State v. Carey-Martin

Full title: STATE OF OREGON, Plaintiff-Respondent, v. ALIXANDUR C. CAREY-MARTIN…

Court: COURT OF APPEALS OF THE STATE OF OREGON

Date published: Sep 6, 2018

293 Or. App. 611 (Or. Ct. App. 2018)

430 P.3d 98

Opinion

A157942 (Control), A157943

09-06-2018

STATE of Oregon, Plaintiff-Respondent, v. Alixandur C. CAREY-MARTIN, Defendant-Appellant.

Anne K. Fujita Munsey, Deputy Public Defender, argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services. Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

ORTEGA, J.

Anne K. Fujita Munsey, Deputy Public Defender, argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

ORTEGA, J.

ORS 137.690, the statute that enacted Ballot Measure 73, imposes a mandatory minimum term of 25 years for a person who has been convicted of more than one "major felony sex crime."¹ Included among the sex crimes defined as "major felony sex crime[s]" is the crime of using a child in a display of sexually explicit conduct, ORS 163.670.² Defendant was sentenced under Ballot Measure 73 for 10 convictions for conduct that occurred over a period of about a year and a half while he was a teenager, some of it while he was underage, and which involved requesting and receiving, by text messaging, nude images of girls who were two to four years younger than he was. Put succinctly, defendant engaged in what is commonly known as "sexting." See 293 Or. App. at 634, 430 P.3d at 112 ("[R]equesting and sending sexually explicit self-portraits via a camera phone is a common enough behavior to have engendered the term ‘sexting.’ "). In this consolidated criminal appeal,³ defendant seeks a remand for resentencing of the 25-year sentences that the trial court imposed for those convictions.Defendant asserts that the sentences were disproportionate as applied to him in violation of Article I, section 16, of the Oregon Constitution (providing that "all penalties shall be proportioned to the offense").⁴ In defendant’s view, the 25-year sentences, which were imposed concurrently to each other and to the sentences he received for other sexual crimes, shock the moral sense of reasonable people; he argues that his conduct did not warrant those penalties when the factors set out by the Supreme Court in State v. Rodriguez/Buck , 347 Or. 46, 58, 217 P.3d 659 (2009), to determine proportionality under Article I, section 16, are applied to the circumstances of his case. The crux of the state’s argument is that defendant’s conduct was "extremely grave" and that, because it was not "innocuous," the trial court correctly determined that the sentences imposed on defendant would not shock the moral sense of reasonable people. We agree with defendant and, therefore, reverse and remand the sentences imposed under ORS 137.690.

1 ORS 137.690 provides:

"a. Any person who is convicted of a major felony sex crime, who has one (or more) previous conviction of a major felony sex crime, shall be imprisoned for a mandatory minimum term of 25 years.

"b. ‘Major felony sex crime’ means rape in the first degree (ORS 163.375 ), sodomy in the first degree (ORS 163.405 ), unlawful sexual penetration in the first degree (ORS 163.411 ), or using a child in a display of sexually explicit conduct (ORS 163.670 ).

"c. ‘Previous conviction’ includes a conviction for the statutory counterpart of a major felony sex crime in any jurisdiction, and includes a conviction in the same sentencing proceeding if the conviction is for a separate criminal episode as defined in ORS 131.505."

2 ORS 163.670 provides:

"(1) A person commits the crime of using a child in a display of sexually explicit conduct if the person employs, authorizes, permits, compels or induces a child to participate or engage in sexually explicit conduct for any person to observe or to record in a visual recording.

"(2) Using a child in a display of sexually explicit conduct is a Class A felony."

3 Case numbers C131006CR and C131987CR were tried together, and both cases included charges that led to defendant’s convictions for using a child in a display of sexually explicit conduct and the sentences that defendant challenges in this appeal.

4 Defendant also challenges his sentences under the Eighth Amendment to the United States Constitution (forbidding "cruel and unusual punishment"). Because we conclude that defendant’s challenged sentences are disproportionate under Article I, section 16, we need not reach his Eighth Amendment argument.

I. ARTICLE I, SECTION 16, PROPORTIONALITY

The Supreme Court has not yet considered a facial or as-applied Article I, section 16, challenge to ORS 137.690 ; our resolution of this as-applied challenge to defendant’s 25-year prison sentences imposed under that statute is informed by our understanding of the court’s case law addressing whether prison sentences imposed under two other sentencing provisions— ORS 137.719 and ORS 137.700 —run afoul of the constitutional prohibition against disproportionate sentences under Article I, section 16. A review of that case law provides context for the court’s treatment of recidivism in proportionality review and illuminates the nature of the review that we are called upon to undertake in this case.

ORS 137.719(1) is a "recidivism statute" that requires the imposition of life imprisonment without the possibility of parole for a felony sex crime if a defendant has previously been convicted of two felony sex crimes. The court considered a facial challenge to that statute in Statev. Wheeler, 343 Or. 652, 654, 175 P.3d 438 (2007), and later considered the proportionality of the statute as applied to the defendants in State v. Althouse , 359 Or. 668, 375 P.3d 475 (2016), and State v. Davidson , 360 Or. 370, 380 P.3d 963 (2016). ORS 137.700, the codification of Ballot Measure 11, imposes mandatory minimum prison sentences for a host of crimes against persons. The court has also considered as-applied proportionality challenges to the imposition of 75-month prison sentences for first-degree sexual abuse under that statute, in Rodriguez/Buck and State v. Ryan , 361 Or. 602, 396 P.3d 867 (2017).

In Wheeler , the court examined the framers' intent in adopting Article I, section 16 ’s requirement that "all penalties shall be proportioned to the offense" and its application in Supreme Court case law as a review for whether, under the circumstances, the duration of the imposed sentence "would shock the moral sense" of reasonable people of what is "right and proper." 343 Or. at 668, 175 P.3d 438. The court observed that, under its case law, a finding of disproportionality would occur "only in rare circumstances," and that a court looks to the "legislative enactment of the particular penalties at issue as an external source of law to assist in determining whether those penalties would shock the moral sense of reasonable people." Id. at 670-71, 175 P.3d 438.

The court further observed that its cases "underscore the legislature’s authority to set enhanced penalties in response to recidivism," and noted its conclusion in State v. Smith , 128 Or. 515, 273 P. 323 (1929), that an "enhanced sentence (even a life sentence) is appropriate, and not disproportionate, when a defendant is ‘an incorrigible criminal.’ " 343 Or. at 672-73, 175 P.3d 438. It went on to discuss further application of that concern in other cases, noting that the legislature is permitted "to impose enhanced sentences on recidivists, even if those sentences would be disproportionate when applied to a defendant without prior convictions." Id . at 676-77, 175 P.3d 438. The court rejected the defendant’s as-applied challenge to his true-life sentence, observing that 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 physical and psychological injury and that lengthy sentences are necessary to protect the public from further harm by recidivists." Id. at 679-80, 175 P.3d 438.

After Wheeler , the Supreme Court considered a nonrecidivism statute, ORS 137.700 (Ballot Measure 11), which requires a sentence of at least 75 months of imprisonment for a single conviction of first-degree sexual abuse. In Rodriguez/Buck , the court affirmed two trial court determinations that sentences imposed under the statute were constitutionally disproportionate and, reviewing its case law, identified three nonexclusive factors for assessing as-applied challenges under Article I, section 16 :

"(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant."

347 Or. at 58, 217 P.3d 659. The Supreme Court recognized the "central role" the legislature has in establishing penalties for crimes but underscored the "role of the court to ensure that sentences conform to requirements that have been in our constitution for 150 years." Id .

As regards the first factor, the court considered the relationship between the severity of the penalty urged by the state and rejected by the trial courts—75 months incarceration—and the gravity of the offenses committed by the two defendants. Id . at 59, 67, 217 P.3d 659. The amount of time the offender must spend incarcerated for the conviction is the "primary determinant" of how severe the penalty is. Id . at 60, 217 P.3d 659. The offense, for purposes of an as-applied proportionality challenge, is not limited to the description of the prohibited conduct in the statute but includes consideration of the range of conduct prohibited by the statute as well as the circumstances of the defendant’s specific offense, and then placing the defendant’s conduct on the range of prohibited conduct. Id . at 69, 217 P.3d 659. The court noted:

"An as-applied proportionality analysis that considers the facts of an individual defendant’s specific criminal conduct is particularly significant when the criminal statute at issue covers a broad range of activity, criminalizing a variety of forms and intensity of conduct. In such a case, a harsh penalty might not, on its face, be disproportionate,

because of the fact that the statute dealt, inter alia, with some extreme form of that conduct. However, when a defendant is convicted for engaging in only more minor conduct encompassed within the statute, the defendant may plausibly argue that the mandatory sentence, as applied to the particular facts of his or her case, is unconstitutionally disproportionate."

Id . When assessing the "range of activity,"

"a court may consider, among other things, the specific circumstances and facts of the defendant’s conduct that come within the statutory definition of the offense, as well as other case-specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim."

Id . at 62, 217 P.3d 659. In applying that factor, the court concluded that the defendants' criminal conduct was "insufficiently grave to justify the mandatory six-year and three-month sentence" and "less severe than the conduct in the vast majority of (and probably in all) other reported first-degree sexual abuse cases since Measure 11 was passed." Id . at 74, 217 P.3d 659.

Under the second factor announced in Rodriguez/ Buck , the court compared the imposed penalty to penalties for related offenses. Id. at 63, 217 P.3d 659. That is, if "the penalties for more ‘serious’ crimes than the crime at issue result in less severe sentences, that is an indication that the challenged penalty may be disproportionate." Id . Applying that factor in Rodriguez/Buck , the court noted that the mandatory minimum sentence for the defendants' conduct—minimal sexual conduct with clothed children—was the same as the mandatory minimum sentence for second-degree sodomy, second-degree rape, and second-degree sexual penetration. Id. at 75, 217 P.3d 659. Reasonable people, the court concluded, would not believe that the defendants' sentences were proportionate to their offenses in light of the other, substantially more egregious conduct that was subject to the same mandatory minimum sentence. Id. at 75-76, 217 P.3d 659.

Under the third and final factor, the court considered the defendants' criminal histories, which are relevant "because a defendant who previously has been convicted of and served sentences for other crimes has demonstrated, by committing additional crimes, that the previously imposed sentences were insufficient to prevent the defendant from returning to his or her criminal behavior." Id . at 77, 217 P.3d 659. "[T]he state has an interest in preventing repeat offenders from engaging in further crimes 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 66, 217 P.3d 659 (quoting Smith , 128 Or. at 525, 273 P. 323 ) (emphasis in original) ). As for the defendants in Rodriguez/Buck , the court noted that the Measure 11 sentence imposed on them for their first-degree sexual abuse convictions applied even if they had "no prior criminal charges, arrests, or reported police contact." Id . at 77, 217 P.3d 659. "Traditional understandings of proportionality, as well as this court’s cases, require us to consider whether a defendant is a repeat offender by considering previous criminal convictions and whether there is evidence of multiple instances of uncharged wrongful conduct." Id . at 78, 217 P.3d 659. So considered, the court compared the defendants' lack of any history of sexual abuse to the "more common first-degree sexual abuse cases," in which the contact was not only far more physically invasive and sexually charged, but occurred multiple times or over several years (citing State v. Sullivan , 217 Or. App. 208, 174 P.3d 1095 (2007), and State v. Rhodes , 149 Or. App. 118, 941 P.2d 1072 (1997) ). Ultimately, the court concluded that the "absence of any criminal convictions and the single occurrence of the wrongful conduct support the conclusion that a 75-month sentence is unconstitutionally disproportionate to the offenses by these defendants." 347 Or. at 78, 217 P.3d 659.

In Althouse , the court revisited ORS 137.719(1), but having set out the Rodriguez/Buck factors, reworked the framework for applying those factors to a recidivism statute and affirmed the defendant’s true-life sentence for felony public indecency. 359 Or. at 684, 375 P.3d 475. It observed that the constitutionality of a statute like ORS 137.719 that imposes an enhanced sentence because of a defendant’s prior convictions necessarily requires that the defendant’s criminal history be considered when assessing the severity of the penalty and the gravity of the crimes. Id . at 686, 375 P.3d 475. Thus, in such a case, the first and third Rodriguez/Buck factors (a comparison of the severity of the penalty and the gravity of the crime, and examination of the defendant’s criminal history) "overlap" when determining proportionality under a recidivism statute. Id. at 685, 375 P.3d 475. The court further concluded that an "inability to reform one’s conduct despite repeated opportunities to do so * * * can justify the legislature’s decision to impose" a true-life sentence. Id . at 687-88, 375 P.3d 475 (citing Tuel v. Gladden , 234 Or. 1, 7, 379 P.2d 553 (1963) ). The court noted that the defendant, "over a 30-year period," had "been convicted of sexual abuse and sodomy of his own and other people’s children, as well as public indecency" and "many of the charged and uncharged instances in which defendant has engaged in public indecency during that 30-year period have been directed at or related to children [including his own five- and eight-year old children, and a nine-year-old boy]." Id . at 687, 375 P.3d 475. Accordingly, given that the defendant’s criminal history "reflect[ed] a deeply ingrained pattern of predatory behavior" and "the seriousness of [the] defendant’s repeated sexual misconduct and the danger that it forecasts for others," the court concluded that the defendant’s true-life sentence did not violate the proportionality requirement of Article I, section 16. Id .

Two other court decisions bear mentioning. In Davidson , the court again decided the constitutionality of a sentence imposed under ORS 137.719(1), using the Althouse framework for the "consideration of as-applied challenges to sentences imposed pursuant to ORS 137.719." 360 Or. at 373, 380 P.3d 963. The convictions triggering ORS 137.719(1) were, like the ones in Althouse , for public indecency. Despite the fact that the defendant had "little control over his behavior or understanding of the socially unacceptable nature of his conduct," as well as a history indicating that he was "highly resistive to reform," in concluding that a sentence of life imprisonment without the possibility of parole was disproportionate under Article I, section 16, the court considered significant that the defendant’s history of sexual offenses did not include physical contact with victims or specifically targeting victims. Id . at 385, 387, 380 P.3d 963.

Finally, in Ryan , the court returned to the constitutionality of a sentence imposed under ORS 137.700, to address the defendant’s argument that the trial court failed to properly account for his intellectual disability—an IQ score equivalent to the mental age of a 10 year old—in its analysis of the defendant’s proportionality challenge to a 75-month sentence for a first-degree sexual abuse conviction. 361 Or. at 604-06, 396 P.3d 867. The court used ORS 161.290(1), which provides that a person tried as an adult is not criminally responsible for conduct occurring when the person was under 12 years of age, as "objective evidence of a societal standard that eschews treating persons with the attributes of a pre-teen child as if they were normally abled adult offenders." Id . at 624, 396 P.3d 867. The court therefore held that "the trial court erred—in comparing the gravity of defendant’s offense and the severity of the Measure 11 sentence under the first Rodriguez/ Buck factor—in failing to consider evidence of defendant’s intellectual disability when that evidence, if credited, would establish that the sentence would be arguably unconstitutional because it shows that defendant’s age-specific intellectual capacity fell below the minimum level of criminal responsibility for a child." Id . at 625-26, 396 P.3d 867.⁵

5 It is important to note that, in Ryan , the defendant’s argument rested entirely on an assertion that his intellectual disability rendered his 75-month prison sentence unconstitutionally disproportionate. Under Rodriguez/Buck , it is allowable as part of the three-part test for a court to "consider, among other things, the specific circumstances and facts of the defendant’s conduct that come within the statutory definition of the offense, as well as other case-specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim." 347 Or. at 62, 217 P.3d 659.

With that summary of the court’s proportionality case law stated, we observe at the outset that the Supreme Court’s case law has not addressed two critical issues presented in this case. First, the court has never addressed the constitutional proportionality of ORS 137.690 —facially or as applied.⁶ ORS 137.690, unlike ORS 137.719(1), does not, at least in this case, operate as a recidivism statute. For that reason, we disagree with the dissent’s approach, which depends heavily on the court’s consideration of ORS 137.719(1) and other recidivism statutes. Likewise, for the same reason, we reject the state’s assertion that the second factor of Rodriguez/Buck —a comparison of the penalties imposed for related offenses—has little or no relevance in the disproportionality analysis in this case. Second, the court has never analyzed the significance of sentences imposed concurrently with the challenged sentences—that is, it has not examined the aggregate or "package" sentence imposed on a defendant, or a hypothetically imposed sentence, to assess a sentencing challenge under Article I, section 16.

6 We rejected a facial challenge to the constitutionality of Ballot Measure 73, which was enacted as ORS 137.690 and ORS 813.011, in State v. Mercer , 269 Or. App. 135, 142, 344 P.3d 109, rev. den. , 357 Or. 299, 353 P.3d 594 (2015), made on the ground that Measure 73 was submitted to the voters in violation of the Article IV, section 1(2)(d) single-subject requirement.

We understand the dissent’s approach to be based on an understanding of the trial court’s sentencing determination in this case that is contradicted by the record of what the court actually considered. See 293 Or. App. at 677, 430 P.3d at 135 (Garrett, J., dissenting). A fair reading of the court’s sentencing determination indicates that it was driven by the 300-month minimum imprisonment sentence required by the convictions at issue here, for using a child in a display of sexually explicit conduct. The state, in its sentencing recommendation, argued that defendant’s "sentence is largely subject to the provisions of ORS 137.700 and ORS 137.690." Furthermore, the state sought to justify that minimum sentence by asserting that defendant’s conduct requesting nude images by cell phone is much graver than we determine it to be, 293 Or. App. at 638, 430 P.3d at 114 (concluding that defendant’s conduct "falls toward the less serious range of conduct" prohibited by ORS 163.670 and ORS 137.690 ). The trial court imposed the sentences in the way that it did within the context of the 25-year minimum sentence for the ORS 163.670 convictions.

