State v. Shumway

TANZER, J.,

specially concurring.

As was true of the death penalty provision of the same initiative measure, the penalty provision now before us shows the hazards of fitting one penal law into the state’s existing system of constitutional provisions and statutes without the careful scrutiny, amendments and adjustments possible in the representative legislative process and not possible in the initiative legislative process.

Oregon prizes its tradition of a responsive and responsible system of public policy. From the beginning of *170 statehood, our constitution has expressed Oregon’s commitment to a fair and humane penal system, including guarantees against inhumane conditions of imprisonment, Art I, § 13, detention without bail, Art I, § 14, vindictive punishment, Art I, § 15, and disproportionate or cruel and unusual punishment, Art I, § 16. All these provisions were enacted by the vote of the people of Oregon. The criminal code has been developed and revised over many years in consciousness of these century-old principles.

Oregon also prizes its tradition of popular legislation by initiative petition and direct popular vote. It is inevitable that measures so proposed and enacted, without the opportunity for amendments and adjustments, sometimes risk fatal conflicts with the preexisting scheme of statutory and constitutional law.

This happened in the case of Measure 8 in 1980. Because the death penalty provision was drafted and submitted without regard to previous changes in the homicide statutes, it left an essential fact to determination by a judge rather than a jury, contrary to Oregon Constitution, Article I, Section 11. State v. Quinn, 290 Or 383 , 623 P2d 630 (1981). The noncapital sentence provisions were also submitted to the people subject to a similar legislative defect, inconsistent with existing sentence provisions that distinguish between murder and aggravated murder. That inconsistency created the problem of disproportionality analyzed in the majority opinion.

I agree with the majority that the enactment of ORS 163.115(5) by Measure 8 did not impliedly repeal the penalty for aggravated murder (other than felony murder and murder by bombing) provided in ORS 163.095 and 163.105. In 1977, the legislature considered and rejected House Bill 2321, which was similar to Measure 8 in all respects. Because the initiative process, by its nature, did not provide intensive legislative scrutiny and modification, Measure 8 was submitted to the people despite an apparent abundance of constitutional defects. The majority holds that its penalty provisions, now in ORS 163.115(5), and those for aggravated murder, ORS 163.105, are not repugnant. I agree with that analysis and with the conclusion that there has been no implied repeal but, as I analyze *171 ORS 163.115(5), it is invalid without regard to its relationship to other penalties.

In my opinion, the minimum penalty for murder, standing alone, is invalid because it offends Article I, Section 15, of the Oregon Constitution. I conclude that a severe, inflexible minimum penalty for every murder, regardless of circumstances, is unconstitutional regardless of whether another statute is repugnant to it. Therefore, I would first consider defendant’s challenge to the validity of ORS 163.115(5) under Article I, Section 15, of the Oregon Constitution which provides that:

“Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice.”

The recorded history of the constitutional convention tells us only that the framers of our constitution consciously included Article I, Section 15, by adapting a similar provision of the constitution of Indiana. 1 Despite a silent history, however, we must assume from the fact of their intentional adoption of Article I, Section 15, that the framers intended that the section have meaning and effect. The scant interpretive caselaw only describes results and effects that the provision does not compel. But it cannot mean nothing; it must mean something. Defendant’s challenge in this case requires that we discern the meaning of the section insofar as it affects ORS 163.115(5).

Certain conclusions, some of which are reflected in our opinions, may be deduced from the plain words of the section. First, the section is in two parts, one positive, one negative. The former is a command that penal laws be founded on principles of reformation; the second is an injunction against vindictive justice as a basis for penal laws. We gave separate definitions to the two parts in Tuel v. Gladden, 234 Or 1, 5 , 379 P2d 553 (1963):

“Reformation means doing over to bring about a better result, correction, or rectification. Vindictive, on the other hand, is defined by words such as ‘revenge,’ ‘retaliate,’ or *172 ‘punishment.’ The best known law applying vindictive justice is lex talionis: ‘An eye for an eye, and a tooth for a tooth.’ Matthew 5:38.”

Obviously, the function of the court differs as to each part. Generally, judicial enforcement of a constitutional exhortation is functionally more complicated than enforcement of a constitutional bar.

