscience before I move into that, though I would hope that that would

change, and I may be applying it inaccurately, that seems to be the out—the

paradigm that has been laid out by the courts in light of Measure 11.

“Therefore, though I would like to agree with [CS] in her statement

that you should have treatment, I can’t order that treatment with regard to

Measure 11.”

3

Defendant does not challenge his sentences on the third-degree sexual

abuse convictions.

Cite as 361 Or 602 (2017) 611

prison. In addition, defendant argued in his opening brief

on review that the trial court erred in its application of the

framework that this court set out in State v. Rodriguez/

Buck, 347 Or 46, 58, 217 P3d 659 (2009)—specifically, in

determining the gravity of his offense—by failing to con-

sider the availability of rehabilitative treatment for his dis-

ability.4 In light of those factors, defendant asserts that the

trial court erred in failing to properly consider his intellec-

tual disability in determining whether the Measure 11 sen-

tence was disproportionate.

In response, the state again acknowledges that

defendant’s individual characteristics—including his intel-

lectual disability—are relevant considerations in evaluat-

ing the proportionality of his sentence. However, the state

asserts that “the availability of alternative treatment

options is completely irrelevant to an assessment of the

gravity of the offense; indeed, it has nothing to do with a

particular defendant’s culpability.” More generally, the state

argues that defendant’s focus on treatment is untenable

because the constitutional provisions on which he relies do

not require courts to choose the least restrictive means of

protecting the public, even when an offender is intellectually

disabled. To the contrary, the state argues, it is the legisla-

ture’s responsibility to prescribe appropriate criminal sanc-

tions, and the state and federal constitutions afford it broad

latitude in doing so.

As the state sees it, defendant’s treatment-based

argument fails to take into account the sentencing objec-

tives of retribution and deterrence and, generally speaking,

would transform an objection to the constitutionality of a

mandatory sentence into a full-blown sentencing hearing.

Finally, the state urges, consideration of alternative treat-

ment options could yield inconsistent results for similarly

culpable offenders, based solely on whether appropriate

treatment happens to be available at a particular time or

place—an inconsistency, the state argues, that highlights

the fallacy of recognizing such a constitutional requirement.

It follows, the state asserts, that the sentencing court in this

4

As noted below, defendant’s arguments concerning the relevance of his

treatment evidence evolved later in his reply brief and at oral argument.

612 State v. Ryan

case was not authorized to consider the availability of treat-

ment in determining whether the Measure 11 sentence was

constitutionally disproportionate.

Alternatively, the state notes that the residential

treatment program that defendant proposed was not cus-

todially secure and that it was not clear that the program

would be suitable for defendant. Under those circumstances,

the state argues, the prescribed sentence was not dispropor-

tionate. With the parties arguments thus framed, we turn

to defendant’s constitutional challenge under the Oregon

Constitution. See State v. Newcomb, 359 Or 756, 764, 375

P3d 434 (2016) (describing first-things-first approach).

II. ANALYSIS

A. Article I, Section 16

1. Analytical framework

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.”

“For the most part, this court has analyzed the requirement

that penalties shall be proportioned to the offense” sep-

arately from the related prohibition on cruel and unusual

punishments. State v. Althouse, 359 Or 668, 683, 375 P3d

475 (2016). In considering the proportionality requirement,

this court ordinarily has asked whether the length of the

sentence would shock the moral sense of reasonable peo-

ple. Id. (citing, e.g., State v. Rogers, 313 Or 356, 380, 836

P2d 1308 (1992), cert den, 507 US 974 (1993) (death pen-

alty for murder committed during the course of attempted

first-degree sex abuse “would not shock the moral sense of

reasonable people”)). That standard “reflect[s] the principle

that the legislature has primary authority to determine the

gravity of an offense and the appropriate length of punish-

ment.” Id. at 683-84. Only in those rare instances when the

legislature has exceeded that authority may a court con-

clude that a particular punishment is unconstitutionally

disproportionate. Id. at 684.

Cite as 361 Or 602 (2017) 613

In Rodriguez/Buck, this court considered (as in

this case) the as-applied constitutional challenges of two

defendants to Measure 11 sentences on single counts of

first-degree sexual abuse. 347 Or at 49. One defendant had

touched a 13-year-old boy by bringing the back of his head

against her clothed breasts for a minute, and the other

defendant had caused his hand to touch the clothed buttocks

of a 13-year-old girl. On review, this court identified three

factors that bear on the proportionality inquiry:

“(1) a comparison of the severity of the penalty and the grav-

ity of the crime; (2) a comparison of the penalties imposed

for other, related crimes; and (3) the criminal history of the

defendant.”

Id. at 58.

In applying those factors to the cases before it, this

court in Rodriguez/Buck held that the trial court in each

case properly had declined to impose statutory minimum

sentences of 75 months’ imprisonment on the defendants’

convictions for first-degree sexual abuse. With respect to

the first factor, the court emphasized that the first-degree

sexual abuse statute, ORS 163.427(1), criminalizes a broad

range of conduct,

“including, but not limited to, momentary touching of an

intimate part without the victim’s awareness or knowl-

edge, touching that the victim apprehends but does not

appreciate as sexual, momentary touching over clothing,

prolonged hand to genital contact, prolonged skin to skin

genital contact, and, of course, forcing a person under 18 to

engage in bestiality.”

Id. at 69 (internal quotation marks omitted).

Because some of that criminalized conduct is espe-

cially harmful (the court used the example of a 50-year-old

man forcing a 13-year-old girl to engage in prolonged skin-

to-skin genital contact with him), a mandatory prison term

of 75 months’ imprisonment for first-degree sexual abuse

does not, on the face of the statute, violate Article I, sec-

tion 16. Id. “But because the statute also encompasses con-

duct that reasonable people would consider far less harm-

ful, [the] defendants [were] entitled * * * to argue that the

614 State v. Ryan

mandatory sentence, as applied to the particular facts of

their cases, [was] unconstitutionally disproportionate.” Id.

at 69-70 (emphasis omitted). In considering the defendants’

challenges, the court compared the defendants’ conduct with

other especially harmful conduct that also could be prose-

cuted as first-degree sexual abuse. Id. at 71. In tentatively

concluding (based on its assessment of the first factor) that

the defendants’ sentences were disproportionate, the court

remarked that the differences between the defendants’ con-

duct and that more harmful conduct—also punishable by

the same mandatory 75-month sentence—”is obvious to any

reasonable person.” Id.

