State v. Shumway

April 7, 10, 1980; reargued September June Argued sentence modified and submitted 23, 1981 OREGON, STATE OF Respondent, v. SHUMWAY,

DOUGLAS LINN Petitioner. 26922)

(No. 79-2-17, CA SC P2d 796 Kuhn, J. Marvin Deputy Defender, Salem, Public argued petitioner. the cause for on With him the Gary briefs was D. Babcock, Defender, Public Salem. Denney, Attorney

Thomas H. General, Salem, Assistant argued respondent. the cause for With him on the brief were ’ Redden, General, James A. Attorney Barrie, and Walter L. General, Solicitor Salem. Kanter,

Stephen Cooperating Attorney, Oregon American Union, Portland, Civil Liberties filed a brief amicus curiae. DENECKE, C. J.

Tongue, J., filed opinion an concurring part; dissenting part, by Peterson, joined J. J., Lent, opinion. filed concurring Tanzer, J., specially opinion, concurring joined by filed Linde, J.

DENECKE, C. J. convicted intentional defendant was appealed imprisonment. to the Court He to life and sentenced during contending Appeals, error his occurred both pursuant sentenced was to which he was trial and the App Appeals affirmed. 44 Or invalid. The Court granted We review. P2d 191

The defendant contends instruction on self- defense erroneous. was jury on the affirmative

The trial court instructed excepted to a defendant and the defense of self-defense duty portion implied defendant under that the which Appeals escape affray. concluded The Court of and avoid compelled to certain it the conviction due that was affirm prior enactment cases decided court deadly 161.205(4), specify 161.219, 161.209 and which when persons. may force used in The instruction does defense appear that the not error, to conform statutes. conclude to those We any,

if was harmless because issue of self-defense presented was not the evidence. apartment.

The defendant and the victim shared an pistol The shots. The state’s evidence was that the defendant first shot killed the defendant the victim with second of two approaching unarmed, victim, the the the victim as was threatening defendant in a manner. Two state’s witnesses body the walked victim’s testified that defendant then lay itas the floor and fired a second bullet into the victim’s on head. he The defendant confessed that fired the second round going as the was from the The defendant victim down first. testified in his defense that he fired the shot in fear but first that victim that the second shot was accidental. He testified the shot, couch

was knocked back on the the first but that he rose and walked the hall where he fell to the floor. body approached it with Defendant the still stood over his gun hanging swung around, Just victim’s down. then the arm leg, catching defendant’s and defendant fired the second shot accidentally. he He cross-examination that did testified on intentionally not he did not if he shot or and that not know know if he intended kill the victim not. clearly

The affirmative defense of self-defense was shot, shot, the regarding raised first but not the second which evidence, the According was homicidal act. to the State’s the deliberately any necessity second shot fired after was for self- According evidence, defense had ceased. to the defendant’s the Rather, second shot not was self-defense. the defense was accident; i.e., lack circumstances, of assaultive intent. In these superfluous the self-defense instruction was more was the benefit of the defendant than to his prejudice.

The assignments regarding ques- defendant’s of error tioning prospective jurors longer they are no relevant because concerned the possibility imposition death sen- tence. pursuant defendant was convicted to ORS

163.115. This statute was an amended initiative in 1978. The chief effect of the amendments was to provide that imposed death sentence could be if the trial court found that certain if facts existed and the death sentence was not imposed and imposed imprisonment the sentence life required years defendant would be to serve not less than 25 becoming eligible parole. before case, to the initial

Subsequent argument oral Quinn, we decided in State v. 383, 407, Or 623 P2d (1981), regarding of the initiative penalty being death were invalid as in violation of Art 11 of § provides right Constitution which for the of trial by jury of all facts the crime. constituting Quinn, supra, State v.

Because the issue now arises whether of the initiative portion providing sentence, of this judge imposes event a life eligible sentence must be served before the defendant imposition from the parole, portion concerning is severable the death or is the entire initiative invalid? this issue and for We asked for further briefs on reargument. in decid- following principles

We have announced the question severability: the ing

“ * * * qf the unconstitutional constitutional the as to warrant each other dependent on so portions are in their to take effect intended them legislature that the belief carried into cannot be if the whole that entirety, it follows have not legislature would that the effect, presumed it will be accordingly, entire independently, and passed the residue Law, 842, Jur., 155. § 11 Am. Consitutional is invalid.’ “ together that parts are so bound invalid ‘If the valid and portion, valid inducement part is a material invalid Lamm, v. Fullerton Id., 157.” § is invalid.’ the whole 941, 165 697, 163 P2d 63 P2d Or voting favorably initiative, on the the electorate pres- voting greater penalties murder than were were for ently penalty imposed, statutes. If the death were not required requiring that when the life of the voters favored period imposed long sentence the defendant serve was eligible parole. suggestion being There is no time before that if the death were found invalid the voters would retaining requirement that the defendant not have favored years. life must at sentenced to serve least requiring year We hold the statute the 25 service parole portion concerning before is severable from the penalty. death

