inline"> 598 Argued and submitted November 14, 2019; judgment of conviction affirmed, sentence of death vacated, and case remanded to circuit court for resentencing October 7, 2021 STATE OF OREGON, Plaintiff-Respondent, v. DAVID RAY BARTOL, Defendant-Appellant. (CC 14C46903); (SC S064485) 496 P3d 1013


     Defendant was convicted of committing a murder while confined in a penal or
correction facility, a crime that, at the time, constituted aggravated murder—the
only crime that is punishable by death in Oregon. Defendant was sentenced to
death. While defendant’s automatic and direct appeal of his conviction and death
sentence was pending in the Oregon Supreme Court, the legislature enacted
Senate Bill (SB) 1013 (2019), which amended the death penalty statutes such
that all of the forms of murder that previously had constituted aggravated murder, including the one of which defendant had been convicted, were reclassified
as murder in the first degree and no longer were subject to the death penalty.
SB 1013 provided that the change applied only to crimes committed before, on,
or after the bill’s effective date, September 29, 2019, that were the subject of
sentencing proceedings occurring on or after that date—meaning that it did not
affect defendant’s death sentence. Defendant, who already had filed briefs raising numerous challenges to his conviction and death sentence, and amicus curiae Oregon Capital Resources Center filed supplemental briefs, arguing, among
other things, that maintaining defendant’s death sentence when his crime of conviction no longer constituted aggravated murder and thus no longer was subject
to the death penalty violated the prohibitions on cruel and unusual punishment
in the Oregon and United States constitutions. Held: Defendant’s death sentence
cannot be maintained because doing so would violate the two special proportionality requirements under Article I, section 16, of the Oregon Constitution: the
requirement that the death penalty be limited to offenders who commit a narrow
category of the most serious crimes and whose extreme culpability makes them
the most deserving of execution and the requirement that there be a fundamental, moral distinction between crimes that are punishable by death and those
that are not.
    The judgment of conviction is affirmed. The sentence of death is vacated, and
the case is remanded to the circuit court for resentencing.



    En Banc
   On automatic and direct review of the judgment of conviction and sentence of death imposed by the Marion County
Circuit Court.
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(2021) 599

Tracy A. Prall, Judge.
Timothy A. Sylwester, Assistant Attorney General, Salem,
argued the cause for respondent. Timothy A. Sylwester
and Jordan R. Silk, Assistant Attorneys General filed the
briefs. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Andrew D. Robinson, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender.
Jeffrey Erwin Ellis, Oregon Capital Resource Center,
Portland, and Richard L. Wolf, Richard L. Wolf PC, Portland,
filed the brief for amicus curiae Oregon Capital Resource
Center.
DUNCAN, J.
The judgment of conviction is affirmed. The sentence of
death is vacated, and the case is remanded to the circuit
court for resentencing.
600 State v. Bartol

DUNCAN, J.

This death penalty case is before this court on
automatic and direct review. ORS 138.052(1). In the trial
court, defendant was convicted of aggravated murder and
sentenced to death. On review, defendant makes numerous
challenges to both his conviction and sentence. We reject
defendant’s challenges to his conviction.1 But we accept one
of his challenges to his sentence. Specifically, we accept
his challenge based on Article I, section 16, of the Oregon
Constitution, which prohibits disproportionate punishments. As we explain below, after defendant was convicted
and sentenced, the legislature enacted Senate Bill (SB) 1013
(2019), which, among other things, reclassified the criminal
conduct that had constituted “aggravated murder,” which
can be punished by death, to “murder in the first degree,”
which cannot be punished by death. The enactment of SB
1013 reflects a legislative determination that, regardless of
when it was committed, the conduct that had constituted
“aggravated murder” does not fall within the narrow category of conduct for which the death penalty is appropriate.
Given that determination, we conclude that, although the
legislature did not make SB 1013 retroactive as to sentences
imposed before its effective date, maintaining defendant’s
death sentence would violate Article I, section 16. Therefore,
we affirm defendant’s conviction but reverse his death sentence and remand the case for resentencing.

I. BACKGROUND

While in custody in the Marion County Jail awaiting trial, defendant killed another person who was also in
custody. The state charged defendant with aggravated murder, which, at the time, was defined to include murder committed by a person who was “confined in a state, county or
municipal penal or correctional facility or was otherwise
in custody when the murder occurred.” ORS 163.095(2)(b)
(2013), amended by Or Laws 2019, ch 635, § 1. Aggravated

1
We have considered all defendant’s challenges to his conviction—many of
which have been raised and rejected in other death penalty cases—and have
concluded that they are either unpreserved or without merit and that further
discussion would not benefit the bench or the bar.
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 (2021)                                 601

murder is the only Oregon crime punishable by death. The
state sought the death penalty, and, after a jury trial, defendant was convicted of aggravated murder and sentenced to
death. This automatic and direct review followed.
        After the parties filed their initial briefs on review,
the 2019 Legislative Assembly enacted SB 1013 (2019), which
substantially revised Oregon’s death penalty statutes. Or
Laws 2019, ch 635.
A.   SB 1013
         Prior to the enactment of SB 1013 in 2019, Oregon
had two categories of murder: “murder” and “aggravated
murder.” “Murder” was defined to include certain forms of
criminal homicide, ORS 163.115(1) (2013), amended by Or
Laws 2019, ch 635, § 4, and “aggravated murder” was defined
as “ ‘murder’ * * * committed under, or accompanied by,” any
one of 12 enumerated aggravating circumstances, ORS
163.095 (2013), amended by Or Laws 2019, ch 635, § 1. Thus,
prior to SB 1013, murder committed under or accompanied
by any one of 12 aggravating circumstances could result in
a death sentence. ORS 163.105(1)(a) (2013); Or Const, Art I,
§ 40.
         SB 1013 changed that. It created a new category
of murder, “murder in the first degree”; reclassified all the
forms of murder that previously had been “aggravated murder” as “murder in the first degree”; and provided a maximum sentence of life imprisonment without the possibility
of parole for “murder in the first degree.” Or Laws 2019,
ch 635, §§ 1, 3(1), (2). Thus, SB 1013 eliminated the death
penalty for all the forms of murder that previously had
been eligible for it, including the form that defendant had
committed—murder committed when confined to a penal or
correctional facility or otherwise in custody.
         Although SB 1013 eliminated the death penalty for
all the forms of murder that previously had been eligible for
it, SB 1013 did not eliminate the death penalty entirely. It
redefined “aggravated murder” to include different forms
of murder, most of which are more serious forms of murder
than those that previously had been classified as “aggravated
602                                                          State v. Bartol