Second, the section assumes a priori that some criminals can be reformed. In this particular, the section has been said to reflect the utilitarian philosophy which prevailed in the mid-Nineteenth Century by which public action was to be directed to the achievement of socially useful objectives. Penology was to be directed to reforming offenders into useful citizens. See, Sterling v. Cupp, 290 Or 611 , 625 P2d 123 (1981). See also Kanter, Capital Punishment, 16 Will L J 1, 38 (1979). Early in this century, utilitarianism was echoed in State v. Walton, 50 Or 142, 149-50 , 91 P 490 (1907), in which this court observed that the reformative policy of Article I, Section 15, serves the public as well as the offender in that society will benefit from the offender’s service during “a longer period of his life as a reformed member of society.” Although current attitudes are no longer as sanguine about the official ability to cure persons afflicted with criminal minds, see Brown v. Multnomah County Dist. Ct., 280 Or 95 , 106 n 13, 570 P2d 52 (1977), Article I, Section 15, continues with full force to commit the State of Oregon as a matter of constitutional mandate to the idea that some criminals are capable of reformative change and that our penal laws must reflect that idea.

Third, the section refers to penal laws rather than to individual sentences. We early held that when a particular penal statute is reviewed for conformity to Article I, Section 15, it must be scrutinized as a part of its statutory scheme rather than standing alone. State v. Finch, 54 Or 482, 498-99 , 103 P 505 (1909). Oregon’s “laws for the punishment of crime” have undergone extensive changes in their substantive and implemental provisions since the Finch court examined Bellinger and Cotton’s Annotated Code. The definitions of crime have been revised, the variety of crimes has grown, the sentencing process has *173 become more sophisticated both in theory and method, and sentences are now subject to subsequent individuation by parole. The underlying philosophy of offenses and penalties under the present code is stated in ORS 161.025(1), which includes the following principles, all of which are in harmony with Article I, Section 15:

“The general purposes of the provisions of this Act [the Criminal Code] are:

“(a) To ensure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the correction and rehabilitation of those convicted, and their confinement when required in the interests of public protection.

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“(e) To differentiate on reasonable grounds between serious and minor offenses.

“(f) To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.

“(g) To safeguard offenders against excessive, disproportionate or arbitrary punishment.”

The principles of the substantive penal statutes are given effect through application of the executory statutes which provide for probation, incarceration and parole. Statutory sentence authorization allows a sentencing judge to take into account “rehabilitative possibilities among individual offenders,” ORS 161.025(l)(f). Parole statutes allow further individuation based on whether the individual convict has realized that potential for reformation so that incarceration is no longer needed for deterrence and public safety. See ORS 144.780 and ORS ch 144 generally. This substantive and executory scheme is designed to be harmonious with the objectives of Article I, Section 15. Today, when we examine a penal statute for conformity to the reformation clause, we must do so in the context of a more sophisticated scheme of penal statutes and penological resources.

Article I, Section 15, does not purport to apply to particular sentences, except indirectly in that sentences should be designed to be consistent with the objectives of the criminal code. State v. Cloutier, 286 Or 579 , 596 P2d *174 1278 (1979). 2 Nor does the section purport to establish individual rights. Accordingly, a similar provision has been held not to establish an individual’s entitlement to parole, State v. Farrow, 386 A2d 808 (NH 1978), and the Oregon Court of Appeals has held that it does not require that the state provide reformative therapy to every prisoner, Kent v. Cupp, 26 Or App 799 , 554 P2d 196 (1967). See also Eacret v. Holmes, 215 Or 121 , 333 P2d 741 (1958), regarding the rights of others. Although sentences of death most assuredly preclude any possibility of personal reformation, older cases have held a mandatory death sentence to not violate this section. State v. Finch, supra; State v. Anderson, 10 Or 448 (1862); but see post note 4. “Laws for the punishment of crime” are within the compass of Article I, Section 15; the disposition of individual cases is not, except as statutes under which sentences are imposed are subject to judicial scrutiny for conformity to constitutional requirements, as in this case.

