*1 8, 1999, 22; Sеptember Argued April reversed and taken en banc and submitted April resentencing remanded for OREGON, STATE OF Appellant, THORP, JUSTIN EDWARD Respondent. A101900)
(CR97-00753; CA
David C. Public Degner, Deputy argued the cause for With him on the brief was David E. respondent. Groom, Public Defender. Deits, Edmonds, Muniz,
Before Chief Judge, Landau, De Haselton, Linder, Brewer, Armstrong, Wollheim and Judges. MUNIZ,
DE J.
Edmonds, J., concurring.
Brewer, J., concurring.
Haselton, J., dissenting. MUNIZ,
DE J. judicial This and faithful a case about restraint duty legislature to accord the to our constitutional adherence fixing Oregon substantial deference and the citizens of Ultimately, appropriate punishment it for criminal behavior. majority fidelity of this court to its constitutional is the of the duty of this case. that controls outcome tried and convicted of two counts
Defendant was sentencing, degree. rape At ORS 163.365. the second mandatory impose minimum sen- trial court refused to rape second-degree for the crime of tence of 75 months required by finding would 137.707, that such a sentence ORS applied defendant, under Arti- to this unconstitutional as The court Constitution.1 of the cle pur- imprisonment imposed 35 months’ instead a sentence of guidelines. appeal, sentencing the state On to the suant ground resentencing on the and a remand for seeks reversal failing impose the erred in that the trial court For the reasons minimum sentence of 75 months. imposition of the below, and remand for forth we reverse set 75-month sentence *3 required by 137.707. ORS underlying in dis- convictions are not ofthe The facts “girlfriend,” July pute. 15, 1980. His Defendant was born July Thus, defendant was three 25, 1983. Strobel, was born days years different occa- On two and 10 older than Strobel. came to the house Strobel sions, October 20 staying. time, she went into the Each defendant was where up sleeping. woke defen- She where defendant was bedroom foreplay. engaged joined in sexual bed, him in the dant, engaged intercourse. then sexual and Strobel Defendant person “[a] 163.365, who has sexual ORS Under rape person the crime of commits intercourse with another years person degree is under if the other the second degree charged rape age.” has in the second A defendant Constitution, part: provides, Article inflicted, penalties punishments but all shall not be and unusual “Cruel proportioned offense.” shall complete charge to the if “the lack of con- defense victim’s solely incapacity by sent was due to consent reason of being specified age, [and defendant] less than was less years than three older than the victim at the time of the 163.345(1). alleged offense.” ORS Because Strobel was under age offenses, 14 at the time of the defen- because was, dant was more than three older than she defen- dant violated ORS 163.365 when he had sexual intercourse inability solely with her. Strobel’s to consent was due to her agе.
Defendant’s convictions for these crimes are not at only appeal. issue on issue is whether the trial court cor rectly prison determined that a minimum sen tence of 75 months for these crimes would constitute cruel punishment and unusual under the circumstances. sentencing, presented At the state evidence that juvenile department defendant had been referred carrying times, weapon, theft, for activities such as a concealed possession, entry minor in unauthorized into a pre vehicle, motor sented evidence and curfew violations. The state also here, after the crimes at issue defen adjudicated charge third-degree dant had been on a rob bery period years. and committed to MacLaren of five membership gang, Defendant admitted presented in a and the state evidence MacLaren staff that defendant was gang activity believed to be involved in at MacLaren.3 For only marginally reason, him staff viewed amen police initially able to treatment. The officer who investi gated present crimes testified that he had become famil gang iar with defendant in 1995because defendant and other “hung members often in a around” local mall. The officer opined adept manipulat that defendant was devious and at ing adults.
A letter from Strobel was introduced into evidence: Justin, “When I my first met friend told him that I was *4 really or 15 when I wasn’t. He didn’t old I know how was juvenile facility. MacLaren is correctional 3 MacLaren, relating gang At a handmade booklet of a formation possession. found in defendant’s concerned, quite
for anything wrong. a while. As far as I am Justin didn’t do beginning From the I never thought charges these should have I against been made Justin. still think thing stupid this whole and should have never been concerned, I pursued. As far as am I was never a victim of rape. I don’t think the DA I thought was a victim either her, I though because even wanted to talk to she never really would talk to me. That made me feel like she wasn’t justice. interested in the truth or “Maybe happened right legally, what wasn’t but we we breaking any just didn’t know were thought we law. We love, in it happened were because we both wanted it to. everybody I know that young thinks we are too to know is, think Justin, what love but we don’t I I so. still love know he still loves me.” mother,
Strobel’s originally who the sexual contact reported authorities, between her and defendant to the daughter also testified that she did not condone what her although daugh- done, ter and defendant had she did not consider “two young making kids love” to be She further stated that she rape. thought sentencing jail defendant “to over six really unnecessary, cruel and and he doesn’t deserve it.”
The state evidence from Dr. Charlene presented Sabin, that, who testified when a child under psychologist, age engages activity, sexual it harm her self- may that, Sabin further if a child image. opined engages sexual love, because she to be in it activity believes herself more detrimental she “further might because internalize that behavior as the in future way relationships.” relate if young Sabin also indicated female’s mother con- dones the sexual it would that “sex is the coin- activity, imply age relationships[.]”
At the trial court held that sentencing, imposition the mandatory minimum sentence of 75 months for defen- dant’s crime would constitute cruel unusual punish- ment, in violation of Article of the Con- stitution. The court noted that defendant was troubled and out of control and need of a structured program develop found, however, and academic skills. The that a work court unusual, given sentence of 75 months would be cruel and
569 imposed crimes, the instead a circumstances of sentence imprisonment. of 35 months of The court stated: [Strobel], case, says “I do find that the victim in this that philosophical she is a victim. Whether she’s victim is a that question many psychiatrists disagree and one would vocally with her. I further find that that [Strobel] insists was a that in willing participant she the defendant this time, that case—at least at October unaware ’96—was of age.|4| her true
“I further find that mother, the victim and the victim’s this proceeding, oppose who testified in categorically not only the proposed Measure 11 but the pur- sentence even suing charge of a criminal I place. the first find that And constant, position their was vocal and and it came to the attention of Court even this before there was a conviction this case.