The dissent’s view presumes that, because the court could have permissibly imposed the same sentence by means of stringing together consecutive sentences on the array of crimes of conviction, or can permissibly do so on remand, that the court would have done the same or will do the same on remand, and consequently it reads our opinion as ignoring the realities of the sentence on review. 293 Or. App. at 688-89, 430 P.3d at 141–42 (Garrett, J., dissenting). Here, the dissent’s position considers an alternative scenario in which the arguments to the court would have been, or will be, entirely different. Put differently, had the minimum sentence under ORS 137.690 been a 15-year or a 20-year minimum term of imprisonment, the court may have very well imposed a 15-year or 20-year total sentence, or a sentence closer to the 10-year sentence originally proposed by the state and acceptable to the victims during plea negotiations. We cannot tell from this record that the court determined that, had it considered all of defendant’s convictions, it would have arrived at the "package" it did despite the 25-year required minimum. Moreover, we cannot anticipate with the certainty asserted by the dissent what, on remand, the state will recommend, what arguments or mitigating evidence defendant will present to the court, or what the court will deem appropriate within its permissible discretion allowed under the law. In our view, because the case law has invariably remained concentrated on analyzing the constitutionality of individual sentences, we agree with the state’s express position on appeal that the "proper focus for purposes of a proportionality analysis is on each individual crime that the defendant committed and on the corresponding sentence imposed for that crime." (Emphasis in the state’s brief.)

Thus, we reject the approach advanced by the dissent that the proportionality analysis in this case must necessarily consider defendant’s "total" or "package" sentence. That is because the Supreme Court’s proportionality analysis under Article I, section 16, has been, for good reason, in every case, an analysis of the individual sentence challenged by a defendant. Article I, section 16, mandates that "all penalties shall be proportioned to the offense ." (Emphasis added.) Thus, in Article I, section 16, challenges on either a facial or as-applied basis, the court has resolved the constitutionality of the statutorily-prescribed sentence. Given that we must look "to the legislative enactment of the particular penalties at issue as an external source of law to assist in determining whether those penalties would shock the moral sense of reasonable people," how could it be otherwise? That is, fundamental to the proportionality analysis is a probing of the legislative justification for a statutorily prescribed sentence.

The dissent drastically departs from that approach when it says that defendant’s "total" sentence is the appropriate sentence to gauge its effect on the moral sense of reasonable people. That approach focuses on the sentencing court’s discretion—in this case, the sentencing court’s hypothetical exercise of discretion—rather than on the legislative justification for the imposition of 25 years of prison for the violations of ORS 163.670 that triggered ORS 137.690. See 293 Or. App. at 688-89, 430 P.3d at 141–42 (Garrett, J., dissenting). We also conclude that when ORS 137.690 and its intent are properly considered, the framework supplied by Rodriguez/Buck is adequate to analyze the constitutional proportionality of defendant’s challenged 25-year prison sentences. We proceed to explain further that conclusion.

First, the Supreme Court considers ORS 137.719 a recidivism statute: A true-life sentence is triggered under ORS 137.719"if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence," and, consequently, the court has described it as a "recidivism statute for felony sex offenders." Wheeler , 343 Or. at 654, 175 P.3d 438 ; see id . at 678, 175 P.3d 438 (" ORS 137.719(1) is a recidivism statute that applies to defendant only because he has two prior felony convictions for sex crimes.").⁷ That purpose of ORS 137.719(1) acutely informs the reasoning of the court’s jurisprudence, which is that relatively innocuous conduct may merit a true-life prison sentence if the defendant has been proven incorrigible and thus constitutes a threat to the public. See Wheeler , 343 Or. at 676-77, 175 P.3d 438 (the legislature is permitted "to impose enhanced sentences on recidivists even if those sentences would be disproportionate when applied to a defendant without prior convictions"); Althouse , 359 Or. at 687, 375 P.3d 475 ("[D]efendant, over a 30-year period, has been convicted of sexual abuse and sodomy of his own and other people’s children, as well as public indecency.").⁸ In contrast, ORS 137.690 has a different aim. Whereas ORS 137.719 concerns the recidivist’s third conviction for any sex crime (as included in ORS 163A.005, see ORS 137.719(4) ), ORS 137.690 concerns the imposition of a 25-year sentence for persons who have been convicted of the gravest sex crimes more than once. That is, it applies to "major felony sex crimes"—first-degree rape, sodomy and sexual penetration (sex crimes inflicted by forcible compulsion or upon victims younger than 12) and using a child in a display of sexually explicit conduct—and does not require any conviction prior to the current sentencing to be triggered. ORS 137.690 applies when a defendant has more than one major felony sex crime conviction, but yet allows a previous conviction to be the predicate conviction even if it is imposed in the same sentencing proceeding. ORS 137.690 (" ‘Previous conviction’ includes a conviction for the statutory counterpart of a major felony sex crime in any jurisdiction, and includes a conviction in the same sentencing proceeding if the conviction is for a separate criminal episode as defined in ORS 131.505.").

7 ORS 137.719(1) provides:

"The presumptive sentence for a sex crime that is a felony is life imprisonment 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."

Thus, ORS 137.719 differs from ORS 137.690 in that it requires two convictions prior to a defendant’s current sentencing proceeding.

8 We note that the court has used the term "repeat offender" synonymously with the term recidivist. See Wheeler , 343 Or. at 678, 175 P.3d 438. ("As [Smith and Jensen v. Gladden , 231 Or. 141, 372 P.2d 183 (1962), two decisions that concerned recidivism statutes] made clear many years ago, the legislature may protect society from those who cannot or will not conform their behavior to criminal statutes by imposing more severe sentences on repeat offenders. That is what the legislature did by enacting ORS 137.719(1)."). Similarly, the Supreme Court used the term "repeat offender" in Althouse within the specific context of ORS 137.719 —a recidivist statute. See Althouse , 359 Or. at 687-89, 375 P.3d 475 (using "repeat offender" synonymously with recidivist and relying on Smith , Jensen , and Tuel (also a decision concerning a recidivist statute) ).

Because the statute allows the "previous" major felony sex crime conviction to be sentenced in the same proceeding, it is less concerned with the goal of protecting the public from recidivist sex criminals, and more concerned with the protection of the public from those persons who have committed the very worst sex crimes more than once. See Multnomah County Ballot Guide 76, November 2010 ("These are the worst of the sexual predators. We need to keep them behind bars to protect the public."). Indeed, the arguments in favor of Measure 73 in the Voters' Pamphlet nowhere evince an intent to address the problem of recidivism of violent sex offenders. See Multnomah County Ballot Guide 76 (arguments in favor of the measure explaining that it is meant to "protect its citizens from harm" and "provide justice to victims of crime" by incarcerating the "worst of * * * repeat," but not recidivist, offenders). Rather, ORS 137.690 appears to be justified by a belief that the second-time offender of a "major felony sex crime," i.e. , the most heinous violent sex crimes, requires punishment in excess of what is available under Measure 11. That is, ORS 137.690 imposes an enhanced sentence on persons who commit a second-time first-degree rape, sodomy, and unlawful sexual penetration (generally, penetration or sexual contact by forcible compulsion or of a child 11 years old or younger) or use a child in a display of sexually explicit conduct (generally understood as creating child pornography or live sex shows), persons who were described in the Voters' Pamphlet as the "worst repeat violent sex offenders." See Multnomah County Ballot Guide 76.

As a result, we view with skepticism the dissent’s view that the Supreme Court’s case law compels an approach that reduces the proportionality analysis in this case to "a broadly contextual one in which the characteristics of the defendant and his conduct, not just the narrow underlying offense, matter," 293 Or. App. at 685, 430 P.3d at 140 (Garrett, J., dissenting), and that, consequently, includes all of the criminal conduct for which defendant was sentenced in the same sentencing proceeding, even if none of the conduct, as we explain below, constitutes the most heinous of sexual crimes. To begin with, the dissent’s "contextual" approach amplifies the characteristics of defendant and his overall conduct while it ignores other contextual factors identified in Rodriguez/Buck . That is, in Rodriguez/Buck , the Supreme Court instructed that courts may also consider "case-specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim. " 347 Or. at 62, 217 P.3d 659 (emphasis added). When those other factors are considered, as we do below, 293 Or. App. at 641-42, 430 P.3d at 116 (considering that defendant was in his late-adolescence, that defendant and the sexting victims were in the same peer group, and that defendant’s lack of previous convictions of any kind or other evidence does not indicate incorrigibility), the first factor in the Rodriguez/Buck test is fairly applied.

Moreover, the justification the court has developed in facial and as-applied challenges under ORS 137.719(1) in Wheeler and Althouse depends on the principle that the legislature is entitled to provide enhanced sentences when a defendant has been proven highly resistant to reform because the person has reoffended after the state has previously punished him or her. The court’s analysis under that statute—and other recidivist statutes—has focused on that justification, and we cannot discern a reason for the application of that justification to the statute at issue here. Likewise, we reject the state’s position that ORS 137.690 is "analogous" to ORS 137.719 and that, therefore, because of defendant’s multiple convictions, the second Rodriguez/Buck factor (comparison of penalties imposed for other related crimes) has little relevance to the proportionality analysis.

Because ORS 137.690 does not operate as a recidivist statute in this case—given that defendant’s convictions were imposed under the same sentencing proceeding and he had been neither convicted nor sanctioned for any criminal offenses before that sentencing proceeding—we apply the test set out in Rodriguez/Buck . Nevertheless, when considering the gravity of the offense compared to the severity of the penalty, we necessarily recognize that the 25-year sentences imposed under ORS 137.690 in this case were for multiple offenses involving using a child in a display of sexually explicit conduct. Engaging in that properly-framed review, we conclude, as explained below, that the actual conduct in which defendant engaged falls short—far short—of conduct that could be considered by a reasonable person to be the most reprehensible of sex crimes, which is the legislative justification for the sentences he received.

II. DEFENDANT'S CONDUCT

Because the jury found defendant guilty of the relevant charges, we view the evidence presented at trial in the light most favorable to the state. Davidson , 360 Or. at 373, 380 P.3d 963.

The crimes forming the basis of defendant’s convictions occurred during a period beginning when defendant was 16 and ending when he was 18, when he pursued, often successfully, sexual activity with eight girls who were between two and four years younger than he was. The investigation of defendant began on November 7, 2012, when the mother of 13-year-old CB discovered and reported to police a text message thread on a cell phone involving discussions of sexual activity between defendant and CB, which included defendant telling CB that he loved her and asking her to perform oral sex on him as well as asking for "pictures." CB testified at trial that she was "pretty sure" that she had sent pictures of herself holding her naked breasts because defendant had asked her to. CB’s mother believed that defendant had sexually penetrated CB; CB provided inconsistent accounts to investigators of the sexual contact between her and defendant. For his conduct with CB, defendant was convicted of inducing a child to engage in a display of sexually explicit conduct and first-degree sexual abuse.⁹ For the first-degree sexual abuse conviction, defendant received a 70-month sentence and, for the child-display conviction, he received a 75-month sentence as required by ORS 137.700 (Ballot Measure 11), which serves as the predicate conviction for the remaining 10 child-display convictions for which defendant was sentenced under ORS 137.690 (Ballot Measure 73).In May 2013, 16-year-old PG reported a domestic violence incident involving defendant, who was then 18 years old. At the time, PG shared an apartment with defendant and their two-month-old son. PG and defendant were arguing about finances, and PG was angry because she had discovered on defendant’s cell phone nude pictures of other girls. The argument escalated, and defendant pushed PG down about 10 times and, at one point, held her down and punched her in the head. PG testified that when she was 15 or 16, she took nude photos—of her breasts and vagina, and of herself masturbating—and sent them to defendant. According to PG, defendant never asked for the pictures—she sent them unsolicited—but he did "express that he liked" them. At trial, PG testified that she still loved defendant and that she was unhappy that he was being prosecuted and that she had been called to testify against him. Concerning defendant’s conduct as to PG, defendant was convicted of using a child in a display of sexually explicit conduct, ORS 163.670 ; fourth-degree assault constituting domestic violence; and second-degree encouraging child abuse.¹⁰ For the child-display conviction, he received a 25-year sentence; for the fourth-degree assault conviction, a 25-month sentence; and, for second-degree encouraging child abuse, a 15-month sentence.

9 Defendant was found not guilty of second-degree rape and second-degree unlawful penetration.

10 Defendant was acquitted of first-degree encouraging child abuse and strangulation constituting domestic violence.

During the course of the domestic violence investigation concerning PG, police obtained a warrant to search and analyze defendant’s cell phone. Upon doing so, they discovered images of naked breasts and partially clothed girls that had been sent to defendant by PG and six other girls. Police used the information associated with the images to contact the victims.

Defendant began sexually penetrating BB and subjecting her to other sexual activity when she was 14. He also asked that she send him pictures of her breasts and buttocks, and complimented her when she did. For his conduct with BB, he was convicted of two counts of using a child in a display of sexually explicit conduct, ORS 163.670, and third-degree rape and sodomy, ORS 163.355, ORS 163.385. Defendant received a 25-year sentence for each child-display conviction and 25-month sentences for the third-degree rape and sodomy convictions.

LA was 14 and 15 years old when she sent defendant nude pictures of herself, sometimes because he asked for them and sometimes spontaneously. He did not pressure her, but encouraged and complimented her when she did so. Defendant was not specific about the kinds of pictures he had in mind, except that one time he specifically asked for nude pictures. KH was 14 years old when she took a top-less picture of herself and text messaged it to defendant, after he had asked her to do so. DM was about two years younger than defendant when he asked for, and DM sent, a picture in which her breasts and her vagina were exposed. Defendant responded to the picture by asking for more. PH was 15 when she sent nude and clothed pictures of herself to defendant via text. She sent the "sexually suggestive" pictures sometimes because defendant requested them and sometimes without him asking so that she could "get his attention." For his conduct with these victims, with whom defendant was not charged with having had physical sexual contact, defendant was convicted of seven counts of using a child in a display of sexually explicit conduct; for each conviction he received a 25-year sentence under ORS 137.690.The pictures that JB sent to defendant were not of nudes, but when police contacted her, she stated that defendant had sexually penetrated her beginning when she was 12 years old and continuing until she was 14. For that conduct, defendant was convicted of two counts of second-degree unlawful sexual penetration, ORS 163.408, for which he received Measure 11 sentences of 75 months each.¹¹

11 Defendant was charged and found not guilty of first-degree sexual abuse.

The state recommended to the sentencing court that defendant serve a total of 25 years imprisonment. Defendant argued that the state’s recommended 25-year sentence for 10 of the ORS 163.670 convictions was constitutionally disproportionate under Rodriguez/Buck .¹² The court agreed to sentence defendant according to the state’s recommendation, finding significant that there was not one specific incident but a "huge totality of circumstances that included taking pictures and then acting upon them and using the self-esteem of these victims and crashing their self-esteem and using the sex acts in addition." What struck the court as significant was that the eight victims were "particularly vulnerable" and "desperate" for defendant’s "attention, approval, and love" and that is why they sent him images of themselves and allowed defendant to subject them to sexual acts. The sentencing court appears not to have engaged with the constitutional proportionality of the 25-year sentences for the child-display convictions, stating that it was "going to leave a lot of those legal arguments to a higher court to determine."

12 Defendant also argued that the Ballot Measure 11 sentence of 70 months' imprisonment for using a child in a display of sexually explicit conduct was constitutionally disproportionate as applied to his conduct, but does not pursue that argument on appeal.

In sum, defendant was convicted of 11 counts of using a child in a display of sexually explicit conduct; one count of first-degree sexual abuse; one count of fourth-degree assault constituting domestic violence; one count of second-degree child abuse; one count of third-degree rape; one count of third-degree sodomy; and two counts of second-degree sexual penetration. Because the sentencing court ordered that all of the sentences be served concurrently, defendant was sentenced to a total of 25 years in prison.III. CONSIDERATION OF RODRIGUEZ/BUCK FACTORS

A. The Penalty and the Offense

Under Rodriguez/Buck , we first compare the severity of the penalty to the gravity of the offense. Although the 25-year sentences in these cases are not as severe as the true-life sentences imposed on the defendant in Althouse (and those held constitutionally disproportionate in Davidson ), they are four times as long as the 75-month sentences held by the Supreme Court to be constitutionally disproportionate for the conduct constituting first-degree sexual abuse in Rodriguez/Buck . The 25-year sentence is also equivalent to the sentence imposed for murder. See ORS 137.700 (providing for 300 months (25 years) of imprisonment for murder under ORS 163.115 (intentionally committing criminal homicide) ).A 25-year imprisonment sentence is an extremely severe penalty . We proceed to compare that penalty to the gravity of the offense, recognizing that the challenged penalties arise not just from a single offense of using a child in a display of sexually explicit conduct but from 11 convictions and also from the fact that defendant was convicted of other offenses in the same sentencing proceeding. In making the comparison, we look at the range of conduct prohibited by ORS 163.670 and consider defendant’s specific conduct—using case-specific factors such as characteristics of defendant and the victims, the relationship between defendant and the victims, and the harm to the victims—to determine where on the range of prohibited conduct defendant’s conduct falls. Rodriguez/Buck , 347 Or. at 62, 69, 217 P.3d 659.

ORS 163.670 prohibits using a child in a display of sexually explicit conduct, which occurs "if the person employs, authorizes, permits, compels or induces a child to participate or engage in sexually explicit conduct for any person to observe or to record in a visual recording." We have characterized ORS 163.670 as describing the most serious of a group of related offenses that concern the visual recording and observation of children engaged in sexually explicit conduct that also include encouraging child sexual abuse, ORS 163.684 ; ORS 163.686 ; ORS 163.687, possession of materials, ORS 163.688 ; ORS 163.689, and failure to report child pornography, ORS 163.693. State v. Porter , 241 Or. App. 26, 33, 249 P.3d 139, rev. den. , 350 Or. 530, 257 P.3d 1020 (2011). It "proscribes live presentations of sexually explicit conduct involving a child as well as the creation of visual recordings of sexually explicit conduct involving a child," id. at 33-34, 249 P.3d 139 (contrasting ORS 163.670 to less serious child pornography offenses that do not involve directly the creation of child pornography), and is intended to prevent " ‘the underlying harm caused by child sexual abuse,’ " id . at 32-33, 249 P.3d 139 (quoting State v. Stoneman , 323 Or. 536, 547, 920 P.2d 535 (1996) ).

