Excessive Sentencing Project - Oregon

Policies and rulings on lengthy imprisonment terms in Oregon.

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  • Oregon mandates minimum sentences for certain violent felonies, and mandates determinate sentences for certain two-time felons.
State Constitution

Art. I, § 16: 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.

Sentencing Statutes

Mandatory minimums statute: Oregon imposes a series of mandatory minimum punishments for violent felonies, including 25-year minimums for murder, first-degree rape, first-degree unlawful sexual penetration, and first-degree sodomy. O.R.S. § 137.700.  

Determinate sentences for certain second-time felons: The state mandates determinate sentences, revoking all parole and probation eligibility, upon second conviction for offenders who have twice committed enumerated felonies. O.R.S. § 137.635.  

Sentencing guidelines: The state utilizes a series of sentencing guidelines developed by state commission. O.R.S. § 137.669.  

Case Law

General 

Once a valid sentence is executed, a trial court cannot modify it; however, if the sentence lacks valid legislative authority, the trial court has the power to modify the sentence. State v. Horsley, 168 Or.App. 559 (1999).

The statute setting mandatory minimums for certain felonies is not limited by pre-existing statute setting limits on prison terms. State v. Langdon, 330 Or. 72 (2000).

Upward departures from the sentencing guidelines based on a defendant’s probation/supervision status requires “further inferences about the malevolent quality of the offender and the failure of his (supervisory) status to serve as an effective deterrent.” State v. Jackson, 227 Or.App. 33, 36 (2009).

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Upward departures based on persistent involvement in similar offenses present factual issues that a defendant has the right to demand be proved beyond a reasonable doubt. State v. Bray, 342 Or. 711, 724 (2007).

Proportionality 

The court gives great deference to the legislature in setting criminal penalties—even enhancements—and will overturn a sentence only when it is so disproportioned to the offense that it shocks the moral sense of all reasonable men as to what is right and proper. State v. Wheeler, 343 Or. 652 (2007).

To determine whether a penalty is proportioned to the offense, the court will consider whether the penalties imposed for other, related crimes are less severe than the crime at issue. State v. Rodriguez/Buck, 347 Or. 46 (2009). 

A defendant’s criminal history is important in deciding a proportionality challenge. State v. Smith, 128 Or. 515, 525-26 (1929).

Sentences for lesser-included offenses, especially attempt, that by statute are greater than those of the top charge are generally disproportionate. State v. Shumway, 291 Or. 153, 164 (1981).

Severe Sentences 

Court overturned trial court’s ruling that mandatory minimum 75-month sentence for child sexual abuse was unconstitutionally cruel and unusual. State v. Silverman, 159 Or.App. 524 (1999).  

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