The defendant contends that the amended ORS contrary 163.115,the initiative, statute amended equal protection process and due clauses of the Fourteenth portion Amendment and I, § of Art 16 of the “* * * provides penalties Constitution which all shall proportioned to the offense.” Defendant contends it is con- trary to these because “one convicted of a more murder) (aggravated exposed serious offense is now to a lesser ‘regular’ sentence than one convicted of murder.” legislature adopted In 1971 the a new criminal code. part part of that code. ORS What is now of ORS 163.115 provides: 163.115 163.125,

“(1) Except provided in ORS 163.118 and when: criminal homicide constitutes murder “(a) intentionally by person who is not It is committed disturbance; under the influence of an extreme emotional

“(b) It is person, committed acting either alone or with one persons, or more who commits or attempts to commit in degree, arson the first burglary degree, first escape in degree, the first kidnapping in degree, the first rape in degree,robbery the first in any degree sodomy or in the first degreeand in the course of in furtherance of the crime he committing commit, attempting or or the immediate flight therefrom, he, participant or any, another if there be person causes the death aof other partici- than one of the pants; or a* ****>> * * * provides: “(5) It also a person convicted of murder shall * * punished by imprisonment for life

In 1977 the legislature created the crime of “aggra- vated murder.” provides: ORS 163.095 section,

“As used in ORS 163.105 ‘aggravated and this murder’ means murder as in defined ORS 163.115 which is under, accompanied by, any committed circumstances: or following “(l)(a) The pursuant defendant committed the murder agreement to an for money that he receive thing or other of value commiting the murder.

“(b) The defendant solicited another to commit the paid agreed pay murder and person money or or other thing of value committing the murder. “(c) The defendant having committed murder after been convicted of murder as in defined ORS 163.115.

“(d) The defendant committed murder means of bombing. “(2)(a) The victim was one the following and the performance

murder was related to the of the victim’s official system: in justice duties “(A) police A (5) officer as defined in subsection of ORS 181.610;

“(B) correctional, A parole probation or officer or other person charged duty custody, with the supervi- control or sion persons; of convicted

“(C) Police; A member of the State “(D) judicial 1.210; A officer as in defined ORS “(E) jurorA in or witness a criminal proceeding; “(F) employe An justice; or officer of a court of or “(G) A member of the State Board of Parole.

“(b) state, county in or The defendant was confined facility in municipal penal correctional or was other- wise or custody when the murder occurred.

“(c) than one murder victim. There was more “(d) personally The defendant committed the homicide robbery in in in the course or the furtherance of crime kidnapping degree, any in degree, or arson the first sexual specified chapter, flight offense immediate therefrom.

“(e) having The defendant committed murder after been manslaughter convicted of as defined ORS 163.118.” provides: ORS 163.105

“(1) When a defendant is convicted of murder defined as (1) aggravated pursuant murder to subsection of ORS 163.095, the court shall order that the defendant shall be years possibility confined for a minimum of 30 without of release, parole, temporary employ- release on work leave or camp. ment at a forest or work

“(2) aWhen defendant is convicted of murder defined as (2) aggravated pursuant murder to subsection of ORS 163.095, the court shall order that the defendant shall be years possibility confined for a minimum of 20 without release, parole, temporary employ- release on work leave or camp. ment aat forest or work

“(3) any years imposi- At time after 20 from the date of period pursuant tion of a minimum confinement to subsec- (1) section, years tion of this or at time after 15 from the minimum imposition period date of of a of confinement (2) section, pursuant to subsection of this the State Board of Parole, upon petition prisoner confined, of a so shall hold hearing prisoner likely a if to determine is to be rehabili- period tated within a reason- able time. The sole issue shall prisoner likely be whether or not the to be rehabilitated period proceeding a within reasonable of time. The shall be prescribed in the manner a conducted contested case hearing except under ORS 183.310 to 183.500 that:

* * * * stated, 1978, by initiative, amended people As the definition enlarged ORS 163.115. Part of the initiative “murder” to include:

“(c) by person, acting alone It is committed either persons, places discharges or with one or more who or attempts device or bomb or who commits or destructive commit aircraft piracy.” so it now

The initiative also amended 5 ORS 163.115 § provides:

“(5) Except imposed pur- when a sentence of death is 163.116, person convicted of murder shall be suant to ORS by imprisonment required life shall punished years becoming eligible for not less than 25 before serve parole.” stated, also for the death provided

As the initiative ORS 163.116. in certain circumstances. penalty provides murder statute summary, aggravated a minimum confinement person must serve that the convicted years, depending upon aggravating years of either 20 or 15 release. The circumstances, possibility parole without statute, initiative, provides for a as amended and the defendant imprisonment death or life sentence of eligible for being must serve a minimum of 25 before parole. not decide the merits of Appeals

The Court of did contention because it disproportionate penalties defendant’s the initiative argument the state’s persuaded aggravated repealed penalty impliedly and, therefore, there was no other murder statute penalty. the initiative enacted compare with is that implied repeal of statutes The doctrine which is subsequent enacts a statute legislature when the statute, contains prior with a but to or in conflict repugnant statute, prior prior expressly repealing language no Sutherland, Sands, Statutory 1A impliedly repealed. statute is 1972). (4th there is an ed Whether 23.09 Construction § are the two statutes depends upon whether implied repeal a is, applied can be or whether whether both conflicting; Elec. they are inconsistent. Gen. has to be made because choice Com., 570, 592-593, 373 P2d 974 231 Or Corp. v. Tax Credit 493, 221 Veatch, 220 P2d (1962); Anthony v. 189 Or 499, 95 L Ed 667 923, 71 S Ct P2d cert den 340 US and, repugnant statutes are not conclude that the We murder repeal aggravated did not therefore, the initiative statute. intentionally caus- charged