ORS 163.670 proscribes a particularly broad range of conduct. See Rodriguez/Buck , 347 Or. at 61, 217 P.3d 659 (in an as-applied proportionality analysis, an "individual defendant’s specific criminal conduct is particularly significant when the criminal statute at issue covers a broad range of activity, criminalizing a variety of forms and intensity of conduct"). In addition to the various activities that constitute "using" a child (a person can employ, authorize, permit, compel, or induce a child to participate or engage in sexually explicit conduct) and the age range of a "child"¹³ from prepubescent children to adolescents one day short of 18 years of age, the defined term "sexually explicit conduct" encompasses a wide range of conduct as defined by ORS 163.665(3) : sexual intercourse or deviant sexual intercourse, genital-genital, oral-genital, anal-genital contact, oral-anal contact between humans or between humans and animals, penetration of the vagina or rectum by an object (other than as part of medical treatment or for personal hygiene practices), masturbation, sadistic or masochistic abuse, or lewd exhibition of sexual or other intimate parts. The gravest conduct that constitutes displaying a child in sexually explicit conduct is the visual recording or the live presentation of a child engaged in sexual acts. See, e.g. , State v. Ciancanelli , 339 Or. 282, 286, 121 P.3d 613 (2005) (the proprietor of a business used a child in a display of sexually explicit conduct by featuring a live show that consisted of a performer under 18 years of age who performed a striptease, rubbed her breasts against undercover officers' chests, and engaged with oral sex with another dancer); State v. Ross , 199 Or. App. 1, 3, 110 P.3d 630, adh'd to as modified on recons. , 200 Or. App. 143, 113 P.3d 921 (2005), rev. den. , 340 Or. 157, 130 P.3d 786 (2006) (involving a father observing the group sex of his three children, ages 9-12); Porter , 241 Or. App. at 28, 249 P.3d 139 (the defendant allowed various members of the household—the defendant, his wife, and two male roommates—to observe his 15-year-old stepdaughter posing and remaining in sexual positions in common areas of the house).¹⁴

13 For purposes of ORS 163.670 and the other child pornography statutes, ORS 163.665(1) defines a "child" as

"a person who is less than 18 years of age, and any reference to a child in relation to a visual recording of the child is a reference to a person who was less than 18 years of age at the time the original image in the visual recording was created and not the age of the person at the time of an alleged offense relating to the subsequent reproduction, use or possession of the visual recording."

14 Although sexting falls under the wording of ORS 163.670, the concurring opinion sets out legislative history that persuasively establishes that the "legislature has never identified sexting as a social ill that it set about to deliberately criminalize, or affix a penalty to" and that sexting is proscribed by ORS 163.670 by "historical happenstance," not by "deliberate legislative choice." 293 Or. App. at 673, 430 P.3d at 133 (James, J., concurrence).

Further, defendant’s challenged sentences do not derive solely from convictions in violation of ORS 163.670, but because those convictions constitute, under ORS 137.690, "major felony sex crime[s]" penalized by a mandatory imprisonment term of 25 years, we consider the crimes triggering the application of ORS 137.690. In addition to ORS 163.670, a "major felony sex crime" for purposes of ORS 137.690 includes first-degree rape, ORS 163.375, first-degree sodomy, ORS 163.405, and first-degree sexual penetration, ORS 163.411. Thus, ORS 137.690 is triggered by a range of criminal conduct, as serious as sexual penetration and deviate sexual intercourse (defined as "sexual conduct consisting of contact between the sex organs of one person and the mouth or anus of another," ORS 163.305(1) ) by means of forcible compulsion or with a child under the age of 12, and as minor as the crime at issue here.

The state posits that when voters approved ORS 137.690 in November 2010 by Ballot Measure 73, they intended the measure to encompass defendant’s conduct. That is, in the state’s view, because the Voters' Pamphlet included statements made in opposition to the measure asserting that it would encompass "sexually suggestive images by text message or email," Multnomah County Ballot Guide 78, November 2010, the voters' intent can be discerned and can therefore assist in the determination of whether the "penalties would shock the moral sense of reasonable people." Wheeler , 343 Or. at 670-71, 175 P.3d 438. The state argues that "voters rationally could have concluded that anyone, such as defendant, who has committed the crime of unlawful use of a minor in a display of sexually explicit conduct on multiple occasions, poses special risks of harm to minors and to the public, such that a 25-year prison term is warranted."

The state is correct that, among the nine pages of text describing the measure and the arguments in favor (one page) and the arguments opposed (4 pages), opposition to the measure identified sending sexually explicit texts as falling under the definition of using a child in a sexually explicit display. It is also true, however, that the argument in favor of Measure 73 was that the measure was meant to send the "worst of the sexual predators" to prison for at least 25 years, i.e. , put "the worst violent sex offenders behind bars for a long time." Multnomah County Ballot Guide 76, November 2010. None of the arguments in favor of Measure 73 addressed in particular the conduct of teenagers who request or send sexually suggestive images, much less described those who do so as the "worst of the sexual predators" or asserted that the measure was needed to address the issue. See 293 Or. App. at 668-69, 430 P.3d at 130–31 (James, J., concurring). Moreover, in response to concerns that teenage sexting would be swept up by the measure, the proponents of Measure 73 emphatically asserted that district attorneys would not charge teenaged sexting under Measure 73. Id . at 670-71, 430 P.3d at 131–33 (James, J., concurring).

As the concurring opinion sets out, it is apparent that the voters never intended Measure 73 to include defendant’s conduct. 293 Or. App. at 672-73, 430 P.3d at 133–34 (James, J., concurring) (" ORS 137.690, passed by the voters as part of Measure 73, was designed and marketed to the voting public as a measure targeting a group of offenders described as ‘the worst,’ ‘predators,’ ‘violent,’ ‘serial rapists,’ and ‘serial child pornographers.’ Proponents of the measure estimated it would affect a very small group, ‘15 to 20, * * * a very small group of the worst sex offenders.’ ").¹⁵

15 In any event, as the court stated in Rodriguez/Buck in addressing the state’s similar argument regarding the voters' intent as to Measure 11:

"It is certainly true that the passage of Measure 11 demonstrated support for specific sentences, including for first-degree sexual abuse. Voters, however, expressed no opinion as to the imposition of a specific sentence in any particular factual circumstances, much less that any sentence imposed under Measure 11 should be exempt from the usual process of judicial review to determine compliance with constitutional limitations. Had the people of Oregon wished to do so, they could have expressly exempted Measure 11 from the proportionality requirement of Article I, section 16, by amending the Oregon Constitution, as they did when they amended the constitution to permit the death penalty for aggravated murder."

347 Or. at 70 n. 13, 217 P.3d 659. Likewise here, voters did not amend the Oregon Constitution so that the sentences enacted in law would be exempt from judicial review to determine whether they ran afoul of the proportionality requirement of Article I, section 16.

As to the seriousness of the conduct here, we first note that the conduct that defendant and his victims engaged in is common among teenagers. Indeed, requesting and sending sexually explicit self-portraits via a camera phone is a common enough behavior to have engendered the term "sexting." See Merriam-Webster Unabridged Dictionary , https://www.merriam-webster.com/dictionary/sexting (accessed Aug. 30, 2018) ("the sending of sexually explicit messages or images by cell phone"); 293 Or. App. at 649-51, 430 P.3d at 120–22 (James, J., concurring) (explaining that a sext is self-created by the person appearing in the image sent by a camera phone and is voluntarily sent). And, like other consensual sexual activities in which adults engage, so do teens.¹⁶ Recognizing its frequency is not meant to trivialize its harm, but to acknowledge that requesting and sending to another teenager nude photos that are self-produced is commonly viewed among teenagers as a form of voluntary sexual activity rather than what one would typically understand as child pornography.

16 One study reported that 11% percent of teen girls ages 13 to 16 had admitted to producing and distributing nude or seminude pictures of themselves. John A. Humbach, Sexting and the First Amendment , 37 Hastings Const. L.Q. 433, 435 (2010) (citing National Campaign to Prevent Teen and Unplanned Pregnancy, Sex and Tech: Results from a Survey of Teens and Young Adults 1 (2008) ). Another study that analyzed nearly 500 accounts from 12 to 18-year-old girls about negative experiences with sexting discovered that over two-thirds had been solicited to send explicit images of themselves. Study cited by Lisa Damour, Teenagers, Stop Asking for Nude Photos , New York Times (Jan. 2, 2018). See also Lori Tobias, ‘Sexting’ in Newport: Dumb Prank or Child Porn? , OregonLive, March 28, 2009, http://www.oregonlive.com/news/index.ssf/2009/03/sexting_in_newport_dumb_prank.html (a "sexting" investigation is an example of "a rapidly growing trend in which teens share revealing images of themselves or others via cell phone."); see also 293 Or. App. at 651, 430 P.3d at 121 (James, J., concurring) (discussing prevalence of sexting among teens).

Although we recognize the harm, or potential harm, suffered by the victims, we cannot ignore three salient facts concerning defendant’s conduct in relation to other conduct that is proscribed by ORS 163.670, and in light of defendant’s relationship to the victims, the characteristics of the victims and defendant, and the harm to the victims. Rodriguez/ Buck , 347 Or. at 62, 217 P.3d 659. As we explain, those facts considered in combination support a conclusion that the underlying harm of defendant’s actions was relatively minor when compared to the underlying harm inherent in typical instances of using a child in a display of sexually explicit conduct. See Porter , 241 Or. App. at 33, 249 P.3d 139 (purposes "of ORS 103.665 through 163.693 is to prevent the underlying harm caused by child sexual abuse") (quoting Stoneman , 323 Or. at 547, 920 P.2d 535 ).

First , defendant "induced" the victims to participate in creating the images by simply asking for or encouraging them. Defendant did not threaten or force the victims to take nude self-portraits and send them to him. Whereas inducing, permitting, or compelling a child to participate in what one typically would view as the display of a child in sexually explicit conduct or child pornography ordinarily requires more exploitative behavior or abuse to achieve what is obviously an abhorrent act, defendant’s requests were facilitated by a common practice among teenagers. To "induce" is commonly understood to mean to persuade or influence. See Webster’s Third New Int'l Dictionary 1154 (unabridged ed. 2002) (induce defined as "to move and lead (as by persuasion or influence) * * * prevail upon : INFLUENCE, PERSUADE"). Among the ways one can persuade another person to send a nude image, defendant’s requests or compliments were relatively nonaggressive.

Second , the images, limited to nude self-portraits, were self-created and sent by the victims. Defendant neither was physically present when the victims made the nude self-portraits nor was he there to direct them to engage in poses or sexual behavior while he recorded them. That is in contrast to much of the conduct that is associated with the production of child pornography that necessarily implicates the sexual abuse of children. See generally Stoneman , 323 Or. at 546, 546 n. 12, 920 P.2d 535 (in the determining constitutionality of former ORS 163.680 (1987), repealed by Or. Laws 1995, ch. 768, § 16 (paying for child pornography), noting that the production of visual recordings of children participating in sexually explicit conduct "necessarily involves harm to children," citing various crimes that subject children to sexual contact ); see also Ashcroft v. Free Speech Coalition , 535 U.S. 234, 241-42, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (holding that the constitutional protections recognized in Miller v. California , 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), apply to a virtual pornography statute because child pornography that does not depict an actual child is not the product of child abuse); New York v. Ferber , 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (distinguishing child pornography from other sexually explicit speech constitutionally protected under Miller , because of the state’s interest in protecting children exploited by the production process).

Third , defendant, a teenager himself and under 18 years of age during some of the conduct, was only two to four years older than the victims. We do not mean to suggest that the age differences between defendant and the victims played no role in the degree to which his conduct was harmful or exploitive; some of the conduct, such as the predicate conviction involving CB, is of particular concern. Nevertheless, the age differences here are distinguishable from cases involving older adults who request nude images from children. See State v. Hunt , 270 Or. App. 206, 207-08, 346 P.3d 1285 (2015) (defendant, 25 years old, violated ORS 163.670 by asking by text message the 13-year-old victim to send him a "naughty" picture); see also 293 Or. App. at 638, 430 P.3d at 114 (discussing a defense to sexual crimes when the defendant is less than three years older than the victim). Further, the victims were not prepubescent children. See Ross , 199 Or. App. at 3, 110 P.3d 630 (involving victims who were ages nine to 12 ( ORS 163.670 ) ).

ORS 137.690 imposes the same punishment for the conduct at issue in this case as for a second offense of rape by forcible compulsion, regardless of the age of the victim, or a second offense of sexual intercourse with a nine-year-old victim. Reasonable people would view the former conduct as much less severe and harmful to the victims than the latter criminal acts. We share the state’s concern that defendant’s conduct was not "innocuous" and that there was significant harm to the victims because they were young and "particularly vulnerable." It is clear that many of the victims felt that they were harmed to various degrees¹⁷ and that defendant’s actions created the risk of long-lasting harm to the victims because he retained the images on his phone, viewed them for his own sexual gratification, and could have shared them at any time.¹⁸ That is not, however, the relevant inquiry. An as-applied challenge to a sentence as disproportionate under Article I, section 16, is a challenge that the offense is not proportionate to the penalty, here, 25 years. That is, the offense and the penalty must "bear a sufficient relationship" to each other. Rodriguez/Buck , 347 Or. at 59, 217 P.3d 659. The state, here, fails to explain how the penalty is proportionate in light of other, significantly more severe conduct that also falls under ORS 163.670 and ORS 137.690.

17 The evidence of harm to the victims, however, comes mostly from their parents. Without meaning to minimize the pattern of exploitive behavior evident in defendant’s conduct and the very understandable alarm expressed by the victims' parents, it is worth noting the likelihood that the interpretation of the victims' upset by their parents might well differ from what the victims themselves would identify as the harm they experienced. It appears from the record that all or most of the victims believed their relationship with defendant was an exclusive one and that they were upset when they learned of his contacts with other victims. The record leaves room for doubt that the upset they experienced was actually attributable to the conduct which was the subject of the criminal convictions at issue: inducing the creation and transmission of sexually suggestive images.

18 The state’s view is that defendant’s conduct was harmful, in part, because once the victims sent nude images of themselves, they were powerless to prevent those photographs from being circulated to others. We point out, however, that sharing such images is prohibited by ORS 163.684 (first-degree encouraging child sexual abuse) and that defendant was not convicted of that crime. The state acknowledges that the record does not indicate that defendant circulated any of the images.

As noted, the court in Rodriguez/Buck stated that "when the criminal statute at issue covers a broad range of activity, criminalizing a variety of forms and intensity of conduct," an "as-applied proportionality analysis that considers the facts of an individual defendant’s specific criminal conduct is particularly significant." 347 Or. at 61, 217 P.3d 659. Here, to be sure, perhaps the most innocuous conduct that would implicate ORS 163.670 and ORS 137.690 would be a 17-year-old who twice asks for and receives from another 17-year-old nude images by cell phone (or in person— ORS 163.670 prohibits inducing the live observation of a child’s sexual or other intimate parts). We recognize that defendant’s conduct does not fall at that very outer edge of prohibited contact. Nevertheless, when compared to other conduct prohibited by ORS 163.670 or that triggers ORS 137.690, defendant’s conduct falls toward the less serious range of conduct implicated here.

B. The Penalties for Related Offenses

We next turn to comparing the penalty at issue—25-year sentences—to the penalties for other related crimes. "If the penalties for more ‘serious’ crimes than the crime at issue result in less severe sentences, that is an indication that the challenged penalty may be disproportionate." Rodriguez/Buck , 347 Or. at 63, 217 P.3d 659. For this factor, defendant groups the victims into two categories: (1) those who were 14, 15, and 16 years old and were less than three years younger than defendant when he committed the offenses (PG, KH, DM, and PH) and (2) those who were 14 years old and more than three years younger than defendant (BB and LA). For the first group, ORS 163.345 provides a defense to second-and third-degree rape, second- and third-degree sodomy, first- through third-degree sexual abuse; and contributing to a minor’s sexual delinquency if the victim’s incapacity to consent is solely because they are younger than a certain age.¹⁹ For example, second-degree rape is committed when a person sexually penetrates another person who is under 14 years of age, but a defense to prosecution is available if, for example, the accused is less than three years older than the underage person. For the second group, defendant points out that he was convicted of third-degree rape and sodomy for engaging in sexual intercourse and oral sex with BB because of her legal incapacity to consent as someone under the age of 16, and that he was sentenced to 25 months imprisonment for each of those crimes, which are neither Measure 11 crimes nor considered "major felony sex crimes" for the purpose of Measure 73. Hence, the 25-year imprisonment penalties he received for soliciting a nude picture more than once were significantly greater—12-fold—than the penalty for those convictions involving physical sexual offenses, or possible similar convictions.

19 ORS 163.345 provides:

"(1) In any prosecution under ORS 163.355, 163.365, 163.385, 163.395, 163.415, 163.425, 163.427 or 163.435 in which the victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age, it is a defense that the actor was less than three years older than the victim at the time of the alleged offense.

"(2) In any prosecution under ORS 163.408, when the object used to commit the unlawful sexual penetration was the hand or any part thereof of the actor and in which the victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age, it is a defense that the actor was less than three years older than the victim at the time of the alleged offense.

"(3) In any prosecution under ORS 163.445 in which the victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age, it is a defense that the actor was less than three years older than the victim at the time of the alleged offense if the victim was at least 15 years of age at the time of the alleged offense."

