Supreme Court Measure 11 ruling fully explained

For additional perspective and information from Crime Victims United click on to these two links to access the web pages; Oregonian Distorts Measure 11 Again and Oregon Supreme Court Rulings in Rodriguez and Buck Cases

Below is from Oregon Anti-Crime Alliance,


First, the decision: The Court, in a 4-3 decision, concluded that in two cases of Sexual Abuse in the First Degree, a 75-month mandatory minimum sentence for each defendant under Ballot Measure 11, was unconstitutionally harsh as applied to the facts of the particular cases. The majority found the 75-month sentence to be “”¦so disproportionate to the offenses committed by these defendants that it “˜shocks the moral sense’ of reasonable people.” Again, these cases turn on their particular facts. In short, the facts are sexual touching instigated by a 24-year old woman of her breasts by the back of the head of a 12-year old boy, and by a 36-year old man of the buttocks of a 13-year old girl with his hand, at least twice. In both cases, the touching was over the clothing and for a brief period of time. The majority opinion stated, “”¦we cannot ignore the limited extent of the offenses””the physical touching””at issue here.” Although the majority opinion also considered the penalties for other sexual offenses in relationship to the penalty for Sexual Abuse in the First Degree and the fact that the defendants had no prior criminal records, the emphasis in the court’s decision seems to be on the amount and types of sexual contact. I suspect that the penalties for other sexual offenses, or the fact of the defendant having no prior criminal record, will carry very little weight, if the sexual contact is more significant such as skin to skin contact, instead of over the clothes or fondling and caressing for an extended period of time. I can only suspect that greater weight will be placed on the sexual contact in the future because the Court did not tell the reader of the decision how to weigh the three factors.

Thoughts on significance:

1. It’s significant for the two defendants because they only have to serve 16 and 17 months, respectively, rather than 75 months. In a footnote, the court says they have already served this shorter time.

2. More litigation is on the way. The defense bar will file proportionality challenges, particularly in Sexual Abuse in the First Degree cases. The prosecution will defend. Fortunately, the Supreme Court says, in essence, that these disproportionate sentences are “rare circumstances.” The hint in the opinion is that the appellate courts are not going to be reviewing very many fact patterns to decide if they are disproportionate or not. That job will fall to the trial judges.

3. Oregon prosecutors will do what they have repeatedly done – read the law and apply it to the best of their ability. They know what the Rodriguez/Buck cases say, and they won’t be filing cases that come close to the unconstitutionally harsh sentencing line.

4. At least 95% of the felony cases in Oregon are resolved by negotiated pleas between the defendant and the prosecutor. I believe that cases like Rodriguez and Buck are usually negotiated and will continue to be negotiated. There may be a few more settlements or “easier” deals than before.

5. Legislation will undoubtedly be introduced in the special legislative session in February 2010 to modify Measure 11. In this regard, it is important to remember that the people of Oregon overwhelmingly passed Measure 11 and by a huge number defeated a measure to modify it later. Any legislation passed should be narrowly crafted to deal with a very specialized set of circumstances outlined in the court’s decision.

Food for thought: As a final note, the “shock the moral sense standard” originally was stated by the Supreme Court as follows, “”¦the punishment must be so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” (Emphasis added) According to the Supreme Court in a later opinion, this really didn’t mean all reasonable people but rather the court “was attempting to articulate a standard that would find a penalty to be disproportionately severe for a particular offense only in rare circumstances.” How can we have Measure 11 overturned as applied in this case when three reasonable Supreme Court Justices out of seven reasonable Supreme Court Justices do not believe the “shock the moral sense standard” has been met? Shouldn’t this opinion be unanimous or not at all?

Doug Harcleroad,
Attorney and Advocate