Jensen v. Gladden

• Jurisdiction: Oregon
• Parties: Roger Willard JENSEN, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Citation: Jensen v. Gladden, 231 Or. 141, 372 P.2d 183 (Or. 1962)
• Court: Oregon Supreme Court
• Decision Date: 13 June 1962

Page 183

372 P.2d 183

231 Or. 141

Roger Willard JENSEN, Appellant, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted April 12, 1962.

Decided June 13, 1962.

Ralph W. G. Wyckoff, Salem, argued the cause and submitted a brief for appellant.

Harold W. Adams, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

Before McALLISTER, C. J., and WARNER, SLOAN and O'CONNELL, JJ.

O'CONNELL, Justice.

This is a post-conviction proceeding brought under ORS 138.500 et seq. Defendant demurred to plaintiff's petition. The demurrer was sustained and judgment was entered for defendant. Plaintiff appeals.

The petition discloses that petitioner was first convicted of the crime of contributing to the delinquency of a minor (ORS 167.210) and was sentenced to the penitentiary. About two years later, while on parole, he was convicted of the crime of indecent exposure and received a sentence of not more than six months in the county jail. ¹ Approximately six weeks later the six-month sentence was vacated and petitioner was sentenced to the penitentiary for an indeterminate period not to exceed his natural life. The latter sentence was imposed under ORS 167.050, which provides:

'Violation of ORS 163.210, 163.220, 163.270, 167.035, 167.040, 167.045, 167.145, 167.165 or 167.210, by any person who has previously been convicted of a violation of any one, or more than one, of those sections, is punishable, upon conviction, by imprisonment in the state penitentiary for an indeterminate term not exceeding the natural life of such person.'

Petitioner having violated ORS 167.210 and thereafter ORS 167.145 was subject to the provisions of ORS 167.050. ²

Petitioner first contends that the equal protection clauses of the Fourteenth Amendment, United States Constitution, and Article I, § 20, Oregon Constitution, are violated, relying upon State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955) and State v. Cory, 204 Or. 235, 282 P.2d 1054 (1955). It is argued that upon similar facts the district attorney has the uncontrolled discretion to prosecute one man in the district court for a misdemeanor under ORS 167.145 or to prosecute another man for a felony under ORS 167.050. The basic assumption of this argument is erroneous. The defendant, having been previously convicted of one of the crimes referred to in ORS 167.050, was guilty of a felony, not a misdemeanor, when he thereafter committed the act proscribed by ORS 167.145. In State v. Waterhouse, 209 Or. 424, 307 P.2d 327 (1957) we held that the commission of one of the offenses referred to in ORS 167.050 by one who had been previously convicted of one of those offenses constituted a distinct crime and that the crime was a felony. The crime charged in this case being a felony and not a misdemeanor, the circuit court had exclusive jurisdiction of the case and the district attorney would not have the option to prosecute in the district court for the commission of a misdemeanor. State v. Pirkey, supra, is, therefore, not applicable.

The petitioner further contends that the sentence imposed is in violation of Article I, § 16, which provides that 'cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.' Apparently it is conceded that ORS 167.050 is not itself subject to attack on constitutional grounds; the attack is made on the imposition of the sentence, it being argued that the crime of indecent exposure, even when coupled with the previous crime of contributing to the delinquency of a minor is not of such a grievous nature as to warrant the imposition of a sentence which could result in defendant's imprisonment for life.

Viewing ORS 167.050 simply as a statute designed to provide for enhanced punishment for recidivists, we would be called upon to decide whether, under the circumstances presented in the instant case, an indeterminate sentence with a maximum of life imprisonment, would necessarily be so disproportionate to the offense that it would 'shock the moral sense of all reasonable men as to what is right and proper under the circumstances.' State v. Teague, 215 Or. 609, 611, 336 P.2d 338, 340 (1959), quoting from Sustar v. County Court of Marion County, 101 Or. 657, 665, 201 P. 445 (1921). Whether it would so shock the moral sense would, of course, depend upon the seriousness of repetitive sexual conduct of this kind and the danger that it forecasts for others unless the defendant is segregated from society. Unfortunately, we know little about the causes and cures of sex crimes. Guttmacher and Weihofen, writing in 1952, state in Psychiatry and the Law, p. 110 that 'Today no area in legal psychiatry is in such a state of ferment as that concerned with the problem of sex offenses. And there is doubtless no subject on which one can obtain more definite opinions and less definite knowledge.'

The view is held by some that sex offensers tend to progress from minor to major crimes. And there is a belief that all sex offenders tend to be recidivists. It is not unlikely that the legislature in enacting ORS 167.050 had these or similar considerations in mind and although the views noted above are criticized as not being founded upon fact, ³ we cannot say that there was not a reasonable basis for the enactment of the punishment provision in ORS 167.050. It is the province of the legislature to establish the penalties for the violation of the various criminal statutes and if the penalties are founded upon an arguably rational basis we have no authority to hold that they are invalid. ⁴

It may be noted in passing that the sentence provided for in ORS 167.050 was probably enacted as a part of a statutory scheme designed to provide a more effective rehabilitation program for sex law offenders. In the same Act which contained ORS 167.050 the legislature enacted what is now compiled as ORS 144.228 requiring a periodic review of the files of those persons convicted under ORS 167.050. ⁵ Undoubtedly this legislation was influenced by the movement then under way which proposed that sex law offenders be incarcerated for an indeterminate time so as to measure their imprisonment in accordance with the time that it was necessary to effect psychiatric rehabilitation. ⁶

The punishment called for by ORS 167.050, and as applied in the instant case, did not violate either Article I, § 16 or Article I, § 20.

The judgment of the lower court is affirmed.

1 ORS 167.145 provides:

'Any person who wilfully and lewdly exposes his person or the private parts thereof in any public place, or in any place where there are present other persons to be offended or annoyed thereby, or takes any part in any model artist exhibition, or makes any other exhibition of himself to public view, or to the view of any number of persons, which is offensive to decency, or is adapted to excite vicious or lewd thoughts or acts, shall be punished upon conviction by imprisonment in the county jail for not less than three months nor more than one year, or by a fine of not less than $50 nor more than $500.'

2 State v. Waterhouse, 209 Or. 424, 307 P.2d 327 (1957) holds that in proceeding...