For its part, the state concedes that age-related sex offenses are related to the child-display convictions, but contends that such a comparison is not helpful or significant in instances when the criminal conduct being sentenced is not "innocuous" or when there are multiple victims and crimes. We reject that argument. The crimes in both Rodriguez/ Buck and Davidson were decidedly not "innocuous." In Rodriguez/Buck , the court was careful to clarify that it did not mean to suggest that the "defendants' conduct caused no harm to their victims," recognizing that sexual abuse potentially causes psychological and physical harm. 347 Or. at 70 n. 14, 217 P.3d 659. In Davidson , the court likewise recognized that the defendant’s repeated instances of public masturbation "will continue to cause upset and possible harm to people who observe him exposing himself and masturbating." 360 Or. at 385, 380 P.3d 963. As to the multiple instances of the conduct, we see nothing in the court’s analysis in Rodriguez/Buck that suggests that we should address that apart from considering defendant’s criminal history.

With that in mind, as for the first group of victims—those who were less than three years younger than defendant—the penalty imposed for soliciting nude images by cell phone readily raises proportionality concerns. As we discussed above, the conduct of asking the victims to send pictures of themselves naked—to "sext" him—is toward the "outer edge," see Rodriguez/Buck , 347 Or. at 75, 217 P.3d 659, of what constitutes using a child in a display of sexually explicit conduct. We cannot conclude that such conduct warrants such a grave penalty when actual physical contact between defendant and the victims would not be prosecutable. As for the second group of victims, we similarly cannot conclude that the harm of defendant’s conduct in requesting sexually explicit images is of a magnitude so much greater than the harm of engaging in physical sexual activity that it deserves sentences far greater than could be imposed for rape and sodomy by reason of the victims' incapacity to consent. The comparisons here indicate that the Measure 73 sentences imposed on defendant are disproportionate to his conduct.

C. Criminal History

The third Rodriguez/Buck factor is an assessment of defendant’s criminal history. The parties dispute how defendant’s multiple victims and multiple convictions should be considered for the purpose of assessing proportionality. The state posits that defendant qualifies as a "repeat offender" and that we should consider all of defendant’s convictions—and also the conduct for which he was found not guilty—as part of the criminal history factor. See Rodriguez/Buck , 347 Or. at 78, 217 P.3d 659 (proportionality requires consideration of "whether a defendant is a repeat offender by considering previous criminal convictions and whether there is evidence of multiple instances of uncharged conduct"). Because defendant did more than victimize a single victim on a single occasion, the challenged sentences do not, in the state’s view, shock the moral sense of reasonable people.

Defendant asserts that a repeat offender for proportionality purposes is an offender who has reoffended after having been previously convicted and served a sentence. In his view, the Supreme Court has made clear that the state has a constitutionally permissible interest in imposing sentences "to rid itself of depravity when its efforts to reform have failed." Smith , 128 Or. at 525, 273 P. 323 ; see also Rodriguez/Buck , 347 Or. at 77, 217 P.3d 659 (the criminal history "inquiry is relevant * * * because a defendant who previously has been convicted of and served sentences for other crimes has demonstrated, by committing additional crimes, that the previously imposed sentences were insufficient to prevent the defendant from returning to his or her criminal behavior"); Jensen v. Gladden , 231 Or. 141, 145, 372 P.2d 183 (1962) (the defendant’s indeterminate life sentence for an indecent exposure conviction after having first served a sentence for contributing to the delinquency of a minor was proportional: Whether a sentence would shock the moral sense of a reasonable person depends "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").

To begin with, we cannot ignore that, in addition to the 11 convictions for using a child in a display of sexually explicit conduct, defendant was convicted of other felony sex crimes. The harm and victimization defendant left in his wake was broad and serious. Defendant’s rampant sexual misconduct is far from the isolated conduct exhibited by the defendants in Rodriguez/Buck and which supported the Supreme Court’s conclusion that their 75-month sentences were not permissible under Article I, section 16. Accordingly, we agree with the state that, in contrast to the circumstances of Rodriguez/Buck , defendant’s extensive conduct obviates the conclusion that his conduct was isolated. Compare Rodriguez/Buck , 347 Or. at 78, 217 P.3d 659 (concluding that "the absence of any criminal convictions and the single occurrence of the wrongful conduct support the conclusion that a 75-month sentence is unconstitutionally disproportionate to the offenses committed by these defendants").

Nevertheless, central to the Supreme Court’s formulation of the criminal history factor in Rodriguez/Buck is the state’s interest in imposing lengthy sentences to protect the public in light of circumstances when efforts to reform have failed. See 293 Or. App. at 617-18, 430 P.3d at 103–04. The extent of defendant’s conduct is different from the defendant’s conduct in Althouse . There, the Supreme Court concluded that the defendant’s criminal history—30 years of sexual offenses and multiple previous convictions—supported the conclusion that his true-life imprisonment sentence was not constitutionally disproportionate. Here, defendant’s conduct occurred over a relatively shorter period of time, and defendant had no criminal history or encounters with the police prior to the investigation of this case. Moreover, the record lacks any indication that defendant—who was only 16, 17 and 18 when he committed the offenses against other teenagers—is incorrigible or that attempts to reform would fail. Cf. Althouse , 359 Or. at 682, 375 P.3d 475 (the defendant was determined by Oregon State Hospital staff to be a "sexually dangerous person"). That is, the record does not indicate that defendant’s conduct—occurring during his mid- to late-adolescence—reflects the "deeply ingrained pattern of predatory behavior," Id. at 687, 375 P.3d 475 (emphasis added), which justified the enhanced sentences in this case. Defendant’s young age²⁰ and his age relative to the victims, the relatively short period during which his offenses occurred, and the lack of any unsuccessful attempt at rehabilitation support a conclusion that his 25-year sentences are constitutionally disproportionate. Indeed, the state’s presentence investigation—in addition to noting the lack of any criminal history and that defendant had "never been involved with the Criminal Justice System"—fails to point to any criminal risk factor that would support the challenged 25-year prison sentences.

20 In the context of considering whether the juvenile court erred in waiving its jurisdiction over a 13-year old boy, the Supreme Court in State v. J. C. N.-V. , 359 Or. 559, 599, 380 P.3d 248 (2016), acknowledged research indicating that maturity in adolescents—even late adolescents such as defendant—manifests differently than in adults.

"As one researcher in the field has observed, ‘ "[m]aturity" itself is not a unified concept; many youth—especially in later adolescence—may be relatively mature in some ways and not in others. They may be intellectually mature but socially immature; they may have mature decision-making capacities in terms of abilities to consider and weigh options, yet be morally immature in the ways in which they apply those abilities.’ Thomas Grosso, Clinicians' Transfer Evaluations: How Well Can They Assist Judicial Discretion? 71 La. L. Rev. 157, 184 (2010)."

Defendant’s conduct here—sexting with adolescent girls, some several years younger than he was—that was the subject of his 25-year sentences under ORS 137.670 was committed during his late adolescence, a period when adolescents of various ages often interact as a matter of mandatory public school attendance, among other contexts.

Although the dissent is correct that the "heart of the proportionality inquiry under Article I, section 16, is ‘whether the length of the sentence would shock the moral sense of reasonable people,’ " 293 Or. App. at 642-43, 430 P.3d at 117 (Garrett, J., dissenting) (quoting Ryan , 361 Or. at 612, 396 P.3d 867 ), it incorrectly applies that analysis to the totality of defendant’s conduct rather than to the sentences imposed for the sexting offenses. Those are the sentences to which defendant assigns error and, under the framework provided to us by the Supreme Court, those are the sentences that we have determined are constitutionally disproportionate. The Supreme Court has never indicated that the proportionality analysis must focus on the propriety of all of the defendant’s sentences taken together in one sentencing proceeding, on whether the trial court could have arrived at the same, or greater, "package" by a different route, or on whether, on remand, it could permissibly arrive at the same, or greater, "package." Rather, Article I, section 16, requires that "all penalties shall be proportioned to the offense," and, in an as-applied challenge, the Supreme Court has required "a comparison of the severity of the penalty and the gravity of the crime." Rodriguez/ Buck , 347 Or. at 58, 217 P.3d 659.

IV. CONCLUSION

In light of the factors set out by the Supreme Court in Rodriguez/Buck , the 25-year sentences imposed under ORS 137.690 are disproportionate under Article I, section 16, as applied to defendant. There are likely other circumstances where imposing such a sentence for multiple convictions for using a child in a display of sexually explicit conduct, a violation of ORS 163.670, would be constitutional. However, our conclusion applies to the particular combination of circumstances presented here: defendant, when he was 16, 17 and 18 years old, persuaded several girls who were between two to four years younger to take and send to him by cell phone nude self-portraits, and the record lacked evidence that defendant had any interactions with law enforcement or the criminal justice system that would suggest that efforts at reform had failed. Defendant’s conduct, although criminal and harmful, does not constitutionally warrant 25 years of imprisonment, which constitutes one of Oregon’s most severe punishments for any crime.In Case Nos. C131006CR and C131987CR, remanded for resentencing; otherwise affirmed.

James, J., concurring.

Garrett, J., dissenting.

In this case we are asked to determine if the imposition of multiple 25-year terms of incarceration for violation of ORS 163.670, using a child in a display of sexually explicit conduct, for actions best described as "sexting," is constitutionally disproportionate as applied to this defendant. That is, does it shock the moral sense of reasonable people to impose that penalty, for this defendant, for these acts. Like the majority, I conclude that it does and join in that opinion. I write separately, however, to discuss the history behind the statutes at issue in this case and how that history requires that we approach this case in a slightly different manner than previous proportionality challenges.

As I will discuss, an examination of the historical evolution of the statutes at issue in this case evidences that the legislature has never set about, deliberately, to criminalize the behavior that underlies defendant’s convictions under ORS 163.670. Further, the voters of Oregon were repeatedly assured that the 25-year penalty created by Measure 73, codified in ORS 137.690, would not be applied to sexting and that insinuations to the contrary were a "phantom issue." What is more, the proponents of Measure 73 indicated that the imposition of such a penalty, to acts such as defendant’s, would violate constitutional proportionality. Thus, as I explain below, this case presents the rare occurrence where the normal and entirely appropriate judicial hesitancy to wade into proportionality and supplant a presumed legislative judgment that a particular penalty is proportioned to an offense is nonexistent. Far from the norm, the voters who approved ORS 137.690 understood (wrongly or rightly) that the courts, through application of the proportionality clause of Article I, section 16, of the Oregon Constitution, would operate as a safety valve, preventing the application of the sentencing statute to acts such as defendant’s. Given that, I conclude that the imposition of a 25-year sentence for teenage sexting is constitutionally disproportionate. I, therefore, respectfully concur.I. BACKGROUND

A. Proportionality and Legislative Purpose

It is unquestionably the role of the legislature to declare which acts are so offensive to society that they should be criminalized and to accordingly affix a penalty. State v. Smith , 128 Or. 515, 524, 273 P. 323 (1929) ("The 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."). However, Article I, section 16, which provides, in part, that "all penalties shall be proportioned to the offense," imposes on the legislature the constitutional obligation to proportion the sentences it enacts. Thus, although the legislature sets criminal penalties, it cannot do so arbitrarily. Rather, Article I, section 16, requires that it consciously and deliberately engage in a proportioning—investing each legislatively enacted sentence with a rational basis.^{1 1}

1 Article I, section 16, equally applies to the voters when they enact sentencing laws through the initiative process.

1 Under the Oregon Constitution, crimes against multiple victims are separately punishable. Or. Const., Art. I, § 44 (1)(b) ("No law shall limit a court’s authority to sentence a criminal defendant consecutively for crimes against different victims."). Based on the number of offenses, criminal episodes, and victims, defendant could have received an aggregate sentence of 331 months even if he had not been sentenced for "sexting" at all. I do not understand the majority to disagree with that point.

If the legislature fails in this constitutional obligation, either by (a) failing to engage in its obligation to proportion at the outset, or by (b) enacting a sentence beyond the limits of what Article I, section 16, permits, only then does a court step in. For it is the role of the courts to interpret, and give effect to, constitutional provisions. "The requirement that we give effect to the words of an enactment is doubly applicable when the law in question is a constitutional [provision]." Northwest Natural Gas Co. v. Frank , 293 Or. 374, 381, 648 P.2d 1284 (1982). In the first instance, when the legislature fails to engage in proportioning, it falls to the courts to fill that role. In the second, when, despite legislative proportioning, the enacted sentence falls outside what Article I, section 16, permits, it becomes the constitutional obligation of the courts "to enforce this provision of the Bill of Rights, and avoid the judgment so far as it is excessive[,]" even when a sentence is "within the maximum of the statute." State v. Ross , 55 Or. 450, 474, 104 P. 596 (1909), modified on reh'g , 55 Or. 450, 106 P. 1022 (1910), overruled on other grounds by State v. Hanna , 224 Or. 588, 356 P.2d 1046 (1960).A proportionality inquiry under Article I, section 16, whether framed as a facial challenge or an as-applied challenge, asks if the imposition of the sentence would "shock the moral sense" of reasonable people "as to what is right and proper under the circumstances." Sustar v. County Court for Marion Co. , 101 Or. 657, 665, 201 P. 445 (1921). In State v. Wheeler , the Oregon Supreme Court clarified that Article I, section 16, requires "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." 343 Or. 652, 667, 175 P.3d 438 (2007).

Over time, Oregon has developed a nonexhaustive framework to guide courts in determining when a sentence is disproportionate under Article I, section 16. See, e.g. , State v. Rodriguez/Buck , 347 Or. 46, 58, 217 P.3d 659 (2009) (describing "at least three factors that bear upon that ultimate conclusion: (1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant"). That framework has been further developed in cases involving recidivist sentencing schemes. See, e.g. , State v. Althouse , 359 Or. 668, 686, 375 P.3d 475 (2016) (noting that a court will "consider the specific circumstances of the charged and uncharged offenses that make up [a defendant’s] criminal history in assessing [proportionality for recidivist sentences]"). It has also been clarified to take account of intellectual disability. See, e.g. , State v. Ryan , 361 Or. 602, 620-21, 396 P.3d 867 (2017) ("Evidence of an offender’s intellectual disability[,]" if credited, "is relevant to a proportionality determination where sentencing laws require the imposition of a term of imprisonment without consideration of such evidence.").

At its core, all of Oregon’s Article I, section 16, jurisprudence is an attempt to guide courts in navigating the constitutionally imposed tension between the legislative and judicial branches that the "check and balance" mechanism of Article I, section 16, creates. Because of this, the essential predicate inquiry for all proportionality analyses is the search for legislative purpose.^{2 2} As William Blackstone noted, proportionality must be judged in the context of "the particular purpose [the legislative sentencing law] is meant to serve, and by no means exceed it[.]" 4 William Blackstone, Commentaries on the Laws of England 12 (1769). The Oregon Supreme Court has also noted that early American constitutions similarly framed proportionality in the context of legislative purpose:

2 This is not to be confused with legislative intent as that term might more commonly be used in statutory construction. For a proportionality inquiry, we look to the legislative purpose and whether the legislature engaged in its constitutional obligation to deliberately proportion the sentence to the social harm.

2 The record is ambiguous as to whether the conduct underlying one of the counts of conviction occurred on defendant’s 18th birthday or the day before.

"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 undistinguishing severity is exerted against all offences[,] the people are led to forget the real distinction in the crimes themselves, 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 impolitic and unjust. The true design of all punishments being to reform, not to exterminate, mankind."

Wheeler , 343 Or. at 663, 175 P.3d 438 (citing NH Const., Part I, Art. XVIII (1784) and noting that "[o]f 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").

In addition, the Oregon Supreme Court explained:

"[I]mplicit in the court’s analysis is the conclusion that the legislature (and the people, acting through the initiative process) has broad authority to determine which crimes are ‘greater’ and therefore deserving of greater penalties, as long as there is some reasonable basis for that decision * * *. 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."

Wheeler , 343 Or. at 671-72, 175 P.3d 438. Proportionality analysis therefore begins with a search for the rational basis of the legislative action. Jensen v. Gladden , 231 Or. 141, 146, 372 P.2d 183 (1962) ("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."); see also State v. Isom , 313 Or. 391, 400, 837 P.2d 491 (1992) ("The legislature has chosen to subject all such persons to the maximum potential penalty. Defendant’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.").^{3 3}

3 An examination of legislative purpose—the rational basis connecting the legislatively enacted sentence to the social harm that the legislature sought to penalize—is itself closely governed by the other constitutional obligation imposed on the legislature when enacting penalties—Article I, section 15, of the Oregon Constitution. That provision sets the permissible legislative purposes, requiring that "[l]aws for the punishment of crime shall be founded on these principles: protection of society, personal responsibility, accountability for one’s actions and reformation."

3 The reason for considering a defendant’s other criminal conduct is that the heart of the proportionality inquiry under Article I, section 16, is "whether the length of the sentence would shock the moral sense of reasonable people." Ryan , 361 Or. at 612, 396 P.3d 867. Reasonable people consider context. A criminal act that appears one way in a vacuum may take on an entirely different character if it occurs as part of a larger course of conduct. Consider, on one hand, an 18-year-old who engages in innocuous and playful "sexting" with a 17-year-old romantic partner, and, on the other hand, an 18-year-old who uses sexting as a grooming tool with girls four or five years younger than him, with whom he then has sex. For their "sexting," both individuals have committed exactly the same statutory offense of using a child in a display of sexually explicit conduct. But they have done very different things. Thus, the concurring opinion’s effort to define an abstract concept called "sexting," an activity in which many teenagers engage, is misguided. Even assuming that the concurrence’s information is basically accurate, the most we learn is that many teenagers engage in sexting. That tells us nothing about how many 18-year-olds use sexting in the course of committing more serious sex offenses against young children.

An inquiry into legislative purpose—the search for the rational legislative basis behind the penalty—is not an optional addendum to the analysis. Rather, that necessary inquiry sets the guideposts for whether a sentence shocks the conscience under Sustar :

"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 establishing an alternative test. Put differently, in those cases, the court did not abandon the ‘moral shock’ test—indeed, both quoted that test—but rather looked to the legislative enactment of the particular penalties at issue as an external source of law to assist in determining whether those penalties would shock the moral sense of reasonable people."

Wheeler , 343 Or. at 670-71, 175 P.3d 438.