murder.” Or Laws 2019, ch 635, § 1; ORS 163.095.2 The forms
of murder that constitute “aggravated murder” under the
new definition can be punished by death. ORS 163.105(1)(a).3
         The legislative history of SB 1013 shows that the
legislature’s purpose in narrowing the definition of “aggravated murder” was to ensure that Oregon’s death penalty
statutes do not violate the Eighth Amendment to the United
States Constitution, which prohibits cruel and unusual
punishments, including disproportionate punishments.
The United States Supreme Court has held that the Eighth
Amendment requires that the death penalty be “limited to
    2
      SB 1013 redefined “aggravated murder” as
         “(1) Criminal homicide of two or more persons that is premeditated and
    committed intentionally and with the intent to:
         “(a) Intimidate, injure or coerce a civilian population;
         “(b) Influence the policy of a government by intimidation or coercion; or
         “(c) Affect the conduct of a government through destruction of property,
    murder, kidnapping or aircraft piracy; or
         “(2) Murder in the second degree, as defined in ORS 163.115, that is:
         “(a)(A) Committed while the defendant was confined in a state, county or
    municipal penal or correctional facility or was otherwise in custody; and
         “(B) Committed after the defendant was previously convicted in any
    jurisdiction of any homicide, the elements of which constitute the crime of
    aggravated murder under this section or murder in the first degree under
    ORS 163.107;
         “(b) Premeditated and committed intentionally against a person under
    14 years of age;
         “(c) Premeditated, committed intentionally against a police officer as
    defined in ORS 801.395, and related to performance of the victim’s official
    duties; or
         “(d) Premeditated, committed intentionally against a correctional,
    parole and probation officer or other person charged with the duty of custody,
    control or supervision of convicted persons, and related to the performance of
    the victim’s official duties.”
    As a result of SB 1013, there are now three categories of murder: “aggravated
murder,” “murder in the first degree,” and “murder in the second degree,” which
consists of the forms of murder that had been classified as “murder” prior to the
enactment of SB 1013. ORS 163.095; ORS 163.107; ORS 163.115.
    3
      In addition to redefining aggravated murder, SB 1013 made changes to the
requirements for imposition of a death sentence. Prior to SB 1013, a jury had
to answer four questions in the affirmative in order for a defendant to be sentenced to death. ORS 163.150(1)(b) (2013), amended by Or Laws 2019, ch 635, § 5.
SB 1013 eliminated the question relating to whether a defendant constitutes a
continuing threat, and it imposed a “proof beyond a reasonable doubt” standard
of proof on the question relating to whether a defendant should receive a death
sentence. Or Laws 2019, ch 635, § 5.
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those offenders who commit ‘a narrow category of the most
serious crimes’ and whose extreme culpability makes them
‘the most deserving of execution.’ ” Roper v. Simmons,

543 US 551, 568

125 S Ct 1183

161 L Ed 2d 1

 (2005) (quoting Atkins v. Virginia,

536 US 304, 319

122 S Ct 2242

153 L Ed 2d 335

(2002)). Testifying in support of SB 1013, former
Oregon Chief Justice Paul J. De Muniz told legislators that
the “definition of aggravated murder in SB 1013 narrows the
cohort of murderers eligible to be put to death by the state, to
the ‘worst of the worst,’ consistent with the requirements of
the Eighth Amendment to the United States [Constitution].”
Testimony, Senate Committee on Judiciary, SB 1013, Apr 1,
2019, Ex 24 (statement of Paul J. De Muniz). Likewise,
Stephen Kanter, former Dean of Lewis & Clark Law School,
testified that “[w]hat SB 1013 does finally is reduce aggravated murder in Oregon to that very close[,] narrow category
demanded by the US Supreme Court.” Testimony, Senate
Committee on Judiciary, SB 1013, Apr 1, 2019, Ex 3 (statement of Stephen Kanter).
Opponents of SB 1013 understood that passage of
the bill would reflect a new assessment of the gravity of
the criminal conduct that was classified as “aggravated
murder” at the time. In written testimony, Marion County
Deputy District Attorney Katie Suver stated that the bill
would change the “entire definition of Aggravated Murder”
and, thereby, “repeal what the voters knew to be Aggravated
Murder in 1984,” when they enacted the death penalty statute that SB 1013 would amend. Testimony, House Committee
on Rules, SB 1013, June 5, 2019, Ex 14 (statement of Katie
Suver). Lane County District Attorney Patricia Perlow
argued that the legislature should not reclassify the conduct that was classified as “aggravated murder” at the time
because the 12 aggravating circumstances in the definition were “truly * * * aggravated circumstances, worthy of
whatever our most severe punishment is going to be.” Video
Recording, Senate Committee on Judiciary, SB 1013, June 5,
2019, at 1:22 (testimony of Patricia Perlow), https://olis.
oregonlegislature.gov (accessed Sept 23, 2021).
When SB 1013 was presented on the floor of each
legislative chamber, legislators told their colleagues that SB
1013 would narrow the definition of “aggravated murder”
604 State v. Bartol

so that it would apply only to the “worst of the worst,” in
order to comply with constitutional requirements. Senator
Prozanski carried the bill on the Senate floor, explaining:
“What Senate Bill 1013 will do is the following. It will
narrow the number of circumstances that qualif[y] for
aggravated murder. Specifically, premeditated and intentional killing of two or more individuals carrying out a terrorist act would be a qualifier. Also, committing murder
while the individual is incarcerated in a corrections facility
and has already been previously convicted of any type of
homicide. Third, for the intentional and premeditated murder of a victim under the age of 14[.]”

Video Recording, Senate Committee on Judiciary, SB 1013,
May 21, 2019, at 38:00 (statement of Sen Floyd Prozanski),
https://olis. oregonlegislature.gov (accessed Sept 23, 2021).
After discussing the history of the death penalty in Oregon,
Senator Prozanski discussed the constitutional concerns
that motivated the bill:
“Currently, aggravated murder is subject to constitutional challenges, as I stated. Number one, the U.S.
Supreme Court has made it very clear under the Eighth
Amendment that it needs to be very narrow in space [sic].
As the U.S. Supreme Court has stated, aggravated murder must be reserved for those that are known as the worst
of the worst. We believe by narrowing the statute that we
currently have, we will in fact comply with what the U.S.
Supreme Court has stated.”

Id.

 (emphasis added). Likewise, when explaining the bill on
the House floor, Representative Williamson stated:
       “I believe our aggravated murder statute, and therefore
   our death penalty system in Oregon, is at serious constitutional risk. The U.S. Supreme Court has held that a death
   penalty system must be reserved for the worst of the worst
   crime[s] in order to be constitutional, and that it must be
   limited in its application. I believe this bill brings us closer
   to the constitutional standards and requirements outlined
   by the U.S. Supreme Court.”