The defendant was with by shooting Clearly death of the victim him. violation ing 163.115, by initiative, was the statute amended means, motives, or other circum- charged. None of the victims in the murder specified aggravated stances were Defendant not have been convicted under the charged. could aggravated statute; therefore, penalties the minimum in the provided aggravated murder statute could not be applicable portions to defendant. For this reason the of the two statutes with which we are here concerned are not conflicting.

Only felony if certain murders or murders bomb- ing 2(d) are do the charged statutes conflict. Section of the aggravated provides: murder statute section, in “As used ORS 163.105 ‘aggravated and this * * * * * *

murder’ means murder which is committed under any following circumstances:

«He He * * He

“(l)(d) The defendant committed murder means of bombing. HeHe

«He HeHe “(2)(d) personally The defendant committed the homi- in in robbery cide the course or the furtherance of the crime of any degree, in kidnapping in degree, or arson the first specified chapter, sexual offense flight or in immediate therefrom.” 1(b) provides: of the initiative 163.125, in ORS 163.118

“(1) provided Except as murder when: constitutes homicide criminal * * * * «$ or acting either alone by person, “(b) committed It is attempts or commits persons, who more or

with one degree, in the first burglary degree, first arson commit rape degree, in the first kidnapping degree, in the first escape sodomy in the first any degree or robbery degree, first he the crime in furtherance in the course degree and commit, immediate or the attempting to committing or any, if there be participant therefrom, he, another or flight partici- than one person other death of causes pants; or alone acting either person, by a “(c) committed It is discharges a places or persons, who or more with one attempts

destructive device or bomb or who commits or piracy. commit aircraft 5J

i<* * * * * felony by bombing murder or murder Under these of, example, a defendant could be convicted provisions, possible to a minimum robbery degree, subject in the first parole release or under years imprisonment of 15 without and a minimum of 25 aggravated murder statute However, the initiative. we do parole without release or under if these conflicts would cause us to hold the not have to decide impliedly repealed. murder statute We have aggravated presumed, will not be repeatedly repeal stated: “Intention to conceded, inconsistency unless the is repeal nor the effect of only repugnance.” and then to the extent admitted, Portland, v. added.) 528, 543, City Cabell 153 Or (Emphasis (1936). proposition: 57 P2d 1292 Justice Lusk stated “* * * favored, by Repeals implication are not and before repeal there must be between two acts such is established unavoidable, ‘plain, repugnancy, and even and irreconcilable tanto, only repealed by implication pro then the old law is ’ Duby, repugnancy. Mesick v. 86 Or. the extent * * 1073); (Emphasis (citing Cyc. 168 P. 628 Noble, 538, 549, 103 added.) v. Or P2d 293 Noble statements, reason to there is no Aside from these statute prior in a provision a consistent impliedly repeal inconsistent, unless the is provision because another merely statute prior found to be to have intent is legislative entity. only treated as an

That one of the statutes with which we are concerned was enacted a vote of the people legislature rather than the does not affect our consideration. We must determine whether and, so, are if conflicting apply the doctrine of implied repeal. “It is said the construction of statutes there is no essential difference between those enacted initiative and referendum and those enacted in the usual Veatch, Anthony supra, v. way.” 189 Or at 496-497. Appeals the Court apparently The dissent essence of repeal. The implied the doctrine enlarge would pro- subsequent opinions that if is assert those disproportionate an offense that vides penalty prior offense, the intention of statute for another in a repeal subsequent passing legislature to statute was in the the approach pre-existing is that this statute. We assume the syn- disproportionate assumption upon the based repugnant. onymous with repeal implied of an extention of the doctrine

Such peculiar produce Gladden, v. 203 some results. Cannon could (1955), In that case the 629, 281 P2d 233 is illustrative. Or rape penalty at was fixed in 1864 the for facts were that penalty prison. maximum 20 in In 1919the maximum of rape at life was fixed in intent to commit for assault with By disproportionate. penalties prison. the were We held such Appeals, reasoning the and the of because of the dissent Court rape prior existing penalties disproportionate, the stat- were 20-year impliedly ute with maximum sentence would be its repealed. reasoning

Following logical the its conclusion necessity Appeals, no and the Court of there is for the dissent Art Oregon reasoning I, § 16 the of the Constitution. Under Appeals, subsequent if a the dissent and the Court of statute disproportionate provides sentence to the sentence impliedly provided subsequent crime, the for another repeals prior the statute. the