Regarding the second factor, the court stated that,

“[i]f the penalties for more ‘serious’ crimes than the crime

at issue result in less severe sentences, that is an indication

that the challenged penalty may be disproportionate.” Id. at

63. The court noted that Oregon’s “elaborate listing of sex

offenses” provides a useful basis for comparing the conduct

constituting the crime and the penalty to other sex crimes,

although the inquiry should be limited to “other crimes that

have similar characteristics to the crime at issue.” Id. at 65.

The court cautioned that courts are not free to “roam * * *

through the criminal code, deciding which crimes are more

or less serious than others.” Id. at 64.

Finally, the court examined the criminal history of

each defendant. Neither of the defendants had prior convic-

tions, and, in the absence of Measure 11’s mandate, their

presumptive sentences for first-degree sexual abuse would

have been 16 to 18 months’ imprisonment. Id. at 77-78. Even

with a more serious criminal record of three or more person

felonies, the defendants would have received presumptive

sentences of 41 to 45 months in prison. Id. at 78. Taking

their criminal histories into account, as well as the other

two factors, the court held that imposing Measure 11 sen-

tences would have been unconstitutional under the circum-

stances. Id. at 79.

2. Standard of review

We review for legal error the trial court’s conclusion

that defendant’s sentence was constitutional under Article I,

Cite as 361 Or 602 (2017) 615

section 16. State v. Rangel, 328 Or 294, 298, 977 P2d 379

(1999). In conducting that review, we are bound by any find-

ings of historical fact that the trial court may have made, if

they are supported by evidence in the record. State v. Hall,

339 Or 7, 10, 115 P3d 908 (2005), abrogated on other grounds

by State v. Unger, 356 Or 59, 333 P3d 1009 (2014).

3. Defendant’s arguments on review

In this case, defendant does not argue that the man-

datory Measure 11 sentence was disproportionate based on

a comparison of the penalties imposed for other, related

crimes, and, apart from noting that he had only one crim-

inal conviction before committing the charged offenses in

this case, he makes no focused argument that his criminal

history weighs significantly in the proportionality calcu-

lus. Instead, to reiterate, defendant has primarily focused

on the first Rodriguez/Buck factor and, indeed, more nar-

rowly on the extent to which—in comparing the gravity of

his offense and the severity of the prescribed penalty—the

trial court was required to consider his intellectual disabil-

ity. As discussed above, as part of that argument, defen-

dant urged in his opening brief on review that the trial

court erred in its application of the Rodriguez/Buck frame-

work—in determining the gravity of his offense—by failing

to consider the availability of rehabilitative treatment for

his disability.

a. Intellectual disability

We begin with defendant’s overarching argu-

ment that the Measure 11 sentence was disproportionate

as applied to him because of his intellectual disability. In

addressing that contention, we are guided by the analyti-

cal framework set out in Rodriguez/Buck. In that case, this

court stated that, in addressing a proportionality challenge

a sentencing court may consider, among other case-specific

factors, the personal characteristics of the defendant as part

of the first Rodriguez/Buck inquiry. The full measure of the

court’s statement was this:

“We therefore conclude that a defendant’s ‘offense,’ for pur-

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

particular conduct toward the victim that constituted the

616 State v. Ryan

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

statute. In considering a defendant’s claim that a penalty is

constitutionally disproportionate as applied to that defen-

dant, 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. at 62. In short, the gravity of an “offense” refers to the

gravity of the defendant’s particular conduct and the statu-

torily defined crime itself. To the extent that an offender’s

personal characteristics influence his or her conduct, those

characteristics can affect the gravity of the offense. Id. at 63

(stating that, to determine whether penalty is proportioned

to gravity of offense, it is appropriate to consider gravity of

instant conduct in comparison with other criminal conduct

in light of relative harm to victims and society and offend-

er’s culpability).5

The question remains whether an offender’s intel-

lectual disability is such a characteristic and, if so, how it

should be considered. As the parties note, no Oregon case

has specifically addressed the application of Article I, sec-

tion 16, to a sentence for a crime committed by an intel-

lectually disabled offender. However, the United States

Supreme Court has discussed relevant considerations in

proportionality challenges by intellectually disabled offend-

ers sentenced to death in capital murder cases, and other

courts applying the Eighth Amendment have considered the

issue with respect to mandatory prison sentences. Because

the test for proportionality under the Eighth Amendment

is similar to that under Article I, section 16, at least in its

comparison of the gravity of the offense and the severity of

5

This court’s reference in Rodriguez/Buck to “culpability” was taken from

the United States Supreme Court’s Eighth Amendment jurisprudence, which

we discuss in greater detail below. The term generally is used with reference to

“relative,” “diminished,” or “reduced” culpability. See, e.g., Atkins v. Virginia, 536

US 304, 317, 321, 122 S Ct 2242, 153 L Ed 2d 335 (2002) (prohibiting the death

penalty for persons with intellectual disabilities because of the reduced “relative

culpability of [intellectually disabled] offenders”); Roper v. Simmons, 543 US 551,

578, 125 S Ct 1183, 161 L Ed 2d 1 (2005) (prohibiting the death penalty for juve-

niles because of their “diminished culpability”).

Cite as 361 Or 602 (2017) 617

the penalty,6 we now consider the Supreme Court’s decisions

and the decisions of other courts following them insofar as

they may shed light on our path.

In 2002, the Supreme Court held that the Eighth

Amendment prohibits the execution of an intellectually

disabled offender. Atkins v. Virginia, 536 US 304, 122 S Ct

2242, 153 L Ed 2d 335 (2002). The Court initially observed

that “an IQ between 70 and 75 or lower * * * is typically

considered the cutoff IQ score for the intellectual function

prong of the mental retardation definition.” Id. at 309 n 5. In

the wake of Atkins, the Court has made clear that, even for

offenders who test above that cut-off IQ score, deficits in the

offender’s adaptive functioning are relevant to a determina-

tion of intellectual disability. See Moore v. Texas, __ US __,

__, 137 S Ct 1039, 1050, 197 L Ed 2d 416 (2017) (requiring

courts to “continue the inquiry and consider other evidence

of intellectual disability where an individual’s IQ score,

adjusted for the test’s standard error, falls within the clini-

cally established range for intellectual-functioning deficits”);

see also Hall v. Florida, __ US __, __, 134 S Ct 1986, 1990,

188 L Ed 2d 1007 (2014) (holding that it is unconstitutional

to foreclose “all further exploration of intellectual disability”

simply because a capital defendant is deemed to have an IQ

above 70).

