S054543, Opinion — State v. Wheeler

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# Argued and submitted October 2, decision of Court of Appeals and judgment of circuit court affirmed December 28, 2007

STATE OF OREGON,
Respondent on Review,
U.
DANE LE WHEELER,
Petitioner on Review.

(CC 200403014, 200409321;
CA A126025 (Control), A126026; SC S54543)

175 P3d 438

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CJS, Criminal Law § 1593.

## En Banc

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 decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

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## 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 defen-
dant'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 possi-
bility 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 opin-
ion. State v. Wheeler, 209 Or App 379, 148 P3d 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 examin-
ing 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 P3d 613 (2005); Priest v. Pearce, 314 Or 411, 415-16, 840
P2d 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

1 ORS 137.719(1) provides:

"The presumptive sentence for a sex crime that is a felony is life impris-
onment without the possibility of release or parole if the defendant has been
sentenced for sex crimes that are felonies at least two times prior to the current
sentence."

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Oregon Constitution to modern circumstances as those cir-
cumstances arise.'"

Ciancanelli, 339 Or at 289 (quoting Smothers v. Gresham
Transfer, Inc., 332 Or 83, 90-91, 23 P3d 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 exces-
sive 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 "exces-
sive" (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 pen-
alties 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, compara-
tively related-to that offense. The strong implication of that

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requirement is that a greater or more severe penalty should
be imposed for a greater or more severe offense, and, con-
versely, 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 propor-
tion between the penalty for one offense (e.g., murder) and
the penalty for another offense (e.g., theft). However, the con-
stitutional 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 punish-
ments shall not be inflicted"). The two phrases could be inde-
pendent constitutional commands, or the second half of the
sentence could modify the first half of the sentence. Specifi-
cally, the presence of the conjunction "but" may suggest an
exception or some kind of contrast, or it may simply be serv-
ing 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 propor-
tionality requirement in an effort to determine what the

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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 Constitu-
tion of 1851, they did not discuss the meaning of that provi-
sion or their reasons for using it. However, the proportional-
ity requirement, in one form or another, has an ancient
lineage, dating back to Magna Carta, and the legal require-
ment that the penalty for a crime be proportional to the
offense can be traced from those early sources to the Ameri-
can 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 "amer-
cements," perhaps because, when those documents were
written, fines were a far more common form of punishment
than imprisonment. Magna Carta provided that fines should

2 The 1215 version of Magna Carta guaranteed proportionate fines (amerce-
ments), according to the order to which the inhabitant belonged: freemen, nobles,
or clergy.

"(20) A free-man shall not be amerced for a small offence, but only according to
the degree of the offence; and for a great delinquency, according to the magni-
tude of the delinquency, saving his contenement [the lands and chattels con-
nected to a tenement]: a Merchant shall be amerced in the same manner, sav-
ing his merchandise, and a villain shall be amerced after the same manner,
saving to him his Wainage [tools of husbandry], if he shall fall into our mercy;
and none of the aforesaid amerciaments shall be assessed, but by the oath of
honest men of the vicinage.

"(21) Earls and Barons shall not be amerced but by their Peers, and that only
according to the degree of their delinquency.

"(22) No Clerk shall be amerced for his lay-tenement, but according to the
manner of the others as aforesaid, and not according to the quantity of his
ecclesiastical benefice."

Ray Stringham, Magna Carta: Fountainhead of Freedom 233 (1966) (quoting
Magna Carta (1215) (trans Richard Thompson, 1829)).

3 "[E]xcessive Baile ought not to be required nor excessive Fines imposed nor
cruell and unusuall Punishments inflicted." 1 W & M, sess 2, ch 2 (1689), quoted in
Solem v. Helm, 463 US 277, 285, 103 S Ct 3001, 77 L Ed 2d 637 (1983).

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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 punish-
ment, 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 US
957, 966-75, 111 S Ct 2680, 115 L Ed 2d 836 (1991) (opinion
of Scalia, J.) (both describing historical background and not-
ing 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 hes-
itate 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 accessi-
ble 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 mid-
dle 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 crimes still were punishable by
death, and this was particularly so if the defendant had com-
mitted previous crimes.

"[T]he pains of death, and perpetual disability by exile,
slavery, or imprisonment, ought never to be inflicted, but
when the offender appears incorrigible: which may be col-
lected either from a repetition of minuter offenses; or from
the perpetration of some one crime of deep malignity, which
of itself demonstrates a disposition without hope or proba-
bility of amendment and in such cases it would be cruelty to

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the public, to defer the punishment of such a criminal, till
he had an opportunity of repeating perhaps the worst of
villanies."

4 Blackstone, Commentaries at 12 (emphasis in original).
Blackstone described the difficulty of ensuring that punish-
ments are proportional, and recognized that deference should
be granted to the legislature's choices:

"As to the measure of human punishments. From what has
been observed in the former article we may collect, that the
quantity of punishment can never be absolutely determined
by any standing invariable rule; but it must be left to the
arbitration of the legislature to inflict such penalties as are
warranted by the nature of laws and society, and such as
appear to be calculated to answer the end of precaution
against future offenses."

Id. (emphasis in original).

Blackstone thus advocated penalties "proportioned"
to the purpose of the punishment, whether that be the
"amendment" of a particular defendant's disposition to com-
mit crime or the deterrence of "future offenses." He also sug-
gested that the elimination or isolation of dangerous or
repeat offenders, in the interest of protecting the greater pub-
lic, represented one of the important purposes of punish-
ment. We should bear in mind, however, that in
mid-eighteenth century England, lengthy imprisonment still
was not the most common punishment, and it did not become
widespread until the advent of the criminal reformation
movements of the early nineteenth century. J.H. Baker, An
Introduction to English Legal History 584 (3d ed 1990); see
also Lawrence M. Friedman, Crime and Punishment in
American History 48, 77-82 (1993); Matthew W. Meskell,
Note, An American Resolution: The History of Prisons in the
United States from 1777 to 1877, 51 Stan L Rev 839 (1999)
(discussing same for early period of the United States). Until
then, death, corporal punishment, or transportation were
common punishments for many serious offenses. Blackstone
described what he called the "melancholy truth" that English
law prescribed the death penalty for no fewer than 160 differ-
ent crimes. 4 Blackstone, Commentaries at 18-19.