“I victim, [Strobel], further find that had the been ten days older, here, none, there would at be no crime all but days wasn’t she ten older.” imposed
The court then concurrent both sentences on second- degree rape by months, convictions for a total of 35 followed post-prison supervision. three of appeal, argues
On the state that the trial court erred holding minimum that the sentence of 75 required second-degree rape months for the crime of was applied cruel and unusual to the facts of this case. The great state’s brief devotes deal attention the sentenc- ing against sentencing. court’s diatribe Measure A recita- sentencing tion of the court’s attitude toward Measure disagreement sentencing and the court, state’s with the bar, would benefit neither bench nor nor it would contribute ques- to the resolution of this case. therefore We turn correctly tion whether trial court concluded as a matter imposing imprisonment of law that a sentence of 75 months’ argues appeal The state on that uncontradicted evidence demonstrated that age knew at defendant Strobel’s the time of the crimes. The state is incorrect. Evi presented age at dence trial showed that defendant knew at the time he Strobel’s by police was interviewed officer in November 1996. That is not incon evidence presented sentencing sistent at did not evidence defendant know age Therefore, accept true until Strobel’s after crimes occurred. we the trial finding, supports factual record court’s because evidence in the it. under would be cruel and unusual
for defendant’s crimes Oregon I, 16, of the Constitution. Article section pro Constitution, I, Article section “[cjruel part, punish vides, and unusual in relevant penalties propor inflicted, but all shall be ments shall not determining The test for whether a tioned to the offense.” proportionality provision in Article sentence violates the disproportionate 16, is whether “so per sense all as to shock moral reasonable offense right proper.” Isom, v. sons 391, 401, to what is State (1992). That test first P2d 491 conceived County Co., 101 Or Court Marion the court Sustar (1921). Sustar, *6 In had been 657, 665, 201 P445 the defendant possession and, of “moonshine” in a writ of convicted of argued proceeding, his sentence of six months in review the provision that proportionality county jail the and a fine violated $500 Article section 16. of challenge, rejecting constitutional the Sustar’s quoted States, 349, v. 217 US court from Weems United first (1910), Supreme in 793, L Ed S where the Court 54 30 Ct 544 Eighth an Amendment case had stated: justice
“It is of that for crime should precept punishment a proportional and to the offense.” graduated language, Drawing stated: that the Sustar court on declaring punishment the in justify “In order to court duration, pun- with reference to the cruel and unusual its proportioned to the offense committed ishment must be so men to what thе moral sense of all reasonable as as shock at 665 right circumstances.” proper and under the added). (emphasis he court nor in this contend at trial does Defendant did not argue the crimes violates the sentence mandated his that initially Eighth the However, we examine Amendment. jurispru- “proportionality” Supreme Court’s United States pro- and also to is derived from dence our test Weems because history concept proportion- the of durational vide some ality about history sentencing and deference the substantial fixing prerogative legislature’s paid courts appropriate punishment for crime. case, truly
Whether Weems was or proportionality one the manner or involving only method has punishment, debate, subject of some as is the question been whether Amendment extends to the Eighth actually proportion Helm, ality 277, 284, 103 terms. In prison Solem US L (1983), Ct Ed S 2d majority court Supreme stated that final clause of the Eighth Amendment but “prohibits only punishments, barbarian also sentences that are disproportionate to the crime committed.” analysis
The Solem court held that a proportionality under Eighth Amendment was applicable capital, well noncapital, However, cases. the court cautioned cases, in noncapital challenges “successful to the proportion- ality rare,” sentences will be particular exceedingly reviewing grant that courts should “substantial deferenсe to the broad authority legislatures necessarily possess determining the and limits of type for crimes.” punishments Id. at 289-90.
To determine whether a con- particular sentence is stitutionally crime, to the disproportionate major- the Solem ity fashioned a three-part indicating test proportion- ality under the analysis Eighth Amendment should involve (1) the gravity consideration of: of the offense and the harsh- (2) ness of the penalty; imposed sentences on other crim- (3) inals in jurisdiction; the same the sentences imposed for commission of the same jurisdictions. crime other *7 later, however,
Eight years the court frac severely tured over whether constitutional proportionality was a com of the ponent Eighth against Amendment cruel prohibition and unusual v. US punishment. Michigan, Harmelin 501 957, 2680, 115 111 Ct L 2d (1991), S Ed 836 the Court upheld the defendant’s life for 650 possession of grams agreement cocaine but could not reach on the issue of constitutional lead proportionality. Justice Scalia the opinion, joined by Rehnquist, Justice wrote that “Solem was simply wrong; the Eighth Amendment contains no propor at tionality guarantee.” However, 501 US 965. in a separate opinion sentence, concurring uphold the decision to the Kennedy, Justices O’Connor and Souter allowed that 572 encompass
Eighth proportional- a narrow Amendment does concurring ity principle. opinion, Kennedy In that Justice (1) fixing prison specific terms for crimes stated “that judgment gen- penological as a involves substantive properly province legislatures matter, is within the eral (2) challenges proportion- courts,” that successful not particular ality (3) exceedingly rare, sentences are only Eighth extreme that the Amendment forbids sen- grossly disproportionate to the crime. Id. at that are tences 998,1001. Eighth impre- Amendment are
The contours of component primarily proportionality is not because a cise explicit wording Eighth However, in the of the Amendment. proportionality 16, I, contain a clause. Article Although section does explicitly Oregon Supreme Court has not Supreme adopted proportionality the United States Court’s methodology, Oregon Supreme sim- Court has identified controlling principles I, 16. under Article section ilar ago recog Oregon Supreme long First, Court specific establishing punishments crimes is nized legislature, subject for the to constitutional matter reserved 515, P2d Smith, limitation. v. 323 In State Or (1929), the court stated: may be power punishment
“The
to declare what
but
judicial,
convicted of crime
against
assessed
those
by the
legislative, power,
(Citation
only
controlled
constitution.”
omitted.)
challenges
constitu-
Second,
based on
successful
exceedingly
Oregon.
proportionality
been
rare
tional
have
(1981) (a
Shumway,
291 Or
Third, Article grossly dispropor- only that are ment, forbids those sentences Teague, example, in State to the crime. For tionate *8 609, P2d (1959), defendant, the without a “substan- record, tial” criminal was sentenced to 12 years for forgery. The court appears to have considered the sentence “lengthy” but, when to the crime compared nevertheless, rejected the I, 16, defendant’s Article section challenge: “We are asked to hold that these sentences are so excessive 16, 1, as to violate Art of the Oregon. § Constitution of record indicates that the defendant had not previously had a substantial criminal record. why There is little to indicate the trial judges imposed severity sentences of this in view of the nature of the crime and prior the conduct of the defendant. cannot, however,
“We
impose
judgment
our
on the trial
568,
court.
