State v. Wheeler

• Decision Date: 28 December 2007
• Docket Number: CA A126025 (Control).,200409321.,A126026.,SC S054543.,CC 200403014.
• Parties: STATE of Oregon, Respondent on Review, v. Dane Le WHEELER, Petitioner on Review.
• Court: Oregon Supreme Court

175 P.3d 438

343 Or. 652

STATE of Oregon, Respondent on Review, v. Dane Le WHEELER, Petitioner on Review.

CC 200403014.

200409321.

CA A126025 (Control).

A126026.

SC S054543.

Supreme Court of Oregon, En Banc.

Argued and Submitted October 2, 2007.

Decided December 28, 2007.

On review from the Court of Appeals.^*

Ingrid A. MacFarlane, Portland, argued the cause and filed the briefs for petitioner on review.

Robert M. Atkinson, Assistant Attorney General, argued the cause and filed the briefs for respondent on review. With him on the briefs were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Robert Wilsey, Certified Law Student, Salem.

BALMER, J.

The issue in this criminal case is whether the life sentences that the trial court imposed on defendant violate the proportionality clause of Article I, section 16, of the Oregon Constitution, which provides that "all penalties shall be proportioned to the offense." A jury convicted defendant of 18 criminal charges, including sexual abuse, sodomy, and using a child in a display of sexually explicit conduct, based on conduct involving three boys between the ages of nine and 15. Defendant previously had been convicted of two felony sex crimes. Based on the convictions in this case and defendant's prior convictions, and acting pursuant to a recidivism statute for felony sex offenders, ORS 137.719(1),¹ the trial court imposed a sentence of life imprisonment without possibility of parole on each of the 18 charges, with the sentences to run consecutively. Defendant appealed, arguing that the sentences were disproportionate to the offenses of which he was convicted. The Court of Appeals affirmed without opinion. State v. Wheeler, 209 Or.App. 379, 148 P.3d 925 (2006). We allowed defendant's petition for review and now affirm.

I

In construing the Oregon Constitution, we seek to determine the meaning of the constitutional text by examining the wording of the constitutional provision at issue, the case law surrounding it, and the historical circumstances leading to its adoption. State v. Ciancanelli, 339 Or. 282, 289, 121 P.3d 613 (2005); Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992).

"The purpose of our inquiry under the Priest methodology is `to understand the wording [of the constitutional provision] in the light of the way that the wording would have been understood and used by those who created the provision * * * and to apply faithfully the principles embodied in the Oregon Constitution to modern circumstances as those circumstances arise.'"

Ciancanelli, 339 Or. at 289, 121 P.3d 613 (quoting Smothers v. Gresham Transfer, Inc., 332 Or. 83, 90-91, 23 P.3d 333 (2001)).

A

We begin with the text of Article I, section 16, of the Oregon Constitution. That section provides:

"Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. — In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases."

(Emphasis added.) Before turning to the specific wording, "all penalties shall be proportioned to the offense," we briefly examine the context of that wording. The issue in this case turns on the relationship between crimes and punishment, and the provisions in Article I, section 16, regarding excessive bail and the respective powers of the court and jury in a criminal trial have little bearing on that relationship. The reference to "excessive fines," however, adds some context to the proportionality requirement. Although this case involves imprisonment, rather than a fine, the use of the term "excessive" (rather than the term "proportional") in relation to fines raises the question whether requiring proportionality differs from prohibiting excessiveness. If the Oregon Constitutional Convention had wanted to prevent only excessive penalties, it could have indicated as much. Instead, it indicated that penalties should be proportioned, and we turn to a consideration of the meaning of that requirement.