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Blackstone emphasized the legislative role in select-
ing punishments. Indeed, there being no constitutional stan-
dards by which an English judge could overrule a legislative
choice, his remarks necessarily were directed to legislators
and would-be legislators. Regarding the applicability of the
death penalty, he wrote: "I would not be understood to deny
the right of the legislature in any country to enforce its own
laws by [requiring] the death of the transgressor * * * but
only to suggest a few hints for the consideration of such as
are, or may hereafter become, legislators." 4 Blackstone,
Commentaries at 11 (emphasis in original). In that spirit,
Blackstone made certain recommendations with the hope
that Parliament would reconsider what he believed to be dis-
proportionately severe penalties, including the death pen-
alty, for many crimes.

"[T]here cannot be any regular or determinate method of
rating the quantity of punishments for crimes, by any one
uniform rule; but they must be referred to the will and dis-
cretion of the legislative power: yet there are some general
principles, drawn from the nature and circumstances of the
crimes, that may be of some assistance in allotting it an
adequate punishment."

### Id. at 14-15.

Although Blackstone suggested that fine distinc-
tions in ranges of punishment may be difficult to make and
are best left to legislative judgment, he set out a number of
principles, at least some of them inspired by his reading of
Cesare Beccaria's contemporary treatise on criminal law and
punishment, On Crimes and Punishments (1764; first
English trans 1767).4 Blackstone, following Beccaria, empha-
sized rationality in the imposition of punishments, rather
than the indiscriminate application of harsh punishments
such as the death penalty. Punishment, in Blackstone's view
(as influenced by Beccaria), should take into account the
manifold complexities of aggravating and extenuating cir-
cumstances, including a weighing of the effectiveness of a

4 Beccaria's book included a chapter entitled, "of the proportion between
crimes and punishments." Cesare Beccaria, On Crimes and Punishments ch 6 (4th
ed 1784). Although few in the colonies probably had read Beccaria's book, his ideas
reached a greater audience through Blackstone's writings.

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particular penalty in preventing future crimes. 4 Blackstone,
Commentaries at 15-16.

In particular, Blackstone agreed both with Beccaria's
observation that the certainty of punishment is more impor-
tant than severity in preventing future crimes and with
Montesquieu's view that the "excessive severity of laws
hinders their execution," particularly when jurors withhold
conviction if they perceive that the likely punishment will be
unjust. Id. at 17. He concluded that "punishments of unrea-
sonable severity, especially when indiscriminately inflicted,
have less effect in preventing crimes, and amending the man-
ners of a people, than such as are more merciful in general,
yet properly intermixed with due distinctions of severity." Id.
at 16-17 (emphasis added).

Blackstone also criticized the use of brutal punish-
ments, which he referred to as "sanguinary laws," as "a bad
symptom of the distemper of any state." Id. at 17. He was
especially critical of the arbitrary and indiscriminate use of
such laws, particularly the death penalty.

"It is moreover absurd and impolitic to apply the same
punishment to crimes of different malignity. A multitude of
sanguinary laws (besides the doubt that may be enter-
tained concerning the right of making them) do likewise
prove a manifest defect either in the wisdom of the legisla-
tive, or the strength of the executive power. It is a kind of
quackery in government, and argues a want of solid skill, to
apply the same universal remedy, the ultimum supplicium,
to every case of difficulty. It is, it must be owned, much eas-
ier to extirpate than to amend mankind: yet that magis-
trate must be esteemed both a weak and a cruel surgeon,
who cuts off every limb, which through ignorance or indo-
lence he will not attempt to cure."

### Id. at 17-18 (emphases in original).

Blackstone's ideas on proportionality contrast with
the related but nonetheless distinct concerns regarding cruel
and unusual punishments. As noted, the latter focused on the
barbarous and uncustomary nature of particular modes of
punishment, whereas proportionality required comparison of
the crime with the punishment and invited application of the
test of reason in the best tradition of the eighteenth century

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Enlightenment.5 Instead of arbitrary and comparatively
harsh punishments, Blackstone endorsed an approach to pro-
portionality that took a form not unlike what we now know as
criminal sentencing guidelines:

"It has been therefore ingeniously proposed, that in every
state a scale of crimes should be formed, with a correspond-
ing scale of punishments, descending from the greatest to
the least; but, if that be too romantic an idea, yet at least a
wise legislator will mark the principal divisions, and not
assign penalties of the first degree to offences of an inferior
rank."

4 Blackstone, Commentaries at 18 (footnote omitted).

C

Blackstone's Commentaries were an important
influence on reformers, including early state constitution
writers, and provisions in a number of state constitutions
written in the late eighteenth century reflect Blackstone's con-
cern with proportionality in sentencing. The first American
constitution to adopt a clause requiring proportionality in
sentencing appears to have been the Pennsylvania Constitu-
tion of 1776. That constitution stated that "[t]he penal laws
as heretofore used shall be reformed by the legislature of this
state, as soon as may be, and punishments made in some
cases less sanguinary, and in general more proportionate to
the crimes." Pa Const, § 38 (1776); see also id. at § 39 (prisons
should be constructed "to make sanguinary punishments less
necessary"). Similarly, South Carolina's 1778 constitution
indicated that "the penal laws, as heretofore used, shall be