We conclude that those two statutes applicable and, are not inconsistent which are therefore, to this case repeal passage impliedly initiative did not

the the aggravated murder statute. repeal, Having implied we must found there was no statutory scheme is consistent with determine whether part § which Art 16 of the Constitution that requires penalties proportioned shall be that “all offense.” leading interpreting I, § Art 16 is Cannon case petitioner supra Gladden, in that was 629. The case

v. Or statutory rape, charged with intent convicted of assault with rape, imprisonment. The and sentenced to life to commit statutory rape penalty was for either forcible or maximum years; penalty intent however, for assault with rape commit was “imprisonment in the penitentiary during person life of such a period or for of not less than one nor more than twenty years.” Or Laws 1919, p ch 54. We held the life sentence was disproportionate to the offense and held it void. Gladden, supra,

Cannon v. applied was dicta Gladden, 460, 464, Merrill v. Or 337 P2d 774 We stated:

“* * * Therefore, opinion we are of the crime of assault robbery with an intent to commit must a lesser included robbery, and, offense crime our since constitution provides penalties proportioned ‘all must be offense,’ we concludethat the for the assessable crime greater assault with intent to rob cannot be than that provided robbery.” accomplished present

In the case defendant convicted intentional homicide as required, and sentenced to life ORS 163.115 amended the initiative 25 provides, serve years Whereas, becoming parole. before for if he had eligible been of homicide, convicted intentional committed under of the aggravating provided 163.095, he circumstances in ORS would parole be for either 20 or after eligible years 15 sentenc- ing, upon depending aggravating circumstances. scheme, a statutory

Under a defendant receives minimum being eligible lesser sentence served before for to be an parole for he does for aggravated intentional homicide than unaggravated intentional homicide. This is in violation of Art I, Oregon 16 of the Constitution and that in ORS provision § 163.115(5) not 25 requiring the defendant to serve less than years parole for and cannot becoming eligible before is invalid defendant; be applied statutory provision requiring a life is sentence valid.

The conviction and sentence to the Corrections Divi- sion for the rest of natural defendant’s life is affirmed.

TONGUE, J., in concurring part, dissenting part. in I concur parts opinion by those Chief self-defense, Justice Denecke on concerning instruction

165 sever- and the issue of jurors, questioning prospective of ability. of dissent, however, holding

I from respectfully opinion that that:

(1) adopted by the 5 the ballot measure of (ORS 163.115(5), imposed which of in 1978 voters murders) all mandatory years of 25 minimum sentence murder” not so inconsistent “aggravated with 163.105, (ORS adopted by legislature 1977 20 minimum sentences 15 and imposed mandatory which murder”), so types “aggravated years for certain described implied repeal as an of that 1977 statute because to result “aggra- not an the murder committed this defendant was and he not vated murder” under that statute could have been (291 and, at 161), that statute Or at the same convicted under time, that:

(2) mandatory years minimum sentence on this defendant under Section 5 the ballot imposed (ORS 163.115(5)) such a sen- measure was invalid because is so inconsistent with mandatory minimum sentences tence years “aggravated murders” under ORS more I, the Oregon 163.105 to violate Article Section 16 of Constitution, penalties pro- “all shall requires which that 163). (291 portioned to the offense.” Or at my opinion, mandatory defendant’s mini- because 163.115(5) years sentence of 25 ORS was so mum under mandatory inconsistent with minimum sentences 15 or aggravated for more murders under ORS 163.105 as violated, that Article Section 16 it also require holding 163.115(5) so and ORS 163.105 are inconsis- follows require holding aggravated tent as also (ORS 163.105, provided mandatory which statute 1977 murders”) years “aggravated or 20 for some sentences 15 by implication Oregon when the voters of repealed was mandatory minimum provides a statute which adopted for all murders. years sentence by

I with the the Court agreement am in decision C.J., court, Schwab, opinion by that an Appeals which repealed by implication by ORS held that ORS 163.105 was 163.115(5) and in holding agreed Attorney so with the General that: * “* * sponsors the obvious intent of the towas create a punishment unified scheme for all murders: intent was persons punished by that by convicted murder death or imprisonment subject 25-year life minimum incar- requirement.”

ceration

and went on to hold that: apparent penalty provided “It is by that the ORS 163.115(5), amended, penalties as is in with conflict the under 163.105,

ORS the and that two statutes cannot be reconciled. leaving punisha- Even aside the fact that the kinds of conduct ble under ORS are 163.105 more ‘serious’ than some kinds of 163.115(5) relates,

conduct which ORS it is self-evident requirement that the years’ a minimum of 25 confinement 163.115(5) for all murders under ORS as is amended not compatible 163.105, sentencing with the under scheme ORS parole effectively possible years which made after 15 20or some murders.” reasons, hold,

For these I the would as did Court of Appeals, by by that ORS 163.105 was repealed implication by adoption Oregon the voters in 1978 of is what now ORS 163.115(5). this,

I would hold that also a statute such as which mandatory provides for minimum sentence offense of murder, does not violate the constitutional requirement under I, penalties proportioned Section 16 that “all shall be to the offense.” The sole basis for the holding by majority 163.115(5) contrary I, that invalid is to Article Section 16, (and defendant) sole contention its mandatory for a are minimum sentence of stringent provisions aggravated in conflict with the less Because, however, statute, ORS 163.105. 163.115(5), repealed by adoption of ORS it follows conflict, that there is no such absence of conflict. such not holding sole basis for that does exist. For these I from the opinion reasons dissent Chief 163.115(5) is as in Justice Denecke that ORS invalid conflict 16 of the with Article Constitution. J., Peterson, opinion. in this joins concurring part J., and concur- LENT, otherwise in ring the result. opinion parts authored of the

