Ore. Supreme Court rejects mandatory Measure 11 sentencing

Ore. Supreme Court rejects mandatory Measure 11 sentencing »Play Video

PORTLAND, Ore. (AP) — The Oregon mandatory sentencing law approved by voters in 1994 has been ruled unconstitutional because it can be too harsh in some cases, opening the door to additional challenges.

In a divided opinion, the Oregon Supreme Court said the law, known as Measure 11, went too far when a young woman was sentenced to more than six years in prison after her breasts rubbed against a 13-year-old boy.

The ruling Thursday also applied to the case of a man given the same 75-month mandatory sentence for briefly touching the buttocks of a 13-year-old girl.

In a majority opinion by Justice Thomas Balmer, the court said six years in prison for Veronica Rodriguez and Darryl Buck under Measure 11 violated the Oregon constitutional requirement that "all penalties shall be proportioned to the offense."

Rodriguez was a youth counselor in her 20s when she was charged with sexual abuse after she held a 13-year-old boy so that the back of his head was resting against her breasts for about a minute while they were standing in a crowded room with nearly 50 other people.

Buck was charged with the same crime, sexual abuse, when he briefly touched the buttocks of a 13-year-old girl while she was casting her line to fish on a camping trip, then later brushed some dirt off her pants.

In both cases, the court said, the punishment did not fit the crime.

The opinion noted both cases involved only brief touching in public while fully clothed, yet under the mandatory sentencing law, Rodriguez and Buck would have received the same 75-month term if they actually had sex with the teenagers or sodomized them.

The court also noted that neither Rodriguez nor Buck had any criminal record, saying that also should be a factor in sentencing.

Balmer wrote "these cases present the rare circumstance in which the statutorily prescribed penalty is so disproportionate to the offense committed that it shocks the moral sense of reasonable people."

The author of Measure 11, Salem attorney and former lawmaker Kevin Mannix, said the narrow ruling will invite a flood of challenges even though the facts are unusual.

"My immediate concern is that the criminal defense lawyers will use this ruling as an opportunity to try to challenge virtually every Measure 11 sentence that comes down the pike," Mannix said.

But the ruling likely will apply to only a few cases even though it showed the Oregon Supreme Court is willing to apply the proportionality standard to the facts of individual cases, according to Margie Paris, dean of the University of Oregon School of Law and criminal law expert.

"I don't think it's going to clog the courts," Paris said. "The ruling is going to apply only in these exceptional circumstances. But it does make a dent in the mandatory sentencing law."

Although the Supreme Court overturned the mandatory six-year sentences in both cases, it let the convictions stand, along with the shorter sentences originally imposed at trial for both Rodriguez and Buck, 16 months and 17 months, respectively.

The mandatory sentences were later imposed by the Oregon Court of Appeals, not the trial courts, where judges rejected Measure 11 with reasoning similar to that of the Oregon Supreme Court.