Video Recording, House Committee on Judiciary, SB 1013,
June 19, 2019, at 3:07 (statement of Rep Jennifer Williamson),
https://olis.oregonlegislature.gov (accessed Sept 23, 2021)
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(emphasis added). With the issues thus framed, both chambers approved SB 1013.
Governor Brown signed SB 1013 into law on August 1,
2019. In keeping with the expressions of the legislative
intent underlying SB 1013, when the Governor signed the
bill, she stated that, among other things, it “reserve[s]
death sentences for only the rarest and most heinous murders.” Governor Kate Brown, SB 1013 Ceremonial Signing
Remarks, Aug 1, 2019, https://www.oregon.gov/gov/media/
Pages/speeches/bill-signing-SB1013.aspx (accessed Sept 23,
2021).
SB 1013 provides that its changes to the definition of “aggravated murder” apply to “crimes committed
before, on or after the effective date of this 2019 Act that
are the subject of sentencing proceedings occurring on or
after” the bill’s effective date, September 29, 2019. Or Laws
2019, ch 635, §§ 30, 31. Therefore, under SB 1013, whether a
person can be sentenced to death for criminal conduct that
was classified as “aggravated murder” before SB 1013 but
is now classified as “murder in the first degree” depends on
whether the criminal conduct is the subject of a sentencing proceeding on or after September 29, 2019. Under the
bill, if a person engaged in conduct that was classified as
“aggravated murder” before September 29, 2019, but is not
sentenced until after that date, the person cannot be sentenced to death. As described above, SB 1013 was enacted
after defendant had been convicted and sentenced and had
filed his opening brief on review.
B. Defendant’s Arguments About the Effect of SB 1013 on
the Constitutionality of His Death Sentence
One week after SB 1013 was signed by the Governor,
defendant moved to file a supplemental brief to address the
implications of the new law, and this court granted the
motion.
In his opening brief, defendant had argued, among
other things, that the death penalty is unconstitutional for
all crimes because it violates Article I, section 16, of the
Oregon Constitution and the Eighth Amendment to the
United States Constitution. Noting that “both constitutions
606 State v. Bartol

prohibit ‘cruel and unusual punishment,’ a phrase which
‘draw[s] its meaning from the evolving standards of decency
that mark the progress of a maturing society,’ ” he had
argued that “the death penalty’s national and worldwide
decline shows that it has become morally impermissible
under society’s standards of decency.” (Quoting Trop v.
Dulles,

356 US 86, 101

78 S Ct 590

2 L Ed 2d 630

 (1958)
(plurality opinion).) In his supplemental brief, defendant
argued that “SB 1013 is further proof, if more was needed,
that standards of decency have evolved, both nationally and
in Oregon, to the extent that the death penalty is fundamentally morally impermissible and, therefore, unconstitutional.” Alternatively, regarding the criminal conduct for
which he was convicted, defendant argued that “SB 1013’s
abolition of death penalty for murder aggravated solely by
its correctional setting is conclusive evidence that in Oregon,
at least, moral standards have evolved to the extent that
death is an impermissibly excessive punishment for that
crime.”

         In his opening brief, defendant had also argued
that his death sentence violated Article I, section 16, and
the Eighth Amendment because Oregon’s then-existing
death penalty statutes did not sufficiently narrow the class
of persons eligible for the death penalty. Relying on the rule
that “an aggravating circumstance must genuinely narrow
the class of persons eligible for the death penalty and must
reasonably justify the imposition of a more severe sentence
on the defendant compared to others found guilty of murder,” Zant v. Stevens,

462 US 862, 877

103 S Ct 2733

77 L Ed 2d 235

 (1983), defendant had argued that Oregon’s then-existing death penalty statutes did not “provide a rational
method to determine who will be subject to the death penalty
and who will not.” In his supplemental brief, he argued that,
“by enacting SB 1013, the legislature stated unequivocally
that the correctional setting does not ‘reasonably justify the
imposition of a more severe sentence on the defendant compared to others found guilty of murder.’ ” (Quoting Zant,

462 US at 877

.)

        The case proceeded to oral argument, after which
this court allowed the Oregon Capital Resource Center
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(OCRC) to appear as amicus curiae.4 In its subsequently filed
brief, OCRC asserted, among other things, that defendant’s
death sentence violates Article I, section 16, and the Eighth
Amendment because it does not comport with current standards of decency. See, e.g., Atkins v. Virginia,

536 US at 311

 (claim that sentence is unconstitutionally excessive is
judged in accordance with evolving standards of decency, not
standards that prevailed when Bill of Rights was adopted).
As objective evidence of those standards, OCRC pointed to
(1) SB 1013’s narrowing of the definition of “aggravated murder” and the fact that defendant’s conduct is no longer classified as “aggravated murder” and, thus, is no longer subject
to the death penalty; and (2) historical evidence that, according to OCRC, “establishes that neither Oregon nor any other
state has executed an individual for a crime no longer classified as the most serious under state law and which is no
longer subject to the death penalty.” OCRC asserted that
there is
    “a longstanding and vigorous local and national consensus
    against the execution of an individual for a crime no longer
    subject to the death penalty—even where the reclassification and removal of that crime from eligibility for the death
    penalty is by prospective only (or partially-prospective)
    legislation.”
OCRC described historical facts that, in its view, demonstrate that consensus, but it asked to supplement the appellate record because the facts “are not in [defendant’s] trial
record * * * as SB 1013 was not adopted at the time of his
trial.” This court allowed the parties and OCRC to file statements of facts, as well as supplemental briefs addressing
what relevance, if any, those facts have to the constitutionality of defendant’s death sentence.
     4
       In its motion to appear as amicus curiae, OCRC stated that it expected that
individuals who were challenging their death sentences would raise new challenges based on SB 1013, which had become effective just over a month earlier.
OCRC reported that several individuals who had been challenging their death
sentences through habeas corpus proceedings in federal court had successfully
moved for stays of those proceedings so that they could file new post-conviction
relief petitions in state court to argue that, because the criminal conduct for
which they had been sentenced to death can no longer result in death sentences,
their death sentences are unconstitutional. OCRC also reported that it expected
that individuals who were already litigating post-conviction relief cases in state
court would amend their petitions to add claims based on SB 1013.
608                                                         State v. Bartol

         Defendant and OCRC filed a joint statement of
facts, the accuracy of which the state does not dispute.5 The
statement reviews the history of the death penalty in Oregon
and every other state. It details when the death penalty was
first authorized in each state and whether the death penalty
has ever been repealed by the state’s legislature, voters, or
courts. If the death penalty has been repealed, the statement reports whether any person was executed while the
repeal was in effect. The statement covers more than 100
years of the history of the death penalty, and its comprehensive and detailed survey shows that, when the death penalty has been repealed—in part or in full—no person who
was sentenced to death before the repeal, but who could not
be sentenced to death after the repeal, has been executed.
In other words, according to defendant and OCRC, it shows
that “no state has executed someone for a crime that was not
subject to the death penalty on the day of the execution.”
        After the filing of the statement of facts, defendant
and OCRC filed a supplemental brief addressing the implications of the history recounted in the statement of facts
and of SB 1013. The state also filed a supplemental brief.
         There have been four rounds of briefing in this case,
including two rounds after oral argument. Defendant and
OCRC have raised many issues. In the first round of briefing, defendant challenged both his conviction and his sentence. In the subsequent rounds, which followed the enactment of SB 1013, defendant raised additional challenges to
his sentence, as did OCRC.
        As noted at the outset, we reject defendant’s challenges to his conviction—many of which have been raised
and rejected in other death penalty cases—without further
discussion. But, for the reasons explained below, we agree