5 The difference between a proportionality requirement and a prohibition on
"cruel and unusual" punishment continues to divide the United State Supreme
Court in its interpretation of the Eighth Amendment. The Court has held that the
amendment-which prohibits cruel and unusual punishment, but does not explic-
itly require proportionality in sentencing-implicitly prohibits "sentences that are
disproportionate to the crime committed." Solem v. Helm, 463 US 277, 284, 103
S Ct 3001, 77 L Ed 2d 637 (1983). However, at least three members of the Court,
based on their understanding of the historical background, have concluded that
the Eighth Amendment does not impose any proportionality requirement. See
Harmelin v. Michigan, 501 US 957, 985, 111 S Ct 2680, 115 L Ed 2d 836 (1991)
(opinion of Scalia, J., joined by Rehnquist, C. J.); Ewing v. California, 538 US 11,
32, 123 S Ct 1179, 155 L Ed 2d 108 (2003) (Thomas, J., concurring). We need not
engage in that debate in this case, because defendant does not rely on the Eighth
Amendment or on the prohibition on cruel and unusual punishment contained in
Article I, section 16, of the Oregon Constitution.

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reformed, and punishments made in some cases less sangui-
nary, and in general more proportionate to the crime."
SC Const, Art XL (1778). The reference to "sanguinary" laws
echoes Blackstone's criticisms of disproportionately harsh
punishments in English law, which the framers of the
colonial constitutions saw as applicable to colonial criminal
sentences.

Of all the state constitutions from that period, we
think the New Hampshire Constitution of 1784 provided the
most lucid explanation of the rationale for its provision
requiring proportional sentencing:

"All penalties ought to be proportioned to the nature of the
offense. No wise legislature will affix the same punishment
to the crimes of theft, forgery and the like, which they do to
those of murder and treason; where the same undistin-
guishing severity is exerted against all offences[,] the peo-
ple are led to forget the real distinction in the crimes them-
selves, and to commit the most flagrant with as little
compunction as they do those of the lightest dye: For the
same reason a multitude of sanguinary laws is both impol-
itic and unjust. The true design of all punishments being to
reform, not to exterminate, mankind."

NH Const, Part I, Art XVIII (1784). The foregoing provision
seems to be a summary of Blackstone's discussion of propor-
tionality in punishment. Cf. 4 Blackstone, Commentaries 17
("It is * * * much easier to extirpate than to amend man-
kind."). In later years, the Illinois Constitution condensed the
New Hampshire text: "All penalties shall be proportioned to
the nature of the offence, the true design of all punishment
being to reform, not to exterminate, mankind." Ill Const, Art
VIII, § 14 (1818); Ill Const, Art XIII, § 14 (1848) (same).

As previously noted, in the eighteenth century the
British government punished many offenses by death, from
murder to hunting on certain lands to cutting down certain
trees. See, e.g., 4 Blackstone, Commentaries at 244 (describ-
ing the infamous Waltham Black Act, 9 Geo I, c 22 (1723)).
Behind the origins of the constitutional provisions requiring
proportionality in sentencing was the view that death, the
punishment for the indisputably abhorrent crimes of murder
and treason, was simply not appropriate for minor property

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crimes such as theft and forgery. The adopted provisions also
foreshadow the movement that would emphasize the refor-
mation of criminals rather than attempting to prevent crime
through overuse of the capital penalty. See Friedman, Crime
and Punishment in American History at 73-82 (describing
decline in use of death penalty and increase in imprisonment
as a sanction in late eighteenth and early nineteenth
centuries).

Notably, many states that included proportionality
clauses in their original state constitutions abandoned them
in subsequent revisions. In 1790, Pennsylvania and South
Carolina abandoned their proportionality clauses in favor of
formulations that followed the Eighth Amendment to the
United States Constitution, prohibiting excessive fines and
cruel and unusual punishments. Pa Const, Art IX, § 13
(1790); SC Const, Art IX, § 4 (1790). Like Pennsylvania and
South Carolina, Ohio adopted a proportionality clause only to
abandon it later. Compare Ohio Const, Art VIII, § 14 (1802)
(repeating text from 1784 New Hampshire Constitution)
with Ohio Const, Art I, § 9 (1851) ("[E]xcessive fines [shall not
be] imposed, nor cruel and unusual punishments inflicted.").

The cause for abandonment is not difficult to find. In
many states, legislative projects were undertaken to divide
significant crimes into degrees (e.g., first-degree murder,
second-degree murder), reserving the most severe punish-
ments for crimes committed "in the first degree," and to limit
the death penalty generally. See Friedman, Crime and
Punishment in American History at 73-74 (describing scope
of such reforms). Thus, in light of criminal sentencing
reforms in the early nineteenth century, it is likely that pro-
portionality was no longer widely perceived in those states as
a pressing issue that required constitutional guidance.

We turn to the Indiana Constitution, which draws
our attention in part because many provisions of the Oregon
Constitution were taken from it. The 1816 Indiana Constitu-
tion provided: "All penalties shall be proportioned to the
nature of the offence." Ind Const, Art I, § 16 (1816). In the
1816 constitution, that provision was contained in a separate
section from the provision that instructed that "[e]xcessive
bail shall not be required; excessive fines shall not be

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imposed; nor cruel and unusual punishments inflicted." Ind
Const, Art I, § 15 (1816). In the revised Indiana Constitution
of 1851, however, those two sections were merged to read:
"Excessive bail shall not be required. Excessive fines shall
not be imposed. Cruel and unusual punishments shall not be
inflicted. All penalties shall be proportioned to the nature of
the offence." Ind Const, Art I, § 16 (1851).6 Unfortunately, the
debates on the Indiana Constitution shed little light on the
contemporary meaning of the clause.7

D

Obviously, the framers of the Oregon Constitution
borrowed the two sentences of Article I, section 16, with
which we are concerned here, from the Indiana Constitution
of 1851. The framers combined the cruel and unusual punish-
ment provision and the proportionality provision-each of
which appears in a short, separate sentence in the Indiana
Constitution-into a single sentence, connected by the con-
junction "but." As we have described above, those provisions
have distinct histories and purposes-the proportionality
provision has origins in Magna Carta and in Blackstone's
argument in favor of punishments that were reasonably
related to the severity of particular offenses, while the pro-
hibition on cruel and unusual punishments was first articu-
lated in the English Bill of Rights and focuses on prohibited
methods of punishment. Those differences suggest that,
when the drafters of the Oregon Constitution combined the
two provisions with the word "but" in Article I, section 16,

6 The Indiana Supreme Court has concluded that the provision requires that
criminal penalties be "graduated and proportioned to the nature of [the] offense."
Conner v. State, 626 NE2d 803, 806 (Ind 1993) (so stating in the process of holding
that law setting penalty for selling fake drugs at twice the penalty for selling real
marijuana violated proportionality clause of Indiana Constitution).