I those concur concerning on self- the instruction Denecke Chief Justice defense, severability. prospective jurors, questioning and the of issue the opinion of Chief Justice I the cannot concur constitutionality concerning Or ORS 163.115 under the opinion concerning separate § 16, I,Art or the Const constitutionality 15, I, § Or Art of the statute under Const properly question now I convinced neither am because before the court. “aggravated murder” to the enactment of the

Prior continuing 1977, 370, until statutes, Laws ch Or and 1979, 2, the 8, ch Or Laws effective date of Ballot Measure 163.115(5) specified punishment as murder was ORS for follows: person punished

“A convicted of murder shall be imprisonment for life.”

By legislature prescribed 1977, 370, § 1, Or ch Laws By “aggravated defined that term. Or crime Laws murder” and sentencing legislature provided § for ch aggravated and consideration of one convicted of murder parole. person Those of ch 370 were that codified two sections respectively. 163.105, ORS ORS as 163.095 obligation upon sentencing imposes 163.105 court the statutorily prescribed sentence: fix a minimum “(1) of murder as When a defendant is defined convicted (1) of aggravated pursuant murder to subsection ORS 163.095, shall the court shall order that the defendant years possibility minimum without confined for a release, employ- parole, temporary leave or release on work camp. ment at a forest or work “(2) of murder a defendant is defined When convicted (2) of pursuant

aggravated to subsection 163.095, shall be the court shall order that the defendant possibility without for a minimum of confined release, temporary employ- parole, leave or release on work added.) camp.” (Emphasis at ment a forest work requires court to order confinement The statute possibility parole or other term for a minimum without early custody. relaxation of When the court has carried out the sentencing duty imposed, nothing thus the court has further 163.105(3), (4) (5) to do under code those sections. ORS speak specified to release terms, earlier than minimum but powers those are concerned subsections with duties and State Board of Parole. statutory punishing guilty scheme for one found non-aggravated significantly

of 163.115 under ORS is By passage people 8 the different. Ballot Measure amended 163.115(5) present its form: ORS to

“Except imposed pursuant when a sentence of death is to 163.116, punished person of murder shall ORS convicted be imprisonment by for shall required life and be to serve not less becoming eligible parole.” for than before 163.015(1) The and difference between this subsection (2) absolutely any striking. and duty is is as to ORS 163.115 silent sentencing impose any

of the to minimum sen- court Rather, time tence. the subsection deals with minimum to be by prescribing eligibility parole, a served for matter for the cognizance of the State Board Parole. pertinent part judgment

The trial court’s was as follows: “WHEREFORE, IT HEREBY IS ORDERED that

defendant, Douglas Shumway, Linn legal be sentenced to physical custody and and control of the Corrections Division Oregon of the State of for rest of his natural life.” judgment any That does not sentence, set minimum nor does any any aspect it contain mention of the defendant’s eligibility parole. for judgment appealed.

It is from that that defendant has assignments respect He made various of error to the with trial questioning jury court’s instructions to the the mem- jury adversely panel; bers of we have decided those matters remaining assignment to the defendant. His of error does not imposed. attack the sentence which was duly stands, therefore, As the case now he has been pronounced, convicted, and a sentence has been which he have sentence which judgment question. does not have the result that which been exactly are would given been Ballot of the of murder had conviction crime defendant’s aborning. 8 died Measure Constitu- sections 15 and day may issues that some may application

tion have some parole respect eligibility to this defendant’s for arise with could person when reasonable should there come a time no in fact or there question the defendant’s reformation should parole had he might eligible time when he be come a he eligible murder but is not because aggravated committed committed a murder.1 non-aggravated summary, my position it is the discussions separate opinion the Chief Justice and in other questions are There is nothing constitutional dicta. case present any

record of this time to occasion decision constitutionality fixing court as to of the statute in the defendant period minimum of confinement before parole. There is no error of the trial court eligible Defendant fair trial which he found and corrected. had the imprisonment. entitled and has been sentenced to life sen- I concur in the result the conviction and imprisonment tence to for defendant’s natural life must be affirmed.

TANZER, J., specially concurring. provision of the penalty As was of the death true us measure, before penalty provision same initiative now state’s fitting penal one law into the shows hazards and with- system provisions of constitutional statutes existing possi- and scrutiny, adjustments careful amendments out the representative legislative possible and not process ble in the legislative process. the initiative and of a

Oregon responsive its tradition prizes system public policy. beginning From responsible may may in the I have not There number of issues which arise future that may pretend possible settings he I not be able to all in which discussed. do foresee timely arguments. his assert constitutional

statehood, our constitution has expressed Oregon’s commit- ment to a fair penal and humane system, including guarantees against inhumane conditions of imprisonment, I, 13, Art § bail, I, detention 14, without Art punishment, vindictive Art § I, 15, and disproportionate or cruel punishment, and unusual § I,Art 16. All provisions by these were enacted the vote of the § people of The Oregon. criminal code developed has been and many years revised over century-old consciousness of these principles. prizes also its popular tradition of legislation petition initiative and popular direct vote. It is inevitable proposed enacted, measures so and without oppor-

tunity for amendments and adjustments, sometimes risk fatal conflicts with the preexisting scheme of statutory and con- stitutional law.

