explaining that generally, recoverable fees under the UPA must be 3 separated from nonrecoverable fees “to ensure that only those fees for which there 4 is authority to award attorney fees are in fact awarded”
How later courts described this case
- explaining that generally, recoverable fees under the UPA must be 3 separated from nonrecoverable fees “to ensure that only those fees for which there 4 is authority to award attorney fees are in fact awarded”
- acknowledging that belief that most people would consider the Measure 11 sentence in that case to be unreasonable “includes a subjective component that is the product of a beholder’s personal sense of fairness”
- stating that the morally shocking nature of some sentences may be self-evident
- DDABureart, notwithstanding the objections of the victim and her family, prosecuted 16-year-old under Measure 11 for having sex with his 13-year-old girlfriend
Written by the judges who cited it.
The opinion
*587 HASELTON, J.,
dissenting.
The majority concludes that, under Measure 11, a 16-year-old must spend more than six years in prison for having sex with his 13-year-old girlfriend. That is so notwithstanding that the girlfriend initiated the sexual conduct and that defendant believed that she was 14.
That result is unprecedented in Oregon and unique in the United States. It is the product of the peculiar convergence of a strict liability crime, a mandatory minimum sentencing scheme, and the mandatory treatment of the juvenile defendant as an adult. I repeat: There is no reported case of a 16-year-old in the United States ever receiving a mandatory minimum sentence of over six years in prison for statutory rape. Because that result is so fundamentally unfair as to shock the conscience of any reasonable person, I dissent.
Since Measure 11 was enacted in 1994, this court has reviewed — and, has affirmed — hundreds of Measure 11 sentences. 1 In each of those cases, we have acted in accordance with our sworn obligation to enforce the will of the citizens of Oregon, as expressed through the initiative process, within broad constitutional limits.
But there are limits.
The exact nature of those constitutional limits is unsettled. Although the Supreme Court explicitly contemplated, and implicitly invited, “as applied” proportionality challenges to Measure 11 sentences in State ex rel Huddleston v. Sawyer, 324 Or 597, 614 , 932 P2d 1145 , cert den 522 US 994 (1997), it did not address what considerations are pertinent to the constitutional “as applied” inquiry or how those considerations should be assessed. The test is whether the *588 sentence imposed is “so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” State v. Isom, 313 Or 391, 401 , 837 P2d 491 (1992) (citing Cannon v. Gladden, 203 Or 629, 632 , 281 P2d 233 (1955)). But what does that mean? What factors are constitutionally relevant?
At the outset, I emphasize — and we all agree on— what is not relevant. Judges’ personal beliefs as to reasonableness or good public policy are irrelevant to the constitutional inquiry. Constitutional protections do not, and cannot, vary according to judges’ personal predilections. But neither do they vary according to popular opinion. Rather, their content is judicially determined and judicially enforced. To the extent that a constitutional protection depends (as here) on notions of “reasonableness,” the determination of the limits of such “reasonableness” is, necessarily, a judicial determination.
Thus, we must not impose our “subjective” views to thwart the popularly expressed will of the people of Oregon. But neither can we abdicate our sworn constitutional role and responsibility by saying: “The people passed this law, so it must be constitutional.” 2
The state argues here, as it has elsewhere, see, e.g., State v. Shoemaker, 155 Or App 416 , 965 P2d 418 , rev den 328 Or 41 (1998), that the fact that a substantial majority of Oregonians voted for Measure 11 necessarily demonstrates that the imposition of Measure 11 sentences could not “shock the conscience” of reasonable people. That argument fails for two reasons, one legal, and the other factual. The legal flaw *589 in the state’s premise is that it cannot be reconciled with Huddleston’s explicit acknowledgment of “as applied” challenges— i.e., if the state were correct, there could never be an “as applied” challenge to a Measure 11 sentence.
The factual flaw in the state’s position is that, although the people of Oregon overwhelming approved Measure 11, no one who voted on November 8, 1994, was asked, “If a 16-year-old has sex with his 13-year-old girlfriend, should he be sent to prison for more than 6 years?” Bluntly, although one can presume that the voters generally favored the imposition of harsher sentences for criminals, and even presume that the voters favored certain sentences for certain crimes, they expressed no opinion as to the imposition of a specific sentence in particular factual circumstances.