? Apparently the only reference to proportionality in sentencing was a rhetori-
cal statement offered by one delegate in the course of arguing against the exclusion
of blacks from Indiana (an issue also raised at the Oregon Constitutional
Convention):

"[I]f the bare fact of a person of color coming into our State, and demeaning
himself in an orderly and peaceful manner, is an offense against society, of so
heinous a character as to deserve confinement in the penitentiary, or in the
county jail? Would not the punishment in such a case be altogether dispropor-
tioned to the nature of the offense?"

Report of the Debates and Proceedings of the Convention for the Revision of the Con-
stitution of the State of Indiana 596-97 (1850).

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they did not intend the proportionality provision to be an
exception or qualification to the bar on cruel and unusual
punishments. See 1 Noah Webster, An American Dictionary
of the English Language 29 (1828) (giving "excepting" as one
meaning of "but"). Rather, the sentence seems to use the
word "but" as the equivalent of "and" and simply to combine
in one sentence those two different rules for criminal penal-
ties. See id. (giving, as another meaning of "but," "[m]ore; fur-
ther; noting an addition to supply what is wanting to eluci-
date, or modify the sense of the preceding part of a sentence,
or of a discourse, or to continue the discourse, or to exhibit a
contrast"). In other words, the prohibition on cruel and unu-
sual punishment and the requirement of proportionality
appear to be independent constitutional commands, joined in
one sentence because they both concern appropriate punish-
ment for crimes.

The framers of the Oregon proportionality provision
made one other change in the text of the Indiana provision,
omitting the words "nature of," and thus requiring that pen-
alties be "proportioned to the offense," rather than "propor-
tioned to the nature of the offense." Although the framers left
no record indicating why they made that change, the text of
the Oregon provision at least suggests that the framers
intended the proportionality inquiry to focus on the specific
criminal "offense" at issue, rather than on a potentially more
open-ended inquiry into the "nature" of the offense. Indeed,
the Indiana courts have emphasized that the reference in the
Indiana proportionality requirement to the "nature of the
offense" indicates that the courts should look behind the leg-
islative classification of the offense and consider the "nature"
and "gravity" of the offense of conviction and, in the case of a
repeat offender, the "nature" of the prior offenses. Taylor v.
State, 511 NE 2d 1036, 1039 (Ind 1987). Although it is not
clear how application of the Indiana provision would differ in
practice from that of the Oregon provision, Article I, section
16, plainly directs us to consider only "the" offense and
whether "the" penalties are "proportioned" to that offense.

The Oregon provision has not changed since 1857:
"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

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offense." Or Const, Art I, § 16. Other than suggesting the like-
lihood that the provenance of the provision was the 1851
Indiana Constitution, the records of the Oregon Constitu-
tional Convention shed no light on the changes or the mean-
ing of the constitutional text. See Billings v. Gates, 323 Or
167, 178, 916 P2d 291 (1996) ("Apparently, the Oregon Con-
stitutional Convention passed the [cruel and unusual pun-
ishments] clause without recorded discussion."); W.C.
Palmer, The Sources of the Oregon Constitution, 5 Or L Rev
200, 201 (1926) (Article I, section 16, was taken from Article
I, sections 16 and 19, of the Indiana Constitution of 1851);
Charles Henry Carey, ed., The Oregon Constitution and
Proceedings and Debates of the Constitutional Convention of
1857 468 (1926) (same). Recent research shows that the sen-
tence in question, taken from the Indiana Constitution,
remained the same throughout the convention, although the
section disappeared at one point before reappearing in the
final version of the draft constitution. Claudia Burton and
Andrew Grade, A Legislative History of the Oregon Constitu-
tion of 1857, Part I, 37 Willamette L Rev 469, 521-26 (2001).

Nothing in the records of the constitutional conven-
tion indicates that, when the framers of the Oregon Consti-
tution adopted the proportionality requirement, they had
any different concerns than those which had led Blackstone
and later the framers of state constitutions from Pennsylva-
nia to Indiana to emphasize the need for proportionality in
sentencing. We therefore assume that those same concerns
animated the Oregon framers. Those concerns, in turn,
inform our interpretation of the Oregon provision. At the
most basic level, the framers' concern was that the penalty
imposed on a criminal defendant be "proportioned" to the
specific offense for which the defendant was convicted-that
it bear the appropriate "comparative relation" to the severity
of that crime.

## II

We turn to this court's previous cases interpreting
Article I, section 16. This court first articulated the test for
determining whether a sentence violates the proportionality
provision of Article I, section 16, in Sustar v. County Court of
Marion Co., 101 Or 657, 201 P 445 (1921). The defendant

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there had been sentenced to six months in jail and fined $500,
the maximum permitted under the applicable statute, for
possessing two quarts of "moonshine." The court stated that
the trial court "went to the verge by inflicting the extreme
penalty, nevertheless, the sentence was within the law." 101
Or at 662. As to the defendant's claim that his sentence nev-
ertheless violated the proportionality requirement, the court
quoted a United States Supreme Court case interpreting the
cruel and unusual punishment provision of the Eighth
Amendment, Weems v. United States, 217 US 349, 367, 30
S Ct 544, 54 L Ed 793 (1910), for the proposition that "[i]t is a
precept of justice that punishment for crime should be grad-
uated and proportioned to offense."8 This court then stated:

"In order to justify the court in declaring punishment
cruel and unusual with reference to its duration, the pun-
ishment must be so proportioned to the offense committed
as to shock the moral sense of all reasonable men as to what
is right and proper under the circumstances."