The Court in Atkins emphasized that “the American

public, legislators, scholars, and judges” had deliberated

over the question of the death penalty for the intellectually

6

See Rodriguez/Buck, 347 Or at 59-60 (discussing tests under Eighth

Amendment to the United States Constitution and Article I, section 16, of the

Oregon Constitution). The Supreme Court has identified three criteria for assess-

ing proportionality: the gravity of the offense as compared to the harshness of

the penalty; the sentences imposed on others in the same jurisdiction; and the

sentences imposed for the same offense in other jurisdictions. Solem v. Helm,

463 US 277, 292, 103 S Ct 3001, 77 L Ed 2d 637 (1983). The gravity of an offense

depends heavily on the nature and circumstances of a particular case, including

the harm or risk of harm, magnitude of the crime, degree of culpability of the

offender, motive, and any other facts specific to the offense. Id. at 292-94; U.S.

v. Young, 766 F3d 621, 626-27 (6th Cir 2014), cert den, __ US __, 135 S Ct 1475

(2015). In most cases under the Eighth Amendment, a gravity-versus-harshness

analysis will answer the question; only if a court reaches an initial inference of

gross disproportionality will it consider the other criteria. Harmelin v. Michigan,

501 US 957, 1004-05, 111 S Ct 2680, 115 L Ed 2d 836 (1991); Graham v. Florida,

560 US 48, 60, 130 S Ct 2011, 176 L Ed 2d 825 (2010).

618 State v. Ryan

disabled and had come to a consensus that it should be

prohibited. Atkins, 536 US at 307. The Court noted that,

although some states still imposed the death penalty on

intellectually disabled individuals convicted of heinous

crimes, the consistency of the direction of change was more

important than a simple numerical tally. Id. at 315. The

Court stated that the practice of executing the intellectu-

ally disabled was “uncommon,” id. at 316, but that evidence

of consensus, though important, did not “wholly determine”

the matter, insofar as the Court was required to bring its

own judgment to bear by asking whether there was reason

to disagree with the judgment reached by the citizenry and

its legislators, id. at 312-13.

The Court concluded that, for an intellectually dis-

abled offender, the case for retribution was diminished. Id.

at 319. Further, it stated, the rationale of deterrence was

diminished by the reduced ability of the intellectually dis-

abled “to understand and process information, to learn from

experience, to engage in logical reasoning, [and] to control

impulses.” 7 Id. at 320.

If left to case-by-case determinations, the Court

opined, there was “[t]he risk that the death penalty [would]

be imposed in spite of factors which may call for a less severe

penalty.” Id. at 320 (internal quotation omitted). The Court

explained:

“Those [intellectually disabled] persons who meet the

law’s requirements for criminal responsibility should be

tried and punished when they commit crimes. Because of

their disabilities in areas of reasoning, judgment, and con-

trol of their impulses, however, they do not act with the

level of moral culpability that characterizes the most seri-

ous adult criminal conduct. Moreover, their impairments

can jeopardize the reliability and fairness of capital pro-

ceedings against [so diagnosed] defendants.”

7

By “deterrence,” we understand the Court to have meant the ordinary

meaning of the term: “the prevention of criminal behavior by fear of punishment.”

See Natalie Pifer, Is Life the Same As Death?: Implications of Graham v. Florida,

Roper v. Simmons, and Atkins v. Virginia on Life Without Parole Sentences for

Juvenile and Mentally Retarded Offenders, 43 Loy L Rev 1495, 1501 n 27 (2010)

(so describing the Court’s use of the term, quoting Black’s Law Dictionary 514

(9th ed 2009)).

Cite as 361 Or 602 (2017) 619

Id. at 306-07. Viewing an intellectually disabled offender’s

culpability in light of the “penological purposes served by

the death penalty,” the Court determined that such defen-

dants “should be categorically excluded from execution.”

Id. at 317-18. Concerning retribution, the Court found that,

because “severity of the appropriate punishment neces-

sarily depends on the culpability of the offender[,] * * * an

exclusion for the [intellectually disabled] is appropriate.”

Id. at 319. Culpability also was central to the Court’s deter-

mination that execution of the intellectually disabled did

not serve the penological purpose of deterrence, because

“it is the same cognitive and behavioral impairments that

make these defendants less morally culpable.” Id. at 320.

“Construing and applying the Eighth Amendment in the

light of our ‘evolving standards of decency,’ [the Court]

therefore conclude[d] that such punishment is excessive and

that the Constitution ‘places a substantive restriction on the

State’s power to take the life’ of [an intellectually disabled]

offender.” Id. at 321 (citation omitted).

Despite the Court’s pronouncements in Atkins

about the reduced justification for treating intellectually

disabled offenders the same as other offenders, lower courts

faced with Atkins-based challenges generally have held that

Atkins applies only to offenders otherwise subject to death

penalty sentences.8 Some of those decisions have not pro-

vided extended explanations for why the Atkins rationale

should not apply to true-life or other long-term prison sen-

tences, but, in general, they have relied on the notion that

the death penalty is fundamentally different from other sen-

tences. See, e.g., U.S. v. Shields, 480 F App’x 381, 389 (6th

Cir), cert den, __ US __, 133 S Ct 381 (2012) (so stating).

One commentator has explained the reluctance of

courts to extend the Atkins rationale beyond the death pen-

alty context in this way:

8

See, e.g., U.S. v. Gibbs, 237 F App’x 550, 568 (11th Cir), cert den, 552 US

1005 (2007) (holding that Atkins was inapplicable in the context of a sentence

that did not involve the death penalty); Harris v. McAdory, 334 F3d 665, 668

n 1 (7th Cir 2003), cert den, 541 US 992 (2004) (same); People v. Brown, 2012

Ill App 091940, 967 NE 2d 1004, 1022 (Ill App), rev den, 981 NE2d 995 (2012),

cert den sub nom Brown v. Illinois, ___ US ___, 133 S Ct 2795 (2013) (same);

Commonwealth v. Yasipour, 957 A2d 734, 744 (Pa Super Ct 2008), rev den, 602 Pa

658, 980 A2d 111 (2009) (same).