    5
      The material in the statement of facts was drawn from two well-respected
national databases: (1) the Espy File, available at https://deathpenaltyinfo.org/
executions/executions-overview/executions-in-the-u-s-1608-2002-the-espy-file
(accessed Sept 24, 2021), which is maintained by the Inter-University Consortium
for Political and Social Research and which covers executions in the United
States between 1608 and 2002; and (2) the “Execution Database” maintained
by the Death Penalty Information Center (DPIC) in Washington D.C., available
at https://deathpenaltyinfo.org/executions/execution-database (accessed Sept 24,
2021) which covers executions from 1976 to the present.
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with his argument that, in light of the enactment of SB 1013
in 2019, his death sentence violates Article I, section 16, of
the Oregon Constitution.
                               II. ANALYSIS
         As mentioned, defendant argues that his sentence violates both Article I, section 16, of the Oregon
Constitution and the Eighth Amendment to the United
States Constitution.6 The state responds that defendant’s
Article I, section 16, challenge is barred by another section
of the state constitution: Article I, section 40. We turn to
that issue first.
A.    Whether Defendant’s Article I, Section 16, Challenge Is
      Barred
        In 1984, Oregon voters approved two ballot measures, Measure 7, which reinstated the death penalty, and
Measure 6, which provided:
        “The Constitution of the State of Oregon is amended by
     creating a new section 40 to be added to and made a part of
     Article I and to read:
        “Section 40. Notwithstanding sections 15 and 16 of this
     Article, the penalty for aggravated murder as defined by
     law shall be death upon unanimous affirmative jury findings as provided by law and otherwise shall be life imprisonment with minimum sentence as provided by law.”
The state argues that the “notwithstanding” clause of
Article I, section 40 (the constitutional provision that resulted
from the voters’ adoption of Measure 6) “precludes any facial
or as-applied challenges to defendant’s death sentence that
are based on Article I, section[ ] * * * 16.”
        This court addressed the scope of Article I, section 40, in State v. Rogers,

352 Or 510, 513-25

288 P3d 544

 (2012). As we will explain, Rogers establishes that the
only types of challenges barred by Article I, section 40, are
     6
       Article I, section 16, provides, in part, “Excessive bail shall not be required,
nor excessive fines imposed. Cruel and unusual punishments shall not be
inflicted, but all penalties shall be proportioned to the offense.”
     The Eighth Amendment provides, “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
610                                                            State v. Bartol

challenges to the death penalty per se, that is, challenges
based on a theory that the death penalty is unconstitutional
in all circumstances.
         In Rogers, the defendant argued that Article I, section 40, had been adopted in violation of the “separate vote”
requirement for constitutional amendments. That requirement is set out in Article XVII, section 1, of the Oregon
Constitution, which provides, in part:
    “When two or more amendments shall be submitted * * *
    to the voters of this state at the same election, they shall
    be so submitted that each amendment shall be voted on
    separately.”
(Emphasis added.) As the court in Rogers explained, the
“ ‘separate vote’ requirement is ‘aimed at ensuring that the
voters are able to express their will in one vote as to only one
constitutional change.’ ”

352 Or at 514

 (quoting Armatta v.
Kitzhaber,

327 Or 250, 269

959 P2d 49

(1998)). It “focuses on
the form of the submission of an amendment and the potential changes to the existing constitution that the amendment
proposes.” Id. at 515. An amendment violates the “separate
vote” requirement if it proposes two or more substantive
changes to the constitution that are not “closely related.”
Id. Consequently, when determining whether an amendment violates the “separate vote” requirement, a court must
determine how many substantive changes it makes to the
constitution and whether those changes are closely related.
In Rogers, the parties disputed how many substantive changes Measure 6 had made to the constitution. The
defendant argued that the measure eliminated all types
of challenges to death sentences based on either Article I,
section 15, which, at the time, prohibited vindictive punishments,7 or Article I, section 16, which prohibits cruel and
unusual punishments and disproportionate punishments.
Id. at 518. The state disagreed, arguing that Measure 6 was
more limited than the defendant contended. Id. at 515-16.
7
At the time, Article I, section 15 provided that “[l]aws for the punishment
of crime shall be founded on the principles of reformation, and not of vindictive
justice.” Or Const, Art I, § 15 (Original). The voters approved an amendment to
that section in 1996; it now provides 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.”
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This court agreed with the state, explaining that
Measure 6
“changes sections 15 and 16 by eliminating any constitutional barriers that those sections potentially posed to
death as a sanction for aggravated murder; it does not render sections 15 or 16 otherwise inoperable. In other words,
the text of the measure appears to preclude challenges to
the death penalty as a sanction for aggravated murder; it
does not preclude other challenges under Article I, sections
15 and 16.”
Id. at 519.
Later in the Rogers opinion, when determining
whether all the substantive changes made by Measure 6
were closely related, this court again addressed the scope of
the measure’s limitation on challenges based on Article I, section 15, or Article I, section 16. It explained that Measure 6
“contains only one provision and proposes to do only one
thing—prescribe the penalty for aggravated murder. All
of the other changes that Measure 6 effects are directed
at eliminating the potential constitutional barriers to the
imposition of that penalty posed by Article I, sections 15
and 16.”
Id. at 522-23. Thus, the only challenges to the death penalty that Measure 6 precludes are those based on theories
that the death penalty violates either Article I, section 15, or
Article I, section 16, in all circumstances.
This court reiterated that understanding of Measure 6
in response to the defendant’s argument that the measure
did not allow voters to express their will in one vote as to
only one constitutional change, explaining:
“Defendant argues * * * that a voter conceivably could
favor one or more of the changes that Measure 6 effects
and oppose others. For example, defendant suggests, a
voter could support the measure’s directive that the penalty for aggravated murder is death, but oppose excepting
that directive from the relevant provisions of Article I, sections 15 or 16. But, in so contending, defendant fails to recognize the limits of the measure’s effect on those sections. As
we have explained, Measure 6 ensures that Article I, sections
15 and 16, will not stand as barriers to imposition of the
612 State v. Bartol