v. Boloff,
State
4646 P2d
Having identified these three principles as relevant to the assessment of a proportionality challenge under Arti cle we turn first to an examination of the nature of the crime at issue here. Statutory laws rape were among the first laws ever composed by They mankind. are “at least as ancient 4000-year-old Code of Hamurabi.” Rita Eidson, The Constitutionality Statutory 27 UCLA L Rape, (1980). 757, 762 Rev English law made statutory rape crime as early and those laws were in the United adopted States via the English common law. Id. The traditional cor nerstones of statutory laws have rape always been that a female, than some specified age, cannot give consent younger 5 Teague, reviewing imposed by court, the court was a sentence the trial examining constitutionality by legislature. of a sentence mandated How ever, proportionality test is the same in either instance. activity, in sexual and a mistake fact engage to the no to the crime.6 age
offender as female’s defense criminal code of consent at Oregon’s age first set *9 1,1865. years May 14 when it effect on General Laws took of 1845-1864). 53, (Deady ch 731 521 Oregon, provided Section § that, any child, carnally “if the shall know female under any person * ** agе years, person shall such be deemed fourteen of thereof, rape, upon pun- conviction shall
guilty of be than by imprisonment penitentiary ished the less 43, three, twenty years.” not more than Id. at ch 521. § the language The code was renumbered 1872 with same II, II, 1733. chapter in Title Hill’s Anno- appearing (1887). 1,v 749 Amend- tated Laws and 897 Oregon, pp of consent age ments to the criminal code in 1895 raised of 16, to providing age carnally shall years
“if over the of sixteen any person * * * years, any age know female of sixteen child under guilty rape, upon shall of con- person such be deemed thereof, punished by in the imprisonment viction shall three, twenty penitentiary not less than not more than Cotton, years.” Bellinger & The Codes and Statutes of (1901). Oregon, 635 was renumbered several times rape statute 1953, when the enacted legislature before (ORS), (rape) OCLA 23-420 combining Revised Statutes ORS of to create 163.210 (proof penetration) OCLA 26-940 needed), provided: which (rape; penetration “(1) carnally years of who Any person age over the ** * age years any child under the of knows guilty the female by imprisonment rape, punished and shall be of twenty years.
penitentiary not more than for “(2) body suffi- penetration Proof of into actual rape.” cient sustain an indictment knowledge statutory rape applied Historically, carnal ofminor the crime of Today century. changed only. in the half ofthe twentieth females That has latter laws, Oregоn’s, gender including majority statutory rape are substantial states’ neutral. Essentially, against prohibition persons age of over the years having knowledge carnal from of minor females age unchanged under of 16 remained between 1895 and 1971. legislature repealed
In ORS 163.210 and replaced rape degrees it with the three defined (sec- (third-degree rape), ORS under 163.355 ORS 163.365 ond-degree rape), (first-degree rape). and ORS 163.375 743, §§ 109, 110, 111, Laws ch and 432. The new age scheme raised the overall for minor consent females graduated degrees rape 18 but based on the victim’s age. provide addition, ORS 163.345 was enacted to for offenders than defense less three older than the vic- degree rape 163.365, tim. In ORS which defined the provided: here, that is relevant
“(1) A male who has sexual intercourse with a female commits the rape degree crime of the second if: *10 “(a) The incapable by female is of consent reason of " defect, mental mental incompatibility physical helpless- or ness; or
“(b) years age. The female under 14 “(2) Rape degree B felony.” second is a class ORS 163.365 has been twice amended since it was (a) 1989, enacted 1971. In subsection was deleted. Or Laws Oregon’s rape 1989, 359, § 1991, ch 1.7In laws were made gender replacing neutral, the terms “male” “female” “person.” § 628, ch Laws 2. history Oregon’s statutory rape laws thus Oregonians always statutory
reveals have considered rape generally mandating a serious crime somе term of incar- Currently, sentencing guidelines, ceration. under the a con- rape degree pre- viction for in the second carries with it a sumptive imprisonment, sentence of months’ by imposed judge imprisonment the trial here. The term of by incapable Sexual intercourse with a female reason of consent of mental defect, 163.375, incompatibility physical helplessness mental or added to ORS rape degree. in the first ch § Or Laws 3. sentencing indeterminate scheme is
under the former 161.605(2). ORS imprisonment. years’ little argument rape Defendant offers Instead, crime. he focuses is not a serious degree second of his on the facts and circumstances mainly particular victim, of the the vic- offenses, age that his arguing age, victim, victim’s see herself as a and the tim’s refusal that defendant not be sentenced to mother’s desire express mandated sentence “so disproportionate renders the prison sense of all reasonable the offense as to shock the moral right proper.” as to what is persons does not involve generally in the second Rape degree where one of the force, partic- but involves sexual intercourse so, atti- being of 14. That the victim’s age is under the ipants that sexual perception tude about herself or her mother’s and a is “love 16-year-old 13-year-old intercourse between a rare is not a particularly and does not merit making” prison under the statutory сircumstance mitigating or significantly Likewise, in the context of this the crime. at least definition of sentence, sig- little to the challenge constitutional that defendant could can be ascribed to the fact nificance if he charge defense to the criminal complete asserted a have date. The legislature had a different birth or the victim Here, it estab- the limits of the defense. entitled to define three older than years less than persons lished a defense words, In other victim, days. three of the within the definition squarely conduct fits defendant’s in the facts or defense, nothing and there is crime, he had no a kind or qual- that his conduct is of indicating circumstances in the rape definition of ity “rarely” captured degree. second *11 and of particulars examined the nature
Having mandatory whether the crime, turn to the of question we now to the offense as here is “so disproportionate at issue sentence to what persons sense of all reasonable to shock the moral the obvious. A sentence We with begin and right proper.” is no matter how citizenry, or by legislature mandated Article some, does not violate may perceived by it severe Constitution, a court can con- unless the Oregon of is persons all reasonable sense of that the moral clude the sentence. by shocked dissent, makes no defendant, to the
Here,
opposed
law is some-
mandatory sentencing
Oregon’s
that
argument
for
laws of other states
sentencing
step
hоw out
any empirically
defendant make
Nor does
similar crimes.8
of “all reason-
sentiments
the penal
about
argument
based
sentence
mandatory
of a
as to the imposition
able persons,”
dissent
Rather,
and the
defendant
rape.