101 Or at 665 (citing Weems) (emphases added).

Since Sustar, this court often has used the "shock the
moral sense" standard to resolve a claim that a sentence does
not meet the proportionality requirement. For example, in
State v. Teague, 215 Or 609, 611, 336 P2d 338 (1959), the
court quoted and applied that test, holding that the trial
court's decision to impose a sentence of 15 years' imprison-
ment for two forgery crimes did not violate the proportional-
ity requirement. Although the court viewed the sentence as
severe, given the nature of the crimes and the absence of any-
thing in the record demonstrating that the defendant had a
substantial criminal record, it concluded that the sentence
did not shock the moral sense of all reasonable people. Id.
More recently, in State v. Rogers, 313 Or 356, 836 P2d 1308
(1992), this court again followed Sustar, describing that case
as adopting the Weems test for cruel and unusual punish-
ment as the test for applying Article I, section 16. Id. at 380.

8 Although the quote from Weems refers to the concept of proportionality, that
case actually involved a challenge to a sentence of 12 years of "hard and painful
labor" while shackled by chains. Some have viewed Weems as an example of a cruel
and unusual method of punishment, rather than a disproportionate sentence. See
Herbert L. Packer, Making the Punishment Fit the Crime, 77 Harv L Rev 1071,
1075 (1964) (so arguing).

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The court rejected the defendant's argument that imposition
of the death penalty for an intentional murder "committed by
a person who was attempting to commit sexual abuse in the
first degree" was disproportionate, stating that the sentence
"would not shock the moral sense of reasonable people." Id.

On the other hand, in applying the "moral shock"
test, this court sometimes has focused on the legislature's
action in setting a particular penalty or range of penalties for
a particular crime, rather than the court's view of what would
shock the moral sense of reasonable people. For example, in
Jensen v. Gladden, 231 Or 141, 372 P2d 183 (1962), the court
considered a proportionality challenge to a statute under
which a person who had previously been convicted of a sex
crime and who then was convicted of a second sex crime could
be sentenced to imprisonment "for an indeterminate term not
exceeding the natural life of such person." The defendant had
a prior conviction for contributing to the delinquency of a
minor; after a subsequent conviction for indecent exposure,
he was sentenced to an indeterminate life sentence. The
court quoted the Sustar test and then observed that whether
a particular sentence would shock the moral sense would
"depend on the seriousness of the repetitive sexual conduct of
this kind and the danger that it forecasts for others unless
the defendant is segregated from society." 231 Or at 144-45.
As to that determination of seriousness and danger, the court
deferred to the judgment of the legislature:

"[W]e 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."

Id. at 145-46 (footnote omitted; emphasis added).

This court applied a similar "rational basis" test in
State v. Isom, 313 Or 391, 837 P2d 491 (1992), where the
defendant challenged his sentence of death for aggravated
murder committed after escaping from prison. The murder
was considered aggravated because the defendant was an
escapee. ORS 163.095(2)(f) (1991). The defendant argued
that the sentencing scheme was disproportionate because, in

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the defendant's view, a prisoner who is in the process of
escaping is more dangerous than a prisoner that has com-
pleted such an escape, yet both are subject to an aggravated
penalty. This court disagreed:

"Defendant's view, that a person in the process of escaping
is more dangerous than a defendant who already has
escaped, is simply defendant's opinion. The problem for
defendant is that the legislature apparently had a different
opinion, i.e., it believed that murders intentionally commit-
ted by escapees, whether during or after the escape, pose a
considerable threat to the safety and peace of mind of the
general populace. The legislature has chosen to subject all
such persons to the maximum potential penalty. Defen-
dant's opinion makes sense, but so does that which we
attribute to the legislature. There was a rational basis for
the legislature to conclude that both classes of escapees are
dangerous."

Id. at 400 (first emphasis in original; second emphasis
added).

We make two observations about the proportionality
test that this court has used since 1921, viz., whether the
penalty "shocks the moral sense of all reasonable people as to
what is right and proper under the circumstances." First, we
do not think the court intended the test literally-that is,
that a penalty for a particular crime would meet the propor-
tionality requirement if a single "reasonable person" could be
found whose moral sense was not "shocked" by that penalty.
Rather, we read the court's words as attempting to articulate
a standard that would find a penalty to be disproportionately
severe for a particular offense only in rare circumstances.9
Second, and relatedly, we view this court's consideration of
whether the legislature's imposition of a particular penalty
(or range of penalties) for an offense had a "reasonable" or "an
arguably rational basis" (Jensen) or a "rational basis" (Isom)
as an effort to apply the Sustar test, rather than as establish-
ing an alternative test. Put differently, in those cases, the
court did not abandon the "moral shock" test-indeed, both

9 Indeed, in Rogers, the court used the Sustar test, but omitted the adjective
"all" from the reference to "reasonable people," stating that a penalty is not dispro-
portionate if it "would not shock the moral sense of reasonable people." 313 Or at
380.

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quoted that test-but rather looked to the legislative enact-
ment of the particular penalties at issue as an external
source of law to assist in determining whether those penal-
ties would shock the moral sense of reasonable people.