death penalty. It does not otherwise permit that penalty to
be imposed in violation of those sections—for example, by
methods that are cruel and unusual. Because the measure
did not propose to eliminate all or any of the protections
afforded by sections 15 and 16, it was not possible for voters
to separately decide whether they wished to do so. A voter
who favored death as a penalty for aggravated murder could
not achieve that objective without also favoring removal of
potential barriers to imposition of that penalty, specifically
those found in Article I, sections 15 and 16.”
Id. at 524 (emphases added).
Thus, the only challenges to the death penalty that
Article I, section 40, bars are those that are entirely incompatible with the death penalty as a punishment for aggravated murder as a general matter. For example, because a
voter could not simultaneously take a position supporting
the reinstatement of the death penalty and a position that
the death penalty is cruel and unusual in all circumstances,
Article I, section 40, precludes an Article I, section 16, challenge to the death penalty on the ground that it is cruel
and unusual in all circumstances. But, because a voter
could simultaneously take a position supporting the reinstatement of the death penalty and a position that the death
penalty is cruel and unusual a punishment for certain categories of offenders, Article I, section 40, does not preclude an
Article I, section 16, challenge to the death penalty on the
ground that it is a cruel and unusual punishment for those
offenders.
Rogers makes clear that Article I, section 40, does
not preclude all Article I, section 15, and Article I, section
16, challenges to the death penalty. Indeed, in Rogers, this
court noted that, after the adoption of Article I, section 40,
the court “actually considered, and rejected on the merits,
certain challenges based on the ‘cruel and unusual’ and ‘proportionate penalty’ provisions of Article I, section 16.” Id. at
520 n 10 (emphasis in original; citing State v. Rogers,

313 Or 356

836 P2d 1308

 (1992) cert den,

507 US 974

 (1993); State
v. Isom,

313 Or 391

837 P2d 491

 (1992); State v. McDonnell,

313 Or 478

837 P2d 941

 (1992); State v. Langley,

314 Or 247

839 P2d 692

 (1992), adh’d to on recons,

318 Or 28

 (1993);
State v. Moen,

309 Or 45

786 P2d 111

 (1990), abrogated in
Cite as

368 Or 598

 (2021)                                 613

part on other grounds by State v. Turnidge (S059155),

359 Or 364

374 P3d 853

 (2016)). Therefore, Article I, section 40,
does not preclude this court from addressing defendant’s
claim that his death sentence violates Article I, section 16.
B.   Whether Defendant’s Death Sentence Violates Article I,
     Section 16
         As mentioned, defendant argues that his death
sentence violates both Article I, section 16, and the Eighth
Amendment. Ordinarily, this court addresses state constitutional claims before federal ones, State v. MacBale,

353 Or 789, 794

305 P3d 107

(2013), and we do so here. But
defendant’s state and federal claims are similar, and he supports his state claim with federal cases. Consequently, it is
helpful to begin with an overview of the Eighth Amendment
and Article I, section 16, and the connections between the
two. As we will explain, case law construing the provisions
establishes that (1) each provision prohibits disproportionate sentences; (2) whether a sentence is disproportionate
is to be determined based on current societal standards;
(3) legislative enactments are strong indicators of current
societal standards, but are not dispositive of whether a sentence comports with those standards; and (4) when determining whether a sentence comports with those standards,
courts also consider, among other things, how the gravity
of the crime compares to the severity of the sentence and
how the severity of the sentence compares to the severity
of sentences imposed for other crimes. We turn first to the
Eighth Amendment and case law applying it, which, as we
will explain, this court has relied upon when construing
Article I, section 16.
1. Overview of the Eighth Amendment
The Eighth Amendment provides, “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” Although the amendment does not include an express proportionality requirement, the United States Supreme Court has long held that
the amendment prohibits disproportionate sentences. As the
Court stated in Weems v. United States,

217 US 349, 367

30 S Ct 544

54 L Ed 793

 (1910), when holding that a sentence
614                                           State v. Bartol

violated the Eighth Amendment, “[I]t is a precept of justice that punishment for [a] crime should be graduated and
proportioned to [the] offense.” Since Weems, the Court has
“repeatedly applied this proportionality precept.” Atkins,

536 US at 311

.
         The Eighth Amendment is intended to protect individuals against abuse by the government. It has roots in
early English laws enacted in response to particular abuses,
but it was not intended to protect against only those abuses.
As the Supreme Court explained in Weems, for the principle
underlying the Amendment “to be vital,” it “must be capable
of wider application than the mischief which gave it birth.”
Weems,

217 US at 373

. Thus, the Amendment is “progressive,
and is not fastened to the obsolete but may acquire meaning
as public opinion becomes enlightened by a humane justice.”

Id. at 378

.
          “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” Trop,

356 US at 100

 (plurality opinion). “While the State has the
power to punish, the Amendment stands to assure that
this power be exercised within the limits of civilized standards.”

Id.

 Because those standards change, the scope of the
Amendment’s protection is “not static.”

Id. at 100-01

. Rather,
“[t]he Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing
society.”

Id. at 101

; accord Atkins,

536 US at 311

-12 (quoting
Trop,

356 US at 100

 (plurality opinion)); see also Estelle v.
Gamble,

429 US 97, 102

97 S Ct 285

50 L Ed 2d 251

 (1976)
(“The Amendment embodies broad and idealistic concepts
of dignity, civilized standards, humanity, and decency * * *
against which [the Court] must evaluate penal measures.”
(Internal quotation marks and citations omitted.)).
         Consequently, whether a punishment is excessive is
“determined not by the standards that prevailed when the
Eighth Amendment was adopted in 1791 but by the norms
that ‘currently prevail.’ ” Kennedy v. Louisiana,

554 US 407, 419

128 S Ct 2641

171 L Ed 2d 525

 (2008) (quoting Atkins,

536 US at 311

); see also Roper,

543 US at 561

 (stating that
the Court has “established the propriety and affirmed the
necessity of referring to ‘the evolving standards of decency
Cite as

368 Or 598

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that mark the progress of maturing society’ to determine
which punishments are so disproportionate as to be cruel
and unusual” (quoting Trop,

356 US at 100-01

 (plurality
opinion)).
         Courts play a critical role in protecting against disproportionate punishments. Generally, legislatures determine the punishments that may be imposed for crimes, and
courts defer to those determinations. But the fact that a
punishment is authorized by a legislature does not mean
that the punishment comports with current standards of
decency as required by the Eighth Amendment, and courts
have an obligation to ensure that punishments do not violate that requirement. As Justice Stewart stated,
   “[a]lthough legislative measures adopted by the people’s
   chosen representatives provide one important means
   of ascertaining contemporary values, it is evident that
   legislative judgments alone cannot be determinative of
   Eighth Amendment standards since that Amendment was
   intended to safeguard individuals from the abuse of legislative power.”
Gregg v. Georgia,

428 US 153

, 174 n 19,

96 S Ct 2909

49 L Ed 2d 859

 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)
(citing Weems,

217 US at 371-73

); see also State v. Santiago,
318 Conn 1, 135, 122 A3d 1 (2015) (“When an appellate court
is asked to pass on the constitutionality of a mode of punishment, it is, almost invariably, after a defendant has been
found guilty of a crime and sentenced in accordance with a
duly enacted penal statute. If the fact that an elected legislature had authorized and enacted the punishment in question were enough to insulate it from judicial scrutiny, then
the freedom from cruel and unusual punishment would be
a hollow one.”).
         The Supreme Court has held in a number of cases
that a sentence violated the Eighth Amendment because it
was disproportionate to the defendant’s crime, even though
the sentence was authorized by statute. For example, in
Solem v. Helm,