for this form of
circumstances of
facts and
that, under the particular
assert
mandatory
that the
case,
a
proposition
this
it is
self-evident
people.”
to “all reasonable
shocking
is
75-month sentence
added.)
is
proposition
do not
agree
We
(Emphasis
this,
collective, albeit
in a case like
our
self evident or
length
of a
subjective, judgment
proper
about
in the
weighty
analy-
crime
particularly
for this
is
particular
there
be the
Certainly,
may
trivial can conclude, more, that we without that mandatory self-evidently sentence for that crime is shocking people. to the moral of all sense reasonable How- explained ever, above, dissent, and unlike we do not petty view crime either the or the here as circumstances or trivial. argues hand, other
On the the state that the voters’ legislators’ juvenile obvious intolerance of crime and person their collective belief that sexual intercourse with a years age mandatory under 14 deserves sentence of 75 expression by society months is a conclusive that the moral people sense of all reasonable not shocked the sentence. adopt argument now, For do not endorse we or the state’s or in question precedent resolve that there because is sufficient Supreme demonstrating this court and Court conclu- sively imposing that the 75-month sentence mandated for shockingly disproportionate defendant’s crime is not so as to violate Article 16.9 past history
Here, it is true that defendant had no
sentencing,
However,
sex crimes.
at
defendant described
“gangster,”
juvenile
deplorable
himself as a
his
record is
prognosis
the best that can be said
his
for
for rehabilitation is
likely, given
history
that it is
than
his
less
and his behavior
since the crimes at
above,
issue occurred. As indicated
Teague, a defendant with no substantial criminal record
prison
forgery.
received a
sentence
12 for the crime of
Although recognizing
“seemingly
the sentence was
lengthy”
prior
in view of the nature of the crime and the
con
defendant,
duct of the
stаted that it was
court
“not one
proportioned
which is
offense
‘so
to the
committed as to shock
right
the moral
ofall
men
sense
reasonable
as to what is
proper
quoting
Sustar,
under
circumstances.’ ”Id. at
added).
recently,
(emphasis
ond-degree rape
encompass
conduct,
defendant’s
and the
legislature
prerog-
citizens of
and the
have, as is their
rape
ative, determined that a conviction for
in the second
degree
imprisonment
mandates a sentence of 75 months’
regardless
give
of the circumstances of the crime. We must
prerogative.
substantial deference to that
See Jensen v.
(1962) (“It
province
Gladden,
Individual believe that deterrence and reformation of this offender be achieved by a sentence different than However, the one mandated. our individual or even collective belief about the wisdom of the duty, mandated sentence is not the Instead, test. it is our uphold under the constitution, to the mandated sentence say unless we can that the sentence shocks the “moral sense people. say. of all reasonable” That we cannot resentencing Reversed and remanded for under ORS 137.707. concurring. J.,
EDMONDS,
judges
court, I
on this
of two former trial
As one
experi-
part,
bring perspective
based, on the
to this case
periods
having
persons
ofincarceration.1
sentenced
to
ence of
My experience
minimum sen-
tells me that the
unjust
punishment
required
because the
in this case is
tence
by
just
imposed
circum-
the
desert of the
the statute is not
required
sentence
the crime. But whether
stances of
question
justice
The electorate
before us.
achieves
is not
severity
judgment
punishment
made a value
about
has
in
interpreters
understanding
my
cases,
of our role
kinds of
these
to
is that we are constrained
constitution
judg-
say,
uphold
our value
unless we can
based on
the law
оf all reason-
ment,
the sentence shocks
conscience
that
light
say
particularly
people.
that,
able
I am unable to
adoption
I,
time ofthe
ofArticle section
the fact
near the
less than
could have been sentenced
defendant
crime.
three
more than 20
for
same
and not
concurring.
BREWER, J.,
opinion’s
Although agree
lead
conclusion
I
with the
for defendant’s convic-
that the minimum
applied,
I,
not,
Article
section
tion does
violate
express
separately a different
Constitution, I write
analysis.
principles
guide
view of the
our
opin-
my
begin
I
that neither the lead
concern
clearly
provision Arti-
identified the
ion nor the dissent has
challenge
governs
defendant’s
cle
Among
11 in this case.
other
sentence mandated Measure
requirements,
prohibits cruel and unusual
section 16 both
punishment
penalties must be
commands that all
and also
County
proportioned
Court
to the offense. Sustar
(1921). The choice of
Co.,
657, 665,
only say experiential base. it arises from a different to
582 opinion, parties appear
The lead dissent, and the agree governing to required that the constitutional test is whether the disproportionate
sentence is “so
to the offense as to
persons
shock the mоral sense of all reasonable
as to what is
right
proper.”
Isom,
v.
391, 402, 837
State
313 Or
P2d 491
(1992)
added).
(emphasis
implicates
The
I,
test
Article
sec
prohibition against
punishment
16’s,
tion
cruel and unusual
proportionality requirement.1
but does not relate to its
State
Ferman-Velasco,
157 Or
430-31,
The
lies in the identification of a
pled methodology
applying
governing
prohi-
for
the test
against
punishment.
problem
bition
cruel and unusual
That
probable
is exacerbated in this case because it seems
people
most
would consider the minimum sentence under
applied
Measure 11 to be unreasonable as
to defendant’s cir-
However,
cumstances.
such an assessment is more than a
objective probability;
subjective
statement of
it includes a
component
product
personal
that is the
Although
of a beholder’s
sense
example,
of fairness.
would like
think
to
my perplexity
prosecute
at the state’s decision to
defendant
enlight-
under Measure 11 is the result
reasonable,
if not
judgment,
persistent
my
ened
a faint but
voice warns that
personal
pitifully
spoke
sense of fairness is a
small
in the
community
principle?
diverse
What, then,
wheel of
values.
opinion
The lead
and the dissent each followthe ana
lytic
Helm,
framework discussеd in
277, 103
Solem v.
463 US
1
proportional penalty
generally
applied
command has
been
in so-called
cases,
disproportionality
vertical
to strike down sentences for lesser included
permitted
crimes that were more severe than sentences
for a more serious offense.
(1981) (murder
See, e.g.,
Shumway,
153, 157-60,
State v.