This happened in the case of Measure 8 in 1980. penalty provision Because the death was drafted and submit- ted without regard previous in the changes homicide stat- utes, it left an essential fact to determination a judge rather than a jury, contrary Constitution, to Oregon Sec- Quinn, tion 11. State v. 290 Or 623 P2d 630 noncapital sentence were also submitted to the people subject defect, to a similar legislative inconsistent with existing sentence provisions that distinguish between murder and aggravated murder. That inconsistency prob- created the lem disproportionality analyzed majority opinion.

I agree with the majority that enactment 163.115(5) by impliedly repeal Measure 8 did not (other aggravated felony murder than murder by bombing) provided in ORS 163.095 and 163.105. In legislature considered and rejected House Bill which was similar to Measure 8 in all respects. process, by nature, Because the initiative its did not provide legislative scrutiny modification, intensive Measure 8 was submitted to the people despite apparent an abundance of constitutional majority defects. The holds penalty provisions, 163.115(5), that its now in ORS murder, 163.105, those for aggravated repug- ORS are not nant. I agree analysis with that and with the conclusion but, there implied repeal analyze has been no as I 163.115(5), regard relationship to its it is invalid without penalties. to other murder, for my penalty the minimum opinion, I, Section alone, it offends Article is invalid because

standing severe, a I conclude that 15, Oregon Constitution. murder, every regardless minimum inflexible circumstances, of whether regardless is unconstitutional Therefore, first to it. I would repugnant another statute is challenge validity of ORS defendant’s consider 15, of 163.115(5) I, Constitu- under Article Section provides which that: tion punishment of on the for the crime shall be founded

“Laws reformation, justice.” of vindictive principles of and not conven- history of the constitutional The recorded the framers of our constitution con- only tion tells us 15, a sciously I, by adapting Section similar included Despite of Indiana.1 silent provision of constitution however, we from the fact their history, must assume adoption of Article that the framers intentional meaning that the section have and effect. scant intended only interpretive caselaw describes results and effects that the nothing; But it mean it provision compel. does not cannot something. challenge Defendant’s case must mean as requires meaning that we discern the the section insofar 163.115(5). it affects ORS conclusions, are reflected in

Certain some which opinions, may plain words of the our deduced from First, parts, positive, is in one one section. the section two penal founded The former is command that laws be negative. reformation; injunction the second is an principles of on gave We justice penal basis laws. against vindictive Gladden, Or parts in Tuel v. definitions the two separate (1963): 379 P2d 553 doing bring a better about “Reformation means over Vindictive, result, correction, on the other or rectification. ‘retaliate,’ hand, ‘revenge,’ such as is defined words Constitution, I,Art 18: Indiana sec reformation, principles penal and not of shall be on the “The code founded justice.” vindictive 172

‘punishment.’ applying justice The best known law vindictive eye eye, is lex talionis: ‘An an a and tooth for a tooth.’ Matthew 5:38.”

Obviously, part. the function of the court differs as to each Generally, judicial enforcement of a constitutional exhorta- functionally complicated tion is more than enforcement of constitutional bar. priori

Second, the section assumes some crimi particular, nals can be reformed. the section has been philosophy prevailed said to reflect the utilitarian which Century by public mid-Nineteenth which action was to be socially objectives. directed to the achievement useful Penology reforming was to be directed to offenders into useful (1981). Cupp, See, 611, 625 citizens. v. 290 Or P2d 123 Sterling Capital Kanter, Punishment, 1, See also 16 Will L J 38 Early century, in this utilitarianism was echoed State v. (1907), Walton, 142, 149-50, 91 P 50 Or in which this court policy 15, observed that the I, reformative of Article Section public society serves the as well as offender in that will during longer period benefit from the offender’s service “a society.” Although his as a life reformed member current longer sanguine ability are attitudes no about official persons cure minds, afflicted with criminal see Brown v. County 95, Ct., Dist. Multnomah 280 Or 106 n 570 P2d 52 (1977), I, Section continues with full force to commit the State as a matter of constitutional capable mandate the idea that some criminals are change penal reformative and our laws must reflect that idea. penal

Third, the section refers to laws rather than early particu- to individual lar sentences. We held that when penal conformity I, reviewed for to Article part statutory Section it must scrutinized as a of its standing Finch, scheme rather than alone. State v. 54 Or (1909). Oregon’s 482, 498-99, punishment P “laws for the undergone changes of crime” have extensive implemental provisions their substantive and since the Bellinger Finch court examined and Cotton’s Annotated revised, Code. The definitions of crime been have variety grown, sentencing process of crimes has has method, theory and and sophisticated more both become subsequent individuation subject are now sentences penalties philosophy of offenses underlying parole. 161.025(1), in ORS which code is stated present under harmony are in principles, all of which following includes the 15: with Article this Act general purposes of the

“The [the are: Criminal Code]

“(a) safety by preventing public the com- To ensure the through the deterrent influence of mission of offenses authorized, the correction rehabilitation sentences convicted, required in the when and their confinement those public protection. interests of i}c ‡sfc