Fourth, “principles of reformation” must be a basis for our penal laws, but they need not be the only basis. Except for “vindictive justice,” the section does not preclude other objectives for penal laws. Other utilitarian objectives such as deterrence and public safety have always been judicially recognized as permissible purposes of penal statutes which are nevertheless compatible with Article I, Section 15. Moreover, the penal laws may require that where certain justifying conditions exist, the objective of public safety may override the objective of reformation as a basis for sentencing. For this reason, in Tuel v. Gladden, supra, the court upheld the former Habitual Criminal Act which provided for mandatory enhanced sentences for previously convicted offenders. The court held:

«* * * q'jjg Oregon Constitution does not attempt to state all of the principles to be followed by the legislature in enacting sentencing laws. The constitution does contain sentencing restrictions in addition to the above quoted. It requires that ‘all penalties shall be proportioned to the offenses’; excessive fines shall not be imposed; and cruel *175 and unusual punishments shall not be inflicted. Art I, § 16. The drafters of the constitution, however, did not include the most important consideration of all, the protection and safety of the people of the state. Such a principle does not have to be expressed in the constitution as it is the reason for criminal law. All jurisdictions recognize its overriding importance.

“We interpret Art I, § 15, of the Oregon Bill of Rights to command and require that Oregon sentencing laws have as their object reformation and not retaliation, but they do not require that reformation be sought at substantial risk to the people of the state.” (Footnote omitted.) 234 Or at 5-6 .

The holding in Tuel was not that the legislature could eliminate reformation as a basis for penal statutes in favor of a more favored public purpose. That would directly violate Article I, Section 15. Rather, the court held that a greater minimum sentence may be legislatively required in order to protect public safety. Article I, Section 15, does not preclude the legislature from designating classes of cases based upon specific circumstances, such as a record of prior convictions, which indicate the dangerousness of the offender or the unlikelihood of reformation and requiring greater minimum sentences in such cases in order to protect public safety.

In summary, then, Article I, Section 15, does not require that reformation be the sole basis of Oregon’s Criminal Code to the exclusion of deterrence, public safety or other non-vindictive public purposes. It does require that the Criminal code, in its classification of crimes, in its penalty provisions, or in the way the penalties are to be administered, must provide in some manner for the possibility of individual reformation. It is for conformity to that requirement that ORS 163.115(5) must be examined.

The literal terms of ORS 163.115(5) as amended allow no differentiation relating to the likelihood of reformation. It mandates the same severe penalty for every murder convict with no possibility of individual differentiation based upon the background of the offender, the circumstances of the crime or the potential or actual reformation of the convict. The mandatory life sentence aspect of the statute requires the identical treatment of one who *176 murders a spouse in fear or despair as for a professional murderer, a repeat murderer or a murderer by torture. There is negligible allowance for individuation by parole; the same 25 years without parole must be served by a prisoner who, through maturation and growth, undergoes true reformation and by a murder convict who later murders a penitentiary guard. By allowing no variation either in the life sentence or in the 25 years on mandated incarceration, the statute allows for no individual differentiation in any substantial way (i.e., for at least 25 years) according to the crime or the criminal. Because it makes no allowance in any case for the possibility of reformation, it is inconsistent with Article I, Section 15. 3

A statute must conform to the constitution whether its source be the Legislative Assembly or the people in their exercise of their reserved legislative power of initiative. Kadderly v. Portland, 44 Or 118 , 74 P 710 , 75 P 222 (1903). The framers of the Oregon Constitution intended that the fundamental principles enunciated in the Bill of Rights circumscribe such legislative impulses as may find popular favor from year to year. As the historian of the Oregon Constitutional Convention explained:

“Throughout the [Constitution] there was evident an intentional design to create limitations upon the exercise of power by the people themselves. Assuming that as voters they had all powers of state government not *177 actually surrendered, they deliberately put bounds to what could be done constitutionally, and in this they carefuly followed the models that had been tested by experience elsewhere. It was as though they knew that the expression of the popular will, or the popular desire, might lead to extravagance in action or in expenditures, and they chose to adopt restraints in the interest of good government.” Carey, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1856-1857 (C. Carey ed 1926).

