Trial judges must now consider the defendant's individual circumstances and criminal history, the harm to the victim, and specific facts of the case when sentencing defendants. If a mandatory sentence "shocks the conscience" in a given situation, then the sentence as applied is unconstitutional and a lesser sentence must be imposed.
The court framed the issue and the facts here:
These two criminal cases, which we consolidated for argument and disposition, require us to interpret and apply the requirement in Article I, section 16, of the Oregon Constitution that "all penalties shall be proportioned to the offense."
Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute.
Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times.
When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand. Each of those touchings was unlawful because a jury in Rodriguez's case and a judge in Buck's case found that they had been for a sexual purpose -- a fact that brought the physical contact within the definition of first-degree sexual abuse. ORS 163.427(1)(a)(A). Rodriguez and Buck were both convicted of that crime.
Courts must use the following factors when considering a mandatory sentence:
1. A comparison of the "penalty" and the "offense." The court noted the lack of proportionality in the Sex Abuse in the First Degree statute by recognizing that "Measure 11 imposes the same, mandatory prison term for a 50-year-old man forcing a 13-year-old girl to engage in prolonged skin-to-skin genital contact with him and a 19-year-old forcing the same 13-year-old to touch his clothed buttock for five seconds."
2. The penalties for related offenses. The court determined it was unreasonable that the touching by Rodriguez and Buck mandated the same sentence as if they had anally sodomized the victims that they briefly touched, had sexual intercourse with the children that they briefly touched, or had they "'penetrate[d] the vagina, anus or penis [of children under the age of 14] with any object other than the penis or mouth.'"
The court also noted that Buck and Rodriguez would get a greater sentence under Sex Abuse I than a person charged with Sex Abuse II who "touched the victim's vagina and penetrated the victim's anus with his fingers...where the defendant (a nurse in a psychiatric hospital) stood next to the bed of a bipolar, sedated patient with his pants open and an erect penis and indicated that he wanted the patient to perform oral sex on him, and the patient complied." Clearly the conduct of a nurse should warrant a greater sentence then the brief touching in Buck and Rodriguez. However, Measure 11 mandates otherwise. Hence, it is not proportionate and is unconstitutional at times.
3. Criminal history. It might not be proportionate to treat a repeat offender the same of someone who has never been arrested.
With that being said, this case illustrates the power of unelected government employees of the District Attorney to charge someone with a Measure 11 crime to coerce them into accepting a more appropriate lesser charge. Innocent people with absolute defenses often choose to plead guilty to lesser offenses to alleviate the risk of a guilty trial verdict that sends them to prison for 70 or 75 months. If the appropriate non-Measure 11 crime is charged in the first place, a trial can happen to flesh out the facts.