The term "proportion" indicates a comparative relationship between at least two things. See, e.g., 2 Noah Webster, An American Dictionary of the English Language 45 (1828) ("proportion" indicates a "comparative relation"). Here, the two things being related are "penalties" and "the offense," and the provision requires that the penalties for each particular offense be "proportioned" — that is, comparatively related-to that offense. The strong implication of that requirement is that a greater or more severe penalty should be imposed for a greater or more severe offense, and, conversely, that a less severe penalty should be imposed for a less severe offense. Additionally, by using the article "the" and the word "offense" in the singular, rather than the plural, the text focuses on the "proportion" between a specific offense and the penalties for that offense, rather than on the proportion between the penalty for one offense (e.g., murder) and the penalty for another offense (e.g., theft). However, the constitutional text does not suggest the precise nature of the relationship that is required between the offense and the penalties, nor does it indicate how the severity of an offense is to be measured.

It also is unclear, based solely on examining the text, what relationship the second half of the sentence in question ("but all penalties shall be proportioned to the offense") bears to the first half of the sentence ("cruel and unusual punishments shall not be inflicted"). The two phrases could be independent constitutional commands, or the second half of the sentence could modify the first half of the sentence. Specifically, the presence of the conjunction "but" may suggest an exception or some kind of contrast, or it may simply be serving its ordinary function as a conjunction, viz., joining the two clauses into a single sentence without purporting to define the particular relationship between them — whatever it may be. Because "proportionality" and the prohibition of "cruel and unusual punishments" are different concepts, each of which could stand alone as a constitutional requirement, the text of the second sentence of Article I, section 16, suggests that each should be interpreted independently, although the interpretation of one may inform the interpretation of the other. The text, however, does not provide a more specific understanding of the meaning of the proportionality clause, and we therefore turn to the historical background of the clause to seek a fuller understanding of that provision.

B

This court has interpreted Article I, section 16, in a number of decisions, which we discuss below. However, we never have reviewed in any detail the origins of the proportionality requirement in an effort to determine what the framers of the Oregon Constitution were concerned about, and therefore intended, when they adopted it, and we take the opportunity to do so now.

When the drafters of the Oregon Constitution took the proportionality requirement from the Indiana Constitution of 1851, they did not discuss the meaning of that provision or their reasons for using it. However, the proportionality requirement, in one form or another, has an ancient lineage, dating back to Magna Carta, and the legal requirement that the penalty for a crime be proportional to the offense can be traced from those early sources to the American colonial experience and then to state constitutions adopted in the nineteenth century, including Oregon's. Accordingly, we begin with a brief review of that history.

Concerns about both proportionality and severity in criminal sentencing in English law may be found as early as Magna Carta of 1215² and in the English Bill of Rights of 1689.³ The concerns expressed in those documents did not address imprisonment, however, but rather fines or "amercements," perhaps because, when those documents were written, fines were a far more common form of punishment than imprisonment. Magna Carta provided that fines should be set according to the "magnitude" or "degree" of the crime — a concept similar to proportionality — and according to the legal status of the offender.

The English Bill of Rights added the prohibition on "excessive fines" and the different concept of "cruel and unusual punishment." The latter provision did not apply to capital punishment or even many forms of corporal punishment, but rather to forms of torture that were illegal or at least not customary. See Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif. L. Rev. 839, 842 (1969); Harmelin v. Michigan, 501 U.S. 957, 966-75, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (opinion of Scalia, J.) (both describing historical background and noting focus of "cruel and unusual punishment" prohibition on illegal sentences and cruel methods of punishment).

The world of Magna Carta and the English Bill of Rights (and the words used in those documents) was so divorced from nineteenth century reality that we would hesitate to rely too heavily on those sources, if they stood alone. Happily, they do not, because William Blackstone and the early American state constitution writers — far more accessible and readable sources — provide a link between the older sources and the text used in the Oregon Constitution. In reviewing the common law of crimes in England in the middle of the eighteenth century, Blackstone maintained that punishment should be proportional to the offense in question and to the social aims of criminal punishment generally. "The method * * * of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means exceed it[.]" 4 William Blackstone, Commentaries on the Laws of England 12 (1769). Of course, in Blackstone's time, many...