It thus devolves to us, constitutionally and collectively, to make an objective determination of the limits of “reasonableness.” To be sure, our individual life experiences may play some subconscious role in that determination. But in the end, adhering to our oaths, our collective conclusion should represent “a fair average of truth and wisdom,” 3 an approximation of the reasonableness of the people of Oregon.
ANALYSIS
Judge De Muniz’s lead opinion generally assumes that Solem v. Helm, 463 US 277 , 103 S Ct 3001 , 77 L Ed 2d 637 (1983), affords principled guidance in determining whether a sentence is not “proportional to the offense” under Article I, section 16, of the Oregon Constitution. I agree. Although Solem is not precisely tailored to the sort of “as applied” constitutional challenge Huddleston invites, it does *590 identify a reasoned analytic framework, obviating ad hoc decision making. 4
Under Solem , the court is to consider: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other crimes in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. 463 US at 292 . Using those factors for guidance, I conclude that imposition of the Measure 11-prescribed sentence in this case would be unconstitutional under the proportionality provision of Article I, section 16, of the Oregon Constitution.
I. GRAVITY OF THE OFFENSE/ HARSHNESS OF THE PENALTY
In examining the “gravity of the offense,” courts evaluate the specific facts surrounding the particular defendant’s offense, in addition to the nature of the crime in a more generic sense. For example, in Solem itself, the Supreme Court, in evaluating the “gravity of the offense,” considered the minimal dollar amount of the “no account” check uttered by the defendant and noted that the defendant was an alcoholic, not a “professional criminal.” 463 US at 296 -97 n 22. See also United States v. Darby, 744 F2d 1508, 1526-27 n 11 (11th Cir 1984), cert den sub nom Yamanis v. United States, 471 US 1100 (1985) (stating that under the Solem test, “the court may consider the crime actually committed as well as the crime generally proscribed”); State v. Lindsey, 203 Wis 2d 423 , 554 NW2d 215, 219-20 , rev den 205 Wis 2d 136 , 555 NW2d 816 (1996) (examining the ages of the parties and other specifics of the defendant’s offense, sexual assault of a child, under the first step of the Solem analysis); State v. Bartlett, 164 Ariz 229, 792 P2d 692, 697-98 (1990), vac’d sub nom Arizona v. Bartlett, 501 US 1246 , 111 S Ct 2880 , 115 L *591 Ed 2d 1046 (1991) (considering the age of the parties, the consensual and nonviolent nature of the sexual intercourse, and the defendant’s personal characteristics and maturity in evaluating whether the sentence imposed on a 23-year-old defendant for two counts of sexual conduct with a minor was “cruel and unusual punishment” under the Solem test).
In assessing the “gravity of the offense,” we identify several salient circumstances of this particular crime:
• Defendant was 16-years-old, and the victim was slightly more than three years younger than defendant.
• Defendant and the victim were, by their own description, “boyfriend” and “girlfriend.” That is, the charged conduct occurred in the context of a continuing, voluntary relationship.
• Defendant mistakenly believed that his girlfriend was 14.
• Defendant’s girlfriend initiated the contact by going into his bedroom, waking him up, joining him in bed, and engaging in sexual foreplay.
• At the time of the statutory rape, defendant’s history consisted primarily of juvenile referrals — not adjudications — for matters such as possession of tobacco and alcohol. Thus, at the time of the crime, defendant had no juvenile adjudications that would qualify as “criminal history” as that term is generally used in the context of sentencing. 5
The lead opinion’s treatment of the first Solem factor reduces to two propositions: (1) Oregon has historically treated statutory rape as a “serious crime,” 166 Or App at 575-76; and (2) before the enactment of Measure 11, under former sentencing schemes, statutory rape could be punished by lengthy imprisonment. 166 Or App at 573-76. Both of those propositions are true; both, ultimately, miss the point.