The need to look to the purpose behind the legislative enactment as an external guidepost exists whether the challenge is facial, or as-applied, as in this case. An as-applied challenge merely permits a court to "consider, among other things, the specific circumstances and facts of the defendant’s conduct that come within the statutory definition of the offense, as well as other case-specific factors, such as characteristics of the defendant and the victim." Rodriguez/Buck , 347 Or. at 62, 217 P.3d 659. In doing so, the court is considering the characteristics of this defendant against the hypothetical defendant that motivated the legislative action.

In this case, therefore, before we can appropriately delve into the characteristics of this defendant, or the circumstances of these crimes, and place those within the context of a Rodriguez/Buck / Althouse / Ryan framework, we must first look to the history of the statutes at play, and ask whether the legislature engaged in its constitutionally obligated duty under Article I, section 16, to proportion the sentences it enacts. For this case, that includes two statutes. ORS 163.670, enacted by the legislature, creates the crime of using a child in a display of sexually explicit conduct. ORS 137.690, passed by the voters as part of Measure 73, imposes a mandatory 300-month sentence for "[a]ny person who is convicted of a major felony sex crime, who has one (or more) previous conviction of a major felony crime." Among the offenses classified by that statute as a "major felony sex crime" is using a child in a display of sexually explicit conduct. ORS 137.690(b). Because our ultimate aim is to assess proportionality by comparing the legislative purpose motivating the sentence to the circumstances of this defendant, before discussing legislative history it is helpful to first define the conduct at the heart of this defendant’s prosecution under ORS 163.670 : sexting.

B. Sexting

The Merriam-Webster Dictionary added the word "selfie" to its print and online dictionaries in 2014, along with the words "hashtag," "unfriend," "social networking," "catfish," and "big data." Peter Sokolowski, Editor-at-Large, for Merriam-Webster, characterized the new words of 2014 as showing "the impact of online connectivity to our lives and livelihoods" and "the growing influence technology is having on human endeavor * * * * * [particularly,] illustrating how technology is being used to understand and motivate behavior." Press Release, Peter Sokolowski, Editor-at-Large, Merriam-Webster’s Collegiate Dictionary Updated for 2014 (May 19, 2014), http://www.digitaljournal.com/pr/1926343 (accessed Aug. 29, 2018). He explained that "selfie , and hashtag refer to the ways we communicate and share as individuals." Id. (emphases in original).

In 2014, Merriam-Webster officially defined selfie as "an image of oneself taken by oneself using a digital camera especially for posting on social networks"; colloquially, "a picture that you take of yourself especially by using the camera on your smartphone." Merriam-Webster.com , https://www.merriam-webster.com/dictionary/selfie (accessed Aug. 29, 2018). To take a selfie is to document a fleeting moment of one’s public, or private, life. Turning the lens on ourselves is not a novel concept, however, technology has created new categories, new opportunities, and new modes of self-expression, including the selfie. And not all selfies are created equal. Many researchers and teen magazine readers alike agree that there are vast subcategories of selfies.^{4 4} When the selfie taker strikes a pose with an exaggerated lip pout, it is referred to as a "duck face selfie." Also popular is when the selfie taker directs the lens towards their feet to show the viewers that the selfie taker is traveling or visiting an exotic locale; this selfie is sometimes referred to as a "beach feet brag selfie."^{5 5} There is also the "bathroom selfie," the "bedroom selfie," the "I eat, therefore I am selfie," and the "gym selfie"—all modes of self-portrait meant to show viewers where the selfie taker is or what the selfie taker is doing. Yet, selfies are also used to express self-portraiture in a quasi-autobiographical, quasi-self-publicity fashion according to researchers.⁶ Selfies of this nature include the "abs selfie" and the "booty selfie." Needless to say, this is far from an exhaustive list of the ever-evolving world of selfie subcategories.

4 See generally Kelsey Stiegman, The 8 Kinds of Selfie Faces Every Girl Makes On Instagram , Seventeen (Dec. 15, 2015), https://www.seventeen.com/beauty/a36410/types-of-selfie-faces-on-instagram/ (accessed Aug. 29, 2018).

4 See also State v. Parker , 259 Or. App. 547, 549, 314 P.3d 980 (2013) ("Defendant does not provide, nor are we aware of, any authority requiring a proportionality analysis with regard to a defendant’s aggregate sentence.").

5 See generally Brenden Gallagher, The 15 Types of Selfies , Complex (Oct. 16, 2013), https://www.complex.com/pop-culture/2013/10/the-15-types-of-selfies/the-beach-feet-brag-selfie (accessed Aug. 29, 2018).

5 The majority suggests that my analysis is informed by a belief about what the trial court might have done differently in the absence of the 300-month mandatory sentence, or what the trial court may do on remand. 293 Or. App. at 621, 430 P.3d at 105. To be clear, the record, in my view, does not permit any strong inference about what the trial court would have done if it had not been bound by the 300-month sentence under ORS 137.690. And we cannot know what will happen on remand. Neither question is pertinent to the constitutional inquiry.
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6 See generally Sarah Lindig, Study Says There Are Three Types of Selfie-Takers—Which Are You? , Harper’s Bazaar (Jan. 15, 2017), https://www.harpersbazaar.com/culture/features/a19983/three-types-of-selfie-takers-says-study/ (accessed Aug. 29, 2018) (Researchers at Brigham Young University "identified three archetypal motivations among those who take and share selfies: communicators, autobiographers, and self-publicists.").

To take a selfie is to capture an image of one’s self, and when the selfie taker sends or shares that image with someone else, it is an act of social engagement. "[T]o send someone a sexually explicit message or image by cell phone" is "to engage in sexting" or to send a "sext." Merriam-Webster.com , https://www.merriam-webster.com/dictionary/sext (accessed Aug. 29, 2018). Taking selfies and sending those self-created images through sext is a new, radical form of social interaction and courting.

Various research studies place the rates of sexting among teenagers and young adults from 15 percent up to over 30 percent. See, e.g. , Dake et al ., Prevalence and Correlates of Sexting Behaviour in Adolescents , 7 Am. J. Sexuality Educ., 1, 1-15 (2012) ("Overall, 17% of students engaged in sexting, which varied significantly by age (3% of 12-year-olds to 32% of 18-year-olds)."); Madigan et al ., Prevalence of Multiple Forms of Sexting Behavior Among Youth: A Systematic Review and Meta-analysis , 3 JAMA Pediatr. 172, 327-35 (2018) (finding the highest rate for sending and receiving sexts at 27.4 percent).

In sum, sexting as a social activity is defined by two essential components. First, the picture is not typically taken by someone else, rather it is taken by the individual appearing in the image. It is self-created; aptly called a "selfie." Second, the image generally does not come into the possession of another through nefarious acquisition or capture, but rather through receipt. A person is in receipt of a sexted message because the person depicted in the image voluntarily sent it, either upon their own initiative or in response to a noncoercive request, and intended it to be possessed by a specific person.⁷

7 This distinguishes true sexts from sext messages forwarded without permission, or obtained without the sender’s knowledge, any of which might more properly be categorized as "revenge porn."

C. ORS 163.670

Turning now to the first of the two statutes of interest in this case, ORS 163.670 describes the crime of using a child in a display of sexually explicit conduct:

"(1) A person commits the crime of using a child in a display of sexually explicit conduct if the person employs, authorizes, permits, compels or induces a child to participate or engage in sexually explicit conduct for any person to observe or to record in a visual recording.

"(2) Using a child in a display of sexually explicit conduct is a Class A felony."

The above is the most recent iteration of ORS 163.670 ; however, the prohibition against child pornography, or the crime of using a child in a sexually explicit display, was originally codified in 1985. The legislative history makes clear that the type of modern day conduct, quotidian and habitual among many young people—the act of taking a selfie and sexting it to someone else via cellular phone—was not then, nor in any subsequent revisiting of the law (in 1987, 1991, and 2011), contemplated by lawmakers in Oregon. While sexting now unquestionably falls under the wording of the statute, it is not by deliberate legislative design, but rather through the interplay of broad statutory language and social and technological evolution. The history of each relevant legislative change is broken out by date, in chronological order, below.

1. 1985—Enactment of ORS 163.670

In April of 1985, Senator Tony Meeker introduced Senate Bill (S.B.) 375 to the members of the Senate Judiciary Committee, describing the dire circumstances that prompted the sponsors of the bill to action:

"It has been estimated * * * that the international trafficking in child pornography is somewhere between five and six billion dollars a year. An international network of child pornographers and molesters promote such activities as packaged child sex tours and auctions, auctions where children, not printed material, were sold. Now most people are understanding of the physical and psychological damage that can be done to young boys and girls who are sexually exploited in this way. * * * Child pornography has emerged as a key feature in society’s heightened concern about the sexual molestation of children. * * * Experts say there is a definite connection between child sexual abuse and child prostitution as well as child pornography. * * * Senate Bill 375 would put some teeth into existing Oregon law. It would

revise the age of child protection from 16 to 18. Under [proposed Senate Bill 375], a person is considered incapable of consenting to a sexual act if he is under 18 years of age. It would also remove the requirement that the material meet the legal definition of obscene and provide heavy fines and prison terms for those convicted. Our efforts to prevent crimes against children have not been adequate. There has been an urgent demand by Americans, by Oregonians, from all walks

of life, that the problem of missing and sexually exploited children in this country, in this state, must be confronted."

Tape Recording, Senate Judiciary Committee, S.B. 375, Apr. 25, 1985, Tape 110, Side A (statement of Sen. Tony Meeker).

In Senator Meeker’s written testimony to the committee, he further detailed the current state of affairs that prompted his action:

"The problem of missing and abused children in this country and in this state should be at the top of our list of concerns as legislators—as human beings! It is estimated that at least 1,500,000 children are missing from their homes each year—many end up sexually abused or even murder victims. Many are simply never seen again. Oregon’s child abuse statistics, particularly those for sexual abuse, skyrocketed last year for the fourth time this decade.

"The United States Congress has acknowledged this problem by passing the Missing Children Act in 1984 and a National Center for Missing and Exploited Children has also been established. While these federal activities are a positive step in helping sexually abused and exploited children, much more can be done at the state level. Comprehensive state legislation is critically needed to help solve this problem. This is not a partisan issue—laws to protect children should transcend party affiliation.

"It is a tragic reality that there are those people in our society who seek out children to gratify their sick sexual fantasies. An inextricable connection exists between child pornography and child sexual abuse—each photo represents the actual molestation of a child and these photos are circulated, distributed—either purchased or traded among other pedophiles, inciting them to commit still more crimes against innocent children."

Testimony, Senate Judiciary Committee, S.B. 375, Apr. 25, 1985, Ex. K (statement of Sen. Tony Meeker) (underscoring in original).

Experts in the field of law enforcement and victim advocacy testified in support of S.B. 375 and shared their experiences in the field in an effort to illustrate the conduct they envisaged S.B. 375 would eradicate. Testifying in support of S.B. 375, Sergeant Robert Walliker, on behalf of the Portland Police Bureau, explained:

"Parents, imagine for a moment your young son or daughter at school recess—innocent, trusting, unsuspecting. Suddenly a male adult stranger appears offering candy. He lures your child to a secluded spot, coerces them to remove their clothing and, taking care not to touch the child, takes several photos—then leaves. After school your child tells you what happened.

"You call the police. The responding officer states this is the third report of the same incident this month. A week later a detective tells you the man has been caught in the act, with his pockets full of lewd photos of children including the photos of your child. But, the detective explains, what this man did is not against the law in Oregon, the District Attorney cannot prosecute and a judge orders all photos, including those of your child, returned to the suspect. Some years ago this same situation occurred in Multnomah County. The suspect, identified in over 11 cases, was never prosecuted.

"This man was a pedophile—a person who uses children for purposes of his own sexual gratification.

"As sergeant of the Multnomah County Sheriff’s Sex Crimes Detail during the past ten years, I have been involved in investigating close to 3,000 cases of child molest. I have noticed a definite increase in the use of photography by pedophiles to document and fantasize about their crimes. Search warrants, executed upon such suspects' homes, usually result in the seizure of such materials.

"* * * * *

"I submit to you that child pornography is a problem in Oregon and we need a law against it. Many other states, such as Washington and California have these laws, which are effective tools for law enforcement. Investigative techniques have been developed which quickly locate and

identify pedophiles, apprehend and

prosecute them, with a very high conviction rate.

"The opposition to the passage of this law during the last legislature resulted in the bill being tabled. The opposition argues that despite the offensiveness of child pornography, it is still protected under the Constitution’s First Amendment, freedom of speech. Opponents of this legislation keep referring to it as a ‘pornography issue.’ However, ‘kiddie porn’ is not pornography, but it is the photographic reproduction of a sex crime (usually a felony) perpetrated upon a helpless child victim. I do not believe Thomas Jefferson went to all that trouble to allow persons to be able to make a photographic record of an actual crime committed against a child."

Testimony, Senate Judiciary Committee, S.B. 375, Apr. 25, 1985, Ex. O (statement of Sergeant Robert Walliker).

Similarly, Dottie Belknap, Legislative Chairperson for the Multnomah County Child Abuse Coalition, testified:

"Child pornography may be the nation’s least understood crime. It represents a sexual abuse where there is an imbalance in age, size, power or knowledge. Children are simply not able to give informed consent, and as victims, are hostages to the vulnerability of childhood.

"The pornographer sees nothing wrong with gratifying himself at the children’s expense. And yet, it is a psychological violence of the worst kind. Pornographers do hurt children, sometimes physically and almost always in spirit. It is a crime almost always suffered in silence and shrouded in such fear that the child pornographers continue for years or a lifetime without being apprehended.

"Experts say there is a connection between child sexual abuse and child prostitution and between child prostitution and child pornography.

"* * * * *

"The dead cannot talk about their experiences and most survivors will not. Victims are shocked into silence. But, even though most children do not talk about their experience, they are usually haunted by it the rest of their lives.

"S.B. 375 encourages a solution to this hidden epidemic, one in which children are cruelly forced to take part in vile

acts. The Coalition recognizes child pornography as a vile crime against defenseless children."

Testimony, Senate Judiciary Committee, S.B. 375, Apr. 25, 1985, Ex. P. (statement of Dottie Belknap).

The Senate Judiciary Committee met to further discuss S.B. 375 and the age of consent on May 21, 1985. Margaret J. Nightingale, Staff Attorney for Oregon Legal Service’s Juvenile Rights Project, explained:

"The problem of children being forced or led into pornography and prostitution is serious and of major proportions. Some children are coerced into these activities at home by their own parents. Unless emancipated by court order (a rare event), children must legally remain at home until age 18. Thus, 16- and 17-year olds can constitute a ‘captive population’ unless and until abuse is detected and the child is removed from the home. Other children are abused at home in other ways, physical, sexual or emotional, and develop so little self-esteem that when at age 16 or 17 they leave home as runaways or are forced out as throwaways, they are very easily led to sell their bodies as a way to survive on the streets.

"Arresting and punishing the persons who use or promote children in sexual performances is one method of reducing these activities and protecting these children. S.B. 375 appropriately extends this method to cover persons who use or promote 16- and 17-year olds."

Testimony, Senate Judiciary Committee, S.B. 375, Apr. 25, 1985, Ex. Z (statement of Margaret J. Nightingale).

As the above testimony makes clear, proponents and supporters of S.B. 375 were first and foremost concerned about child sexual exploitation in connection with the crimes of sexual abuse, sexual molestation, child prostitution, and missing children. S.B. 375 sought to criminalize and heavily penalize the manufacture of child pornography, squarely envisioning images taken by adults of children against their will, as the result of coercion, or without their knowledge.

2. 1987—Modification of ORS 163.670

The following session, the legislature again took up the issue of children and pornography by request of the Oregon Child Protection Task Force. Senate Bill 364 was introduced on May 13, 1987 by cosponsor Senator Jim Simmons during a hearing before the Senate Committee on Judiciary. Committee co-counsel Mark Kramer prepared a preliminary analysis of S.B. 364 and explained:

"Problem addressed. Current law in this area prohibits:

"1. The use of children in the production of pornography;

"2. The sale or exhibition of child pornography for ‘anything of value’; and

"3. Paying for observing or obtaining child pornography which is produced in violation of Oregon or federal laws.

"* * * * *

"Law enforcement officials seek greater enforcement tools. Under current law they cannot take action against those who simply possess child pornography and those who give away or trade those materials. Such officials contend that enforcement under current law is frustrated by their inability to prove the source of the materials or the fact that it was obtained ‘for value.’ "

Exhibit W, Senate Committee on Judiciary, S.B. 364, May 13, 1987 (accompanying statement of committee co-counsel Mark Kramer).

Committee co-counsel Kramer explained that the current child pornography laws, enacted in 1985, had yet to be tested by any court case. Proponents of S.B. 364 complained that, according to Kramer, the 1985 law was too difficult to enforce and did not go far enough. Particularly, according to Senator Simmons' prepared materials, the "of value" requirement in the 1985 law prevented the prosecution of those people who shared or distributed child pornography to promote "deviant beliefs" without receiving anything in return for the materials. Assistant United States Attorney, Jim Collins, testified before the committee:

"[JIM COLLINS]: The production of child pornography is the abuse of a child. It's the abuse of a child when the photo was taken, it is the abuse of a child any time and every time that that photo is transmitted to someone else.

"* * * * *

"[SENATOR SIMMONS]: This is what we are talking about. Children. Young children. Exploited. Abused. Photographed so that the abuse is compounded. I would urge the adoption of Senate Bill 364 to at least put a dent in what’s going on."

Tape Recording, Senate Committee on Judiciary, S.B. 364, May 13, 1987, Tape 142, Side A (statements of Assistant U. S. Attorney Jim Collins and Sen. Jim Simmons).