Having considered the test that this court has
applied to determine whether a penalty is "proportioned to
the offense," we turn to this court's other cases applying the
proportionality requirement to determine whether they pro-
vide additional guidance for our application of the require-
ment here. Those cases reinforce our earlier conclusion that
the provision prohibits sentences that are disproportionately
severe compared to the offense, but that the court will hold a
sentence unconstitutional under that provision only in rare
circumstances. The cases also establish that the proportion-
ality provision permits the imposition of penalties for repeat
offenders that might not be permissible for a single offense.

As noted, this court consistently has adhered to the
view that "[i]t is the province of the legislature to establish
the penalties for the violations of the various criminal stat-
utes[.]" Jensen, 231 Or at 146; see also State ex rel Huddleston
v. Sawyer, 324 Or 597, 615, 932 P2d 1145 (1987) ("Determin-
ing the range of possible sentences for particular crimes his-
torically has been a legislative, rather than a judicial, func-
tion."). That allocation of responsibility was central to this
court's most recent case involving a proportionality challenge
to a sentencing law, State v. Ferman-Velasco, 333 Or 422, 41
P3d 404 (2002). There, the defendant argued that his Meas-
ure 11-based sentences violated the proportionality provision
of Article I, section 16, because they were greater than the
existing guidelines sentences for equal and more serious
crimes. This court rejected the defendant's argument, hold-
ing that the law establishing new and greater penalties for
certain crimes itself demonstrated that those crimes were
more serious-and that the greater sentences for those
crimes thus were not disproportionate: "[Measure 11] repre-
sents the most recent legislative enactment demonstrating
the seriousness with which the legislative branch views
Measure 11 crimes, including defendant's crimes." Id. at 431.
Although the court dismissed the defendant's argument on
the merits, concluding that the Measure 11 penalties were
not disproportionate, implicit in the court's analysis is the

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conclusion that the legislature (and the people, acting
through the initiative process) has broad authority to deter-
mine which crimes are "greater" and therefore deserving of
greater penalties, as long as there is some reasonable basis
for that decision, as required by Jensen and Isom. This court
thus ensures that constitutional standards are met; however,
respect for the separation of powers and the legislature's
authority to set criminal penalties means that the court's role
is a limited one.

This court's cases also underscore the legislature's
authority to set enhanced penalties in response to recidivism,
an issue of particular importance in assessing the sentence
imposed in this case. In State v. Smith, 128 Or 515, 273 P 323
(1929), for example, the defendant asserted a disproportion-
ate-sentence argument against a sentence imposed pursuant
to a habitual offender statute. The defendant was convicted
of receiving stolen property. Because he had been convicted of
three prior felonies, the defendant came within the terms of
the recidivism statute, and was sentenced to life in prison. In
response to his argument that the sentence violated Article I,
section 16, the court observed that "[t]he power to declare
what punishment may be assessed against those convicted of
crime is not a judicial, but a legislative, power, controlled
only by the provisions of the Constitution." 128 Or at 524.
The Smith court cited a number of decisions from other states
holding that statutes imposing increased penalties on habit-
ual criminals do not violate the constitutional provision
against cruel and unusual punishment. The court did not
separately analyze the two parts of Article I, section 16, but
rather examined the habitual offender statute against the
provision as a whole. The court quoted approvingly from a
Washington state case which held that that state's habitual
criminal statute "simply provides an increased penalty for
the last offense, and does not violate any constitutional right
of the accused." The state has an interest in preventing
repeat offenders from further crimes, the court stated, " 'and
it does no violence to any constitutional guarantee for the
state to rid itself of depravity when its efforts to reform have
failed.'" Id. at 525 (quoting State v. Le Pitre, 54 Wash 166,
168, 103 P 27 (1909)). The court observed:

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"The defendant in the instant case had previously been
convicted of burglary, but the offense for which he was sen-
tenced to life imprisonment, and from which sentence he
has appealed to this court, was a lesser crime, the crime of
receiving stolen property. Were we to consider this penalty
with reference to the defendant's latest offense alone, we
would be astounded at its severity. But a careful analysis of
the entire record clearly indicates that the defendant is an
incorrigible criminal, a man who has heretofore been con-
victed at least four times for burglariously preying upon the
property and safety of others. Add to this the fact that,
throughout the history of criminal law, burglary has been
looked upon as a crime of great magnitude, and the burglar
as a dangerous and desperate criminal, and the sentence
imposed in this case can but be deemed a just one."

128 Or at 525-26. Thus, Smith emphasized that the analysis
must focus not only on the latest crime and its penalty, but on
the defendant's criminal history. An enhanced sentence
(even a life sentence) is appropriate, and not disproportion-
ate, when a defendant is "an incorrigible criminal."

Jensen v. Gladden, 231 Or 141, also concerned a
recidivism statute. As noted above, the defendant initially
had been convicted of contributing to the delinquency of a
minor; two years later he was convicted of the crime of inde-
cent exposure. Under former ORS 167.050, the defendant
was sentenced to imprisonment "for an indeterminate period
not to exceed his natural life." The defendant attacked his
sentence under Article I, section 16. The court observed:

"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.'"

231 Or at 144. The court continued: "Whether it would so
shock the moral sense would, of course, depend upon the seri-
ousness of the repetitive sexual conduct of this kind and the
danger that it forecasts for others unless the defendant is

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segregated from society." Id. at 144-45. After briefly discuss-
ing what the court acknowledged to be the dimly understood
subject of sex crimes and recidivism, the court stated that it
was unable to say that there was no reasonable basis for the
legislature's conclusion that imprisonment for an indetermi-
nate period was appropriate in light of the seriousness of the
conduct and the defendant's danger to society. The court
upheld the sentence. See also Tuel v. Gladden, 234 Or 1, 379
P2d 553 (1963); State v. Hicks, 213 Or 619, 630, 325 P2d 794
(1958) (upholding, against proportionality challenges, stat-
utes providing enhanced sentences for recidivists).