*592 The lead opinion states that, under the sentencing guidelines that controlled sentencing for second-degree rape prior to the enactment of ORS 137.700 and ORS 137.707, this crime carried “a presumptive sentence of 35 months’ imprisonment.” 166 Or App at 575. Actually, the crime of second-degree rape carried a presumptive sentence of anything from optional probation to 45 months’ imprisonment, given its ranking on the “crime seriousness scale” of the sentencing guidelines. No mandatory minimum sentence was required. Under the indeterminate sentencing scheme set forth in ORS 161.605(2), as the lead opinion notes, up to 10 years’ imprisonment is authorized for the crime. Id. at 575-76. Again, no mandatory minimum sentence was required.
It is undisputed that statutory rape has historically been a “serious crime.” 6 What the majority ignores, however, is that, historically, juveniles who engaged in such conduct were not automatically subject to imprisonment. Prom 1907 until 1995, after the enactment of Measure 11, Oregon adhered to a “rehabilitation model” of juvenile justice that did not treat delinquent children as criminals but as wards to be protected. See State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 568-69 , 857 P2d 560 (1993). 7 Unless a juvenile was affirmatively remanded to adult court, he or she would be adjudicated in the juvenile system, which applied a flexible indeterminate dispositional scheme. See, e.g., Reynolds, 317 Or at 569 n 9. There are no reported cases of a juvenile accused of statutory rape being remanded to an Oregon criminal court.
Historically, Oregon treated adult and juvenile offenders qualitatively differently. Under all of Oregon’s previous sentencing schemes, the sanction imposed for statutory rape could vary with the circumstances of the particular *593 crime. Bluntly: Some statutory rapes were “graver” than others, and the “harshness” of the punishment concomitantly varied. One historical reality remains: Before Measure 11, there were no reported cases of Oregon juvenile ever being sentenced to six years in prison for statutory rape.
II. SENTENCES IMPOSED FOR OTHER CRIMES IN OREGON
In Solem , the Court stated: “If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive.” 463 US at 291 . In this case, that comparison is shocking.
Under Measure 11 (ORS 137.707), defendant will receive the same 75-month mandatory sentence as a defendant convicted of manslaughter in the second degree. That crime includes reckless homicide, or criminally negligent homicide that causes the death of a child under the age of 14 if the perpetrator has previously assaulted or tortured the child. ORS 163.125.
Under Measure 11, defendant will receive a greater sentence than defendants convicted of:
• Robbery in the second degree, which involves threats of physical force during a theft, committed either with a weapon or with an accomplice (70 months). ORS 164.405; ORS 137.707(4)(a)(R).
• Assault in the second degree, which involves either intentionally or knowingly causing serious physical injury to another, or intentionally or knowingly causing physical injury to another by means of a deadly or dangerous weapon, or recklessly causing serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life (70 months). ORS 163.175; ORS 137.707(4)(a)(G).
• Compelling prostitution, which involves the use of force or intimidation to compel another to engage in prostitution, or causing a child to engage in prostitution (70 months). ORS 167.017; ORS 137.707(4)(b)(C).
*594 • Using a child in a display of sexually explicit conduct, which involves the creation of child pornography (70 months). ORS 163.670; ORS 137.707(4)(b)(B).
• Stalking, which involves knowingly alarming or coercing another person by engaging in repeated and unwanted contact with the person in violation of a court protective order (a presumptive sentence of anything from optional probation to 45 months’ imprisonment). ORS 163.732.
• Dismembering, mutilating, or engaging in sexual activity with a corpse (a presumptive sentence of probation to 16 months’ imprisonment). ORS 166.087.
With few exceptions, each of those crimes must be committed either intentionally or knowingly. 8 Conversely, statutory rape is a strict liability crime. The victim’s “consent” to — here, initiation of— the conduct is immaterial. 9 Moreover, the state need not prove that a defendant acted intentionally, knowingly, recklessly, or even negligently. In fact, the sentencing court in this case specifically found that defendant did not know that the victim was under 14.