463 US 277, 303

103 S Ct 3001

77 L Ed 2d 637

 (1983), the Court held that the imposition of a sentence of
life without parole, pursuant a recidivist statute, was unconstitutional for the defendant’s seventh nonviolent felony,
616                                            State v. Bartol

passing a worthless check. See also Graham v. Florida,

50 US 48, 82

130 S Ct 2011

176 L Ed 2d 825

 (2010) (holding
that the Eighth Amendment bars sentences of life without
parole for nonhomicide offenses committed by juveniles).
Of particular relevance to this case, the Court has held in
several cases that death is a disproportionate punishment
for certain crimes and offenders. E.g., Kennedy,

554 US at 437-38

 (holding that the death penalty is a disproportionate
punishment for nonhomicide crimes against individuals);
Roper,

543 US at 575

 (same for crimes committed by juveniles); Atkins,

536 US at 321

 (same for crimes committed
by intellectually disabled defendants); Enmund v. Florida,

458 US 782, 797-801

102 S Ct 3368

73 L Ed 2d 1140

 (1982)
(same for felony murder, if the defendant did not take or
attempt to take a life, or intend that lethal force would be
employed).
         When determining whether a sentence is a disproportionate punishment for a crime, the Supreme Court’s
task is to determine whether the sentence comports with
contemporary standards of decency. To do so, the Court considers a variety of factors, including how many jurisdictions
authorize the sentence for the crime at issue, how frequently
the sentence is actually imposed and carried out for the
crime, whether the gravity of the crime corresponds to the
severity of the sentence, whether the severity of the sentence
corresponds to that of sentences imposed for other crimes,
and whether the severity of the sentence is justified by legitimate penological purposes. E.g., Kennedy,

554 US at 422-47

(applying that approach); Enmund,

458 US at 789-801

 (same);
Coker v. Georgia,

433 US 584, 593-600

97 S Ct 2861

53 L Ed 2d 982

 (1977) (plurality opinion) (same).
      2. Overview of Article I, section 16
         Article I, section 16, is similar to the Eighth
Amendment, but it includes an express proportionality requirement. It provides, “Excessive bail shall not be
required. Excessive fines shall not be imposed. Cruel and
unusual punishments shall not be inflicted. All penalties
shall be proportioned to the nature of the offense.”
        When construing Article I, section 16, this court
has built on federal precedent and, like the Supreme Court,
Cite as

368 Or 598

 (2021)                                     617

has held that whether a sentence is a disproportionate punishment depends on current societal standards. In Sustar
v. County Court for Marion County,

101 Or 657, 665

201 P 445

 (1921), this court announced a standard for determining whether a punishment is disproportionate to an offense,
stating:
   “In order to justify the court in declaring punishment cruel
   and unusual with refence to its duration, the punishment
   must be so proportioned to the offense committed as to
   shock the moral sense of all reasonable men as to what is
   right and proper under the circumstances[.]”
The court cited the Supreme Court’s decision in Weems as
the source of that standard.

Id.

 In Weems, the Court concluded that the Eighth Amendment was intended to prohibit punishments that “would shock the sensibilities of
men,” 217 US at 375—a conclusion that points to societal
standards as the basis for a determination that a punishment violates that Amendment. But, in Weems, the Court
had more to say about the Eighth Amendment’s reliance
on societal standards: It also held that the Amendment is
“progressive, and is not fastened to the obsolete, but may
acquire meaning as public opinion becomes enlightened by
a humane justice.” Id. at 378. Thus, when this court adopted
the Weems standard for purposes of the proportionality
requirement of Article I, section 16, in Sustar, it adopted
a standard that looks to evolving societal standards when
determining whether a sentence violates the proportionality requirement. See Rogers,

313 Or at 380

 (stating that, in
Sustar, this court cited Weems “for the Eighth Amendment
standard and adopt[ed] that standard for the purposes of
Article I, section 16”).
        In State v. Wheeler,

343 Or 652

175 P3d 438

 (2007),
this court noted that, although it had interpreted Article I,
section 16, in a number of cases, it had not yet “reviewed
in any detail the origins of the proportionality requirement
in an effort to determine what the framers of the Oregon
Constitution were concerned about, and therefore intended,
when they adopted” the provision,

id. at 656-57

, and it
took the opportunity to conduct that review,

id. at 657-67

.
The court began with the text of Article I, section 16, and
concluded that the text evidenced an intent to require a
618                                                 State v. Bartol

“comparative relationship” between punishments and the
offenses for which they are imposed:
   “The term ‘proportion’ indicates a comparative relationship
   between at least two things. See, e.g., 2 Noah Webster, An
   American Dictionary of the English Language 45 (1828)
   (<proportion> indicates a <comparative relation>). Here,
   the two things being related are <penalties> and <the
   offense>, and the provision requires that the penalties
   for each particular offense be <proportioned>—that is,
   comparatively related—to that offense. The strong implication of that requirement is that a greater or more severe penalty should be imposed for a greater or more severe offense,
   and, conversely, that a less severe penalty should be imposed
   for a less severe offense.”

Id. at 655-56

 (emphasis added). The court then examined
the history of the requirement, tracing its roots to early
English laws and reviewing William Blackstone’s views on
the necessity of proportionality in sentencing, noting that
those sources had informed the efforts of the drafters of early
American state constitutions.

Id. at 656-67

. Blackstone, the
court recounted, had “maintained that punishment should
be proportional to the offense in question and to the social
aims of criminal punishment generally. ‘The method * * *
of inflicting punishment ought always to be proportioned
to the particular purpose it is meant to serve, and by no
means exceed it[.]’ ”

Id.

 at 658 (quoting 4 William Blackstone,
Commentaries on the Laws of England 12 (1769) (ellipsis and
brackets in Wheeler)). And the court quoted Blackstone’s
observation that
   “[i]t has been therefore ingeniously proposed, that in every
   state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to
   the least; but, if that be too romantic an idea, yet at least
   a wise legislator will mark the principal divisions, and not
   assign penalties of the first degree to offenses of an inferior
   rank.”

Id.

 at 662 (quoting 4 Blackstone, Commentaries at 18 (emphasis added)).
        After reviewing proportionality requirements in
early state constitutions and noting that the records of
the Oregon Constitutional Convention do not reveal any
Cite as

368 Or 598

 (2021)                                     619

discussions of Article I, section 16, the court concluded that
Article I, section 16, was based on the same concerns that
“had led Blackstone and later the framers of state constitutions * * * to emphasize the need for proportionality in
sentencing.” Id. at 667. “At the most basic level,” the court
summarized, “the framers’ concern was that the penalty
imposed on a criminal defendant be ‘proportioned’ to the
specific offense for which the defendant was convicted—that
it bear the appropriate ‘comparative relation’ to the severity
of that crime.” Id.
       Regarding the test for determining whether a
punishment violates Article I, section 16’s proportionality
requirement, the court in Wheeler looked to Sustar, in
which—as quoted above—the court had stated:
   “In order to justify the court in declaring punishment cruel
   and unusual with reference to its duration, the punishment must be so proportioned to the offense committed as
   to shock the moral sense of all reasonable men as to what
   is right and proper under the circumstances.”
Wheeler,

343 Or at 668

 (quoting Sustar,

101 Or at 665

);
see also

id.