291 Or
Beyond question precedential value, of its how- urge against primary ever, I caution reliance on the Solern analytic pitfalls. part test because it is free from The first tautological of the test is somewhat search for the —the meaning boldly of the term “cruel and unusual” is not by asking penalty advanced whether the is “harsh.” That question many, yield preconceived will, for answer. Of more portions concern, fundamental the second and third weigh validity sweeping change test tencing philosophy of a new and in sen- only against existing
such as Measure 11 comparators. perspective ignores That is limited and other fair considerations. example, fact, that a wholesale modification sentencing may standards for certain classes of offenses
represent significant departure past from those levels for inquiry not, itself, offenses is relevant to the but should legislative rep- deemed conclusive. Such a decision well judgment by people resent a collective that the enacted change appropriate response prevailing public is an wel- safety judgment, fare and That concerns. within constitu- safeguard, tional limits that we must ascertain and tled to considerable deference. See enti- Ferman-Velasco, 157 Or App at 423.
Although helpful, persuaded the Solem test is I am incompletely, guided by better, our decision is albeit still previously a review of cases decided under section 16. My only review discloses that one criminal sentencе has ever by Oregon appellate been reversed an court under section prohibition against because it violated the cruel and unusual only The first and of such a punishments. reported example Ross, 104 P appears decision to be State 55 Or (1909), (1910), P106 dismissed sub nom Ross v. appeal (1913). L There, 227 US 33 S Ct 57 Ed 458 Oregon, conviction, larceny decisions from a separate arising first vacated a court sentence of 790 prison imposed $500,000 lieu of a fine and later struck payment exceeding itself, the fine because it could never be 55 Or at simply paid. concluded, 474, 480. The comí without detailed analysis, features of the sentence unconstitutional both were cases, Cannon, although under section 16. Id. Other such as test, the shock to the moral sense were employing actually 632-33; cases. 203 Or at see straightforward proportionality Ferman-Velasco, (Warren, J., at 432-33 dis- also senting). recently understanding
We have
affirmed our
*17
in order to constitute cruel and unusual
a sen
punishment,
tence must shock the moral sense of all reasonable persons,
and that
is not whether
disagree
test
reasonable people
Melillo,
332, 335-36,
with the sentence.
v.
160 Or App
State
(1999) (test
12,
982 P2d
rev den
“It province is the legislature the penal- establish ties for the violation of the various criminal statutes and if penalties are an upon arguably founded rational basis authority we have no they to hold that are invalid.” Id. at added). 146 (emphasis ex rel State Huddleston v. Sawyer, 627-28, 932 P2d cert nom den sub Sawyer Oregon, Huddleston, 994 (1997), court, 522 US similarly applying test, a “rational basis” held that Measure ll’s sentencing scheme did not violate the Eighth prohibition Amendment cruel and unusual against punishment. Although Jensen and Huddleston each involved facial challenges to sen- legislative *18 tencing schemes, there is no reason to that conclude as-applied challenges should viewed be different through If lens. there arguably is an rational basis application for the of a defendant, then, sentence to a particular by force the moral sense least logic, of at some reasonable peo- would not be ple by shocked the sentence. is,
The truth there is an rational basis in arguably facts of this case to as the applied, conclude statu- toiy minimum sentence emerged is New facts in appropriate. unexpected in a chal-
this case that would have been lenge faсial sentencing second-degree to Measure ll’s scheme for rape prosecutions rape. here, Like the facts most many complicated by sex, are con- involve consensual Admittedly, parental troubling dimen- fused values. most youth. However, is shows sion defendant’s own record dealings highly manipulative, in that defendant even his 13-year-old girl, victim, that with adults. The is convinced may disagree, As she is in love with him. much as others people there are who would conclude that reasonable three-year age and the victim difference between defendant young especially significant very the victim is a because youth, despite and, thus, that the adolescent statutory defendant’s own appropriate. minimum sentence is judges, agree sen- we, Whether defendant’s largely point. 11 is beside the It tence under Measure people most voted for Measure 11 would well who they particular application had this have recoiled considered rape. second-degree the minimum sentence for Undoubt- of edly, people might that defendant should some believe agree might prosecuted at with the have been all. Others imprisonment. ifBut trial court’s sentence of 35 months’ nearly punish- years prison three is not cruel and unusual by case, three what measure do we conclude that ment this more I that there and four months is too much? submit question. compelling We are not a com- is no answer munity empowered perform group, nor are our focus we passed review own recount. law our electoral requires test. a different
Although power are limits to the there constitutional legislature minimum sen- the voters to establish countervailing offenses, tences criminal there are also judicial authority nullify legis- on constitutional limits we tread case, This is close one which must lative will. respect softly margins pay proper lim- to the at the order to authority We cannot confi- of our own under section 16. its dently people proclaim of all that the moral sense reasonable required by by law minimum sentence be shocked would required law is Therefore, the in this case. applied to defendant. not unconstitutional joins in Landau, this concurrence. J.,
587 dissenting. HASELTON, J., majority 11, The under a concludes Measure 16-year-old spend years prison than in hav- must more six for 13-year-old ing girlfriend. sex with his That is so notwith- girlfriend standing that the initiated sexual conduct and that defendant believed she 14. unprecedented Oregon unique
That result is in product peculiar It the United States. is the ofthe conver- gence liability mandatory crime, aof strict minimum sen- tencing juvenile scheme, and the treatment ofthe repeat: reported as an I defendant adult. There is no of a case 16-year-old receiving mandatory in the United States ever prison minimum sentence of over six rape. fundamentally Because that result is so unfair any person, shock the conscience of I reasonable dissent. 1994, Since Measure 11 was enacted this court and, has has affirmed—hundreds Measure 11 reviewed— cases, sentences.1 In each of we those have acted in accor- obligation dance with our sworn to enforce will of the cit- Oregon, expressed through process, izens of the initiative within broad constitutional limits.
But there are limits.
The exact
nature
those constitutional limits Although
Supreme
explicitly
unsettled.