620 State v. Ryan

“The conclusion that Atkins seems to play no role in

non-capital sentencing should not, perhaps, be wholly sur-

prising. It may be explained by the notion of incapacitation.

After all, a disabled defendant spared death under Atkins

is still imprisoned, likely for the rest of his life. Using the

Atkins rationale in a non-capital sentencing situation may

result in a defendant being imprisoned for a significantly

shorter period of time. True, but if one believes what the

Court wrote in Atkins about mentally disabled defendants

being less culpable than others, such a result should be

applauded, not avoided. And, if we are to be serious about

the application of Atkins, sentencing statutes and guide-

lines ought to expressly take account of intellectual disabil-

ities, and sentencing judges should also be required to refer

specifically to low intelligence of offenders in passing sen-

tences. Such changes would be a welcome recognition of the

wisdom of Atkins beyond the death penalty prosecution.”

Paul Marcus, Does Atkins Make a Difference in Non-Capital

Cases? Should It?, 23 Wm & Mary Bill Rts J 431, 465 (2014)

(footnote omitted). The author further observes:

“Just about everyone working in the field who speaks to

the matter seems to believe that the diminished intelli-

gence of the offender ought to be a major factor in deter-

mining appropriate sentences. And I do mean just about

everyone[.]”

Id. at 456 (footnote omitted). Among those authorities is

the American Bar Association Criminal Justice Section.

See ABA Criminal Justice Standards Committee, ABA

Criminal Justice Mental Health Standards § 7-9.3, 472 (1989)

(“Evidence of mental illness or mental retardation should

be considered as a possible mitigating factor in sentencing

a convicted offender.”). See also OAR 213-008-0002(1)(a)(C)

(listing defendant’s reduced mental capacity as a potential

mitigating factor in sentencing).

We acknowledge the force of that view. The Supreme

Court in Atkins repeatedly emphasized the relevance of

intellectual disability in determining both the gravity of an

offense and the severity of its penalty, 536 US at 319-20,

and this court expressly stated in Rodriguez/Buck that an

offender’s personal characteristics are relevant in making

a proportionality determination, 347 Or at 62. Evidence

of an offender’s intellectual disability therefore is relevant

Cite as 361 Or 602 (2017) 621

to a proportionality determination where sentencing laws

require the imposition of a term of imprisonment without

consideration of such evidence. Accordingly, we conclude

that, where the issue is presented, a sentencing court must

consider an offender’s intellectual disability in comparing

the gravity of the offense and the severity of a mandatory

prison sentence on such an offender in a proportionality

analysis under Rodriguez/Buck. See id. at 62-63.9

The question remains how that consideration should

affect the proportionality analysis. Because there exists a

broad spectrum of intellectual disabilities that may reduce,

but not erase, a person’s responsibility for her crimes, see

Atkins, 536 US at 318 (a defendant’s mental “deficiencies do

not warrant an exemption from criminal sanctions”), a one-

size-fits-all approach is not appropriate. For that reason,

a sentencing court’s findings, among other factual consid-

erations, as to an intellectually disabled offender’s level of

understanding of the nature and consequences of his or her

conduct and ability to conform his or her behavior to the law,

will be relevant to the ultimate legal conclusion as to the

proportionality—as applied to the offender—of a mandatory

prison sentence. See id. at 319 (holding that “severity of the

appropriate punishment necessarily depends on the culpa-

bility of the offender”). The length of the prescribed prison

sentence also is relevant in determining the severity of the

penalty.10

In so concluding, we recognize the inherent ten-

sion between considering the personal characteristics of

an offender and other case-specific factors in conducting a

comparison of the gravity of an offense and the severity of

a penalty, and the principle that a proportionality review

must be “informed by objective factors to the maximum pos-

sible extent.” Harmelin, 501 US at 1000 (internal quotation

marks and citations omitted). Indeed, the metrics that are

available for making such comparisons are far from precise.

90

We emphasize that our holding applies only to intellectually disabled

offenders, not to other categories of offenders.

10

As discussed, defendant offered without objection expert testimony that

his disability would be adversely affected by a prison sentence. The state has not

contended that that evidence was irrelevant in determining the severity of the

prescribed Measure 11 prison sentence in this case.

622 State v. Ryan

See id. at 1001 (recognizing that Court “lack[ed] clear objec-

tive standards to distinguish between sentences for differ-

ent terms of years”); see also Solem v. Helm, 463 US 277,

294, 103 S Ct 3001, 77 L Ed 2d 637 (1983) (“It is clear that

a 25-year sentence generally is more severe than a 15-year

sentence, but in most cases it would be difficult to decide

that the former violates the Eighth Amendment while the

latter does not.” (Footnote omitted.)).11

However, those difficulties are inherent in a propor-

tionality test that asks whether a particular sentence for a

particular offender would shock the moral sense of reason-

able people. The fact that a comparison of the gravity of an

offense and the severity of its penalty involves factual con-

siderations does not mean that it is unmoored in principle.

Nor do challenges posed by the application of such a test

justify rejecting it. The Court in Solem and this court have

pointed to various factors that can be assessed relatively

objectively. In instructing a court to judge the gravity of the

offense, this court

“assumes that courts are competent to judge the gravity of

an offense, at least on a relative scale. In a broad sense, this

assumption is justified, and courts traditionally have made

these judgments—just as legislatures must make them in

the first instance. Comparisons can be made in light of the

harm caused or threatened to the victim or society, and the

culpability of the offender.”

Rodriguez/Buck, 347 Or at 63 (quoting Solem, 463 US at

292-93).

b. Evidence of treatment options

We briefly turn to defendant’s more particularized

treatment-based argument. Before the Court of Appeals,

defendant argued that the trial court erred in failing to con-

sider evidence of “an available treatment option that would

be more effective and appropriate because of defendant’s

condition,” but defendant did not explain how that argument

11

For this reason, the Court has noted that successful Eighth Amendment

challenges to non-capital punishments are extremely rare. Harmelin, 501 US at

1001.