Again, experts with experience on the ground in the fields of law enforcement and victim advocacy testified in support of S.B. 364. Bonnie Glover Griswold, a probation officer and member of the Oregon Child Protection Task Force—the entity that requested a second look at child pornography laws in Oregon—explained:

"These photographs are a history of an abuse and evidence of a crime. A picture of this nature cannot be taken without a child being sexually exploited. Offenders use these photographs repeatedly. They recall to the offender the abusive event. It feeds their deviant fantasies and their distorted thinking. This use becomes a further abuse of the victim. The photographs are the grossest example of the offender’s thinking and his activity. The child victim is no longer a human being to the offender. They become objects to be used and abused by the offender. I have seen pictures of victims from the ages of a few months to late adolescence, boys as well as girls. The victims may be related to the offender or the victim may know the offender as a family acquaintance, friend, or neighbor. Whatever the circumstances, the offender is able to groom the victim and set up the situation where an offense takes place.

"Over the past three years I have learned that sex offenders do use sexually explicit material in their offender cycle. Child molesters, especially those who are pedophiles, are very likely to keep photographic histories of the individual victims as well as the individual events of abuse to a victim. Their collection of material will also include commercially made magazines, newspapers and videos. They may also make their own material by combining sexually explicit material with pictures of their victims or pictures of children they know or have cut out of commercial publications.

"With the passage of this bill, Oregonians will be better able to protect their children. Children of all ages and

backgrounds can be exploited. They need your protection. Failing to pass this bill can only result in further victimization of our children."

Testimony, Senate Committee on Judiciary, S.B. 364, May 13, 1987, Ex. D (statement of Officer Bonnie Glover Griswold).

In addition, Deputy Chief Rob H. Aichele of the Investigations Branch of the Portland Bureau of Police, testified in support of S.B. 364 and explained:

"Any child pornography is evidence that a child has been sexually abused. One of the arguments against this measure is that some of the material may have been produced in a country where sex abuse is legal. This argument is no more persuasive than it would be if a similar argument were asserted with respect to the importation of illegal narcotics that had been legally manufactured in another country. Allowing this material to circulate in the child pornography underground is tacit approval of the sexual exploitation of children. We cannot condone nor support this exploitation, no matter where it occurs.

"The people in the criminal justice system that work with pedophiles have substantiated that sexually explicit child pornography is frequently a part of the offenders ‘program of arousal.’ This program is the offender’s process by which they become aroused, and advance the desire to violate a child. This ‘program’ is a usual precursor to child sexual assaults.

"I urge your support of S.B. 364 as a tool to break the horrible chain of child pornography. This chain is linked by the initial violation of a child, linked by arousing an offender, and then linked to further sex abuse. The concepts proposed by S.B. 364 need to be put into law."

Testimony, Senate Committee on Judiciary, S.B. 364, May 13, 1987, Ex. E (statement of Deputy Chief Rob H. Aichele).

3. 1991—Modification of ORS 163.670

During the 1991 session, the legislature again took up the issue of child pornography. In House Bill (H.B.) 2681, which similarly mirrored efforts in 1985 and 1987, the emphasis focused on the deviance of pedophiles and the exploitation of children through the dissemination and possession of child pornography. Like its predecessor bills, H.B. 2681 attempted to capture persons in possession of child pornography, as a crime separate and apart from the crimes of producing or distributing child pornography. Senator Larry Hill explained to his colleagues at the House Committee on Judiciary hearing on March 8, 1991:

"We can prohibit possession of child pornography provided it is in pursuit of the state’s compelling interest to protect the victims.

"* * * * *

"The state’s compelling interest allows us to regulate this form of speech, which otherwise would be considered protected under Oregon’s constitutional free speech provision as well as the federal provision for free speech. The Supreme Court in a recent case last year said that states may regulate possession because it was furthering the protection of the individual victim.

"* * * * *

"We have a compelling interest to protect the child victim. * * * It's important to make the record clear that this is to protect the victims of sexual abuse, child victims of sexual abuse. Rather than an outright regulation of otherwise protected free speech."

Tape Recording, House Committee on Judiciary, Subcommittee on Family Justice, H.B. 2681, Mar. 8, 1991, Tape 50, Side A (statement of Sen. Larry Hill).

Assistant United States Attorney, Jeffrey Kent, testified after Senator Hill and echoed much of the Senator’s concerns and proposed solutions. As a member of the government’s Task Force on Sex Crimes Against Children, he reassured the members of the subcommittee that H.B. 2681 was "not a witch hunt; [we're] not book burners." Tape Recording, House Committee on Judiciary, Subcommittee on Family Justice, H.B. 2681, Mar. 8, 1991, Tape 50, Side A (statement of Assistant U.S. Attorney Jeffrey Kent). Kent, an advocate for the "Spare the Child" movement, which was working towards removing requirements that a child must testify at trial in order to convict their abuser, explained:

"This bill allows us to focus on the target group, which are essentially your predatory pedophiles, without the need of

ever having to put the children through the trauma of court room testimony to get where we want to go.

"* * * * *

"We're not only protecting the children, but we're protecting society at large from a serious social problem."

Tape Recording, House Committee on Judiciary, Subcommittee on Family Justice, H.B. 2681, Mar. 8, 1991, Tape 50, Side A (statement of Assistant U. S. Attorney Jeffrey Kent).

Kent submitted written testimony in which he further explained:

"Hardly surprising, studies and experience have confirmed that possessors of large collections of child pornography are almost always themselves pedophiles. These collections often include photos of their victims. Thus, prosecution for possession of child pornography has the dual advantages of sparing the youthful victims the trauma of reliving sexually abusive episodes during public trials and at the same time of focusing on the target group—typically promiscuous and predatory pedophiles.

"The destructive impact of child sexual abuse is enormous. Victims carry with them a psychological trauma, which places them at tremendous disadvantages in the future. In the perverse and frequently unfair vagaries of life, those who are abused often become abusers themselves and engage in other criminal conduct at levels statistically higher than the population at large. Thus, the problem involves not just the tragedy of the immediate victim but a fallout that affects all of society.

"Thus, a law criminalizing the very possession of child pornography has these numerous advantages:

"1. It attacks a vital link in the distribution chain—the possessor, who creates the demand for such material;

"2. It aims to obliterate potentially permanent records of haunting and traumatic sexual exploitations of children;

"3. It eliminates materials, which are oftentimes used to seduce other children into believing that such conduct with an adult is okay; and

"4. It focuses on a group, which promiscuously preys on children, without the need to have children relive these traumas in open court."

Exhibit C, House Committee on Judiciary, Subcommittee on Family Justice, H.B. 2681, Mar. 8, 1991 (letter dated June 5, 1990 and addressed to "Concerned Citizen" accompanying testimony of Assistant U.S. Attorney Jeffrey Kent).

Attorney Warren Deras testified before the subcommittee in agreement with Kent. Deras clarified:

"And keep in mind that when we talk about child pornography under this statute, we are not talking about mere nudity. We're not talking about text that somebody wrote that doesn't involve a real child. We are only talking about visual reproductions of genuine obscenity involving a child."

Tape Recording, House Committee on Judiciary, Subcommittee on Family Justice, H.B. 2681, Mar. 8, 1991, Tape 50, Side A (statement of Warren Deras).

In addition to legal experts, law enforcement also testified and submitted exhibits in support of H.B. 2681. Major Dean L. Renfrow, the Criminal Investigation Division Director of the Oregon State Police, testified:

"The State Police have been heavily involved in the pursuit of individuals that sexually victimize children. We have participated in undercover operations with local and Federal agencies and have observed a continuing stream of child pornography entering this state and in the possession of child molesters. These persons often contact one another through publications and then loan and exchange child pornography. The Department has been involved in several investigations in which undercover officers were introduced to child molesters by responding to advertisements in publications.

"* * * * *

"For every picture of a child engaging in sexually explicit conduct, there is [at] least one child that has been victimized and exploited. It makes no difference where the child is from or where the picture was taken.

"1. Oregon Criminal Statutes do not adequately control this form of deviancy. No Oregon law prohibits the possession of photos of the child victims. Pictures are commonly passed from one abuser to another.

"2. The crime is a silent one that exploits children and gratifies and encourages the adult perpetrators.

"3. We believe that there is a direct relationship between those persons that have an interest in child pornography and the physical sexual exploitation of children. Persons that sexually abuse children frequently take photographs of these victims to relive the events through fantasies. These collections of photographs often lead to the abuser seeking out additional victims.

"4. For every person identified as having a need to possess child pornography there are many more unidentified. Conviction for possession would identify those persons and lead to others who profit from and encourage sexual exploitation of children.

"* * * * *

"We feel that prohibiting possession of child pornography would serve to:

"1. Identify offenders;

"2. lead to the sources of production and dissemination of child pornography;

"3. identify previously unknown victims of child abuse and break the cycle of abuse; and

"4. enhance the states ability to protect children from sexual abuse and exploitation.

"This bill provides a needed ‘tool’ to protect our children. Under current law in Oregon, possession of child pornography materials is lawful."

Exhibit F, House Committee on Judiciary, Subcommittee on Family Justice, H.B. 2681, Mar. 8, 1991 (accompanying testimony of Major Dean L. Renfrow).

4. 2011—Modification of ORS 163.670

A major change in the law criminalizing child pornography came in 2011 with Senate Bill (S.B.) 803. S.B. 803 came into being as a response to an Oregon Supreme Court ruling that, under current law at that time, viewing child pornography online without saving the images or paying to view the material was not illegal. Senator Joanne Verger testified on April 13, 2011 before the Senate Committee on Judiciary, explaining:

"I just want to relate to you, you know about the Supreme Court case, and also that it noted in the case of Oregon versus Barry Lowell Barger [349 Or. 553, 247 P.3d 309 (2011) ] that Oregon has not banned the viewing of child pornography, unless it was paid for and that that viewing does not equal possession and so that’s the basis of the necessity for Senate Bill 803. In order to go forward and allow the Attorney General to be able to prosecute these cases, then we have to change that and, as the Supreme Court noted.

"The predatory environment of our children, not only in this way of viewing pornography but across the board in society today, must get the attention of the Oregon legislature and so I would encourage you to pass this legislation and allow the Attorney General to prosecute these cases

and, but, most of all, we need to protect our children who are the most vulnerable in our society."

Audio Recording, Senate Committee on Judiciary, S.B. 803, Apr. 13, 2011, at 03:05 (statement of Sen. Joanne Verger), https://olis.leg.state.or.us/liz/2011R1/committees/SJUD/2011-04-13-08-30/Agenda (accessed Aug. 30, 2018).

Next, Senator Laurie Monnes Anderson testified:

"I'm here today to support Senate Bill 803 and in January the Oregon Supreme Court did rule that under current law it is not a crime to view child pornography and this legislation will close that loophole. Our children must and need to be protected and under no circumstances should the sexual exploitation of innocent children be tolerated, in any way or form. I believe that child sexual exploitation to be one of the worst, most heinous crimes imaginable and therefore I do want to make it easier for prosecutors to pursue and convict cases of child pornography. Using our children in such a terrible way is intolerable and we need to be absolutely clear, in this state of ours, that viewing child pornography on the web is wrong, it is illegal, and we have to discourage the activity, this activity, and this bill actually helps us get there."

Audio Recording, Senate Committee on Judiciary, S.B. 803, Apr. 13, 2011, at 04:50 (statement of Sen. Laurie Monnes Anderson), https://olis.leg.state.or.us/liz/2011R1/committees/SJUD/2011-04-13-08-30/Agenda (accessed Aug. 30, 2018).Senator Suzanne Bonamici had the following exchange with the Deputy Attorney General from the Oregon Department of Justice, Mary Williams, during committee testimony:

"[MARY WILLIAMS]: What this does is it allows us to modernize the language of the statute to address some of the newer technology in ways in which child pornography can be viewed and accessed. It brings the language into, basically the same language that we see in the federal laws that prohibit this kind of, uh, intentional viewing of child pornography and will enable us to continue prosecuting a broader class of these offenses. And, so, we're in support of this legislation.

"[SENATOR BONAMICI]: It's my understanding that, that what is considered child pornography is already in the statute and this doesn't change what is considered to be child pornography, it just deals with viewing versus possession?

"[MARY WILLIAMS]: Yes, that is correct. This doesn't change the definition of child pornography, just the, um, the possession and the access and how that part of the statute is defined."

Audio Recording, Senate Committee on Judiciary, S.B. 803, Apr. 13, 2011, at 06:55 (statements of Deputy Attorney General Mary Williams and Sen. Suzanne Bonamici), https://olis.leg.state.or.us/liz/2011R1/committees/SJUD/2011-04-13-08-30/Agenda (accessed Aug. 30, 2018).

Additionally, the committee’s counsel, Aaron Knott, explained to the members that S.B. 803 provided:

"Two modifications to the child pornography laws. The first of these is that it modifies the definition of visual recording being a visual recording of child pornography to include photographs, films, videotapes, and computer or other digital pictures, regardless of the manner in which the recording is stored. The practical implication of this is it attempts to capture instances where somebody views pornography that may not be stored on their computer but does not download it. Similarly, the second part of Senate Bill 803 is, it expands, or at least modifies, the definition of knowingly possess to include knowingly accesses or views a visual depiction of sexually explicit conduct."

Audio Recording, Senate Committee on Judiciary, S.B. 803, Apr. 13, 2011, at 01:50 (statement of Committee Counsel Aaron Knott), https://olis.leg.state.or.us/liz/2011R1/committees/SJUD/2011-04-13-08-30/Agenda (accessed Aug. 30, 2018).

Knott also prepared the House Committee on Judiciary Staff Measure Summary and explained the background of S.B. 803:

" ORS 163.665 [to] 163.693 govern the prosecution of crimes involving child pornography.

ORS 163.665 contains the definitions applicable within this section. ORS 163.665(4) defines ‘visual depiction’ as including but not limited to photographs, films, videotapes, pictures or computer or computer generated images or pictures, whether made or produced by electronic, mechanical or other means. [Senate Bill 803] modifies the definition of ‘visual depiction’ by replacing photographs, films, videotapes, pictures or computers with ‘visual recording,’ which is subsequently defined in a new subsection as including but not limited to photographs, films, videotapes and computer and other digital pictures, regardless of the manner in which the recording is stored. The practical import of this modification is an attempt to capture instances where a defendant views pornography on a third party website but does not download the images to a computer, print the images or retain the images.

" ORS 163.684 [to] 163.389 criminalizes the knowing possession of a visual depiction or recording of sexually explicit conduct involving a child. [Senate Bill 803] expands the definition of ‘knowingly possess’ to include knowingly accesses or views a visual depiction of sexually explicit conduct. This also attempts to capture the access of child pornography on websites without the retention of a physical or electronic copy of the materials viewed."

Staff Measure Summary, House Committee on Judiciary, S.B. 803, June 2, 2011 (prepared by Committee Counsel Aaron Knott).

As S.B. 803 moved out of the Senate and into the House for debate, proponents continued to describe the problem the legislation aimed to fix. The Attorney General for the State of Oregon, John Kroger, testified:

"It is a response to the Oregon Supreme Court’s decision which held that merely accessing child pornography on the internet is not illegal under Oregon state law. The problem here, if the committee will recall, is that Oregon’s child pornography statute was never really updated for the internet age. It defined the crime in terms of simple possession and there was a legal debate about whether accessing child pornography on the internet was to possess it. The Supreme Court ruled that absent the decision to download it, print it, or purchase it, one did not possess child pornography simply by accessing it on the web, leaving Oregon, as far as we know, it’s the only state in the country right now where viewing child pornography on the internet is not a crime. The bill would fix that loophole and has three safeguards to make sure that people who did not intentionally access this material are not somehow caught up, if somehow child pornography were downloaded by someone else, or by some kind of spyware on the computer. It requires for the government to obtain a conviction for the defendant to knowingly access the material."

Audio Recording, House Committee on Judiciary, S.B. 803, May 9, 2011, at 03:18 (statement of Attorney General John Kroger), https://olis.leg.state.or.us/liz/2011R1/committees/HJUD/2011-05-09-13-00/Agenda (accessed Aug. 30, 2018).

S.B. 803 became effective upon its approval on June 23, 2011. Oregon Laws 2011, chapter 515, section 2, was codified as ORS 163.670, describing using a child in a display of sexually explicit conduct. The law has not been modified since 2011. Having examined the history of ORS 163.670, we now turn to the second statute of import for this case, ORS 137.690 —requiring a mandatory minimum sentence of 25 years for major felony sex crimes.

D. ORS 137.690 and Measure 73

ORS 163.670 is the statute that criminalizes this defendant’s sexting behavior. The punishment defendant faces as a result of his behavior was made law by a citizen initiative effort, Ballot Measure 73 (2010). Measure 73 was described in media, press releases, news coverage, debates, educational leaflets, and voter pamphlets as targeting and getting tough on repeat sex crimes and drunken drivers through increased mandatory punishment requirements.The Oregon Voters' Pamphlet listed the Measure 73 ballot title as "Requires increased minimum sentences for certain repeated sex crimes, incarceration for repeated driving under influence." Official Oregon Voters' Pamphlet, General Election, Nov. 2, 2010, 54. The voters' pamphlet provided an explanatory statement, which read:

"Ballot Measure 73 sets mandatory minimum sentences for certain repeat sex offenders and certain repeat intoxicated drivers.

"The measure provides that any person convicted of a ‘major felony sex crime’ must be imprisoned for 25 years if the person has a ‘previous conviction’ for a major felony sex crime. Under current law, a person convicted of a single major felony sex crime must serve a minimum sentence ranging from 5 years, 10 months to 25 years, depending on the circumstances of the offense and the offender.

"The measure defines ‘major felony sex crime’ to mean rape in the first degree, sodomy in the first degree, unlawful sexual penetration in the first degree and using a child in a display of sexually explicit conduct.

"The measure defines ‘previous conviction’ to include two or more convictions in a single sentencing proceeding when the convictions are imposed for crimes committed in separate criminal episodes. It is possible for this measure to apply when the offender has not served previous time in prison for a major felony sex crime."

Voters' Pamphlet at 56.