The only two cases in which this court has held that
particular penalties violate the proportionality requirement
provide further refinement of the court's application of the
"moral shock" test-and demonstrate how rarely a sentence
within the limits set by the legislature will be found to violate
that requirement. Both cases involved situations in which
the penalty for a lesser-included offense was greater than
the penalty for the greater-inclusive offense. In Cannon v.
Gladden, 203 Or 629, 281 P2d 233 (1955), the defendant was
charged with statutory rape, but was convicted of the lesser-
included charge of assault with intent to commit rape. At
that time, the maximum penalty for statutory or forcible rape
was 20 years, while the maximum penalty for assault with
intent to commit rape was life in prison. The defendant in
Cannon was sentenced to life imprisonment. The court
viewed the disparity between the two punishments as raising
"a grave constitutional question." Id. at 631. Applying the
"shock the moral sense" test to the facts of the case, the
court held that the sentence violated the proportionality
requirement:

"The question presented is whether the penalty of life
imprisonment for an assault with intent to commit rape
under the circumstances of this case is proportioned to the
offense, or is it so disproportioned to the offense as to shock
the moral sense of all reasonable men as to what is right
and proper? The question answers itself.

"How can it be said that life imprisonment for an
assault with intent to commit rape is proportionate to the
offense when the greater crime of rape authorizes a sen-
tence of not more than 20 years? It is unthinkable, and

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shocking to the moral sense of all reasonable men as to
what is right and proper, that in this enlightened age juris-
prudence would countenance a situation where an offender,
either on a plea or verdict of guilty to the charge of rape,
could be sentenced to the penitentiary for a period of not
more than 20 years, whereas if he were found guilty of the
lesser offense of assault with intent to commit rape he could
spend the rest of his days in the bastile [sic].

"When the legislature amended the law by chapter 42,
General Laws of Oregon 1919, ORS 163.270, increasing the
penalty for an assault to life imprisonment, it undoubtedly
did not have in mind the penalty for the graver offense of
rape which carried a sentence of up to 20 years. Otherwise,
it would not have created such an absurdity."

203 Or at 632-33. Cannon provides a clear rule that the crime
of assault with intent to commit a separate crime cannot be
punished more severely than the separately intended crime
itself. More generally, Cannon suggests that the legislature
cannot punish an attempt more severely than the completed
crime itself.

The limits of Cannon were explored-and a different
result reached-in Merrill v. Gladden, 216 Or 460, 337 P2d
774 (1959), where the court addressed the same issue, but
under a different statutory structure. The defendant in
Merrill was convicted of assault with intent to commit rob-
bery and sentenced to a term of imprisonment of 20 years, the
maximum under the pertinent statute. He argued that the
penalty for assault with intent to commit robbery was
greater than the penalty for robbery itself. The statutes
involved, however, were more complicated than his argu-
ment suggested. The statute defining robbery with a danger-
ous weapon provided a penalty of up to life imprisonment; the
statute defining robbery without such a weapon provided a
penalty of up to 15 years. Id. at 462-63. The court accepted
that, under Cannon, a lesser-included offense should feature
a proportionately lesser penalty. In Merrill, however, the
indictment mentioned that the defendant had used a
weapon. Comparing the maximum penalties for assault with
intent to commit robbery (20 years) with armed robbery (life),
the court concluded that the penalties were proportional.

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The only case other than Cannon in which this court
has concluded that a sentence violated the proportionality
provision is State v. Shumway, 291 Or 153, 630 P2d 796
(1981), where the court addressed another variant of the
question of when a potentially longer sentence for a crime of
lesser seriousness may violate the proportionality require-
ment. The defendant in Shumway was convicted of inten-
tional homicide. He was sentenced to life in prison and
required to serve 25 years before becoming eligible for parole.
However, if the defendant had been convicted of intentional
homicide, committed with aggravating circumstances-i.e., a
homicide even more serious than one simply committed
intentionally-he would have been eligible for parole either
15 or 20 years after sentencing, depending on the nature of
the aggravating circumstances. As the court summarized the
statutory scheme, "[A] defendant receives a lesser minimum
sentence to be served before being eligible for parole for
aggravated intentional homicide than he does for an unag-
gravated intentional homicide." Id. at 164. The court con-
cluded that such a disparity violated the proportionality
clause of Article I, section 16, of the Oregon Constitution. As
a remedy, the court held unconstitutional, as applied to the
defendant, the statutory provision requiring him to serve not
less than 25 years before becoming eligible for parole, but
otherwise upheld his life sentence. Shumway, 291 Or at 164.

To summarize, this court's cases do not provide a
comprehensive understanding of the scope of Article I, sec-
tion 16, but they do provide some perspective on certain
aspects of the proportionality requirement.10 The court has
used the test of whether the penalty was so disproportioned
to the offense as to "shock the moral sense of reasonable peo-
ple" and ordinarily has deferred to legislative judgments in
assigning penalties for particular crimes, requiring only that
the legislature's judgments be reasonable. The cases permit
the legislature to impose enhanced sentences on recidivists,

10 Although it is not germane to this case, for the sake of completeness we note
a textually explicit constitutional exception to the proportionality provision of Arti-
cle I, section 16. In 1984, the people amended the Oregon Constitution by adding
Article I, section 40, which provides death as the penalty for aggravated murder
when certain requirements are met. Article I, section 40, provides that the death
penalty may be imposed as permitted by that provision "[n]otwithstanding" Article
I, sections 15 and 16.

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even if those sentences would be disporportionate when
applied to a defendant without prior convictions. Finally, the
proportionality provision bars the legislature from punishing
a lesser-included offense (such as an attempt) more severely
than the greater-inclusive offense (such as completion of the
attempted crime).11

## III

With the foregoing understanding of the proportion-
ality requirement of Article I, section 16, we turn to defen-
dant's specific arguments that the sentences imposed on him
are unconstitutional. Defendant's arguments include both a
facial and an as-applied challenge. To the extent that defen-
dant argues that the criminal statutes that were the basis for
his prior convictions and the recidivism statute under which
he was sentenced in this case, ORS 137.719(1), permit a sen-
tence that is disproportionate to sentences imposed under
other sentencing statutes, his challenge appears to be a facial
one. To the extent that defendant focuses on what he char-
acterizes as the limited harm to his victims (in the earlier
crimes and in the crimes in this case) in weighing proportion-
ality, the challenge appears to be an as-applied one.