Cite as 361 Or 602 (2017) 623

comported with the Rodriguez/Buck framework. Later,

as noted, in his opening brief before this court defendant

argued that the availability of rehabilitative treatment as

part of an alternative sentence was relevant to the gravity

of his offense, but he has not sufficiently explained how that

argument comports with the Rodriguez/Buck framework to

permit a carefully considered analysis of it.12 Accordingly,

we decline to address it, and we express no opinion as to

whether and, if so, how consideration of treatment options

for an intellectually disabled offender as part of an alter-

native sentence could be relevant to a proportionality chal-

lenge under Article I, section 16.

III. APPLICATION

Defendant argued before the trial court, and he

has consistently argued on appeal and review, that the

prescribed Measure 11 sentence in this case was uncon-

stitutionally disproportionate as applied to him because

of his intellectual disability. For the following reasons, we

conclude that the trial court failed to sufficiently consider

defendant’s intellectual disability in addressing his propor-

tionality challenge.

As discussed, the undisputed evidence at sentencing

showed that defendant is an intellectually disabled offender

who has an IQ score between 50 and 60, a full ten to twenty

points below the cutoff IQ score for the intellectual func-

tion prong of the intellectual disability definition recognized

in Hall. See __ US at __, 134 S Ct at 2000. Moreover, it is

undisputed that defendant has significantly impaired adap-

tive functioning, such that he functions—as it pertains to

standards of maturation, learning, personal independence,

and social responsibility—at an approximate mental age of

10, two years below the minimum age for establishing crim-

inal responsibility of a child under Oregon law. See ORS

12

In his reply brief on review, and later at oral argument, defendant con-

ceded that “evidence of a treatment program is difficult to fit perfectly into either

the gravity-of-offense or severity-of-punishment box.” Defendant then suggested

that the court should consider modifying the Rodriguez/Buck methodology in

cases involving intellectually disabled offenders to add a prong focusing more on

the characteristics of the offender than the offender’s conduct. We do not reach

that question: That argument came too late, and was not sufficiently developed,

to permit careful consideration of it in this case.

624 State v. Ryan

161.290(1).13 That legislative pronouncement is relevant

here because it is objective evidence of a societal standard

that eschews treating persons with the attributes of a pre-

teen child as if they were normally abled adult offenders.

Cf. Haugen v. Kitzhaber, 353 Or 715, 744, 306 P3d 592 (2013),

cert den, __ US __, 134 S Ct 1009 (2014) (citing Graham, 560

US at 61, for proposition that, in proportionality challenge

under Eighth Amendment, court considers “objective indicia

of society’s standards, as expressed in legislative enactments

and state practice to determine whether there is a national

consensus against the sentencing practice at issue”).

To be sure, the trial court generally noted defen-

dant’s intellectual disability, but, as discussed, the court did

not address its implications in rejecting his proportionality

challenge. That missing linkage is problematic, because it

suggests that, although the court appeared to grasp the

factual foundation of defendant’s argument, it did not fully

appreciate its constitutional implications.

In the absence of express findings, we ordinarily

would presume that the trial court resolved factual disputes

consistently with its ultimate decision. Ball v. Gladden, 250

Or 485, 487, 443 P2d 621 (1968). Thus, in the absence of

an indication that the court misapprehended the import of

defendant’s argument, we would (as noted above) review its

factual findings for sufficient evidence in the record, and

then determine whether the court correctly applied legal

principles to those facts. However, where, as here, the court

did not address defendant’s intellectual disability in com-

paring the gravity of defendant’s offense with the severity

13

That statute 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.”

By referring to ORS 161.290(1) as objective evidence of a societal standard,

we do not suggest that that statute directly applies to intellectually disabled

adults. Nor do we hold that ORS 161.290(1) precludes the imposition of criminal

responsibility on an intellectually disabled adult with a mental age lower than

that of a twelve-year-old. For example, on remand the sentencing court, after

considering evidence of defendant’s intellectual disability, may impose a lesser

sentence than the prescribed Measure 11 sentence if the court properly concludes

that the prescribed sentence is constitutionally disproportionate to the offense

based on evidence in the record.

Cite as 361 Or 602 (2017) 625

of the Measure 11 sentence, we would have to speculate to

conclude that the court properly considered that factor and

made any related factual findings with respect to it.14

As noted, evidence of defendant’s intellectual disabil-

ity, if credited, would establish that defendant’s age-specific

intellectual capacity, including his level of adaptive func-

tioning, fell below the minimum age level for the imposition

of criminal responsibility. Permissible inferences that the

sentencing court could draw from that evidence could affect

the court’s comparison of the gravity of defendant’s offense

with the severity of the prescribed penalty. Accordingly,

we must remand to the trial court for resentencing.15 In so

concluding, we do not suggest that defendant’s intellectual

disability is the sole determinant of whether the Measure

11 sentence would shock the moral sense of all reasonable

people. As discussed, other case-specific factors, including

the nature of defendant’s conduct, its effect on the victim,

and the length of the prescribed sentence, also are relevant

considerations in making the proportionality comparison

under Rodriguez/Buck. 347 Or at 62. In short, this opinion

should not be taken to imply that the proper consideration

of defendant’s intellectual disability necessarily would lead

to a different sentence. Because different inferences could

be drawn from the evidence, that is a decision, in the first

instance, for the trial court.

As stated above, we hold only that the trial court

erred—in comparing the gravity of defendant’s offense and

the severity of the Measure 11 sentence under the first

Rodriguez/Buck factor—in failing to consider evidence of

14

As discussed, the evidence pertaining to defendant’s intellectual disability

was relevant both to the gravity of his offense and the severity of the penalty for

it.

15

We emphasize that our decision stands for the limited proposition that, in

certain circumstances where the record suggests that the trial court misappre-

hended the import of the defendant’s proportionality challenge, we may vacate

and remand for the court to consider the relevant factors in the first instance.

Vacating and remanding for a trial court to resentence the defendant in those

circumstances is appropriate because we would have to speculate as to whether

the court properly considered the relevant case-specific factors and made any

necessary factual findings. See State v. Sanderlin, 276 Or App 574, 576-77, 368

P3d 74 (2016) (Court of Appeals vacated and remanded for resentencing because

the trial court had concluded that it was not permitted to consider the defendant’s

“mental problems” in assessing the proportionality of the sentence).

