Measure 11 sustained its first chink late September, which could lead to the dissolution of Oregon’s controversial statute.

Enacted in 1994, Measure 11 has sent several Oregon convicts to lengthy prison terms for violent crimes, but has yet to produce a case that many opponents predicted in the summer of 1994 – where a convicted person would be forced to serve penalties grossly unbefitting of the crime.

Under the Measure 11 statute, a judge must impose the mandatory sentencing structure and is not allowed to consider the defendants’ character, situation or prior criminal record during sentencing. However, Measure 11 conflicts with Article I Section 16 of the Oregon Constitution, which states:
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.  In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.

This relationship between the laws has always left the door open for a case in which a defendant narrowly meets the requirements of a crime, but must serve the minimum sentence, the same punishment given to hardened and dangerous criminals.

It finally happened in 2005 and 2006 when a youth volunteer and a family friend were found guilty of sexual abuse. Neither had prior convictions and both instances were universally agreed to be “minimal” in their severity. They both received the minimum sentence of 6 years. Read about Veronica Rodriquez and Darryl Buck.

The Measure 11 attorneys defending the cases immediately appealed. They argued punishments mandated by Measure 11 were disproportionate to the crime and therefore violated the Oregon Constitution.

The Appeals Court agreed minimized the sentences. The state attorneys reacted by appealing themselves, to the Oregon Supreme Court, on the basis that the punishments were not so far out of step to be considered a “rare exception” afforded in the constitution.

In its decision, the Oregon Supreme Court applied the “shock the moral sense” test to determine if the penalties were proportionate to the offense – as required by statute.

To answer this, the high court considered three factors:  1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.

After thoughtful consideration, the court narrowly determined by a vote of 4-3 that the punishments were too severe for the crime and did qualify as a rare exception to overturn the Measure 11 sentences. The sentences were reduced.

Contact us for more information on defending your Measure 11 case in Oregon.