The voters' pamphlet listed the measure’s chief petitioners as Doug Harcleroad and Kevin L. Mannix. The pamphlet also listed some arguments in favor of Measure 73, furnished by the chief petitioners as well as Tara Lawrence, the Executive Director of the Oregon Anti-Crime Alliance, a political action committee that Harcleroad and Mannix are a part of. The proponents claimed:

"These are the worst of the sexual predators. We need to keep them behind bars to protect the public.

"* * * * *

"Measure 73 puts the worst repeat violent sex offenders behind bars for a long time. Measure 73 holds the offenders

accountable and prevents these criminals from hurting more victims.

"* * * * *

"MEASURE 73 IS CAREFULLY TARGETED AT REPEAT VIOLENT SEX OFFENDERS AND THIRD TIME DRUNKEN DRIVERS. VOTE YES TO MAKE U.S. ALL SAFER.

"* * * * *

"Measure 73 provides justice to victims of crime and protects society.

"Sexual crimes are among the worst crimes because they injure victims both physically and emotionally. Even if the physical scars are healed, the emotional scars remain for the rest of the victim’s life.

"Important concerns for victims are that other people be protected from the worst of these sexual predators, and that victims not be called in for repeated hearings about whether or not a major sex offender should be released.

"Measure 73 guarantees that a major sex offender who commits a second Class A felony sex crime will serve at least 25 years in prison on the second conviction."

Voters' Pamphlet at 58 (capitalization in original).

Proponents Mannix, Harcleroad, and Lawrence advocated for Measure 73 leading up to the general election on November 2, 2010. Mannix penned an editorial titled, "Measure 73: An overdue reform of public safety," which ran in The Oregonian newspaper on September 21, 2010, and explained:

"Measure 73 imposes mandatory minimum 25-year sentences on the four worst categories of sex offenders. These are the serial rapists and serial child pornographers who need to be kept off the streets and who were not rehabilitated after a first conviction. Measure 73 applies only to them for repeat convictions."

Kevin Mannix, Measure 73: An overdue reform of public safety , The Oregonian (Sept. 21, 2010), https://www.oregonlive.com/opinion/index.ssf/2010/09/measure_73_an_overdue_reform_o.html (accessed Aug. 30, 2018).Mannix repeated similar talking points when he was interviewed by journalist Nigel Duara for an Associated Press article called, "Oregon Measure Seeks Harsher Penalties for Sex Crime," published on October 11, 2010. Duara wrote:

"Some opponents, including Oregon’s ACLU chapter, say the initiative is too broad. While major felony sex crimes include rape, sodomy and unlawful penetration, they also include ‘using a child in display of sexually explicit conduct.’ That could include ‘sexting,’ the transmission of sexual images via mobile phones.

"The ACLU argues that, under the initiative, a teenager as young as 15 with no previous convictions who sends sexual images to more than one person could be classified as a repeat sex offender, and be automatically sentenced to 25 years in prison. Mannix called that a ‘phantom issue[.]’ "

Nigel Duara, Oregon Measure Seeks Harsher Penalties for Sex Crime , The Associated Press (Oct. 11, 2010), https://www.theskanner.com/news/8-news/8531-oregon-measure-seeks-harsher-penalties-for-sex-crime-2010-10-12 (accessed Aug. 30, 2018).

Mannix spoke about Measure 73 on the Oregon Public Radio program Think Out Loud on September 23, 2010. He explained Measure 73, stating:

"Out of the 35 sex crimes on the books in the state, this selects the four worst, Class A felony sex crimes which it specifically addresses, and that is rape in the first degree, sodomy in the first degree, unlawful sexual penetration in the first degree, or using a child in the display of sexually explicit conduct. These are the four worst Class A felony sex crimes in the state and this act specifies that on a second conviction, for any one of these crimes, that you would serve a mandatory minimum of 25 years in state prison.

"* * * * *

"This group of offenders, and it’s a small group, are the worst of the worst predatory sex criminals, and having gone out and committed this crime and been convicted for it and having committed another crime, they are the folks that, frankly, a lot of us would like to see incarcerated for the rest of their life. They are not amenable to treatment,

they are predatory, they are dangerous to the public. But in order to be proportional, there’s a Jessica’s Law that says if an adult rapes a child there’s a mandatory minimum of 25 years in prison. To be proportional, we said, well on this second conviction there'll be a mandatory minimum prison term of 25 years and it’s designed to pull these people off the streets so they cannot victimize other Oregonians."

Measure 73, Think Out Loud, Oregon Public Radio (Sept. 23, 2010), https://www.opb.org/radio/programs/thinkoutloud/segment/measure-73 (accessed Aug. 30, 2018).

After being asked how many people might be effected by Measure 73 a year, Mannix responded, "Perhaps 15 to 20, it’s a very small group of the worst sex offenders." Id.

Measure 73’s proponents participated in debates and interviews throughout 2010, advocating in favor of the measure. Doug Harcleroad, former District Attorney for Lane County and attorney for the Oregon Anti-Crime Alliance—of which Kevin Mannix served as President and Tara Lawrence served as Executive Director—participated in a debate hosted by the City Club of Portland on September 17, 2010. Harcleroad and moderator, Judge Ed Jones, had the following exchange:

"[MODERATOR]: Under Measure 73, a 25 year mandatory minimum sentence for sex crimes could apply to minors, age 15 or older, and multiple counts of transmitting sexual images could be considered prior criminal episodes. Given this, Measure 73 could be used to prosecute teenagers for sexting, the practice of sending other teenagers sexually explicit messages or photographs between mobile phones. Would you consider a 25 year sentence for a repeat juvenile sexter appropriate?

"* * * * *

"[HARCLEROAD]: This will not happen. That’s a rouse. It's nonsense. I've looked at the data for the last four years on this particular statute that’s in the measure, I looked at the 15, 16, 17 year olds * * *.

"I looked at the data and what I can tell you is that [for] 15, 16, and 17 year olds, there were 2 convictions. I doubt they

were sexting convictions[.] * * * So, for the last 4 years, it would never have happened, a sexting charge like this.

"Now, the other thing, we know, under the Rodriguez and the Buck cases, that you can't have disproportionate sentences and in a far less serious cases, sex abuse cases, the court said you can't have disproportionate sentences. The DAs know that. They will not be charging sexting with this crime. Won't happen!"

Doug Harcleroad, Ballot Measure 73 Debate—Sentencing, The City Club of Portland (Sept. 17, 2010), https://www.youtu.be/f7UnBdK12vs?+=38m31s (accessed Aug. 30, 2018).

The City Club also produced a companion report on Measure 73. The committee putting together the report interviewed Mannix. Mannix responded to questions about Measure 73 and its harsh penalties for nonviolent crimes like sexting, stating that those concerns were "phantom issue[s]." A City Club Report on Ballot Measure 73 , 93 Supplement to the City Club of Portland Bulletin, 19, 6 (Oct. 22, 2010), http://members.pdxcityclub.com/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=b0210676-d2fe-4dd2-92bb-59bd9991c359 (accessed Aug. 30, 2018).

The report, produced and made available to the voting electorate, specifically drew upon comments by Mannix and Harcleroad indicating that teenage sexting would not be subject to a 25-year sentence due to constitutional proportionality concerns. It stated, in part:

"Proponents of Measure 73 believe this prosecutorial discretion works to ensure that prosecutors will not charge defendants with Measure 73’s increased penalties when the underlying facts suggest that such charges would be inappropriate, such as the application of the sex crimes portion of Measure 73 to teenagers engaged in sexting. Proponents explain that prosecutors would be reluctant to bring charges which would result in 25-year mandatory minimum sentences for ‘sexting’ by minors in light of the recent Oregon Supreme Court decision in State v. Rodriguez . The Supreme Court found that the imposition of mandatory Measure 11 sentences were unconstitutional in some cases because the penalties were disproportionate to the underlying offenses."

Id. at 9 (footnote omitted).II. APPLICATION

The above legislative history reveals two things. First, the Oregon legislature has never identified sexting as a social ill that it set about to deliberately criminalize, or affix a penalty to. To be sure, that behavior unquestionably can fall under the wording of ORS 163.670, but it does so not through deliberate legislative choice, but through historical happenstance. ORS 163.670, a law repeatedly enacted to target child pornography perpetrated as abuse against children, now can be read to criminalize voluntary sexting among young people due to the evolution of technology and social norms, not purposeful legislative action.

Second, ORS 137.690, passed by the voters as part of Measure 73, was designed and marketed to the voting public as a measure targeting a small group of offenders described as "the worst," "predators," "violent," "serial rapists," and "serial child pornographers." Proponents of the measure estimated it would affect a very small group, "15 to 20, * * * a very small group of the worst sex offenders." It was never conceived of as targeting sexting among young people, an activity being engaged in by upwards of 25 percent of teenagers. When questioned about sexting, proponents of Measure 73 repeatedly called it a "phantom issue" or "a rouse" and insisted that the statute would not be used to punish teen sexting. Finally, when pushed, proponents of Measure 73 indicated that any use of the statute to penalize sexting with a 25-year sentence would force the courts to act, as the Oregon Supreme Court did in Rodriguez/Buck , and declare such as sentence unconstitutionally disproportionate.

The history behind ORS 163.670 and ORS 137.690 fundamentally affects this court’s approach to a proportionality analysis. As the Oregon Supreme Court has instructed, when this court looks to "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 )" this court is "apply[ing] the Sustar test." Wheeler , 343 Or. at 670, 175 P.3d 438. That is, this court "look[s] to the legislative enactment of the particular penalties at issue as an external source of law to assist in determining whether those penalties would shock the moral sense of reasonable people." Id . at 671, 175 P.3d 438.

As discussed previously, the legislature can fail in its obligation under Article I, section 16, in two ways, either by (a) failing to engage in its obligation to proportion at the outset, or by (b) enacting a sentence beyond the limits of what Article I, section 16, permits. All of the proportionality cases from this court, as well as the Oregon Supreme Court, have dealt with the latter scenario. In each of those cases, there was a deliberate choice by the legislature or the voters and that choice was evaluated to see whether it went beyond that which was permitted by the constitution. But here, the legislature never engaged in the first step. There was never an attempt to criminalize the behavior, nor to proportion a penalty. When the legislature fails to engage in that essential predicate obligation, it falls to the courts to do so—and, in fact, that was expressly told to the voters. Thus, unlike previous cases in which this court has been appropriately highly cautious to supplant legislative sentencing determinations, here, the court has been invited in . When the proponents of a sentencing statute conceive of constitutional disproportionality as a quasi-safety valve against a sentencing statute’s application in certain factual circumstances, the usual, and entirely appropriate, judicial reticence to declare a sentence disproportionate as-applied in those circumstances is at its nadir.

Against that backdrop, we then apply the traditional Rodriguez/Buck factors. Here, the severity of the penalty is great, one of the harshest in Oregon. In contrast, the gravity of the crime must be viewed, in light of the legislative history, as low. While certainly there may be serious social ills from sexting, the legislature’s failure to take up that issue directly counsels against concluding that the gravity matches the child pornography concerns that motivated the passage of ORS 163.670, or any of its subsequent iterations. As the Oregon Supreme Court explained in Rodriguez/Buck , when the statutory definition of an offense describes a broad swath of actual conduct, that may be an indication that the application of the statute to a particular defendant’s conduct will result in a disproportionate sentence under Article I, section 16. 347 Or. at 61, 217 P.3d 659 ("[W]hen a defendant is convicted for engaging in only more minor conduct encompassed within the statute, the defendant may plausibly argue that the mandatory sentence, as applied to the particular facts of his or her case, is unconstitutionally disproportionate."). That is especially true when what brings defendant’s acts under the ambit of the statute is historical evolution, not legislative purpose.

Similarly, in comparing the penalty here against that which would be imposed for related crimes, we see incongruity. Here, the voluntary sexting of a sexual image among teenagers is punished more harshly than the actual physical sexual contact. In this case, for example, defendant received a greater sentence for having a picture of a breast voluntarily sent to him than if he had physically touched the breast.

If we look to the other crimes set out in ORS 137.690, only three other offenses—rape in the first degree, sodomy in the first degree, and unlawful sexual penetration in the first degree—are subject to the same mandatory 25-year sentence as defendant’s possession of a consensually taken and voluntarily transmitted photograph. Each of those other offenses requires physical contact with the victim and each is the most serious (first) degree of that particular offense. Conduct satisfying the elements of those other offenses typically involves the use of force or a victim who is exceptionally vulnerable due to age, relation to the defendant, or a disability of some sort. See, e.g. , ORS 163.375 (defining rape in the first degree).

Most telling of all, however, is when we consider the one time the legislature did enact a bill penalizing activity similar to sexting. In 2013, Representative Jason Conger introduced House Bill 3015, which targeted the dissemination of sexted images without the image creator’s consent. That bill did not receive a hearing, but the core idea found its way into House Bill 3194. That bill, among many other things, modified the harassment statute to create a subsection related to the dissemination of images:

"(1) A person commits the crime of harassment if the person intentionally:

"(a) Harasses or annoys another person by:

"* * * * *

"(C) Distributing a visual recording * * * of the other person engaged in sexually explicit conduct, * * * or in a state of nudity, * * * when the other person is under 18 years of age at the time of the recording."

ORS 166.065(1)(a)(C).

That statute does not speak directly to the activity present in this case—requesting a sexted image be sent, then subsequently being in receipt of an image voluntarily sent by the person depicted in the image. Rather, that statute speaks to the potential further distribution of an image—the forwarding of a sexted image to another. And that activity, arguably more egregious, is classified as a Class A misdemeanor. ORS 166.065(4)(b). Thus, the defendant in this case was subject to 25 years in prison for requesting a sexted image and being in possession of a voluntarily sent image. Yet, if he had then distributed that image to others, he would have been subject to no more than a year in jail.

Finally, we look to the defendant’s criminal history. And here, even if we view ORS 137.690 as a recidivist sentencing scheme, thus requiring that we look to the entirety of defendant’s other conduct, including other charges and even uncharged conduct, we cannot find the imposition of the sentence in this case proportionate. While defendant perpetrated a number of serious crimes against multiple victims, none of his other conduct falls under ORS 137.690 . A 25-year sentence for sexting—an act that the voters did not intend to be subject to that punishment—cannot be boot-strapped into proportionality by justifying it on the backs of other crimes that Measure 73 and the voters expressly did not think was deserving of that enhanced sentence. In short, none of defendant’s other abusive conduct—repeated and heinous as it was—is the type of conduct that any legislative body has purposefully sought to punish with a 25-year sentence.

For those reasons, I conclude that the imposition of multiple 25-year sentences, pursuant to ORS 137.690, for defendant’s convictions under ORS 163.670 for sexting would shock the conscience of reasonable people and are therefore disproportionate and in violation of Article I, section 16.

Accordingly, I respectfully concur.

Egan, C. J., DeVore, J., Lagesen, J., DeHoog, J., and Aoyagi, J., join the concurrence.

The majority views this as a case about "sexting" and concludes that a 300-month sentence for that offense is unconstitutional. I have sympathy for the view that a sentence of that length is disproportionate for the offense of sexting as the majority and concurring opinions describe it, viewing such conduct in isolation. The problem is that, in this case, viewing the conduct in isolation is exactly what we are not allowed to do. I write separately not because I believe that the 300-month sentence in this case is appropriate (my views in that regard are irrelevant), but because I believe the majority has misapplied the Oregon Constitution.

My disagreement with the majority concerns the role that defendant’s other criminal conduct plays in the proportionality analysis under Article I, section 16. That conduct included, apart from sexting, numerous physical sex offenses that Oregon’s policymakers (including, via the initiative process, the voters) have deemed very serious. In fact, defendant committed so many offenses against so many victims that the trial court (as defendant conceded below) could have imposed a sentence longer than 300 months without even applying a mandatory sentence for sexting.¹ As it happened, the trial court did impose a 300-month sentence as required for defendant’s multiple sexting offenses, and then imposed all of defendant’s other sentences concurrently with it. Because the 300-month sentence was triggered by the sexting offenses, the majority limits its proportionality analysis to whether sexting alone can justify such a sentence. But the trial court made it clear that it was imposing that sentence as punishment for all of defendant’s conduct. And, in this as-applied challenge, that is how we must view defendant’s sentence—as punishment not only for sexting, but for his other far more serious conduct, which included penetrative sexual acts with girls as young as 12 and 13. When one accounts for that conduct, as the Supreme Court requires us to, I conclude that defendant’s 300-month sentence is not unconstitutional as applied to him, even if the same sentence might be unconstitutional in other circumstances.

I begin with certain facts that are peripheral to the majority’s analysis but that are essential to mine.

Defendant was convicted of 18 counts based on his crimes against eight different victims ranging in age from 12 to 16. The crimes occurred during a span of more than two years, but 14² of the crimes occurred when defendant was 18. The crimes included one count of first-degree sexual abuse against 13-year-old CB when defendant was 17; one count of second-degree unlawful sexual penetration against 12-year-old JB when defendant was 16; a second count of second-degree unlawful sexual penetration against JB when she was 13 and defendant was 18; one count each of third-degree rape and third-degree sodomy (one month apart) against 14-year-old BB when defendant was 18; one count of fourth-degree assault constituting domestic violence against 16-year-old PG when defendant was 18; and one count of second-degree encouraging child sexual abuse against 16-year-old PG when defendant was 18. In addition to those seven counts, defendant was convicted of 11 counts of using a child in a display of sexually explicit conduct, which he committed with each victim except JB.

Under Ballot Measure 11, ORS 137.700, defendant was subject to mandatory minimum sentences of 75 months for the count of first-degree sexual abuse against CB and 75 months for each of the two counts of unlawful sexual penetration against JB. Under the sentencing guidelines that apply to his remaining offenses, defendant was also subject to sentences of up to 30 months each for the counts of third-degree rape and third-degree sodomy against BB; 30 months for the count of felony fourth-degree assault against PG; and 16 months for the count of second-degree encouraging sexual abuse against PG. The two convictions as to JB and the two convictions as to PG arose from four distinct criminal episodes.