On the other hand, if there is any reasonable construction of a statute which will avoid or remedy a constitutional defect, we are obliged to give it that construction. Tharalson v. Dept. of Revenue, 281 Or 9, 13 , 573 P2d 298 (1978); State v. Harmon, 225 Or 571, 577 , 358 P2d 1048 (1961); Wright v. Blue Mt. Hospital Dist., 214 Or 141, 144 , 328 P2d 314 (1958); Peninsula Drainage Dist. No. 2 v. City of Portland, 212 Or 398, 418 , 320 P2d 277 (1958). See also State v. Duggan, 290 Or 369, 373 , 622 P2d 316 (1981). This rule applies with particular appropriateness to initiative measures because the initiative process has no method of legislative scrutiny to work out problems in the proposed legislation. Cf. Anthony v. Veatch, 189 Or 462, 495 , 220 P2d 433 , reh den 189 Or 462 , 221 P2d 575 , appeal dismissed, 340 US 923 , 71 S Ct 499 , 93 L Ed 667 (1942). Thus our function in this case should be to construe the initiative amendment to ORS 163.115(5), insofar as we are able, in a way which will give full effect to Article I, Section 15, and also give effect to as much of the legislation enacted by the people as is consistent with the constitution.

For the statute to be constitutional, the mandatory life sentence provision or the deferred parole provision, or both, must be limited so as to provide some degree of recognition of the possibility of individual reformation. The voters clearly intended to enact the greatest permissible penalty for murder and the two provisions should be considered in light of that legislative intent. As to the first provision, for reasons of public safety alone, the gravity of the crime of murder is sufficient to justify that legislative designation as a class of conduct which warrants the mandatory imposition of a sentence of life imprisonment.

*178 If imposition of a life sentence is mandatory, however, some form of individuating device is necessary if the penal laws are to be consistent with Oregon’s constitutional philosophy that some criminals are capable of reformation and the constitutional requirement that laws for the punishment of crime must allow for the possibility of reformation. No single form of subsequent review is constitutionally mandated. The legislature could require periodic judicial review for release if the purposes of incarceration have ceased to exist. The form of individuation established in Oregon criminal procedure is parole and ORS 163.115(5) restricts eligibility for parole to a constitutionally impermissible degree.

For purposes of Article I, Section 15, alone, it would not be necessary to invalidate the minimum imprisonment provision in its entirety, as the majority has done under Article I, Section 16. To give effect to as much of ORS 163.115(5) as is consistent with Article I, Section 15,1 would confíne ORS 163.115(5) to compel imposition of a sentence of life imprisonment and to authorize but not compel the parol authority, for reasons other than vindictive justice, to require that the defendant serve a minimum of 25 years or some lesser period before becoming eligible for parole, depending upon the circumstances of the crime and the background of the defendant and post-conviction facts which reflect upon rehabilitation. This would preserve as much of the initiative act as is constitutionally permissible. It would also eliminate the problem of disproportionality addressed by the majority.

I concur with the majority holding regarding the self-defense instruction.

Linde, J., joins in this specially concurring opinion.

Indiana Constitution, Art I, sec 18:

“The penal code shall be founded on the principles of reformation, and not of vindictive justice.”

The defendant has challenged the constitutionality of ORS 163.115(5) in general but not the constitutionality of this particular sentence. Whether Article I, Section 15, provides any basis for substantive sentence review is not an issue presented by this case.

The contrary holdings in Finch and Anderson are no longer valid insofar as they uphold a mandatory death penalty. Moreover, the United States Supreme Court has held that a mandatory death sentence is impermissible under the Eighth and Fourteenth Amendments to the United States Constitution. In Woodson v. North Carolina, 428 US 280, 304 , 96 S Ct 2978 , 49 L Ed 2d 944 (1976), that court stated a rationale which is similar in some ways to our discussion of the reformation clause:

“* * * A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.”

Accord: Lockett v. Ohio, 438 US 586, 602-05 , 98 S Ct 2954 , 57 L Ed 2d 973 (1978); Roberts v. Louisiana, 431 US 633, 641 , 97 S Ct 1993 , 52 L Ed 2d 637 (1977); Roberts v. Louisiana, 428 US 325, 332-34 , 96 S Ct 3001 , 49 L Ed 2d 974 (1976).