Court
contem
plated,
implicitly
applied” proportionality
invited,
“as
challenges to Measure 11
sentences
State
rel
ex Huddles
Sawyer,
ton v.
shock moral sense right reasоnable proper.” 391, 401, 837 Isom, State v. P2d 491 (1992) (citing Gladden, P2d Cannon v. (1955)). What are con But what does that mean? factors stitutionally relevant? agree emphasize outset, At I we on— all *20 —and Judges’ personal as to reason-
what is not relevant. beliefs public policy good are the constitu- ableness or irrelevant to inquiry. protections cannot, not, do and tional Constitutional personal predilections. vary according judges’ But neither vary opinion. they according popular Rather, their con- do judicially judicially To the tent determined and enforced. is (as here) depends protection that extent a constitutional “reasonableness,” the determination of on notions of necessarily, judicial is, a of such limits “reasonableness” determination. “subjective” impose
Thus, we our views must Oregon. expressed people popularly will of thwart the role But neither we abdicate our sworn constitutional can by saying: passed responsibility people law, this so and “The it must be constitutional.”2 e.g., argues elsewhere, see, here, as it has
The state App 418, Shoemaker, 416, 965 P2d rev den 155 Or State (1998), majority a that the fact that substantial necessarily Oregonians for Measure 11 demonstrates voted imposition not “shock ofMeasure 11 sentences could that the argument people. That fails of reasonable conscience” legal legal, flaw and the other factual. reasons, two one concurrence, persist Judge eloquently in his “a faint but Brewer states so As spoke my personal pitifully in warns sense of fairness is a small ent voice that App agree community values.” 166 Or at 582. I couldn’t more. diverse wheel However, premise implicitly accept underlies both the lead I cannot that, opinion Judge “reasonableness” is so because and Brewer’s concurrence — lines, constitutionally principled any result ephemeral draw and it is so difficult to innately, injudiciously, imposition and of Measure 11 sentence is other than “subjective.” correctly, contemplates clearly, can be instances that there and Huddleston 16. It is not imposition will Article a Measure 11 sentence offend which easy See, are constitutionally principled e.g., at 586 ÍHow lines. to draw sentencing guide- three much?"). and four months more we to “conclude that fthan must, can, we do so. But lines is too sentence! in the it cannot be state’s reconciled with premise Huddleston’s of “as chal- explicit acknowledgment applied” i.e., there could never be correct, if the were an lenges— state challenge “as to Measure 11 sentence. applied” The factual flaw in the state’s position although people approved overwhelming Measure no one on who voted November “If asked, 16-year-old has sex with his 13-year-old girl- friend, he should be sent to for more prison years?” than although one can that the Bluntly, presume generally voters criminals, favored the of harsher imposition sentences for presume even that the voters favored certain sentences crimes, for certain no they expressed as to the opinion impo- sition of a specific particular factual circumstances.
It us, thus devolves to constitutionally collec- tively, to an objective make determination of the limits of sure, To “reasonableness.” our individual experiences life play some subconscious role that determination. But end, oaths, our adhering to our collective conclusion *21 should “a represent wisdom,”3 fair of truth an average and approximation of the reasonableness of the people Oregon.
ANALYSIS De Muniz’s Judge lead opinion generally assumes Helm, Solem v. 277, US 3001, 463 103 S Ct 77 L 2dEd (1983), 637 affords principled guidance in determining whether sentence is not to the “proportional offense” under I, 16, Article Oregon section of the I Constitution. agree. Although Solem not is precisely tailored the sort of “as constitutional challenge Huddleston applied” invites, it does may say judges interpret 3 “You that there no assurance that will the mores day wisely truly disposed deny of their this, more I am and than other men. my quite point. point but in view it is beside the is rather that this power interpretation lodged somewhere, be must and con the custom of the lodged they judges. stitution has it in the If are to fulfill their function as hardly indeed, judges, lodged must, it could be elsewhere. Their conclusions be subject retesting, testing readjustment; to constant and and if revision but they intelligence, they ought act with conscience and to attain in their conclu average Cardozo, Benjamin a fair sions truth and wisdom.” N. The Nature of (Yale 1975). Process, the Judicial ed 135-36 590 obviating
identify analytic framework, ad hoc reasoned 4 making. decision (1) gravity Solem, court to consider: the Under the (2) penalty; sen- of the the of the offense and the harshness jurisdiction; imposed in the on other crimes same tences (3) imposed for commission of the same crime the sentences Using jurisdictions. US at 292. those factors other 463 imposition guidance, prescribed 11- of the Measure I conclude that in this case would be unconstitutional provision proportionality 16, ofArticle under the the Constitution. I. GRAVITYOF THE OFFENSE/ HARSHNESS OF THE PENALTY examining “gravity offense,” of the courts the surrounding particular specific the defen the facts evaluate the crime in more offense, in nature of dant’s addition Supreme generic example, itself, sense. For Solem evaluating “gravity offense,” of the considered Court, the “no account” check uttered the minimal dollar amount of by was an alco the defendant and noted that defendant “professional US at 296-97 n 22. holic, not a criminal.” 463 Darby, n 11 1508, 1526-27 v. F2d also United States 744 See (11th 1984), States, v. den nom Yamanis United Cir cert sub (1985) (stating test, under the “the 471 Solem US 1100 actually may the crime committed well court consider Lindsey, generally proscribed”); 203 Wis 2d State v. the crime 136, 219-20, 205 Wis 2d 423, 215, rev den 554 NW2d (1996) (examining ages parties of the NW2d specifics offense, of a sexual assault of the defendant’s other analysis); step v. the first of the Solem State child, under (1990), sub 229, 692, P2d 697-98 vac’d Bartlett, 164 Ariz 115 L Bartlett, 111 S US Ct nom Arizona note, vitality opinion Judge concurrence Brewer’s As the lead purposes, given Court’s in doubt for federal constitutional Solem test 2680, 115 Michigan, Ct L plurality 501 US 111 S later in Harmelin v. decision *22 (1991). (Brewer, J., 571-72; App App con Or at 582-83 Or at Ed 2d 836 See 166 proportion However, Supreme from its curring). Court’s retreat the United States Eighth proportion ality no analysis ground Amendment contains that “the on I, 16, Harmelin, inapposite ality guarantee,” is Article section 501 US at an undisputed does contain jurisprudence, that Article because it is explicit guarantee. proportionality (1991) Ed 2d 1046 of the the con- (considering age parties, intercourse, sensual and nonviolent nature of the sexual and the defendant’s and personal maturity characteristics 23-year-old whether the sentence a evaluating imposed on minor defendant two counts sexual conduct with a was of test). punishment” “cruel and unusual under the Solem offense,” In assessing identify of the we “gravity several salient circumstances of this particular crime:
(cid:127) 16-years-old, Defendant was and the victim was more than three than slightly years younger defendant.
(cid:127) were, Defendant and the victim by their own “boyfriend” is, and description, “girlfriend.” That the charged conduct occurred in the context of a voluntary continuing, relationship.
(cid:127) mistakenly Defendant bеlieved that his girlfriend was 14.