For his first count of using a child in a display of sexually explicit conduct, defendant was subject to a mandatory minimum sentence of 70 months under Ballot Measure 11. For his second through eleventh counts of that same crime, defendant was subject to mandatory sentences of 300 months as a repeat offender under Ballot Measure 73, ORS 137.690. In his sentencing memorandum, defendant argued that both a 70-month sentence and the 300-month sentence would be disproportionately long for sexting, "given the nature of the offense and [defendant’s] personal circumstances." Defendant’s main argument was that, compared to other conduct encompassed by the offense of using a child in a display of explicit conduct—such as depictions of young children engaged in sex with adults—defendant’s conduct was much less harmful. Defendant also cited his immaturity at the time of his crimes. Defendant acknowledged to the trial court, however, that, even if the court departed downward from either the Measure 11 or the Measure 73 mandatory sentences, "there is so much time here that you could get back up to 300 months plus without using" either of those statutes.

The state argued that the mandatory sentences were proportional for several reasons: (1) the evidence supported a finding that defendant collected explicit images from the victims in order to "groom" them for sexual contact; (2) his child-display convictions involved numerous victims; and (3) in addition to sexting, defendant was convicted of "hands on sex offenses" against those victims. The state also pointed out that defendant had been warned by the police about his conduct (as a result of the report by CB’s mother) but continued to engage in criminal sexual activity with young girls. The state requested a total aggregate sentence of 300 months; in doing so, the state observed that a much longer sentence was possible if the trial court chose to sentence defendant consecutively for his various crimes against each of the eight victims.

At the sentencing hearing, the court chose to impose a 300-month sentence and explained its reasoning:

"The legal arguments I, frankly, am going to leave a lot of those legal arguments up to a higher court to determine.

"I will say this: As far as the particular facts of this case, what strikes [sic ], [defendant], is the fact that the eight victims that you victimized were particularly vulnerable in this instance, they were young, obviously and they were so desperate for your attention, approval, and love.

"And that is the reason that you chose them. That is the reason why, by your own words, you played them . And that is the reason why they sent you their picture and allowed you to engage in the sex acts that you did.

"And that is significant to me because in the legislative scheme, if you will, I can't help but think that it—that is one of the reasons why there is a minimum sentence, because of the vulnerability of these particular victims. And they were, in fact, vulnerable.

"I remember very distinctly each and every one of them when they testified and how they testified, even [PG], and how she reacted to having to be in this position as a witness, but some of the others too. That is significant.

"And I am not at all minimizing your situation. I am very sympathetic. It may not seem that way. I am sympathetic to who you are at this particular point in your life, your family’s particular situation, and where you have put them. And I know you will regret it now and every single day going forward.

"But this was not one specific incident. This was not two incidents of a selfie * * *. This was a huge totality of circumstances that included taking pictures and then acting upon them and using the self-esteem of these victims and crashing their self-esteem and using the sex acts in addition.

"And that combined with the number of victims is why this case is this case and why we are here and why it is going to be the sentence that it is."

(Emphases added.)Two observations are important. First, the state argued that defendant’s sexting was a way of "grooming" the victims of his multiple "hands on" sex offenses, and the trial court clearly agreed that the sexting was part and parcel of a larger pattern of serious criminal activity. Second, although defendant argued that a 300-month sentence for his sexting offenses was disproportionate, defendant also conceded that the court could disregard that mandatory sentence and still get "back up to 300 months plus" in light of the other counts and the mandatory sentences that they carried. Notably, defendant did not argue that a sentence of "300 months plus" calculated that way would be unconstitutional. Defendant has never made that argument.

The heart of the proportionality inquiry under Article I, section 16, is "whether the length of the sentence would shock the moral sense of reasonable people." State v. Ryan , 361 Or. 602, 612, 396 P.3d 867 (2017). The Supreme Court has issued several decisions that guide our analysis of this as-applied challenge. The majority and I interpret those cases differently.

The relevant cases begin with State v. Wheeler , 343 Or. 652, 175 P.3d 438 (2007). In that case, the court upheld consecutive life sentences for each of the defendant’s 18 convictions committed against three victims. Id. at 654, 175 P.3d 438. In doing so, the court engaged in a comprehensive examination of Article I, section 16, and earlier cases applying that provision. The court observed that its previous statement of the relevant analysis—whether a particular penalty " ‘shocks the moral sense of all reasonable people as to what is right and proper under the circumstances,’ " id. at 670, 175 P.3d 438 (quoting Sustar v. County Court for Marion Co. , 101 Or. 657, 665, 201 P. 445 (1921) (emphasis added) )—was not intended to be taken literally. Instead, according to the court, it was an attempt "to articulate a standard that would find a penalty to be disproportionately severe for a particular offense only in rare circumstances." Id. The Wheeler court observed:

"[T]his court’s cases do not provide a comprehensive understanding of the scope of Article I, section 16, but they do provide some perspective on certain aspects of proportionality requirement. The court has used the test of whether the penalty was so disproportioned to the offense as to

‘shock the moral sense of reasonable people’ 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, even if those sentences would be disproportionate when applied to a defendant without prior convictions."

Id. at 676-77, 175 P.3d 438. The Wheeler court rejected the defendant’s argument that his sentences were unconstitutionally disproportionate because they did not involve a physical assault or permanent physical injury, reasoning:

"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 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)."

Id. at 679-80, 175 P.3d 438.

Following Wheeler , the Supreme Court decided State v. Rodriguez/Buck , 347 Or. 46, 217 P.3d 659 (2009). In that case, the court addressed the proportionality of mandatory 75-month Measure 11 sentences for defendants without prior convictions who each committed a single act of first-degree sexual abuse, ORS 163.427. See Rodriguez/ Buck , 347 Or. at 49-50, 217 P.3d 659. Both offenses involved brief touching over the victims' clothing. In evaluating the defendants' sentences under Article I, section 16, the Rodriguez/Buck court identified "at least three factors" that bear upon the proportionality inquiry: "(1) a comparison of the severity of the penalty and gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant." 347 Or. at 58, 217 P.3d 659. The court did not declare those factors to be an exhaustive list of considerations; instead, the court explained that those factors "provide[d] a sufficient basis to decide" whether the two sentences on review satisfied the proportionality requirement. See id. at 58, 217 P.3d 659 n. 6.

In discussing the role of a defendant’s criminal history in the analysis, the Rodriguez/Buck court observed that "[t]raditional understandings of proportionality, as well as this court’s cases, require us to consider whether a defendant is a repeat offender by considering previous criminal convictions and whether there is evidence of multiple instances of uncharged wrongful conduct." Id. at 78, 217 P.3d 659. The court found it significant that the 75-month mandatory minimum sentences for first-degree sex abuse applied irrespective of whether the defendant had prior convictions, criminal charges, arrests, or police contact. Id. at 77, 217 P.3d 659. The court emphasized that the defendants "not only had no prior convictions or charges of any kind, but, in each case, the brief touching occurred on a single occasion." Id. at 78, 217 P.3d 659. The court observed that, in "the more common first-degree sexual abuse cases," the "contact is not only far more physically invasive and sexually charged, but it has occurred multiple times, rather than only once." Id. The court therefore concluded that "the absence of any criminal convictions and the single occurrence of the wrongful conduct " indicated that the 75-month sentences were disproportionate. Id. (emphasis added).

Later, in State v. Althouse , 359 Or. 668, 375 P.3d 475 (2016), the Supreme Court upheld a life sentence without the possibility of parole for a person convicted of public indecency, imposed pursuant to ORS 137.719 (providing that the presumptive sentence for a felony sex crime is life imprisonment without the possibility of release or parole if the defendant had been sentenced for felony sex crimes "at least two times prior to the current sentence"). The court explained that, for two reasons, the facts relevant to the defendant’s as-applied challenge were "not limited to the facts that gave rise to his 2011 conviction for public indecency":

"First, the trial court sentenced defendant pursuant to a repeat-offender statute, which authorizes an enhanced sentence for a third felony sex conviction. When a court imposes an enhanced sentence based on a repeat-offender statute, we consider a defendant’s criminal history in determining whether the sentence is proportionate to the crime. Second, defendant has raised an as-applied challenge to his sentence, which requires consideration not only of his past convictions but also of his past instances of relevant uncharged misconduct."

Id. at 678-79, 375 P.3d 475 (citations omitted). Accordingly, the court considered the "defendant’s history of charged and uncharged sex offenses" as stated in the "uncontested preliminary sentence investigation." Id. at 679, 375 P.3d 475.

In applying the three factors identified in Rodriguez/ Buck , the Althouse court essentially combined the first and third factors. That is, in comparing the severity of the penalty with the gravity of the offense (first factor), the court did not "focus solely on the last offense that [the defendant] committed"; instead, it focused on "the gravity of his criminal history." 359 Or. at 686, 375 P.3d 475. The court quoted its decision in Tuel v. Gladden , 234 Or. 1, 379 P.2d 553 (1963), for the proposition that

" ‘[h]abitual criminal statutes are based upon the belief that the criminal, as well as the crime, is a material factor to be considered in fixing the sentence. If the criminal is a menace to the community, his sentence should be aimed at offering the most protection to the community, regardless of the relative innocuousness of the particular crime for which he is now convicted.’ "

Althouse , 359 Or. at 684, 375 P.3d 475 (quoting Tuel , 234 Or. at 6, 379 P.2d 553 ; brackets omitted). The court also quoted its decision in Jensen v. Gladden , 231 Or. 141, 372 P.2d 183 (1962), for the proposition that, when it comes to "repeat sexual offenders," "whether an enhanced sentence for that conduct would ‘shock the moral sense would, of course, depend upon the seriousness of [the] repetitive sexual conduct of the kind punished by the statute and the danger that it forecasts for others unless the defendant is segregated from society.’ " Althouse , 359 Or. at 685, 375 P.3d 475 (quoting Jensen , 231 Or. at 144-45, 372 P.2d 183 ; brackets omitted). The court went on to conclude that, "[g]iven the seriousness of defendant’s repeated sexual misconduct and the danger that it forecasts for others, we cannot say that imposing a presumptive life sentence in response to defendant’s pattern of criminal behavior violated Article I, section 16." Id. at 687, 375 P.3d 475.

Next, in State v. Davidson , 360 Or. 370, 380 P.3d 963 (2016), the court held that a life sentence imposed for public indecency—under the same statute at issue in Althouse —violated the proportionality requirement, despite the defendant’s "lengthy and varied" criminal history, including three prior convictions for public indecency. The court reasoned that the defendant’s failure to reform after multiple prior convictions "is only one [consideration] among others," and because the defendant’s offenses of conviction and criminal history did not "reflect that he pose[d] a significant physical danger to the public," that indicated that a life sentence was disproportionate. Id. at 387-88, 380 P.3d 963. The court pointed to the fact that the defendant’s criminal history "almost exclusively consisted of low-level offenses," and "it did not include sexual offenses that entailed physical contact with victims or that appeared to specifically target child victims." Id. at 387, 380 P.3d 963.

Most recently, in Ryan , the court held that a trial court erred in failing to consider the defendant’s intellectual disability in the proportionality analysis, holding that "[e]vidence of an offender’s intellectual disability," if credited, is "relevant to a proportionality determination where sentencing laws require the imposition of a term of imprisonment without consideration of such evidence." 361 Or. at 620-21, 396 P.3d 867.

Taken together, these cases establish that the proportionality inquiry is a broadly contextual one in which the characteristics of the defendant and his conduct, not just the narrow facts of the underlying offense, matter. See Althouse , 359 Or. at 684, 375 P.3d 475 (observing that "the criminal, as well as the crime, is a material factor" (quoting Tuel , 234 Or. at 6, 379 P.2d 553 ) ). The "gravity of the offense," for purposes of the first Rodriguez/ Buck factor, must be assessed in the context of the defendant’s overall criminal conduct. That is why the court in Althouse essentially considered the gravity of the offense (first factor) and the defendant’s criminal history (third factor) as one.

Therefore, in this as-applied challenge to the length of defendant’s sentence, we must take into account not only the specific facts underlying the sexting offenses, but other relevant context, including the other criminal activity³ for which defendant was prosecuted below.When we do, we see that defendant conjoined his sexting conduct with multiple sex offenses that society has deemed serious enough to warrant mandatory sentences of as long as 75 months. As noted, defendant was subject to mandatory minimum sentences of 75 months for first-degree sexual abuse; 75 months each for two counts of second-degree unlawful sexual penetration; 25 months each for one count of third-degree rape and third-degree sodomy; 25 months for one count of fourth-degree assault constituting domestic violence; and 15 months for one count of second-degree encouraging child sexual abuse. Furthermore, because those counts involved distinct criminal episodes and multiple victims, the trial court was entitled to impose those sentences consecutively.

In other words, without even considering the sexting offenses, defendant was exposed to a total possible sentence in excess of 300 months, simply because of the number of other offenses and victims. Defendant conceded as much, and he has never asserted that such an aggregate sentence—if imposed for his crimes other than sexting—would have been unconstitutional. (Nor has the majority.⁴ ) But, if defendant could constitutionally have been sentenced to greater than 300 months without even accounting for his sexting offenses, then it follows that a sentence of 300 months is not unconstitutional as applied to defendant . The result can hardly be different if one adds the sexting offenses back into the equation.

Although the majority acknowledges the seriousness of defendant’s other conduct, the majority ultimately omits it from the proportionality analysis. Instead of asking whether a 300-month sentence is disproportionate for a person who committed sexting and the other crimes that defendant committed , the majority narrows the inquiry to whether a 300-month sentence can be imposed for sexting. Thus, in applying the first Rodriguez/Buck factor (gravity of the offense), the majority defines the "offense" strictly as defendant’s repeated violations of ORS 163.670 —contrary to Althouse ’s direction that the gravity of the offense must be considered in light of related criminal conduct. Having so defined it, the majority then concludes that defendant’s conduct was relatively minor compared to other conduct encompassed by that statute and compared to other "felony sex crimes" under ORS 137.690. 293 Or. App. at 638-39, 430 P.3d at 114–15.

The majority makes two main points in defense of its result. Neither is persuasive.

First, the majority goes to great lengths to distinguish Ballot Measure 73 from a true "recidivist" statute as was at issue in Althouse. 293 Or. App. at 621-26, 430 P.3d at 105–08. According to the majority, the Supreme Court’s reasoning in Althouse "depends on the principle that the legislature is entitled to provide enhanced sentences when a defendant has been proven highly resistant to reform because the person has reoffended after the state has previously punished him or her." 293 Or. App. at 625-26, 430 P.3d at 107–08. As an initial matter, neither Althouse nor the court’s other decisions have ever said that an offender must be a "recidivist" in that specific sense in order for his or her criminal history to be relevant. In fact, the court has repeatedly said that relevant context includes uncharged misconduct. See, e.g. , Rodriguez/Buck , 347 Or. at 78, 217 P.3d 659 (court should consider "evidence of multiple instances of uncharged wrongful conduct"); Althouse , 359 Or. at 679, 375 P.3d 475 ("defendant has raised an as-applied challenge to his sentence, which requires consideration not only of his past convictions but also of his past instances of relevant uncharged misconduct"). Uncharged conduct, by definition, results in no conviction or attempted rehabilitation.

More fundamentally, the majority’s effort to distinguish Ballot Measure 73 from other "recidivist" statutes is simply beside the point, because the majority’s analysis is aimed entirely at demonstrating why a 300-month sentence cannot be justified for sexting . As already discussed, that is not the question raised by this as-applied challenge.

That brings us to the majority’s second reason for excluding defendant’s other serious sex offenses from the proportionality analysis. According to the majority, it is wrong to review defendant’s 300-month sentence as the "package" sentence for all of defendant’s 18 counts of conviction, even though that is how the trial court saw it. Instead, the majority reads the Supreme Court’s cases as compelling us to consider only the specific offense for which that sentence was imposed. 293 Or. App. at 625, 430 P.3d at 105.

The majority cites no language requiring that approach. To be sure, both Rodriguez/Buck and Althouse dealt with sentences that were imposed for a single count of conviction. Rodriguez/Buck involved defendants with no criminal histories who committed single, isolated instances of conduct that ranked at the low end of the spectrum of severity encompassed by the defined statutory crimes. Thus, the question in that case was whether a particular sentence was disproportionate for a defendant who committed the underlying crime of conviction and no other offense. In Althouse , the question was whether a particular sentence was disproportionate for a defendant who committed the underlying crime of conviction and who also had past convictions for that and other offenses. In neither case did the Supreme Court have reason to address whether other crimes sentenced in the same proceeding should inform the proportionality analysis. From that fact, the majority apparently concludes that crimes sentenced in the same proceeding cannot inform the proportionality analysis. But that does not logically follow from anything that the Supreme Court has said, and it runs contrary to the court’s repeated admonitions that, in an as-applied challenge, we must take full account of a defendant’s related criminal activity—even uncharged misconduct.

Ultimately, the flaw in the majority’s reasoning is demonstrated by the fact that nothing will prevent the trial court, on remand, from achieving the same 300-month aggregate sentence by imposing consecutive sentences on the counts other than sexting. Thus, defendant’s victory today may be fleeting.⁵ That mere possibility illustrates the problem with the majority’s view. For if Article I, section 16, is meant to account for the moral conscience of the community to ensure that excessive punishments are not imposed, then it is strange to regard a 300-month sentence as permissible if computed as "30 times ten" or "50 times six," yet morally shocking if computed as "300 plus zero." Reasonable members of the community would weigh proportionality by considering the length of the total sentence in light of defendant’s overall conduct and the number of victims, not by scrutinizing the math.

The majority’s decision today may or may not result in a shorter sentence for defendant. If the court determines that a shorter aggregate sentence is appropriate, that may represent a sound exercise of judicial discretion on the facts of this case. My purpose in writing separately is to emphasize that the trial court did not violate the Oregon Constitution in imposing the sentence required by statute.

Accordingly, I respectfully dissent.

Armstrong, J., Hadlock, J., Tookey, J., Shorr, J., and Powers, J., join in the dissent.