626 State v. Ryan

defendant’s intellectual disability when that evidence, if

credited, would establish that the sentence would be argu-

ably unconstitutional because it shows that defendant’s age-

specific intellectual capacity fell below the minimum level of

criminal responsibility for a child.16

The decision of the Court of Appeals is affirmed

in part and reversed in part. The judgments of conviction

are affirmed, but the sentences are vacated, and the case is

remanded to the circuit court for resentencing, in a manner

consistent with this opinion.

BALMER, C. J., concurring.

I agree with the majority’s conclusion that, on this

record, where defendant introduced undisputed evidence of

his intellectual disability and of his intellectual functioning

as similar to that of a 10-year-old, it was error for the trial

court not to consider that evidence in determining whether

the imposition on him of the mandatory Measure 11 sen-

tence for first-degree sex abuse was disproportionate under

Article I, section 16, of the Oregon Constitution.

Defendant advanced a broad theory that a defen-

dant’s “reduced culpability” or “blameworth[iness]”—

because of intellectual disability (as in this case) or youth

or, presumably, mental illness or other individual factors

affecting judgment and conduct—is always relevant in

determining whether a mandatory sentence is constitution-

ally disproportionate. I disagree with that theory, for rea-

sons discussed below, but the majority takes a narrower and

more defensible approach.

Two related aspects of the majority opinion are

particularly significant to me. First, a diagnosis of intellec-

tual disability has been relied upon by the United States

Supreme Court and by this court as a factor to be consid-

ered in determining whether a defendant may be subject

to the death penalty. Atkins v. Virginia, 536 US 304, 122 S

Ct 2242, 153 L Ed 2d 335 (2002); State v. Agee, 358 Or 325,

364 P3d 971 (2015), adh’d to as modified on recons, 358 Or

16

Our conclusion makes it unnecessary to consider defendant’s Eighth

Amendment challenge.

Cite as 361 Or 602 (2017) 627

749, 370 P3d 476 (2016). Second, to respond to the obvious

rejoinder that no court has extended the Atkins rationale

to conclude that imprisonment for a term of years (manda-

tory or not) is unconstitutionally cruel or disproportionate,

see, e.g., Harris v. McAdory, 334 F3d 665, 668 n 1 (7th Cir

2003), cert den, 541 US 992 (2004), the majority relies on

ORS 161.290(1), which provides, “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 per-

son was under 12 years of age.” That statute expresses a

kind of societal consensus, recognized by legislative enact-

ment, that children under the age of 12 lack the maturity

that would permit the state to charge and punish them as

adults. The majority, of course, does not argue that ORS

161.290(1) precludes all punishment of defendant, or of chil-

dren under the age of 12.

Here, defendant not only presented expert testimony

that he is intellectually disabled, but also introduced undis-

puted evidence that, because of his low IQ score and signifi-

cantly impaired adaptive functioning, his intellectual func-

tioning is at a mental age of approximately 10. Defendant,

of course, was an adult at the time of his crime, and was

considered competent to stand trial, so ORS 161.290(1) does

not absolve him of criminal responsibility for his conduct.

With that statute as a marker for “criminal responsibility,”

however, it would be anomalous for the sentencing court

not to at least consider defendant’s intellectual disability in

determining whether the mandatory Measure 11 sentence

of 75 months is disproportionate under Article I, section 16,

as applied to him. For that reason, in the specific circum-

stances presented here, I agree with the majority.

It is important, however, to respond to defendant’s

broader argument about relative culpability in sentencing

and to explain why that argument, although appropriate in

establishing sentencing policy or imposing a particular sen-

tence within legislative parameters, will rarely be sufficient

to support an as-applied constitutional challenge under

Article I, section 16.

I agree with defendant that a just and nuanced sen-

tencing policy would give a judge at least some discretion,

628 State v. Ryan

in imposing a criminal sentence, to take into account per-

sonal characteristics, including intellectual disability, and

the possibility that an intellectually disabled person may

be less morally culpable in some sense for his or her crim-

inal conduct than a person whom defendant describes as

“normally abled.” In my view, the legislature should revisit

the statutes that prevent courts from considering, when

imposing a Measure 11 sentence, intellectual disability,

youth, immaturity, or other mental or psychological lim-

itations that may affect behavior.1 Appropriate legislation

would give the courts discretion to impose a sentence more

tailored to a particular defendant and crime, rather than

imposing the current mandatory minimum sentence; and

perhaps also could provide additional guidance as to the

kinds of personal characteristics that may affect a defen-

dant’s legal culpability and, if reduced culpability is found,

the relationship between that reduced culpability and the

kind of sentence that would be proportionate to the defen-

dant’s offense.

But that is not the sentencing law that the peo-

ple and the legislature have put in place for Measure 11

offenses, such as the 75-month mandatory minimum sen-

tence for first-degree sexual abuse that the court imposed

on defendant here. Oregon’s statutory sentencing provisions

for Measure 11 offenses permit only the most limited con-

sideration of personal characteristics, degree of culpability,

mitigating facts, or the impact of the Measure 11 sentence

on a particular defendant.

1

In State v. Wheeler, 343 Or 652, 175 P3d 438 (2007), we reviewed in detail

Blackstone’s influential support for the concept of proportionality, noting his view

that because of the “difficulty of ensuring that punishments are proportional

* * * deference should be granted to the legislature’s choices.” Id. at 659; see also

id. (“ ‘[T]he quantity of punishment can never be absolutely determined by any

standing invariable rule; but it must be left to the arbitration of the legislature

to inflict such penalties as are warranted by the nature of laws and society[.]’ ”

(quoting William Blackstone, 4 Commentaries on the Laws of England 12 (1769)));

see generally Thomas A. Balmer, Some Thoughts on Proportionality, 87 Or L Rev

783, 787-89 (2008) (discussing Blackstone’s views on proportionality). While I

agree with this court’s decisions holding specific sentences unconstitutional as

applied to particular defendants and offenses, Blackstone’s argument that courts

ordinarily should defer to the legislature with respect to the penalties for specific

crimes has always found strong support in the Oregon cases and remains persua-

sive. See Balmer, 98 Or L Rev. at 809-10, 816-17 (discussing roles of legislature

and courts in application of Article I, section 16).