In sum, under Oregon law, this 16-year-old defendant would have received a lesser punishment if, instead of having sex with his girlfriend at her initiation, he had compelled her to engage in prostitution, used her in creating child pornography, or sexually abused her corpse. Disproportionality is manifest.
Finally, and contrary to the lead opinion’s assertion, State v. Rhodes, 149 Or App 118 , 941 P2d 1072 (1997), rev den 326 Or 390 (1998), does not “severely undercut” the foregoing analysis. 166 Or App at 580. Our constitutional inquiry *595 involves far more than simple fact-matching, but even so, the facts in Rhodes were dramatically different from those here. In Rhodes, the defendant repeatedly (on approximately 20 occasions) molested his nine-year-old sister while she was sleeping — and continued to do so after having been disciplined by his mother for such conduct. 149 Or App at 122-23 . It was precisely those factors that we emphasized in sustaining the imposition of the Measure 11 sentence in that case— the incestuous nature of the abuse, its repeated character, and the fact that it persisted after the defendant was disciplined. Id. Here, in contrast, defendant and his girlfriend were unrelated; she initiated the sexual activity, of which she was fully aware; and defendant had never been disciplined for such conduct — and indeed, given his belief concerning his girlfriend’s age, had no reason to know that the conduct was unlawful. A reasonable person would view, and treat, the circumstances in Rhodes as being objectively, qualitatively different from the circumstances presented here.
Likewise, State v. Teague, 215 Or 609 , 336 P2d 388 (1959), also cited in the lead opinion, 166 Or App at 572-73, 578-79, is in no way analogous to this case. In Teague, the court upheld a 12-year indeterminate sentence for forgery, but went on to note that “[i]f the facts of the case and conduct of the defendant warranty” then the Board of Parole could provide “suitable relief’ to the defendant. 215 Or at 611 . Here, by comparison, the Board of Parole and Post-Prison Supervision has no authority to reduce any part of a mandatory Measure 11 sentence of 75 months. The sentence in Teague was constitutional because the sentencing scheme, when combined with the parole scheme, took into account the circumstances of the crime and the behavior of the defendant in determining the defendant’s actual length of imprisonment. Measure 11 makes no such allowances.
III. SENTENCES IN OTHER JURISDICTIONS FOR STATUTORY RAPE
The lead opinion, in a footnote, briefly summarizes some statutory rape law from half a dozen states, and implicitly concludes that Oregon law is no more harsh than the *596 laws of some other states. 166 Or App at 577 n 8. With respect, that is wrong.
The lead opinion does indeed identify several states that have mandatory minimum sentences somewhat similar to Oregon’s mandatory minimum, and several that have maximum indeterminate sentences that exceed the Oregon maximum indeterminate sentence of 10 years for a Class B felony. But that ignores the real issue: No state other than Oregon requires a 16-year-old to be tried as an adult for statutory rape and sentenced as an adult to 75 months’ imprisonment. When it comes to sentencing 16-year-olds as adults for statutory rape, Oregon is in a league of its own.
For example, the lead opinion indicates that, in Idaho, the type of statutory rape at issue here is punishable by anything from one year to life imprisonment in the adult criminal system. 166 Or App at 577 n 8. The lead opinion does not, however, mention that a 16-year-old charged with that crime would not necessarily be tried as an adult. Only if a juvenile court specifically exercised its discretion to waive its jurisdiction would the juvenile be tried in adult court. Moreover, even if the juvenile court did waive the juvenile into an adult court, that court could, at its discretion, sentence the 16-year-old as a juvenile if it found that adult sentencing measures were inappropriate. Idaho Code § 20-509 .
Montana is similar. There, as the lead opinion states, the type of statutory rape at issue here is punishable in adult court by a mandatory minimum sentence of four years. 166 Or App at 577 n 8; Mont Code Ann § 45-5-503. Again, however, the majority fails to point out that a 16-year-old would not necessarily be tried in adult court for that offense. See Mont Code Ann § 41-5-206 (charges may be filed in either juvenile or adult court).