(cid:127) Defendant’s girlfriend initiated the contact bedroom, going bed, into his him waking joining him in up, in sexual engaging foreplay. (cid:127) At the time of the rape, statutory defendant’s his- tory primarily consisted of juvenile adjudica- referrals —not tions —for matters such possession as of tobacco and alcohol. Thus, at crime, the time defendant had no juvenile adjudications that would as “criminal qualify history” term is generally used the context of sentencing.5 lead treatment opinion’s first Solem factor (1) reduces propositions: two historically has treated statutory rape crime,” “serious at App (2) 575-76; before the enactment of Measure under schemes, former sentencing rape could be punished by lengthy imprisonment. Or at 573-76. Both App true; both, those are propositions ultimately, point. miss the history opinion’s lack 5 Defendant’s of a criminal the lead belies efforts char “deplorable” incorrigible him acterize as a criminal. at 578-79. Similarly, adjudicated subsequently juvenile the fact that defendant in the system charge third-degree robbery aon not relevant to determination unconstitutionally disproportionate whether sentence of six-and-a-half statutory rape robbery. to an unrelated crime of that was committed well before the *23 592 that, states under the opinion sentencing lead for sentencing second-degree rape that controlled
guidelines 137.707, to of and ORS this the enactment ORS 137.700 prior impris- “a 35 months’ рresumptive crime carried Actually, 166 Or at the crime of second- onment.” 575. from anything carried a sentence of rape presumptive degree given to months’ its probation imprisonment, 45 optional of the sentencing on the “crime seriousness scale” ranking mandatory required. No minimum sentence was guidelines. set forth in ORS sentencing indeterminate scheme Under the notes, 161.605(2), up years’ impris- lead to 10 opinion the for crime. Id. no Again, is authorized at 575-76. onment required. minimum sentence was has statutory rape historically It is undisputed ”6 however, the majority ignores, a “serious crime. What been such conduct historically, juveniles engaged who Prom 1907 automatically subject imprisonment. not to were 11, Oregon the enactment of Measure until after justice that juvenile a “rehabilitation model” of adhered to to children as criminals but as wards delinquent did treat Dept. Reynolds, See ex rel Juv. protected. be State (1993).7 affir 560, 568-69, P2d 560 Unless a juvenile 857 adju court, he or she would be remanded adult matively inde system, applied which flexible juvenile dicated in the See, at e.g., Reynolds, scheme. dispositional terminate of a accused of juvenile n 9. There are no cases reported criminal court. remanded an rape being statutory juvenile adult and Historically, Oregon treated differently. pre- Under all of Oregon’s qualitatively offenders schemes, imposed the sanction sentencing vious circumstances of the vary particular with the raрe could virtually is, majority emphasizes, felony. Statutory rape B In Class felonies, involving imposition of at least 75 B a sentence of all cases Class However, fully prepared that the may we are hold be warranted. unless months involving appropriate in Class B imposition all cases a Measure 11 sentence itself, cannot, by dispositive. felonies, Such a crime be classification of the contemplation squared of “as approach be Huddleston’s “facial” cannot challenges. applied” 419C.001, purposes legislature which redefined enacted ORS public delinquency protect juvenile system and reduce cases as “to * ** procedures impartial delinquency provide for the dis juvenile fair and and to delinquent allegations position conduct.” Bluntly: crime. Some were statutory rapes “graver” than oth- ers, and the “harshness” of the punishment concomitantly varied. One historical reality remains: Before Measure there were no reported cases of Oregon juvenile ever being sentenced to six in prison for statutory rape.
II. SENTENCES IMPOSED FOR OTHER
CRIMES IN OREGON In Solem, the Court stated: “If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the at punishment issue excessive.” 463 US at case, 291. In this that comparison is *24 shocking. (ORS
Under Measure 11 137.707), defendant will receive the same 75-month mandatory sentence as a defen- dant convicted of in manslaughter the second That degree. crime includes homicide, reckless or criminally negligent homicide that causes the death of a child under the of 14 age if the perpetrator has previously assaulted or tortured the child. ORS 163.125.
Under Measure defendant will receive a greater sentence than defendants convicted of:
(cid:127) Robbery in the second degree, which involves threats of physical force during theft, committed either (70 with a months). or with weapon an accomplice ORS 137.707(4)(a)(R). 164.405; ORS
(cid:127) Assault in the second degree, which involves either intentionally or knowingly causing serious physical injury another, or intentionally or knowingly causing physical injury to another by means of a deadly or dangerous weapon, or recklessly causing serious physical injury another by means of a deadly or dangerous under weapon cir- cumstances manifesting extreme indifference to the value of (70 months). 137.707(4)(a)(G). human life 163.175; ORS ORS (cid:127) Compelling prostitution, which involves the use of force or intimidation to compel another to in engage pros- titution, (70 or causing a child to engage in prostitution months). 137.707(4)(b)(C). 167.017; ORS ORS (cid:127) sexually explicit display Using con- in a child (70 pornography child the creation of
duct, which involves 137.707(4)(b)(B). months). 163.670; ORS ORS (cid:127) alarming knowingly Stalking, or involves which repeated by engaging coercing person another pro- person in violation of a court with the unwanted contact (a anything presumptive from sentence of tective order imprisonment). oрtional probation ORS months’ to 45 163.732.