% “(e) grounds reasonable between To differentiate on and minor offenses. serious

“(f) prescribe penalties proportionate are to which To permit recognition of of offenses which the seriousness and possibilities among individual differences in rehabilitation offenders. excessive, against dispropor- safeguard

“(g) To offenders arbitrary punishment.” tionate penal of substantive statutes are principles the the

given through application executory effect of statutes probation, parole. for incarceration and Statu- provide which tory sentencing judge to take sentence authorization allows among possibilities into “rehabilitative individual account 161.025(l)(f). further offenders,” ORS Parole statutes allow the individual convict has individuation based on whether so that incarceration potential realized that for reformation See public safety. for no needed deterrence and longer and This substantive generally. 144.780 and ORS ch to harmonious with the executory designed scheme is be I, Today, when we examine of Article Section 15. objectives clause, reformation we conformity for penal statute of sophisticated the context of a more scheme must do so in penological resources. penal statutes apply to I, 15, purport does not to Article Section indirectly in that sentences sentences, particular except of objectives with the designed to be consistent should be Cloutier, v. code. State P2d 286 Or the criminal (1979).2 does the purport Nor section to establish indi- rights. vidual Accordingly, provision a similar been has held not to establish an individual’s entitlement to parole, State v. Farrow, (NH 1978), 386 A2d 808 Court Appeals has held it not require provide does that the state therapy prisoner, reformative to every Cupp, Kent v. 26 Or Holmes, App 554 P2d 196 See also Eacret v. 215 Or (1958), 333 P2d 741 regarding rights of others. Although assuredly sentences death most preclude any possibility personal reformation, older cases have held a mandatory death sentence not violate this section. State v. Finch, Anderson, supra; State v. (1862); 10 Or 448 see post but note 4. the punishment “Laws for of crime” are within the I, 15; compass disposition of individual not, except cases is as statutes under which sentences are imposed scrutiny are subject judicial conformity constitutional as in requirements, this case.

Fourth, “principles reformation” must be a basis penal laws, they only for our but need not Except basis. for “vindictive section justice,” preclude does not other objectives penal laws. Other utilitarian such objectives as safety public always deterrence and have judicially been recognized permissible purposes penal statutes which are nevertheless with Article compatible Moreover, Section 15. penal may require laws that where certain justifying exist, objective public may conditions safety override objective sentencing. of reformation as basis for For this reason, Gladden, in upheld Tuel v. the court the supra, former provided mandatory Habitual Criminal Act which for previously enhanced sentences for convicted offenders. The court held:

«* * * q'jjg Oregon attempt not to Constitution does state principles legislature the the in all of be followed enacting sentencing laws. The constitution does sen- contain tencing quoted. in restrictions addition to the above It requires penalties proportioned that ‘all shall be to the offenses’; imposed; excessive fines shall not be and cruel 163.115(5) challenged constitutionality general in The defendant has the of ORS constitutionality I, 15, particular but of this sentence. Whether Section not the Article provides any presented an basis for substantive sentence review is not issue case. I, 16. be inflicted. Art § shall not punishments unusual however, constitution, not the did include the The drafters of all, safety protection and important consideration of the most not to be principle does have people the state. Such a for in as it is the reason criminal constitution expressed importance. overriding jurisdictions recognize All its law. I, Rights Bill of Oregon Art of the interpret § “We sentencing have as require laws that command retaliation, they not object but do reformation and not their sought at require that reformation be substantial risk (Footnote omitted.) at 234 Or people of state.” 5-6. holding legislature not that the could Tuel was penal

eliminate reformation as for statutes in favor basis public directly purpose. That more favored would violate greater I, Rather, 15. the court held that a Article Section may legislatively required minimum sentence in order to protect public safety. preclude I, Article Section does not upon legislature designating cases from classes of based specific prior circumstances, convictions, such as a record of dangerousness which indicate the of the offender or the requiring greater unlikelihood of reformation and minimum protect public safety. sentences such cases order to summary, then, does not require Oregon’s be the sole basis of Crimi- reformation safety public deterrence, nal or other Code to the exclusion of purposes. public require It Crimi- non-vindictive nal does that the penalty provi- code, crimes, in its classification of in its way penalties administered, sions, are must or to be possibility provide individual in some manner for the conformity requirement to that reformation. It is 163.115(5)must be examined. 163.115(5) The literal terms of ORS as amended relating refor- allow no differentiation the likelihood of every mation. It mandates the same severe possibility no murder convict with tion based of individual differentia- upon background offender, of the the circum- potential of the or actual stances crime reformation mandatory aspect the convict. The life sentence requires of one identical treatment who 176

murders a spouse despair in fear or for a professional as murderer, a repeat murderer or a murderer torture. There is negligible allowance for by parole; individuation same 25 years parole without must prisoner who, be served through growth, maturation and undergoes true reformation by a murder convict who later murders a penitentiary guard. By allowing no variation either in the life sentence or in the 25 incarceration, on mandated the statute allows for (i.e., no individual differentiation in way substantial for at years) least 25 according the crime or the criminal. Because it makes no in any allowance case the possibility reformation, isit inconsistent 15.3 with