 (noting that the court had “used the ‘shock the
moral sense’ standard” in subsequent cases). The court then
refined that test, explaining that it did not think that, in
Sustar, the court had
   “intended the test literally—that is, that a penalty for a
   particular crime would meet the proportionality requirement if a single ‘reasonable person’ could be found whose
   moral sense was not ‘shocked’ by that penalty. Rather, we
   read the court’s words as attempting to articulate a standard that would find a penalty to be disproportionately
   severe for a particular offense only in rare circumstances.”

343 Or at 670

. The court also noted that, when it had applied
the test in some cases, it had “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.”

Id. at 670-71

. In other words, it had looked to legislative
enactments as indicators of current societal standards.
         In Wheeler this court emphasized that it is the
legislature’s role to establish the penalties for violations of
620                                               State v. Bartol

criminal statutes, and that the court’s role is only to determine whether those penalties exceed constitutional limits.

Id. at 671-72

. Later, in State v. Rodriguez/Buck,

347 Or 46, 58

217 P3d 659

 (2009), the court reiterated that point, stating that the legislature plays “the central role” in establishing penalties for crimes and that “[i]t is not the role of this
court to second-guess the legislature’s determination of the
penalty or range of penalties for a crime.” “However,” the
court continued,
   “it is the role of the court to ensure that sentences conform
   to requirements that have been in our constitution for 150
   years. And, when we conclude that, because of its length,
   a sentence is inconsistent with Article I, section 16, as we
   have on at least three occasions, we should hold that sentence unconstitutional.”

Id.

 (citing State v. Shumway,

291 Or 153

630 P2d 796

 (1981);
Cannon v. Gladden,

203 Or 629

281 P2d 233

 (1955); State
v. Ross,

55 Or 450

104 P 596

, modified on reh’g,

55 Or 474

106 P 1022

 (1910), appeal dismissed,

227 US 150

33 S Ct 220

57 L Ed 458

 (1913)). Thus, this court must give effect
to the proportionality requirement of Article I, section 16,
which “is not merely aspirational, but was intended to protect Oregon’s citizens against penalties that are disproportionate to their offenses.” Id. at 80.
         This court has fulfilled its role under Article I,
section 16, on more than one occasion, reversing sentences
that it deemed to be disproportionate to the defendants’
crimes, even though the sentences were authorized by statute. For example, in Rodriguez/Buck, which involved two
cases that had been consolidated for review, this court
affirmed the trial courts’ conclusions that the statutorily
mandated 75-month sentence for first-degree sexual abuse
was disproportionate to the defendants’ crimes where
(1) the defendants’ conduct involved limited physical touching over clothed body parts; (2) the conduct was far less
severe than other conduct that fell within the broad definition of first-degree sexual abuse and was punishable by
the same sentence; (3) the conduct was also less severe than
conduct covered by the second-degree sexual abuse statute
that was punishable by a far shorter sentence; and (4) the
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defendants had no prior convictions.

347 Or at 67-80

.8 And,
in State v. Davidson,

360 Or 370, 391

380 P3d 963

 (2016),
this court held that a life sentence imposed pursuant to a
recidivist statute was disproportionate to the defendant’s
crime, public indecency, where the defendant’s criminal history “include[d] no offenses more serious than public indecency (and no other misconduct that otherwise support[ed]
a conclusion that he pose[d] a significant physical danger to
society).”
          To summarize, Article I, section 16, expressly prohibits disproportionate punishments. It embodies “the basic
proportionality concept” that “more serious crimes should
receive more severe sentences than less serious crimes
and vice versa.” Rodriguez/Buck,

347 Or at 61

. Or, to echo
Blackstone, “penalties of the first degree” should not be
assigned to “offenses of an inferior rank.” 4 Blackstone,
Commentaries at 18, quoted in Wheeler,

343 Or at 662

.
Like the Eighth Amendment’s proportionality requirement,
Article I, section 16’s proportionality requirement must be
interpreted based on current societal standards. It is not
static; it evolves as societal standards change. When determining whether a punishment is disproportionate, courts
apply the standards that currently prevail. And finally,
while it is the role of the legislature to establish penalties for criminal statutory violations, it is the role of the
courts to give effect to the constitutional proportionality
requirement—by setting aside punishments that, under
prevailing societal standards, are disproportionate to the
offenses for which they are imposed.
     3. Special proportionality requirements for the death
        penalty
         The basic proportionality concept that the gravity
of an offense should correspond to the severity of the punishment gives rise to special rules for the death penalty. As
we will explain, the Supreme Court has so held for the purposes of the Eighth Amendment, and we do so here for the
purposes of Article I, section 16.

    8
      The sentencing statute at issue in Rodriguez/Buck had been enacted by the
voters, exercising their legislative authority.

347 Or at 79

.
622                                               State v. Bartol

          The death penalty is the most severe punishment,
and it differs in kind from all other punishments. It is
“unique in its severity and its irrevocability.” Gregg,

428 US at 187

 (opinion of Stewart, Powell, and Stevens, JJ.). “Death
is today an unusually severe punishment, unusual in its
pain, in its finality, and in its enormity. No other existing
punishment is comparable to death in terms of physical and
mental suffering.” Furman v. Georgia,

408 US 238, 287

92 S Ct 2726

33 L Ed 2d 346

 (1972) (Brennan, J., concurring).
“The unusual severity of death is manifested most clearly
in its finality and enormity. Death, in these respects, is in a
class by itself.”

Id. at 289

. It is “qualitatively different from a
sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year
prison term differs from one of only a year or two.” Woodson
v. North Carolina,

428 US 280, 305

96 S Ct 2978

49 L Ed 2d 944

 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)

         Because death is the most severe punishment,
it must be reserved for the most serious offenses. As the
Supreme Court has held, the death penalty “must be limited to those offenders who commit ‘a narrow category of the
most serious crimes’ and whose extreme culpability makes
them ‘the most deserving of execution.’ ” Roper,

543 US at 568

 (quoting Atkins,

536 US at 319

). “The rule of evolving
standards of decency with specific marks on the way to
full progress and mature judgment means that resort to
the penalty must be reserved for the worst of crimes and
limited in its instances of application.” Kennedy,

554 US at 446-47

. That is, it must be reserved “for those crimes that
are so grievous an affront to humanity that the only adequate response may be the penalty of death.”

Id. at 437

(internal quotation marks omitted).