The same is true in Utah, where, as the lead opinion notes, statutory rape carries a mandatory minimum sentence of six years if tried in adult court. 166 Or App at 577 n 8; Utah Code Ann § 76-5-402.1. Again, however, a 16-year-old in Utah need not be tried in adult court. Rather, the juvenile court may waive the juvenile into adult court only if the court finds that it “would be contrary to the best interests of the *597 minor or of the public for the juvenile court to retain jurisdiction.” Utah Code Ann § 78-3a-603(2)(b).
In Washington, as the lead opinion notes, statutory rape of a child under 14, if tried in adult court, can result in a sentence from seven years, six months to 20 years, five months. 166 Or App at 577 n 8. However, a 16-year-old would not be tried as an adult for that crime unless the child had a criminal history including a previous serious violent offense. Wash Rev Code 13.40.110. 10
Similarly, a number of states — e.g., Alabama, Arizona, Delaware, Kentucky, Alaska, Hawaii, Georgia, Illinois, Iowa, and Louisiana — permit, but do not require, that a 16-year-old be tried in adult court for statutory rape. In fact, in Connecticut, a 16-year-old simply cannot be tried as an adult for this type of statutory rape. 11
Oregon appears to be unique — not in characterizing statutory rape as a serious offense, but in insisting that juveniles charged with statutory rape be punished in exactly the same manner as adults charged with statutory rape. Most states have excluded certain serious offenses from juvenile court jurisdiction, and about a dozen states, like Oregon, have mandatory minimum sentences for certain crimes committed by juveniles. See Office of Juvenile Justice and Delinquency Prevention, U. S. Dep’t. of Justice, State Responses to Serious and Violent Juvenile Crime, xii (1996). However, no other state appears to require mandatory trial in the adult criminal system for juveniles aged 15 or older charged with statutory rape, much less to require a mandatory minimum sentence of more than six years’ imprisonment. While it would be theoretically possible in many states for a juvenile to be tried as an adult for such an offense, only in Oregon are courts required to try juveniles as adults and to impose mandatory adult sentences without discretion to consider the circumstances of the juveniles involved, and the circumstances of the offense in question.
*598 Oregon is alone.
I return to the essential question: Is 75 months’ imprisonment an unconstitutionally disproportionate punishment for defendant’s conduct?
Ultimately, this may be a case of “the sum being greater than the parts.” I will not pretend that any of the individual Solem factors is, by itself, sufficient to render the 75-month sentence shocking to the conscience of all reasonable people. Nor are any of the particular circumstances— e.g., defendant’s age, the victim’s initiation of the crime, the difference in their ages, the nature of their relationship— individually dispositive. Indeed, given the nature of our craft, it is easy to over-analyze each factor and to reduce the inquiry to an abstract intellectual exercise. 12 But in the end, the question is real and stark: Should this 16-year-old boy spend more than six years in prison for having sex with his 13-year-old girlfriend at her initiation?
Justice, conscience, and the constitution admit only one answer.
Armstrong, Linder and Wollheim, JJ., join in this dissent.
See, e.g., State v. Melillo, 160 Or App 332, 335-36 , 982 P2d 12 , rev den 329 Or 438 (1999); State v. Bowman, 160 Or App 8, 17-18 , 980 P2d 164 (1999); State v. Silverman, 159 Or App 524 , 977 P2d 1186 , rev den 329 Or 528 (1999); State v. Shoemaker, 155 Or App 416, 419 , 965 P2d 418 , rev den 328 Or 41 (1998); State v. Rhodes, 149 Or App 118, 123 , 941 P2d 1072 (1997), rev den 326 Or 390 (1998). The only case in which we have sustained a constitutional challenge to a Measure 11 sentence was State v. Lavert, 164 Or App 280, 286-87 , 991 P2d 1067 (1999), but we did not reach the merits of the constitutional issue. Rather, we concluded that we could not review the trial court’s refusal to impose a Measure 11 sentence because the state had failed to designate a sufficient record on appeal.
As Judge Brewer states so eloquently in his concurrence, “a faint but persistent voice warns that my personal sense of fairness is a pitifully small spoke in the diverse wheel of community values.” 166 Or App at 582. I couldn’t agree more.