Cite as 361 Or 602 (2017) 629

As a consequence, defendant must rely solely on the

claim that his sentence was not “proportioned to the offense”

and therefore was unconstitutional under Article I, section

16, as interpreted in State v. Rodriguez/Buck, 347 Or 46,

217 P3d 659 (2009). And defendant’s basic assertion is that

a court imposing a substantial, mandatory sentence must

consider, in applying Article I, section 16, any personal char-

acteristics “that mitigate[ ] culpability.” Here, of course, the

individual characteristic at issue is intellectual disability,

but defendant also argues that “youth” or “adolescence” is

such a characteristic and the Court of Appeals has said the

same about “mental problems” caused by strokes. State v.

Sanderlin, 276 Or App 574, 576, 368 P3d 74 (2016). Indeed,

nothing in defendant’s logic suggests any limit on the kind

of personal characteristic that would “mitigate culpability,”

and the category would seem to include any intellectual, psy-

chological, or other condition that might affect a defendant’s

judgment, mental state, or conduct. I agree that, in many

circumstances, such factors probably should be considered

in determining an appropriate sentence—and would be in

a more rational sentencing scheme than Measure 11—but

that does not mean that such consideration is constitution-

ally required.

Moreover, defendant offers no suggestion as to what

the constitutionally required metric would be for determin-

ing the “lesser degree of culpability” that would lead to a

lesser sentence for a person with such reduced culpability,

compared to any other person who committed the same acts.

And, assuming that such a person is less culpable in some

legal sense, defendant is silent on the metric or standard

for determining how the Measure 11 sentence should be

adjusted (and presumably reduced) to reflect that lesser cul-

pability and render the sentence constitutionally valid.

To show why defendant’s underlying theory is prob-

lematic as a constitutional argument requires a brief review

of our Article I, section 16, cases. This court repeatedly has

emphasized that “the legislature has primary authority to

determine the gravity of an offense and the appropriate

length of punishment,” State v. Althouse, 359 Or 668, 683-84,

375 P3d 475 (2016), and that it will only be “in rare circum-

stances” that a court will find that a legislatively prescribed

630 State v. Ryan

penalty violates Article I, section 16, State v. Wheeler, 343

Or 652, 670, 175 P3d 438 (2007). Rodriguez/Buck was one of

those rare cases, and defendant understandably relies pri-

marily on that case. In Rodriguez/Buck, this court engaged

in a detailed review of the defendants’ specific acts and a

comparison of those acts with the acts of other defendants

convicted of the same offense (first-degree sexual abuse, ORS

163.427). It also compared defendants’ acts with acts that

would constitute other sex crimes, as well as the sentences

for those crimes. 347 Or at 63-65, 67-76. This court concluded

that the mandatory 75-month sentences imposed for each

defendant’s single conviction for first-degree sexual abuse,

when defendants had no prior criminal history of any kind,

were constitutionally disproportionate as applied to those

defendants. Id. at 78-80. In deciding that case, this court

identified several factors to consider in making that consti-

tutional determination, including “a comparison of the sever-

ity of the penalty and the gravity of the crime.” Id. at 58.

Defendant focuses solely on that factor and, in par-

ticular, on the “gravity of the crime.” But his argument goes

substantially beyond anything in Rodriguez/Buck. There,

this court grappled with the term “offense” in Article I, sec-

tion 16, because establishing the relative seriousness—or

gravity—of the offense is necessary to determine whether

the penalty is proportionate. Id. at 59. The court described

the “offense” as “the specific defendant’s particular con-

duct toward the victim that constituted the crime, as well

as the general definition of the crime in the statute.” Id. at

62. That definition made no mention of any required level

of level of culpability or mental state, other than its implicit

reference to the mental state required to prove the crime at

issue. The court listed a number of considerations that could

be appropriate in determining the “offense” in any specific

case, including “the specific circumstances and facts of the

defendant’s conduct,” “characteristics of the defendant and

the victim, the harm to the victim, and the relationship

between the defendant and the victim.” Id.

As noted, defendant’s argument appears to extend

the constitutional inquiry to include any personal “charac-

teristic” that might “mitigate” a defendant’s “culpability.”

Cite as 361 Or 602 (2017) 631

Although it may be entirely appropriate, as matter of policy

or logic, to examine all of a defendant’s personal “character-

istics” to determine whether a defendant might be consid-

ered “less culpable” than one without those characteristics,

Rodriguez/Buck certainly did not so hold, nor has any other

case from this court.2 Instead, we ordinarily have focused

on objective factors, such as the defendant’s actual conduct.

In Rodriguez/Buck, for example, the defendants, like defen-

dant here, engaged in conduct that came within the terms

of the statutory definition of first-degree sexual abuse. Id. at

55-56. They did not claim to be “less culpable” because of any

personal characteristic; rather, they argued that the actual

conduct they engaged in was so limited, particularly com-

pared to the conduct in other reported first-degree sexual

abuse cases and to conduct under other sexual abuse stat-

utes for which similar mandatory sentences are imposed,

that the 75-month sentences were disproportionate as

applied to their crimes. Id. at 57. Rodriguez/Buck does not

discuss either personal characteristics or degrees of culpa-

bility at all. Similarly, in State v. Davidson, 360 Or 370, 380

P3d 963 (2016), we held a criminal sentence to be dispro-

portionate based on a detailed review of the specific conduct

and its relatively limited impact on the victims, again with

no discussion of how the defendant’s mental state or other

psychological factors might have reduced his “culpability.”

Defendant’s argument for an expansive view of

individual characteristics that may mitigate or reduce a

person’s “culpability” compared to others who engage in

the same conduct, despite its theoretical appeal, also would

encounter serious obstacles in application. Of course, culpa-

bility, or mens rea, has played a role for thousands of years

in thinking about proportionality. See Thomas A. Balmer,

Some Thoughts on Proportionality, 87 Or L Rev 783, 785-86

(2008) (discussing history of mens rea in proportionality).

Every defendant’s mental state is critical in determining

2

I recognize that the majority suggests at one point that, to the extent

“personal characteristics” influence conduct, they may support a determination

of “reduced” culpability. 361 Or__. As discussed, however, the majority’s actual

holding in this case rests on defendant’s well-recognized diagnosis of intellectual

disability and the evidence that his intellectual functioning is at the level of a

10-year-old and therefore below the age of criminal responsibility in Oregon.