         Relatedly, because the death penalty must be
reserved for the most serious crimes, death-eligibility factors
must provide a “fundamental, moral distinction” between a
crime that is serious enough to deserve the death penalty
and one that is not.

Id. at 438

. A factor justifying imposition
of the death penalty must both “genuinely narrow the class
of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the
Cite as

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 (2021)                               623

defendant compared to others found guilty of murder.” See
Zant,

462 US at 877

 (so holding when evaluating whether
statutory aggravating circumstances sufficiently circumscribe the class of persons eligible for the death penalty).
         We agree with the Supreme Court that the death
penalty must be reserved for the “worst of crimes,” Kennedy,

554 US at 446-47

, and that there must be a “fundamental,
moral distinction” between crimes that are punishable by
death and those that are not,

id. at 438

. Those requirements are consistent with Article I, section 16’s proportionality requirement that the most severe punishments should
be reserved for the most serious crimes, and we now apply
them in our Article I, section 16, analysis of defendant’s
death sentence.
4. The effect of SB 1013 on defendant’s death sentence
As recounted above, through the enactment of
SB 1013, the legislature chose to narrow the definition of
“aggravated murder” so that it would be limited to conduct
that the legislature regarded as the “worst of the worst.”
In hearings on SB 1013, proponents and opponents of the
bill alike explained that the bill asked legislators to make
an assessment regarding the relative gravity of the conduct
that was classified as “aggravated murder” at the time.
Specifically, they explained that the bill asked legislators
to determine that that conduct was not the “worst of the
worst” and to reclassify it as “murder in the first degree,”
the maximum sentence for which would be life in prison
without parole. The legislators who carried the bill in each
chamber of the legislature did the same. Senator Prozanski
told the Senate that “aggravated murder must be reserved
for those that are known as the worst of the worst” and that
SB 1013 would do that. Video Recording, Senate, SB 1013,
May 21, 2019, at 38:00 (statement of Sen Floyd Prozanski).
Likewise, Representative Williamson told the House that SB
1013 would reserve the death penalty for “the worst of the
worst.” Video Recording, House, SB 1013, June 19, 2019, at
3:07 (statement of Rep Jennifer Williamson). With the issue
clearly presented, the legislature passed SB 1013. Thus, the
enactment of the bill reflects a legislative determination
that the conduct that was classified as “aggravated murder”
624 State v. Bartol

before the enactment of SB 1013 does not fall within the
narrow category of conduct for which the death penalty can
be imposed.
Importantly, the legislature made that determination with respect to conduct committed both before and after
the effective date of SB 1013. That is evidenced by the fact
that the legislature provided that SB 1013 applies to “crimes
committed before, on or after [its effective date] * * * that are
the subject of sentencing proceedings that occur on or after”
that date. Or Laws 2019, ch 635, § 30. That provision shows
that the legislature did not regard conduct committed before
the effective date as more culpable than conduct committed
after it.
Under SB 1013, whether a person who committed
conduct that was previously classified as “aggravated murder” but is now classified as “murder in the first degree” can
be sentenced to death depends on the person’s sentencing
date, not on the relative gravity of the conduct. To illustrate:
If two persons jointly engaged in conduct that was previously classified as “aggravated murder” but is now classified
as “murder in the first degree,” and the first person was sentenced before SB 1013’s effective date but the second person was sentenced after that date, the first person could be
sentenced to death, but the second person could not. As that
hypothetical illustrates, SB 1013 creates a proportionality
problem: It allows the execution of persons whose conduct
the legislature has determined is not the worst of the worst
and whose culpability is no different from those who cannot
be executed. Under SB 1013, persons who engage in exactly
the same conduct, at exactly the same time, can receive
uniquely different sentences: one cannot be executed, but
the other one can, even though the legislature has determined that the conduct is not the type for which death sentences can be imposed.
Here, defendant was sentenced to death before the
effective date of SB 1013, so that legislation does not directly
apply to his sentence. But our task is not to determine the
application of SB 1013 to defendant’s sentence—instead, we
must evaluate the constitutionality of his sentence under
Article I, section 16, in light of current societal standards.
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Legislative enactments are strong indicators of those standards, and the enactment of SB 1013 shows that the legislature has determined that, regardless of when it was committed, conduct that was previously classified as “aggravated
murder” but is now classified as “murder in the first degree”
does not fall within the narrow category of crimes for which
the death penalty can be imposed. Importantly, that moral
judgment stands apart from the question of retroactivity.
Although the legislature did not make SB 1013 retroactive
as to sentences imposed before its effective date, the enactment of the bill itself reflects a judgment that conduct that
was previously classified as “aggravated murder” does not
fall within the narrow category of conduct that can be punished by death, as opposed to lesser sentences, including
life imprisonment. Consequently, maintaining defendant’s
death sentence in this case would violate two special proportionality requirements that, under Article I, section 16,
apply to the death penalty: the requirement that the death
penalty “be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme
culpability makes them ‘the most deserving of execution,’ ”
Roper,

543 US at 568

 (quoting Atkins,

536 US at 319

), and
the requirement that there be “a fundamental, moral distinction” between crimes that are punishable by death and
those that are not, Kennedy,

554 US at 438

. Maintaining
his death sentence would allow the execution of a person
for conduct that the legislature has determined no longer
justifies that unique and ultimate punishment, and it would
allow the execution of a person for conduct that the legislature has determined is no more culpable than conduct that
should not result in death. Therefore, in light of the legislature’s enactment of SB 1013, we conclude that defendant’s
sentence violates Article I, section 16.9
9
We emphasize that our decision in this case is based on special proportionality rules that apply to the death penalty, which are the result of the unique differences between the death penalty and all other punishments, discussed above.
368 Or at 621-23.
In addition, we note that our conclusion is consistent with how others have
responded to similar changes in the law. As the historical information submitted
by defendant and OCRC shows, whenever a state’s laws have changed so that
persons with existing death sentences would not be eligible for the death penalty
if they were sentenced under the new law, those persons have not been executed.
As defendant and OCRC summarize:
626 State v. Bartol

The judgment of conviction is affirmed. The sentence of death is vacated, and the case is remanded to the
circuit court for resentencing.

“When the death penalty was thrice eliminated here in Oregon—in 1914
and 1964 by constitutional amendment and in 1981 by this Court’s decision
in State v. Quinn,

290 Or 383

623 P2d 630

 (1981)—all outstanding death
  sentences were vacated. And the same result appears in other states: every
  state that has enacted legislation prospectively abolishing the death penalty
  has nevertheless overturned all remaining death sentences. Likewise, when
  states have exempted certain defendants from execution but otherwise left
  the death penalty in place, courts have overturned the death sentences of
  condemned prisoners who would otherwise have fit within the exemption,
  but for the date of their crimes. This has been the outcome even where the
  legislature clearly and expressly intended that its repeal not reach existing
  death sentences.”

Citation profile

How this case has been treated — in progress