(cid:127) mutilating, engaging Dismembering, or sexual (a probation corpse presumptive activity with a imprisonment). ORS 166.087. 16 months’ exceptions, must be each of those crimes fewWith Conversely, intentionally knowingly.8 or either committed statutory rape liability “con- crime. victim’s is a strict immaterial.9 the conduct is here, initiation sent” to— of— prove acted need not that a defendant Moreover, the state recklessly, negligently. intentionally, knowingly, In or even specifically sentencing found that in this case fact, court under 14. that the victim was did not know defendant 16-year-old defen- law, this sum, under punishment if, instead received a lesser dant would have girlfriend having initiation, he had com- at her sex with his creating engage prostitution, pelled used her her to Dispropor- sexually corpse. pornography, abused her or child tionality is manifest. *25 opinion’s contrary
Finally, assertion, the lead (1997), App rev P2d 1072 Rhodes, 149 Or 941 State (1998), “severely the fore- undercut” does not 390 den 326 Or inquiry analysis. App going constitutional at 580. Our 166 8 weapon if a Second-degree a reckless mental state assault involve human the value of extreme indifference to circumstances manifest used and the life, perpe negligently 163.175, manslaughter may if the be committed ORS 163.125. previously the child victim. ORS abused or tortured trator charged delinquency course, been girlfriend, also could have of defendant, too, consenting conduct, capable to sex of given that is not based on her (a Sеe, person sexual miscon activity age. e.g., commits ORS 163.445 due to his ual duct, misdemeanor, engaging with an unmar in sexual intercourse a Class C 163.315(1)(a) years (persons age); under 18 person ORS ried under acts). consenting age incapable to sexual are so, simple involves far more than even fact-matching, but in dramatically facts Rhodes were different from those here. (on Rhodes, the defendant repeatedly approximately occasions) molested his sister nine-year-old while she was sleeping continued to do so after been disci- having —and plined his mother for such conduct. 149 Or at 122-23. App It precisely those that we emphasized factors sustain- ing imposition of the Measure 11 sentence in that case— abuse, the incestuous nature character, of the its repeated and the fact that it persisted after the defendant was disci- Here, Id. plined. contrast, defendant and his girl- unrelated; friend were she initiated the sexual activity, of which aware; she was fully and defendant had never been disciplined for such indeed, conduct —and given his belief his concerning girlfriend’s age, had no reason to know that the conduct was unlawful. A person view, reasonable would treat, the circumstances in Rhodes as being objectively, qualitatively different from the circumstances presented here.
Likewise, State v.
215 Or
Teague,
609,
III. SENTENCES IN OTHER JURISDICTIONS
FOR STATUTORY RAPE The lead opinion, footnote, briefly summarizes some statutory law from half a rape states, dozen and implic- itly concludes that law is no more harsh than the
596 App 166 Or at n laws some other states. 577 8. With wrong. respect, that is opinion identify does states
The lead indeed several mandatory that have minimum sentences somewhat similar Oregon’s mandatory minimum, to and several have maximum indeterminate sentences that exceed the years 10 a Class B maximum indeterminate sentence of for felony. ignores But that the real No state other than issue: 16-year-old Oregon requires a to be as an for stat- tried adult utory rape impris- an and sentenced as adult to months’ sentencing 16-year-olds it as adults onment. When comes statutory rape, Oregon leаgue in a is of its own. example, opinion lead For the indicates rape type punishable Idaho, here at issue is year anything imprisonment one to life in the adult from opinion system. App criminal at 577 n 8. lead 16-year-old charged however, not, mention that a does Only necessarily not as an if that crime would be tried adult. specifically juvenile court exercised its discretion waive jurisdiction juvenile would the tried in adult court. its Moreover, juvenile juvenile if the court did
even waive court, discretion, could, at its sen- into an adult that court 16-year-old juvenile if it found that adult sen- tence as a tencing inappropriate. § 20-509. measures were Idaho Code opinion There, as the lead
Montana similar. statutory rape punishable type states, here at issue by mandatory minimum of four in adult court App years. Again, § 8; at n Ann 45-5-503. Or Mont Code 16-year- majority point however, fails out necessarily for that old would not offense. See Mont be tried in adult court (charges may § Code be filed Ann 41-5-206 court). juvenile in either or adult opinion Utah, where, as The same is true in the lead statutory rape notes, carries a minimum sentence 8; at n Utah of six if tried adult court. 166 16-year-old Again, § however, a Code Ann 76-5-402.1. juvenile Rather, Utah need be tried in adult court. juvenile only if into court the court court waive adult contrary that it to the best interests finds “would be jurisdic- minor to retain for the court public juvenile or of the 78-3a-603(2)(b). Ann Utah Code tion.” § notes, statutory the lead opinion Washington, *27 court, in a 14, if tried in adult can result a child under rape of five years, months to 20 years, seven six sentence from However, would 16-year-old n 8. a at 577 App months. a crime unless the child had an adult for that not be tried as serious violent offense. including previous criminal history 13.40.110.10 Wash Rev Code Alabama, Ari e.g., a number of Similarly, states — Illinois, Alaska, Hawaii,
zona, Delaware, Kentucky, Georgia, that a do not Iowa, permit, require, but Louisiana — fact, In statutory rape. in adult court for be tried 16-year-old tried as an Connecticut, cannot be 16-year-old simply in statutory rape. adult for this type in characterizing to be Oregon appears unique —not offense, in insisting juve- as a serious but statutory rape exactly in statutory rape punished niles with charged manner as adults with Most charged rape. same juvenile states have excluded certain serious offenses from states, Oregon, a dozen like jurisdiction, court about certain crimes com- have minimum sentences for Delin- juveniles. mitted See Office of Juvenile Justice and Prevention, Justice, to Dep’t. Responses U. S. State quency (1996). Crime, However, no and Violent Juvenile xii Serious in to trial the adult appears require mandatory other state for 15 or older system juveniles aged charged criminal minimum require mandatory much less to statutory rape, it more than six While years’ imprisonment. sentence of juvenile states for a theoretically possible many would be offense, are only Oregоn an adult for such an to be tried as man- impose as adults and to required try juveniles courts to consider the cir- datory adult sentences without discretion involved, and the circumstances juveniles cumstances of in question. of the offense type statutory rape that occurred here is not considered a “serious vio 9.94A.030(34)(a). Washington § law. Wash Rev Code
lent offense” under Nevada, states, defendant’s conduct would not even consti some such as n tute a crime. 166 Or at 577 8. alone.
I return essential Is 75 months’ question: an imprisonment unconstitutionally disproportionate pun- ishment for defendant’s conduct? this be a case of “the sum
Ultimately, being than the I will greater parts.” pretend any of the is, by itself, individual Solem factors sufficient to render the 75-month sentence to the conscience of all reason- shocking able Nor are people. any circumstances— particular e.g., crime, defendant’s the victim’s initiation of the age, difference their the nature of their ages, relationship— Indeed, craft, the nature of our individually dispositive. given it is easy over-analyze each factor and to reduce the inquiry end, to an abstract intellectual exercise.12 But in the is real and stark: Should question 16-year-old boy this more than six sex spend prison having with his at her 13-year-old girlfriend initiation?
Justice, conscience, and constitution admit only *28 one answer. Wollheim, JJ., Linder and this
Armstrong, join dissent. legend prayed, prayer an old on God and his “There is one occasion mercy.’ my my justice by my prayer That which we ‘Be it will be ruled tempts all utter at times when the the intellect need to demon formalism Cardozo, at
with the lure of scientific order.” The Nature the Judicial Process 66.