However, I cannot accept the premise that implicitly underlies both the lead opinion and Judge Brewer’s concurrence — that, because “reasonableness” is so ephemeral and it is so difficult to draw constitutionally principled lines, any result other than imposition of the Measure 11 sentence is innately, and injudiciously, “subjective.”
Huddleston clearly, and correctly, contemplates that there can be instances in which imposition of a Measure 11 sentence will offend Article I, section 16. It is not easy to draw constitutionally principled lines. See, e.g., 166 Or App at 586 ÍHow are we to “conclude that three years and four months more fthan a sentencing guidelines sentence! is too much?"). But we can, and must, do so.
“You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges. If they are to fulfill their function as judges, it could hardly be lodged elsewhere. Their conclusions must, indeed, be subject to constant testing and retesting, revision and readjustment; but if they act with conscience and intelligence, they ought to attain in their conclusions a fair average of truth and wisdom.” Benjamin N. Cardozo, The Nature of the Judicial Process, 135-36 (Yale ed 1975).
As the lead opinion and Judge Brewer’s concurrence note, the vitality of the Solem test may be in doubt for federal constitutional purposes, given the Court’s later plurality decision in Harmelin v. Michigan, 501 US 957 , 111 S Ct 2680 , 115 L Ed 2d 836 (1991). See 166 Or App at 571-72; 166 Or App at 582-83 (Brewer, J., concurring). However, the United States Supreme Court’s retreat from its proportionality analysis on the ground that “the Eighth Amendment contains no proportionality guarantee,” Harmelin, 501 US at 965 , is inapposite to Article I, section 16, jurisprudence, because it is undisputed that Article I, section 16, does contain an explicit proportionality guarantee.
Defendant’s lack of a criminal history belies the lead opinion’s efforts to characterize him as a “deplorable” and incorrigible criminal. 166 Or App at 578-79. Similarly, the fact that defendant subsequently was adjudicated in the juvenile system on a charge of third-degree robbery is not relevant to a determination of whether a sentence of six-and-a-half years is unconstitutionally disproportionate to an unrelated crime of statutory rape that was committed well before the robbery.
Statutory rape is, as the majority emphasizes, a Class B felony. In virtually all cases involving Class B felonies, the imposition of a sentence of at least 75 months may be fully warranted. However, unless we are prepared to hold that the imposition of a Measure 11 sentence is appropriate in all cases involving Class B felonies, the classification of the crime cannot, by itself, be dispositive. Such a “facial” approach cannot be squared with Huddleston’s contemplation of “as applied” challenges.
In 1995, the legislature enacted ORS 419C.001, which redefined the purposes of the juvenile system in delinquency cases as “to protect the public and reduce juvenile delinquency and to provide fair and impartial procedures for the * * * disposition of allegations of delinquent conduct.”
Second-degree assault may involve a reckless mental state if a weapon is used and the circumstances manifest extreme indifference to the value of human life, ORS 163.175, and manslaughter may be committed negligently if the perpetrator previously abused or tortured the child victim. ORS 163.125.
The girlfriend, of course, also could have been charged with delinquency based on her conduct, given that defendant, too, is not capable of consenting to sexual activity due to his age. See, e.g., ORS 163.445 (a person commits sexual misconduct, a Class C misdemeanor, for engaging in sexual intercourse with an unmarried person under 18 years of age); ORS 163.315(1)(a) (persons under 18 years of age are incapable of consenting to sexual acts).
The type of statutory rape that occurred here is not considered a “serious violent offense” under Washington law. Wash Rev Code § 9.94A.030(34)(a).
In some states, such as Nevada, defendant’s conduct would not even constitute a crime. 166 Or App at 577 n 8.
“There is an old legend that on one occasion God prayed, and his prayer was ‘Be it my will that my justice be ruled by my mercy.’ That is a prayer which we all need to utter at times when the demon of formalism tempts the intellect with the lure of scientific order.” Cardozo, The Nature of the Judicial Process at 66.