632 State v. Ryan

what crime they have committed, or whether they have

committed any crime at all. The same conduct—for exam-

ple, killing another by running over the person with a car—

might constitute murder or even aggravated murder, first or

second degree manslaughter, criminally negligent homicide,

or aggravated vehicular homicide, or no crime at all, depend-

ing on the defendant’s culpability. To differentiate levels of

culpability, our criminal code defines different mental states,

see ORS 161.085, and specifically defines “culpable mental

state” to mean “intentionally, knowingly, recklessly, or with

criminal negligence,” as those terms are used in that stat-

ute. ORS 161.085(6). That scheme generally imposes more

serious penalties for the same conduct when the wrongdoer

acts “intentionally” or “knowingly,” as opposed to acting

negligently. In those circumstances, it is not inaccurate to

say, informally, that the wrongdoer who acted intentionally

was “more culpable” than the person who was negligent. See

Solem v. Helm, 463 US 277, 292-93, 103 S Ct 3001, 77 L Ed

2d 637 (1983) (discussing “culpability” by similarly examin-

ing the “seriousness” of the criminal conduct and statutory

mental states).

Similarly, as discussed, our criminal code provides

that a child who is tried as an adult for conduct that occurred

before the child was 12 “is not criminally responsible” and

may assert a defense of “incapacity due to immaturity.” ORS

161.290. And if a person, as a result of a mental disease or

defect, commits a criminal act but, at the time, “lacks sub-

stantial capacity either to appreciate the criminality of the

conduct or to conform the conduct to the requirements of

law,” that person will be found “guilty except for insanity,”

ORS 161.295, and will be subject to different sanctions than

a person without such a mental disease or defect.

Thus, the criminal code, arbitrary as it may be in

some particulars, itself establishes specific levels of “culpa-

bility” depending upon a defendant’s mental state, includ-

ing lack of culpability for certain children and for those

with certain mental diseases or defects. Those gradations

are important to the criminal code’s stated purposes and

principles, which include “prescrib[ing] penalties which

are proportionate to the seriousness of offenses.” ORS

161.025(1)(f); see also ORS 161.025(1) (identifying other

Cite as 361 Or 602 (2017) 633

purposes and principles of the criminal code). If the stat-

utes defining criminal offenses and the sanctions for them

did not differentiate between crimes based, at least in part,

on the different levels of “culpability”—if, for example, the

death penalty were imposed for intentionally running over

and killing another and also for running over and killing

another without any intent to harm—the defendant in the

latter case would have a reasonable argument that the

death penalty, as applied to him or her, was not proportion-

ate to the offense. But our statutes expressly include differ-

ent, carefully defined culpable mental states.

It is true that in Solem and a handful of other cases,

the Supreme Court has referred to the concept of “relative

culpability” in reviewing prison terms to determine whether

they were so excessive as to be unconstitutional. But, like

Rodriguez/Buck and Davidson, those decisions had nothing

to do with psychological or mental conditions or any other

personal characteristic that excused or mitigated the defen-

dant’s conduct. Solem involved a defendant’s conviction for a

passing a bad check for $100. Under South Dakota’s sentenc-

ing laws, because of the defendant’s prior convictions—“all

relatively minor” offenses, according to the Court, 463 US at

296-97—he was sentenced to life in prison without the pos-

sibility of parole. Solem had nothing to do with “relative cul-

pability” based on the defendant’s mental condition and did

not even use that term. Rather, the discussion of culpability

in Solem emphasized that the “gravity of an offense” turns

primarily on the “harm caused or threatened” and “the cul-

pability of the offender.” Id. at 292. As to the first, the Court

noted that “there are widely shared views as to the rela-

tive seriousness of crimes,” which are reflected in criminal

statutes that generally treat nonviolent crimes as less seri-

ous than violent crimes and attempts as less serious than

completed crimes. Id. at 292-93. As to the culpability of an

offender, the Court noted the “clear distinctions that courts

may recognize and apply,” cited various state statutes defin-

ing mental states, and observed, “Most would agree that

negligent conduct is less serious than intentional conduct.”

Id. at 293. It was based on those factors that the Court found

the defendant’s offense to be so lacking in gravity, compared

to sentences for other crimes and other offenders, that his

634 State v. Ryan

life sentence without possibility of parole was unconstitu-

tionally disproportionate. Id. at 296-304. Solem provides no

support for defendant’s argument that one defendant should

be considered “less culpable” than another who engaged in

the same criminal conduct, because of the former’s “personal

characteristics.”

Under defendant’s approach, there would be little, if

any, limit to the factors that a judge or court could consider in

determining whether a sentence was disproportionate under

Article I, section 16. Defendant cites and relies on State v.

Lyle, 854 NW2d 378 (Iowa 2014), which held that manda-

tory minimum sentences for juvenile offenders were uncon-

stitutional under the state’s cruel and unusual punishment

clause, and, under defendant’s theory, age—at least below

the age of majority—would be another basis for asserting

“reduced culpability.” Also, at the very least, it would appear

that defendant’s argument would apply to persons suffering

from mental illness; persons who were abused as children

or for other reasons have disorders that cause them to lack

empathy with the victims of their crimes; or persons in their

late teens or early 20s whose brains have not developed to

the extent that they can properly evaluate risks, understand

the full impact of their conduct on victims, or conform their

conduct to laws and other social norms. That open-ended

review of the constitutionality of a sentence mandated by

statute is unlikely to have been intended by the framers of

Article I, section 16, and the majority wisely adopts a nar-

rower approach.

Again, I agree with defendant that courts should

have greater discretion than they do in various aspects of the

sentencing process, including consideration of age, maturity,

psychological condition, and other factors. The mandatory

sentences required by Measure 11 should be revisited and

revised to allow judges, within reasonable parameters and

based on specific factors, greater flexibility to impose sen-

tences that are more appropriate to the defendant, the vic-

tim, and the crime. The requirement of Article I, section 16,

that the penalty be proportioned to the offense has a role to

play in rare cases, but it is of limited utility in ensuring that

criminal sentences are appropriate in the great majority of

cases.

Cite as 361 Or 602 (2017) 635

Instead of defendant’s sweeping theory, the major-

ity adopts a narrow, but principled, approach to the issue

presented in this case, and I concur in that opinion.

Kistler and Landau, JJ., join in this concurrence.