A statute must conform to the constitution whether Legislative Assembly its source be the people or the their exercise of legislative power their reserved of initiative. Kad Portland, v. derly 118, 710, (1903). 44 Or 74 P 75 P 222 The framers of Constitution intended that the funda mental principles enunciated in the Bill Rights circum legislative scribe such as impulses may find popular favor year year. from As the historian of the Oregon Constitu tional explained: Convention “Throughout there was an evident [Constitution] design upon

intentional create limitations the exercise power by people Assuming themselves. that as they powers government voters had all state not 3 contrary holdings longer they in Finch and Anderson are no valid insofar as uphold Moreover, mandatory penalty. Supreme death the United States Court has mandatory impermissible Eighth held that a death under sentence is Fourteenth Amendments to the United States v. North Constitution. Woodson Carolina, 280, 304, (1976), 428 US 96 Ct L Ed 2d S that court stated a ways rationale which is similar in some to our discussion of the reformation clause: *“* * process significance A that accords no to relevant facets of the character particular and record of the individual offender or the circumstances fixing punishment offense excludes from consideration in the ultimate possibility stemming compassionate mitigating death the factors from persons

the diverse frailties of humankind. It treats all of a convicted designated uniquely beings, not offense individual human but as members faceless, subjected of a undifferentiated mass to be blind infliction of death.” Ohio, 586, 602-05, 98 973 (1978); 2954, 57 L Accord: Lockett v. 438 US S Ct Ed 2d Louisiana, 633, 641, (1977); v. Roberts 431 US 97 S Ct 52 L Ed 2d 637 Louisiana, 325, 332-34, 96 v. Ct Roberts US S 49 L Ed 2d 974 what deliberately put bounds to surrendered, they actually they carefuly constitutionally, and in be done could by experience tested had been the models followed expression of the though they knew that It aswas elsewhere. desire, to extrava- might lead will, popular the popular or the adopt they chose to expenditures, and in action or gance Carey, The government.” good interest of restraints Proceedings Debates of and Oregon Constitution 1926). (C. Carey ed of 1856-1857 Convention Constitutional con hand, if there is reasonable On the other remedy a constitu of statute which will avoid or struction defect, give are to it that construction. obliged tional we Revenue, 9, 13, 298 v. 281 Or 573 P2d Dept. Tharalson of (1961); Harmon, 571, 577, (1978); State v. 225 Or 358 P2d 1048 Dist., 141, 144, 214 314 Wright Hospital v. Blue Mt. Or 328 P2d Portland, (1958); Drainage City No. 2 212 Peninsula Dist. v. of 398, 418, (1958). 277 See v. 290 Duggan, Or 320 P2d also State 373, (1981). 369, P2d rule with applies Or 622 316 This particular measures appropriateness to initiative because process legislative scrutiny has no to work initiative method Anthony v. problems proposed legislation. out Cf. Veatch, 495, 433, 462, 221 462, reh den 189 Or 220 P2d Or 575, 499, L Ed appeal dismissed, P2d 340 US 71 S Ct to our in this case Thus function should 163.115(5), the initiative to ORS insofar construe amendment I, way effect Article able, give are in a which will full to as we to as much of the give legislation Section and also effect the constitution. people enacted is consistent with constitutional,

For the statute mandatory to be provision provision, life sentence or the parole deferred both, must be so provide limited as to degree recogni- some possibility tion of the of individual reformation. The voters clearly intended to enact greatest permissible the two should light be considered in legislative that intent. As the first provision, for reasons of public safety alone, crime is gravity of murder justify sufficient legislative designation class of as a mandatory imposition conduct which warrants the a sen- of life imprisonment. tence

If imposition of a life sentence mandatory, is how- ever, some form of individuating device is necessary if the penal laws are to be consistent with Oregon’s constitutional philosophy that some criminals are capable of reformation and the requirement constitutional punish- laws for the ment of crime must allow possibility for the of reformation. single No form subsequent review is constitutionally man- dated. The legislature could require periodic judicial review for release if the purposes of incarceration have ceased to exist. The form of individuation established criminal procedure parole 163.115(5) and ORS eligibility restricts parole ato constitutionally impermissible degree. purposes I,

For Article alone, Section it would necessary not be to invalidate the minimum imprisonment provision in its entirety, as the majority has done under I, Section 16. give To effect to as much of ORS 163.115(5) as is consistent 15,1 with Article would 163.115(5) confíne ORS compel imposition of a sentence of imprisonment life and to authorize compel but not parol authority, for reasons other than justice, vindictive to require that the defendant serve a minimum of 25 or some lesser period before becoming eligible parole, depending upon the circumstances of the crime and the background of the defen- dant and post-conviction facts which reflect upon rehabilita- tion. This preserve would as much of the initiative act as is constitutionally permissible. It would also prob- eliminate the lem of disproportionality addressed by majority.

I concur the majority with holding the self- regarding defense instruction.

Linde, J., joins specially in this concurring opinion.

Case Details

Case Name: State v. Shumway

Court Name: Oregon Supreme Court

Date Published: Jun 23, 1981

Citation: 630 P.2d 796

Docket Number: 79-2-17, CA 14464, SC 26922

Court Abbreviation: Or.