To recapitulate, defendant was convicted in this case
of 18 separate sex felonies involving three different boys:
10 counts of first-degree sexual abuse, ORS 163.427, three
counts of first-degree sodomy, ORS 163.405, three counts of
second-degree sodomy, ORS 163.395, and two counts of using
a child in a display of sexually explicit conduct, ORS 163.670.
Under the sentencing guidelines, for those crimes alone
defendant was subject to mandatory minimum sentences
ranging from 70 to 100 months for each of the 18 counts. If

11 We recognize that the legislature has determined that some "attempt"
crimes are as serious as the "completed" crime, and therefore has set the same pen-
alty for both. Delivery of a controlled substance, for example, is defined to include
not only "actual" delivery but also "attempted" delivery. See ORS 475.005(8). Sim-
ilarly, "robbery" is the same crime whether or not the robber is successful in taking
money from the victim. See ORS 164.395 (third-degree robbery defined as use or
threat of immediate physical force in the course of "committing or attempting to
commit theft"). Those crimes, of course, do not raise proportionality concerns under
the cases described above because the penalty for the "attempt" crime is the same
as, not greater than, the penalty for the "completed crime."

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those sentences had been imposed consecutively-and defen-
dant never has claimed that they could not be so imposed-
his sentences for the crimes charged in this case would have
amounted to 1340 months, or 111.67 years, in prison.

These crimes, however, were not defendant's first
offenses. As noted, he previously has been convicted of
second-degree sodomy and third-degree sodomy-both felo-
nies-and robbery. Because of his two prior felony sex-crime
convictions, defendant was subject to ORS 137.719(1):

"The presumptive sentence for a sex crime that is a fel-
ony is life imprisonment without the possibility of release or
parole if the defendant has been sentenced for sex crimes
that are felonies at two times prior to the current sentence."

Although the presumptive sentence for each of defendant's
18 convictions was life imprisonment without possibility of
release, the trial court had the authority to depart from that
sentence "based upon findings of substantial and compelling
reasons." ORS 137.719(2). The trial court, however, did not
depart from the presumptive sentence described in ORS
137.719(1), and the court sentenced defendant to 18 consec-
utive sentences of life imprisonment without possibility of
release.

Defendant makes two arguments that ORS
137.719(1) is facially unconstitutional. He argues that had he
committed "the more serious felony of murder," the presump-
tive sentence would have been life with a 25-year minimum
term. That argument, of course, ignores the fact that ORS
137.719(1) is a recidivism statute that applies to defendant
only because he has two prior felony convictions for sex
crimes. The fact that the presumptive sentence for a murder
committed by a defendant with no prior convictions is less
severe than the presumptive sentence for a felony sex crime
committed by a defendant who has been convicted of two
prior felony sex crimes does not, in our view, "shock the moral
sense of reasonable people." As Smith and Jensen made clear
many years ago, the legislature may protect society from
those who cannot or will not conform their behavior to crimi-
nal statutes by imposing more severe sentences on repeat
offenders. That is what the legislature did by enacting ORS
137.719(1).

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Defendant also argues that ORS 137.719(1) is dis-
proportionate compared to other recidivism statutes, assert-
ing that a person with prior convictions of assault, who is
again convicted of assault, is likely to receive a sentence less
severe than the sentence imposed on defendant here. The leg-
islature, however, has set the presumptive penalty for a fel-
ony sex crime, when committed by a person with two prior
convictions for such crimes, to be life imprisonment without
possibility of parole (unless the trial court decides to impose a
lesser sentence). The question is whether that penalty is
"proportioned to the offense." We cannot say that it is not.
The legislature evidently considered the repeated sex crimes
at issue here-whether because sex crime victims often are
young and vulnerable to adult coercion, because of the possi-
bility of recidivism by sex offenders, or because of the severity
of the impact of such crimes on the victims-to be deserving
of a greater presumptive penalty than assault, even an
assault by a person with a previous assault conviction. As we
noted in Isom, even if defendant's opinion of the relative
"seriousness" of an assault compared to a sex felony made
sense- a proposition that we need not decide-the legisla-
ture had a different opinion. See Isom, 313 Or at 400 (apply-
ing that test). The legislature chose to impose a more serious
penalty on the serial sex offender. We cannot say that the leg-
islature was unreasonable in doing so, or that the penalty it
established would shock the moral sense of reasonable
people.

Defendant's "as applied" challenge also fails. Defen-
dant argues that the life sentences without possibility of
parole imposed on him under ORS 137.719(1), when com-
pared to the ordinary guidelines sentence of over 111 years
that he otherwise would have faced, would "shock" anyone's
moral sense. As described above, this court's previous cases
have permitted lengthy sentences, including life imprison-
ment, as a response to recidivism. Defendant also argues that
the life sentences imposed on him are unconstitutionally
disproportionate because "[t]he felonies did not involve a
physical assault and did not involve a permanent physical
injury." Sex crimes may or may not result in permanent
physical injury, but the legislature is entitled to presume
that they are a serious matter in light of the potential for both

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physical and psychological injury and that lengthy sentences
are necessary to protect the public from further harm by
recidivists. See Or Const, Art I, § 15 (protection of society is
an appropriate goal of criminal punishment).

We therefore hold that, under the test articulated
above, defendant's sentences bear a sufficient relationship to
the gravity of the crimes of which he was convicted and his
prior felony convictions. The sentences do not violate the pro-
portionality clause of Article I, section 16, of the Oregon
Constitution.

The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.